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SPECIAL PROCEEDINGS

COURSE OUTLINE 2018


Justice Magdangal M. de Leon

 Distinction between civil action and special proceedings

 Nature of special proceedings – initially non-adversarial

GENERAL PROVISION (Rule 72)

Subject matter and applicability


of general rules

Sec. 1. Subject matter of special proceedings.

1. Rules 73-75
2. Rules 76-81 Settlement of Estate of Deceased Persons
3. Rules 82-86
4. Rules 87-90
5. Rule 91 Escheat
6. A.M. No. 03-02-05-SC Guardianship of Minors
(May 1, 2003)
7. Rules 92-97 Guardianship of Incompetents
8. Rule 98 Trustees
9. A.M. No. 02-06-02-SC Adoption and Custody of Minors
(August 22, 2002)
10. Rule 101 Hospitalization of Insane Persons
11. Rule 102 Habeas Corpus
12. Rule 103 Change of Name
13. Rule 104 Voluntary Dissolution of Corporations (Deemed repealed
by
the Corporation Code, Title XIV, Secs. 117-122)
14. Rule 105 Judicial Approval of Voluntary Recognition of Minor Natural
Children
15. Rule 106 Constitution of Family Home (Deemed repealed by the
Family Code, Arts. 252-253)
16. Rule 107 Absentees
17. Rule 108 Cancellation or Correction of Entries
18. Rule 109 Appeals in Special Proceedings

 Special Proceedings Under Various Laws

1. Summary proceedings under the Family Code

2. Actions mentioned in the Family Courts Act of 1997 (RA 8369)


- declaration of absolute nullity of void marriages and annulment of voidable marriages
- legal separation
- provisional orders on support, custody of minor children and administration of common
property
- violence against women and their children and protection orders

3. Proceedings under: Child & Youth Welfare Code (PD 1083)


Child Abuse Act (RA 7610)
Child Employment Act (RA 7658)
- declaration of status as abandoned, dependent or neglected children
- voluntary or involuntary commitment of children
- suspension, termination or restoration of parental authority

4. Domestic and Inter-country adoption ( )


5. Petition for corporate rehabilitation
6. Petition for writ of amparo
7. Petition for writ of habeas data
8. Arbitration (RA 876, Secs. 22-23)
9. Recognition and enforcement of an arbitral award (RA 9285: The Alternate
Dispute and Resolution Law [ADR])

Rules in civil actions applicable to special proceedings

Applicability of rules of civil actions - Sec. 2


Sheker vs. Estate of Alice Sheker, G.R. No. 157912, December 13, 2007
SETTLEMENT OF ESTATE OF DECEASED PERSONS
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When rights to succession transmitted – Art. 777, Civil Code


. Bunyi versus Factor. G.R. No. 172547, June 30, 2009

While the settlement of the estate is null and void, the subsequent sale of the subject properties made
by Enrique and his children, Napoleon, Alicia and Visminda, in favor of the respondents is valid but only
with respect to their proportionate shares therein.It cannot be denied that these heirs have acquired
their respective shares in the properties of Anunciacion from the moment of her death and that, as
owners thereof, they can very well sell their undivided share in the estate.
Neri vs. Heirs of Uy, G.R. No. 194366, October 10, 2012

Kinds of settlement based on the FORM of settlement:

1. Extrajudicial settlement (Rule 74, Sec. 1)


2. Summary settlement of estates of small value (Rule 74, Sec. 2)
3. Judicial settlement through letters testamentary or letters of administration with or without the
will annexed (Rules 73, 75-90)

Venue and Process (Rule 73)

Where estate of deceased persons settled.- Sec. 1.


How is jurisdiction determined – residence of decedent at time of death

The determination of which court exercises jurisdiction over matters of probate depends upon the
GROSS VALUE of the estate of the decedent. Rule 73, Sec. 1 is deemed amended by BP 129, as
amended by RA 7691. Hence, the court may be the MTC or RTC.
Lim vs. CA, G.R. No. 124715, January 24, 2000, 323 SCRA 102

Sec. 1, Rule 73 prescribing court where decedent’s estate shall be settled – (a) place of residence or
(b) where his estate is located, actually relates to VENUE and not jurisdiction.

Meaning of residence
San Luis vs. San Luis, G.R. No. 133743, February 6, 2007
.
Where two proceedings filed, one intestate, the other testate – illustrative cases on which courts
should have “jurisdiction.”:

Roberts vs. Leonidas , G.R. No. L-55509 April 27, 1984,129 SCRA 33
Uriarte vs. CFI of Negros Occ., G.R. Nos. L-21938-39, May 29, 1970, 33 SCRA 252
Cuenco vs. CA, G.R. No. L-24742 October 26, 1973, 53 SCRA 360

Is a judicial administration proceeding necessary when deceased dies intestate without leaving any
debts?
Pereira vs CA, G.R. No. L-81147 June 20, 1989

Where estate settled upon dissolution of marriage - Sec. 2


Alipio vs. CA, 341 SCRA 441 [2000])

Power of probate court to issue warrants and process – Sec. 3

Presumption of death – Sec. 4

Presumption of death under the Civil Code (Arts. 390-391)


10 years, 5 years, 4 years

No independent action for a declaration of presumptive death is allowed.


Exception - Need for declaration of presumptive death for purposes of remarriage
(Article 41 of the Family Code)

Extent of jurisdiction of probate court

1. Probate court can only pass upon questions of title provisionally for the purpose of determining
whether a certain property should or should not be included in the inventory -- separate action to
determine title necessary.
Pobre vs. Gonong, G.R. No. L-60575 March 16, 1987

Exception: Where interested parties are all heirs and rights of third parties are not impaired.
Coca vs. Pangilinan, G.R. No. L-27082, January 31, 1978, 81 SCRA 278 .

2. However, probate court has jurisdiction to (a) determine heirs (separate action for declaration of
heirs not proper) and (b) distribute estate.
Solivio vs. CA, G.R. No. 83484 February 12, 1990, 182 SCRA 119

Summary settlement of estates (Rule 74)


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Extrajudicial settlement by agreement between heirs – Sec. 1

Requisites of extrajudicial settlement


If heirs disagree – ordinary action for partition.

If only one heir – affidavit of self-adjudication.


Since Josefa Delgado had heirs other than Guillermo Rustia, Guillermo could not have validly
adjudicated Josefa’s estate all to himself.
In the Matter of the Intestate Estate of Delgado, G.R. No. 155733, January 27, 2006

Lack of registration of extrajudicial settlement does not affect its validity when there are no creditors
or rights of creditors are not involved.
Vda. de Reyes vs. CA, 199 SCRA 646 (1991).

When bond required – when settlement includes personal property


Bond to be filed by distributees – Sec. 3

Liability of distributees and estate – Sec. 4

Action to annul deed of extrajudicial settlement – two year prescriptive period applies to persons who
have participated or taken part or had notice of the extrajudicial partition
Pedrosa vs. CA, G.R. No. 118680, March 5, 2001, 353 SCRA 620

Persons who did not participate or had no notice of an extrajudicial settlement will not be bound
thereby. Publication of the settlement does not constitute constructive notice to the heirs who had no
knowledge or did not take part in it because the same was notice after the fact of execution
Cua vs. Vargas, G.R. No. 156536, October 31, 2006

Remedy of an heir who did not participate in, or had no knowledge of, the extrajudicial partition --
file an action for reconveyance. Prescriptive period for non-participants – 10 years, because an action
for reconveyance based on implied or constructive trust, being an obligation created by law, prescribes
in 10 years (Art. 1144, par. 2, Civil Code)
Teves vs. Court of Appeals, G.R. No. 109963 October 13, 1999

The period starts from issuance of title over the property. Constructive trusts under Art. 1456 are
established to prevent unjust enrichment.

In the execution of the Extra-Judicial Settlement of the Estate with Absolute Deed of Sale in favor of
spouses Uy, all the heirs of Anunciacion should have participated. Considering that Eutropia and Victoria
were admittedly excluded and that then minors Rosa and Douglas were not properly represented
therein, the settlement was not valid and binding upon them and consequently, a total nullity
On the issue of prescription, the Court agrees with petitioners that the present action has not
prescribed in so far as it seeks to annul the extrajudicial settlement of the estate. The
prescriptive period of 2 years provided in Section 1 Rule 74 of the Rules of Court reckoned from the
execution of the extrajudicial settlement finds no application to petitioners who were deprived of their
lawful participation in the subject estate. Besides, an "action or defense for the declaration of the
inexistence of a contract does not prescribe" in accordance with Article 1410 of the Civil Code. (Neri vs.
Heirs of Uy, G.R. No. 194366, October 10, 2012; Bautista vs. Bautista, G.R. No. 160556, August 3,
2007)

In actions for reconveyance of the property predicated on the fact that the conveyance
complained of was null and void ab initio, a claim of prescription of action would be
unavailing.The action or defense for the declaration of the inexistence of a contract does not
prescribe. (Ingjug-Tiro vs. Casals, G.R. No. 134718, August 20, 2001; Dumaliang vs. Serban, G.R. NO.
155133, February 21, 2007; Macababbad vs. Masirag, G.R. No. 161237, January 14, 2009)

Exception to prescription of actions – when plaintiff, the legal owner, and not the defendant
registered owner, is in possession of the land to be reconveyed. Said action, when based on fraud, is
imprescriptible as long as the land has not passed to an innocent purchaser for value
Heirs of Saludares vs. CA, G.R. No. 128254, January 16, 2004, 420 SCRA 54).

Remedy of excluded heir when land has passed to an innocent purchaser for value
PEZA vs. Fernandez, G.R. No. 138971, June 6, 2001

Summary settlement of estates of small value - Sec. 2

Characteristics of summary settlement

Compared to extrajudicial settlement

Production of will,
Allowance of will necessary (Rule 75)
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1. Allowance of will conclusive as to its due execution – Sec. 1


What is a will? (Art.783, Civil Code)
Nittscher vs. Nittscher, G.R. No. 160530, November 20, 2007
2. Probate of will (special proceeding to establish the validity of a will) is MANDATORY
a. The law enjoins probate of the will and public policy requires it. Unless will is probated and
notice given to the whole world, right of a person to dispose of his property by will may be
rendered nugatory
Maninang vs. CA, 114 SCRA 478 [1982]).

The Deed of Donation which is one of mortis causa, not having followed the formalities of
a will, is void and transmitted no right to petitioners’ mother. But even assuming that the
formalities were observed, since it was not probated, no right to Lot Nos. 674 and 676 was
transmitted to Maria.
Aluad vs. Aluad, G.R. No. 176943, October 17, 2008

b. In testate succession, no valid partition among heirs until after will has been probated
Ralla vs. Judge Untalan, 172 SCRA 858 [1989].

c. Presentation of will cannot be dispensed with on the ground of ESTOPPEL because


public policy requires that a will should be probated
Fernandez vs. Dimaguiba, 21 SCRA 428 [1967]

d. Decree of probate conclusive as to its due execution


Solano vs. Court of Appeals, 126 SCRA 122 (1983)

GENERAL RULE: Probate court’s authority is limited only to extrinsic validity of the will, i.e.:

a. due execution – voluntariness


b. testator’s testamentary capacity – sound mind
c. compliance with formal requisites or solemnities

1. Intrinsic validity of the will normally comes after court declares that will has been duly
authenticated.

2. Court at this stage of the proceedings is not called upon to rule on intrinsic validity or legality of
the provisions of the will
Nuguid vs. Nuguid, 17 SCRA 449 [1966]

EXCEPTIONS:

1. In exceptional instances, courts not powerless to pass upon certain provisions of will which it may
declare invalid even as it upholds extrinsic validity of will.
Ajero vs. Ca, 236 SCRA 488 [1994]

2. For practical considerations. Probate court may disregard passing on extrinsic validity of will
where intrinsic validity apparent on face of will
Certiorari as a remedy from dismissal of the testate case.
Maninang vs. CA, 114 SCRA 478 [1982].

3. Probate of will might become idle ceremony if on its face it appears intrinsically void.

4. Will is intrinsically invalid if it completely preterited parents of the testator.


Nuguid vs. Nuguid, 17 SCRA 449 [1966]

a. Preterition – annuls institution of heirs


b. Disinheritance – annuls institution of heirs as to portion of estate which disinherited heirs
have been illegally deprived

Custodian of will to deliver – Sec. 2

Executor to present will and accept or refuse the trust - Sec. 3

Allowance or Disallowance of Will (Rule 76)

Who may petition for allowance of will – Sec. 1


 WHO

1. Executor
2. Legatee – need not be a relative of decedent
3. Devisee – need not be a relative of decedent
4. Other interested person - heir; creditor
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5. Testator – during his lifetime

 WHEN – at any time after death of testator – not subject to bar by statute of limitations
and does not prescribe, since it is required by public policy.

 WHERE – court having jurisdiction

 WHAT – petition to have will allowed whether:

a. will in possession of petitioner or not


b. will lost
c. will destroyed

JURISDICTION HOW ACQUIRED

a. Court acquires jurisdiction upon filing of original petition and compliance with Secs. 3 and
4.
b. Attaching of mere copy of will sufficient – annexing of original of will to the petition is not
jurisdictional requirement.
c. Delivery of will sufficient even if no petition filed – under Sec. 3, “when a will is
delivered to the court,” court could motu proprio take steps to fix time and place for
proving the will and issue corresponding notices.

Contents of petition – Sec. 2


1. Jurisdictional facts:
a. that a person has died leaving a will; and
b. the testator at the time of death is a resident within the territorial jurisdiction of the court;
or
c. the testator is a non-resident at the time of death but left property within the territorial
jurisdiction of the court
2. names, ages and residences of the heirs, legatees and devisees of the testator or decedent
3. probable value and character of the property of the estate
4. name of the person for whom letters are prayed
5. if the will has not been delivered to the court, the name of the person having custody thereof

Court to appoint time for proving the will. Notice thereof to be published.- Sec. 3.

Notice and Hearing; Publication

1. After will delivered to, or petition for allowance of will filed in court having jurisdiction, court –

a. shall fix time and place for proving will – when all concerned may appear to contest
allowance thereof.
b. cause notice of such time and place to be PUBLISHED 3 weeks successively in newspaper of
general circulation in the province.

2. NO NEWSPAPER PUBLICATION – where petition for probate filed by TESTATOR himself.

Probate of Will is In Rem

 Notice by publication as prerequisite to allowance of will is CONSTRUCTIVE NOTICE to the


whole world.

 When probate is granted, the judgment is binding upon everybody, even against the
state.

Probate JURISDICTIONAL

Without publication of petition, proceedings for settlement of estate is VOID and should be
ANNULLED.

Heirs, devisees, legatees, and executors to be notified by mail or personally – Sec. 4


Alaban vs. CA, G.R. No. 156021, September 23, 2005

Proof of hearing. What sufficient in absence of contest - Sec. 5.

Subscribing witnesses produced or accounted for where will contested – Sec. 11

Proof when testator petitions for allowance of will – Sec. 12

 EVIDENCE INTRODUCED AT PROBATE OF WILL


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1. Publication

2. Notice of hearing served on known heirs, legatees, devisees, etc. if places of residence
known

3. Testimony of subscribing witnesses


a. Uncontested – one witness sufficient
b. Contested – all subscribing witnesses and
notary (wills executed under Civil Code)
other witnesses (under certain conditions)

4. Holographic will
a. Uncontested – at least one witness who knows handwriting and signature of testator; expert
testimony (in the absence of competent witness)
b. Contested – at least 3 witnesses who know handwriting of testator; expert testimony (in the
absence of competent witness)

5. Holographic will – testator himself as petitioner


a. Contested – contestant has burden of disproving genuineness and due execution
b. Uncontested – testator must affirm that will and signature are in his own handwriting

Grounds for disallowing will – Sec. 9

1. Legal formalities
a. not executed and attested as required by law

2. Testamentary capacity
b. testator insane or otherwise mentally incapable to make will at time of execution

3. Due execution
c. executed under duress, or the influence of fear, or threats
d. procured by undue and improper pressure and influence on the part of the beneficiary, or
some other person, for his benefit.
e. signature of testator procured by fraud or trick and he did not intend that the instrument be
his will at time of fixing his signature
f. testator acted by mistake or did not intend that instrument be signed or should be his will at
the time of affixing his signature (Art. 389, Civil Code)

 Grounds for Disallowance of Will Exclusive

Lists in Sec. 9, Rule 76 and Art. 389 are EXCLUSIVE – NO OTHER GROUND can serve to disallow a will.

If testator fails to sign and date some dispositions in holographic will, it affects only the validity of the
dispositions, but not the whole will. Exc. If unauthenticated alterations, cancellations or insertions are
made on the DATE of will of on testator’s SIGNATURE.
Ajero vs. CA, 236 SCRA 488 [1994]

Separate wills may be probated jointly


Vda. de Perez vs. Tolete, 232 SCRA 722 [1994]

REPROBATE OF WILL

Allowance of Will Proved Outside of Philippines


And Administration of Estate Thereunder (Rule 77)

Will proved outside of the Philippines may be allowed here - Sec. 1

Notice of hearing for allowance – Sec. 2

Evidence Necessary for Reprobate of Will or will probated outside the Philippines:

1. due execution of will in accordance with foreign laws


2. testator has domicile in foreign country and not Philippines
3. will has been admitted to probate in such country
4. fact that foreign court is a probate court
5. law of the foreign country on procedure and allowance of wills
Vda. de Perez vs. Tolete, 232 SCRA 722 [1994]

While foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to
take judicial notice of them; however, petitioner, as ancillary administrator of Audrey’s estate, was duty-
bound to introduce in evidence the pertinent law of the State of Maryland.
Ancheta vs. Guersey-Dalaygon, G.R. No. 139868, June 8, 2006
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Publication and notice required


Compliance with Secs. 3 and 4 of Rule 76, re publication and notice by mail or personally to known
heirs, legatees and devisees of testator resident in the Philippines and to executor, if he is not the
petitioner, required also in wills for reprobate.
Vda. de Perez vs. Tolete

Effect of Probate

When will allowed, and effect thereof – Sec. 3


When the will is allowed, it shall have the same effect as if originally proved and allowed in such
court

Estate, how administered – Sec. 4


The letters testamentary or of administration granted shall extend to all of the estate of the
testator in the Philippines. After payment of just debts and expenses of administration, the estate
shall be disposed of according to such will, so far as such will may operate upon it.

LETTERS TESTAMENTARY AND OF ADMINISTRATION

Letters Testamentary and of Administration,


When and to Whom Issued (Rule 78)

 LETTERS TESTAMENTARY – issued to executor

 LETTERS OF ADMINISTRATION WITH WILL ANNEXED – issued to administrator when there


is no executor named in will, or executor is incompetent, refuses trust or fails to give bond.

 LETTERS OF ADMINISTRATION – issued to administrator in intestate proceedings.

Who are incompetent to serve as executors or administrators - Sec. 1

Letters testamentary issued when will allowed – Sec. 4

 When administration granted

1. No executor named in will ) letters of administration


2. Executor/s (is/are): ) with will annexed
a. Incompetent
- Minor
- Non-resident
- Unfit
b. Refuse the trust
c. Fail to give bond
3. Person dies intestate ) letters of administration
4. Will void and not allowed )

Order of preference in appointment of administrator

When and to whom letters of administration granted – Sec. 6

1. surviving spouse – partner in conjugal partnership and heir of deceased


2. next of kin

* Meaning of next of kin


. Angeles vs. Maglaya, G.R. No. 153798, September 2, 2005

3. person requested by spouse or next of kin


5. principal creditors
a. if spouse or next of kin is incompetent or unwilling or
b. neglects for 30 days after death of decedent to apply for administration, or to request that
administration be granted to some other person

6. other person selected by court – if no creditor competent or willing

The order of preference in the appointment of a regular administrator as provided in the afore-quoted
provision does not apply to the selection of a special administrator.
Tan vs. Gedorio, Jr., G.R. No. 166520, March 14, 2008

Court may reject order of preference


While surviving spouse is entitled to preference in the appointment, circumstances might warrant
his rejection and appointment of someone else, at the discretion of the court.
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Interest in estate as principal consideration


In the appointment of an administrator, the principal consideration is the interest in the estate of the
one to be appointed.

Those who will reap benefit of a wise, speedy and economical administration or will suffer
consequences of waste, improvidence or mismanagement – have the HIGHEST INTEREST and MOST
INFLUENTIAL MOTIVE to administer estate correctly.
Gonzales vs. Aguinaldo, 190 SCRA 112 [1990].

Opposition to Issuance of Letters Testamentary.


Petition and Contest for Letters of Administration
(Rule 79)

Opposition to issuance of letters testamentary.


Simultaneous petition for administration - Sec. 1

Contents of petition for letters of administration – Sec. 2


Compare to Rule 76, Sec. 2

Court to set time for hearing. Notice thereof – Sec. 3


Publication and notice of hearing jurisdictional.

Also, notice to “known heirs and creditors of the decedent, and to any other person believed to have
an interest in the estate” (per Sec. 4, Rule 76) if names and addresses are known.
De Arranz vs. Galing, 161 SCRA 628).

Opposition to petition for administration – Sec. 4

Any person interested in a will may oppose in writing the issuance of letters testamentary to persons
named as executors, and at the same time file petition for letters of administration with will annexed.

Meaning of “interested person”


Sagunsin vs. Lindayag, 6 SCRA 874

The interest must be material and direct, and not merely indirect or contingent
San Luis vs. San Luis, G.R. No. 133743, February 6, 2007)

Contingent interest does not make one an interested party.


Tayag vs. Tayag-Gallor, G.R. No. 174680, March 24, 2008

Hearing and order for letters to issue – Sec. 5


When letters of administration granted to any applicant – Sec. 6

Special Administrator (Rule 80)

Appointment of special administrator – Sec. 1

1. When there is delay in granting letters testamentary or of administration by any cause


- including appeal from allowance or disallowance of will
2. court may appoint special administrator to take possession and charge of the estate of the
deceased
3. until
a. questions causing delay decided or
b. executors or administrators appointed

The principal object of the appointment of a temporary administrator is to preserve the estate until
it can pass into the hands of a person fully authorized to administer it for the benefit of creditors and
heirs.
Tan vs. Gedorio, Jr., G.R. No. 166520, March 14, 2008

Publication and notice required


Even in the appointment of a special administrator, same jurisdictional requirements under Sec. 3,
Rule 79.

Order appointing special administrator interlocutory in nature and mere incident in the judicial
proceedings, hence not appealable
Samson vs. Samson, 102 Phil. 735

GROUNDS FOR REMOVAL OF ADMINISTRATOR

Revocation of Administration, Death,


Resignation and Removal of Executors
and Administrators (Rule 82)
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Administration revoked if will discovered. Proceedings thereon. - Sec. 1

Court may remove or accept resignation of executor or administrator.

Proceedings upon death, resignation, or removal. - Sec. 2.

A creditor may seek the removal of the administrator in accordance with Section 2, Rule 82. Hilado
vs. Court of Appeals, G.R. No. 164108, May 8, 2009

Acts before revocation, resignation, or removal to be valid. - Sec. 3.

Effect of revocation, resignation or removal of executor or administrator on his previous acts – lawful
acts shall have same validity as if no revocation, resignation or removal.

Whether intestate proceedings already commenced should be discontinued and a new proceeding
under a separate number and title should be constituted – entirely a MATTER OF FORM and lies within
SOUND DISCRETION of court. Does not prejudice substantial rights of heirs and creditors.
Intestate Estate of Wolfson, 45 SCRA 381

General Powers and Duties of Executors and Administrators (Rule 84)

Powers:
a. Possess and manage estate of the deceased to pay debts and expenses of
administration. (Sec. 4)
b. (Executor or administrator of estate of a deceased partner) Have access to, examine and take
copies of, books and papers relating to the partnership business, and examine and make
invoices of the property belonging to such partnership ( Sec. 1).
c. With the approval of the court, to compound or compromise with a debtor of the deceased (Rule
87, Sec. 4)

Duties
a. Maintain the estate in tenantable repair, and.
b. Deliver the same to the heirs or devisees when directed by the court. (Rule 84, Sec. 2)

The administrator may only deliver properties of the estate to the heirs after payment of the debts,
funeral charges and other expenses against the estate, except when authorized by the court
Silverio, Jr. vs. Court of Appeals, G.R. No. 178933, September 16, 2009

Claims against Estate (Rule 86)

Notice to creditors to be issued by court – Sec. 1

Time within which claims shall be filed; exception – Sec. 2

 Time for filing claims – not more than 12 months nor less than 6 months after date of
FIRST PUBLICATION of the notice

 New period allowed (Sec. 2, second sentence)

At any time before order of distribution is entered, creditor who failed to file his claim within the
time set may move to be allowed to file such claim. Court may for good cause shown and on such
terms as are just allow such claim to be filed within a period NOT EXCEEDING ONE MONTH.
One month does not commence from expiration of the original period for filing claims. It begins
from the date of the order of the court allowing said filing
Barredo vs. CA, 6 SCRA 620

 Statute of Non-Claims (SNC) – the period fixed for the filing of claims against the estate.

1. Period fixed by probate court must not be less than 6 months nor more than 12 months from the
date of first publication of the notice.
2. Such period once fixed by the court is MANDATORY – it cannot be shortened.
ex. Period fixed within 6 months
3. SNC supersedes statute of limitations – even if claim has not yet prescribed, it may be barred by
SNC.

 Ruling spirit of our probate law – SPEEDY SETTLEMENT of the estate of deceased persons
for the benefit of CREDITORS and those entitled to the RESIDUE by way of INHERITANCE or
LEGACY after the debts and expenses of administration have been PAID
Sikat vs. Villanueva, 57 Phil. 486

Publication of notice to creditors - Sec. 3


Immediately after notice to creditors is issued, executor or administrator shall cause -

1. publication of said notice 3 weeks successively in newspaper of general circulation in the


province, and
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2. posting for the same period in


a. 4 public places in the province and
b. 2 public places in the municipality where decedent last resided

Publication of notice to creditors constructive notice to the whole world

Creditor cannot be permitted to file his claim beyond the period fixed in the notice on the ground
that he had no knowledge of the administration proceedings
Villanueva vs. PNB, 9 SCRA 145

Claims that must be filed under the notice. If not filed, barred; exceptions - Sec. 5

1. Claims for money against the decedent arising from contract, express or implied, whether due,
not due or contingent
2. Claims for funeral expenses and expenses for last sickness of decedent
3. Judgment for money against decedent
a. The judgment must be presented as a claim against the estate where the judgment debtor dies
before levy on execution of his properties
Evangelista vs. La Provedra, 38 SCRA 379
b. When the action is for recovery of money arising from contract, and defendant dies before
entry of final judgment, it shall not be dismissed but shall be allowed to continue until entry of final
judgment. A favorable judgment obtained by plaintiff shall be enforced under Rule 86 (Rule 3, Sec. 20).

Money claims against a deceased debtor

1. Section 5 of Rule 86 of the Rules of Court expressly allows the prosecution of money claims arising
from a contract against the estate of a deceased debtor. Those claims are not actually extinguished.
What is extinguished is only the obligee’s action or suit filed before the court, which is not then acting
as a probate court. Hence, the debtor’s death did not result in the extinguishment of those obligations
or liabilities, which merely passed on to his estate. Death is not a defense that he or his estate can set
up to wipe out the obligations under the performance bond.
Stronghold Insurance Company, Inc. vs. Republic-Asahi Glass Corporation, G.R. No. 147561, June,
2006

2. The monetary claim shall be governed by Section 20 (then Section 21), Rule 3 In relation to
Section 5, Rule 86 of the Rules of Court. Thus, said money claims must be filed against the estate of
petitioner Melencio Gabriel.
Gabriel vs. Bilon, G.R. No. 146989, February 7, 2007

 Must be filed within the time limited in the notice, otherwise they are BARRED FOREVER.

Exception – may be set forth as COUNTERCLAIMS in any action executor or administrator may
bring against the claimants.

Rationale for time limit: 1) to protect the estate of the deceased by informing the executor or
administrator of the claims against it, thus enabling him to examine each claim and to determine
whether it is a proper one which should be allowed; 2) speedy settlement of affairs of deceased; and 3)
early delivery of property to distributes, legatees, or heirs
Union Bank of the Philippines vs. Santibaňez, G.R. No. 149926, February 23, 2005

A money claim is only an incidental matter in the main action for the settlement of the decedent's
estate; more so if the claim is contingent since the claimant cannot even institute a separate action for
a mere contingent claim. Hence, petitioner's contingent money claim, not being an initiatory pleading,
does not require a certification against non-forum shopping.
Sheker vs. Estate of Alice Sheker, G.R. No. 157912, December 13, 2007

 Only MONEY CLAIMS may be presented in the testate or intestate proceedings.

NOT ALL MONEY CLAIMS but only those arising upon a liability contracted by decedent before
his death.

 Claims arising after his death cannot be presented EXCEPT


- funeral expenses
- expenses for last sickness

Claims arising after decedent’s death other than the above may be allowed as expenses of
administration.

Enumeration exclusive – refers only to contractual money claims


Only claims for money, debt or interest thereon, arising from contract can be presented in the testate
or intestate proceedings.

 Claims which survive death of accused


11

Claim for civil liability survives notwithstanding death of accused if the same may also be based
on a source of obligation other than delict (contract, law, quasi-contract, quasi-delict)

Separate civil action may be enforced either against

a. Estate of accused (contract)


b. Executor/ administrator (law, quasi-contract, quasi-delict)
People vs. Bayotas, 236 SCRA 239 [1994]

Civil actions for tort or quasi-delict do not fall within the class of claims to be filed under the notice to
creditors required under Rule 86. These actions, being civil, survive the death of the decedent and
may be commenced against the administrator pursuant to Section 1, Rule 87..
Hilado vs. Court of Appeals, G.R. No. 164108, May 8, 2009

Execution of final judgment not proper remedy but filing of claim

When judgment in a civil case has become final and executory, execution not proper remedy to
enforce payment; claimant should PRESENT CLAIM before probate court
Domingo vs. Garlitos, G.R. No. L-18994, June 29, 1963

Mandamus not available – immediate payment of claim by the administrator is NOT A MATTER OF
RIGHT. In the absence of any showing that respondent judge who is taking cognizance of the estate
proceedings had already allowed the administrator to dispose of the estate and to pay the debts and
legacies of the deceased, a writ of mandamus will not issue to compel him to order payment of
petitioner's claim.
Echaus vs. Blanco, G.R. No. L-30453, December 4, 1989

Solidary obligation of decedent – Sec. 6


Where the obligation of the decedent is solidary with another debtor, the claim shall be filed against
the decedent as if he were the only debtor. without prejudice to the right of the estate to recover
contribution from the other debtor. In a joint obligation of the decedent, the claim shall be confined to
the portion belonging to him.

Mortgage debt due from estate – Sec. 7


Creditor holding a claim against the deceased secured by mortgage or other collateral security may
1. Abandon the security and prosecute his claim against the estate and share in the general
distribution of the assets of thereof;
2. Foreclose his mortgage or realize upon his security by action in court, making the executor or
administrator a party defendant and if there is judgment for deficiency, he may file a contingent claim
against the estate within the statute of non-claims;
3. Rely solely on his mortgage and foreclose (judicial or extrajudicial) the same at anytime within the
period of the statute of limitations but he cannot be admitted as creditor and shall not receive in the
distribution of the other assets of the estate.

Claim of executor or administrator against an estate - Sec. 8


1. If the executor or administrator has a claim against the estate he represents, he shall give notice
thereof, in writing, to the court.
2. The court shall appoint a special administrator, and the special administrator shall, in
the adjustment of such claim, have the same power and be subject to the same liability as the general
administrator or executor in the settlement of the estate

From an estate proceeding perspective, the Special Administrator’s commission is no less a claim
against the estate than a claim that third parties may make. The ruling on the extent of the Special
Administrator’s commission – effectively, a claim by the special administrator against the estate – is the
lower court’s last word on the matter and one that is appealable.
Briones vs. Henson-Cruz, G.R. No. 159130, August 22, 2008

PROCEDURE FOR FILING OF CLAIMS


How to file a claim. Contents thereof. Notice to executor or administrator - Sec. 9
1. Delivering the claim with the necessary vouchers to the clerk of court and by serving a copy on
the executor or administrator
2. An affidavit must support such claim, stating the amount justly due, that no payments have
been made thereon which are not credited and that there are no offsets to the same.

Answer of executor or administrator. Offsets – Sec. 10


1. Within fifteen (15) days after service of a copy of the claim on the executor or administrator, he
shall file his answer admitting or denying the claim.
2. The executor or administrator in his answer shall allege in offset any claim which the decedent
before death had against the claimant, and his failure to do so shall bar the claim forever.

Disposition of admitted claims - Sec.11


1. Any claim admitted entirely by the executor or administrator shall immediately be submitted by
the clerk to the court which may approved the same without hearing.
12

2, But the court, in its discretion, before approving the claim, may order that known heirs, legatees
or devisees be notified and heard.
3. If upon hearing, an heir, legatee or devisee opposes the claim, the court may, in its discretion,
allow him 15 days to file an answer in the manner prescribed In the preceding section.

Trial of contested claims – Sec. 12


Upon the filing of an answer to a claim, or expiration of the time for such filing, the claim shall be
set for trial with notice to both parties. The court may refer the claim to a commissioner.

JUDGMENT APPEALABLE
The judgment of the court approving or disapproving a claim shall be appealable.- Sec. 13

Actions by and Against Executors and Administators (Rule 87)

Actions which may and which may not be brought against executor or administrator - Sec. 1.

Executor or administrator may bring or defend actions which survive. - Sec. 2.

1. NOT ALLOWED AGAINST EXECUTOR OR ADMINISTRATOR – action upon claim for recovery of
money or debt or interest thereon.
- MUST BE AGAINST ESTATE (Secs. 1, 2 & 5, Rule 86)

2. ALLOWED – actions which survive


a. Actions to recover real or personal property or interest thereon, or to enforce a lien thereon

Civil Case No. 2570 is an action for quieting of title with damages which is an action involving real
property. It is an action that survives pursuant to Section 1, Rule 87 as the claim is not extinguished by
the death of a party.
Saligumba vs. Palanog, G.R. No. 143365, December 4, 2008

Civil Case No. 3488, which is an action for the recovery of a personal property, a motor vehicle, is
an action that survives pursuant to Section 1, Rule 87 of the Rules of Court. As such, it is not
extinguished by the death of a party.
Sarsaba vs. Vda. de Te, G.R. No. 175910, July 30, 2009

b. Actions to recover damages for an injury to person or property, real or personal

 Executor or administrator may sue upon any cause of action which accrued to the
decedent during his lifetime (Bayot vs. Sorbito, 39 Phil. 650).

 Any action affecting the property rights of a deceased which may be brought by or
against him if he were alive, may be instituted and prosecuted by or against the administrator,
unless by its very nature, it cannot survive, because death extinguishes such right.

Heir (and devisee) may not sue (executor or administrator to recover title or possession or for
damages to property) until share assigned. - Sec. 3.

Before distribution is made or before any residue known – heirs and devisees have NO CAUSE OF
ACTION against the administrator for recovery of property left by the deceased.
Lao vs. Dee, 90 Phil. 868

 When heirs may file action in court

General rule: heirs have no legal standing to sue for recovery or protection of property rights of
the deceased.

Exceptions:

1. Pending the filing of administration proceedings – under Art, 777, rights to succession
are transmitted from the moment of death of the decedent.
2. Administration proceedings have already been commenced but administrator has not yet
been appointed.
3. Executor or administrator is unwilling or refuses to bring suit.
4. Administrator is alleged to have participated in the act complained of and he is made a
party defendant.

Embezzlement before letters issued - Sec. 8.

 Double value rule

If before grant of letters testamentary or of administration, a person embezzles or alienates


money or property of the deceased – liable to an action in favor of executor/administrator for DOUBLE
THE VALUE of the property sold, embezzled or alienated.
13

Property conveyed by deceased may be recovered. When executor or administrator may bring action –
Sec. 9
When
1. There is deficiency of assets in the hands of an executor or administrator for the payment of debts
and expenses of administration, and
2. Deceased in his lifetime had converted real or personal property, right or interest therein, or debt
or credit, with intent to defraud his creditors or to avoid any right, debt, or duty; or had so
conveyed such property, right, interest, debt, or creditors, and the subject of of the attempted
conveyance would be liable to attachment by any of them in his lifetime,
3. The executor or administrator may COMMENCE and PROSECUTE to final judgment an action for the
recovery of such property, right, interest, debts or credit for the benefit of creditors;
4. But he shall not be bound to commence the action unless the creditors making the application pay
such part of the costs and expenses, or give security therefor to the executor or administrator, as
the court deems equitable

Requisites before creditor may bring an action for recovery of property fraudulently
conveyed by the deceased

. When creditor may bring action. Lien for cost - Sec. 10

When
1. There is deficiency of assets, and
2. Deceased in his lifetime had made or attempted such a conveyance (with intent to defraud
creditors or to avoid any right, debt or duty) as stated in Sec. 9, and
3. Executor or administrator has not commenced the action provided in Sec. 9
4. Any creditor of the estate may, with the permission of the court, COMMENCE and PROSECUTE
to final judgment, in the name of the executor or administrator, a like action for the
recovery of the subject of the conveyance or attempted reconveyance for the benefit of the
creditors.
o Creditor should file a BOND executed to the executor or administrator, in an
amount approved by the judge, conditioned to indemnify the executor or administrator
against the costs and expenses incurred by reason of such action.
o Creditor shall have a LIEN upon any judgment recovered by him for reasonable
costs and expenses
 When conveyance or attempted conveyance made by deceased in his lifetime in favor of the
executor or administrator, action shall be in the name of all the creditors and
permission of the court and filing of bond not necessary.

Payment of the Debts of the Estate (Rule 88)

Debts paid in full if estate sufficient - Sec. 1.

Part of estate from which debt paid when provision made by will - Sec. 2.

Order of payment if estate insolvent - Sec. 7.

- follow preference of credits under Arts. 1059, 2239-2251 of Civil Code

If Estate is Sufficient

General rule: The payment of the debts of the estate must be taken (by order of preference):
1. From the portion or property designated in the will;
2. From the personal property, and
3. From the real property.
If there is still a deficiency, it shall be met by contributions by devisees, legatees, or heirs who have
been in possession of portions of the estate BEFORE debts and expenses have been settled and paid.
(Secs. 1-3).

Exceptions: Instances When Realty Can Be Charged First:


1. When the personal property is not sufficient. (Sec. 3)
2. Where the sale of personal personalty would be detrimental to the participants (everyone) of the
estate. (Sec. 3)
3. When sale of personal property may injure the business or interests of those interested in the
estate. (Section 2, Rule 89)
4. When the testator has not made sufficient provision for payment of such debts/expenses/legacies.
(Section 2, Rule 89)
5. When the decedent was, in his lifetime, under contract, binding in law, to deed real property to
beneficiary. (Section 8, Rule 89)
6. When the decedent during his lifetime held real property in trust for another person. (Section 9,
Rule 89)
14

Requisites for Exceptions to Ensue:


1. Application by executor/administrator
2. Written notice to persons interested
3. Hearing

The SAME principles apply if the debt of the estate is in another country.(Sec, 10)

Payment of Contingent Claims (Secs. 4 & 5)

CONTINGENT CLAIM – Claim that is subject to the happening of a future uncertain event.

If the court is satisfied that a contingent claim duly filed is valid, it may order the
executor/administrator to retain in his hands sufficient estate to pay such contingent claim when the
same becomes absolute, or, if the estate is insolvent, sufficient to pay a portion equal to the dividend
of the other creditors.

Requisites for the Estate to be Retained to Meet Contingent Claims:


1. Contingent claim is duly filed within the two (2) year period allowed for the creditors to present
claims;
2. Court is satisfied that the claim is valid;
3. The claim has become absolute.

Contingent Claims Which Mature AFTER the Two (2) Year Period for Filing of Claims
The assets retained in the hands of the executor/administrator, not exhausted in the payment of
claims, shall be distributed by the order of the court to the persons entitled to the same.

But the assets so distributed MAY still be applied to the payment of the claim when established, and
the creditor may maintain an action against the DISTRIBUTEES to recover the debt, and such
distributees and their estates shall be liable for the debt in proportion to the estate they have
respectively received form the property of the deceased

 TIME FOR PAYING DEBTS (Secs. 15 & 16)

1. Executor/administrator allowed to pay debts (and legacies) for a period not more than 1
year.
2. Extendible (on application of executor/ administrator and after notice and hearing) – not
exceeding 6 months for a single extension.
3. Whole period allowed to original executor/administrator shall not exceed 2 years.
4. Successor of dead executor/administrator may have time extended on notice not
exceeding 6 months at a time and not exceeding 6 months beyond the time allowed to
original executor/administrator.

Sec. 6. Court to fix contributive shares where devisees, legatees or heirs have been
in possession.

1. Where devisees, legatees or heirs have entered into possession or the estate before debts and
expenses settled and paid, and
2. have become liable to contribute for payment of such debts and expenses,
3. Court may, after hearing, order settlement of their several liabilities and order how much and in
what manner each person shall contribute and may issue execution as circumstances require.

NOTE: This provision clearly authorizes execution to enforce payment of the debts of the estate.
Legacy is not a debt of the estate – legatees are among those against whom execution is
authorized to be issued (Pastor vs. CA, 122 SCRA 885 [1983]).

Compare to: Rule 88, Secs. 15 & 16


Rule 89, Secs. 1-5, 7 (a)
referring to payment of debts and/or legacies

As ruled in Pastor, ordered payment of legacy violative of rule requiring prior liquidation of estate
(determination of assets of estate and payment of debts and expenses) before apportionment and
distributed of residue among heirs; legatees and devisees.

Correct rule: Sec. 1 of Rule 90 does not include legacies as among those that should be paid
before order of distribution – only debts, funeral charges, expenses of administration, allowance to
widow and inheritance tax.

After debts and expenses of administration paid, residue given to heirs and those entitled by
way of inheritance or legacy (Magbanua vs. Akol, 72 Phil. 567). Purpose of administration – distribution
of residue among heirs and legatees after payment of debts and expenses
Luzon Surety vs. Quebrar, 127 SCRA 301
15

 Writ of execution not proper procedure for payment of debts and expenses of
administration

Upon motion of the administrator with notice to all heirs, legatees and devisees residing in the
Philippines, court shall order sale of personal property or sale or mortgage of real property of the
deceased to pay debts and expenses of administration out of the proceeds of the sale or mortgage.

Exception: where devisees, legatees or heirs have entered into possession of their respective
portions in the estate prior to settlement and payment of debts and expenses (See Sec. 6, Rule 88
above).

Distribution and Partition of the Estate (Rule 90)

When order for distribution of residue made - Sec. 1

 General rule: distribution of the residue to persons entitled thereto after notice and hearing and
after payment of –
a. debts
b. expenses of administration
c. funeral charges
d. allowance to widow
e. inheritance tax

Exception: distribution before payment of obligations provided distributees give BOND


conditioned for payment thereof within such time as court directs.

 Requisites before distribution of estate

1. Liquidation - determination of all assets of the estate and payment of all debts and expenses
2. Declaration of heirs – to determine to whom residue of the estate should be distributed.
Separate action for declaration of heirs not proper.

The Regional Trial Court in the instant case, acting in its general jurisdiction, is devoid of
authority to render an adjudication and resolve the issue of advancement of the real property in favor of
herein petitioner Natcher, inasmuch as Civil Case No. 71075 for reconveyance and annulment of title
with damages is not, to our mind, the proper vehicle to thresh out said question.
The net estate of the decedent must be ascertained, by deducting all payable obligations and
charges from the value of the property owned by the deceased at the time of his death; then, all
donations subject to collation would be added to it With the partible estate thus determined, the
legitime of the compulsory heir or heirs can be established; and only then can it be ascertained whether
or not a donation had prejudiced the legitimes. (Heirs of Doronio versus Heirs of Doronio, G.R. No.
169454, December 27, 2007)

WHEN PROBATE COURT LOSES JURISDICTION

Project of partition – Towards the end of the proceedings in a settlement of estate petition, a
project of partition is usually prepared and presented to the court. The project of partition is a
PROPOSAL for distribution of the hereditary estimates and determines the persons entitled thereto
Finality of approval of project of partition by itself does NOT TERMINATE probate proceeding
Timbol vs. Cano, 1 SCRA 1271

 Probate court loses jurisdiction of an estate under administration only AFTER payment
of all debts and remaining estate DELIVERED to heirs entitled to receive the same
Guilas vs. Judge of CFI of Pampanga, 43 SCRA 111

A judicial partition is not final and conclusive and does not prevent the heir from bringing an action
to obtain his share, provided the prescriptive period has not closed (Mari vs. Bonilla, 83 SCRA 1137).

The RTC of Makati, acting as a special commercial court, has no jurisdiction to settle, partition, and
distribute the estate of a deceased.
A probate court has the power to enforce an accounting as a necessary means to its authority to
determine the properties included in the inventory of the estate to be administered, divided up, and
distributed. Beyond this, the determination of title or ownership over the subject shares (whether
belonging to Anastacia or Oscar) may be conclusively settled by the probate court as a question of
collation or advancement.
Reyes vs. RTC Makati, Branch 142, G.R. No. 165744, August 11, 2008

Partial distribution of the estate should not have been allowed. There was no determination on
sufficiency of assets or absence of any outstanding obligations of the estate of the late Raymond
Triviere made by the RTC in this case. In fact, there is a pending claim by LCN against the estate, and
the amount thereof exceeds the value of the entire estate. Quasha Ancheta Pena and Nolasco Law
Office vs. LCN Construction Corp., G.R. No. 174873, August 26, 2008
16

Although the right of an heir over the property of the decedent is inchoate as long as the estate
has not been fully settled and partitioned, the law allows a co-owner to exercise rights of ownership
over such inchoate right.
Once an action for the settlement of an estate is filed with the court, the properties included
therein are under the control of the intestate court. And not even the administrator may take
possession of any property that is part of the estate without the prior authority of the Court.
Silverio, Jr. vs. Court of Appeals, G.R. No. 178933, September 16, 2009

Remedy of heir entitled to residue but not given his share

To demand his share through -

a. a proper motion in the same probate or administration proceedings, OR


b. motion to reopen if it had already been closed, and not through an independent action
which would be tried by another court or judge which might reverse a decision or order
of the probate court already final and executed and reshuffle properties long ago
distributed and disposed of
Guilas vs. Judge of CFI of Pampanga, infra

 Four cases illustrate the proper remedy: Vda de Lopez vs. Lopez, Divinagracia vs. Rovira, Guillas
vs. Judge of CFI of Pampanga and Heirs of Jesus Fran vs. Salas.

 Lopez (35 SCRA 81 ) compared to Divinagracia (72 SCRA 307 ):

Both involved the issue of the reglementary period within which NON-PARTIES to the partition,
heir, devisee or any person interested in the estate, can reopen the case.

Conclusion – if proceeding already closed, motion to reopen may be filed by a non-party


deprived of his lawful participation, as long as it is within 30 days (now 15 days) or before order closing
the proceedings becomes final.

 Guilas (43 SCRA 111) compared to Fran (210 SCRA 303):

Both involved PARTIES who have not received their shares.

Conclusion – parties to partition agreement who have not received their shares can file a motion
for execution within 5 YEARS. But if other grounds such as forgery of will are raised, final judgment
cannot be attacked except through a separate action. The validity of a final judgment can be assailed
through a petition for relief under Rule 38, annulment of judgment under Rule 47, and petition for
certiorari under Rule 65, assuming the judgment is void for want of jurisdiction.

REMEDY OF PRETERITED HEIR

The intestate proceedings, although closed and terminated, can still be opened within the
prescriptive period upon petition by the preterited heir
Solivio vs. CA, 182 SCRA 1199

Prescriptive period – 10 years. Action upon an obligation created by law must be brought within
10 years from the time the right of action accrues (Art. 1144, Civil Code).

 Where judgment has become final, what is the remedy for inclusion of a party-heir?

After the decision became final and executory, the trial judge lost jurisdiction over the case. Any
modification that he would make, i.e., the inclusion of Mary Lyon Martin would be in excess of his
authority. The remedy of Mary is to file an INDEPENDENT SUIT against the parties and all other heirs for
her share in the subject property, in order that all the parties in interest can prove their respective
claims
Nunal vs. CA, 221 SCRA 26 [1991]

Instances when probate court may issue writ of execution

As a general rule, a probate court cannot issue a writ of execution.


Exceptions:
1. To satisfy the distributive shares of devisees, legatees and heirs in possession of the decedent’s
assets
2. To enforce payment of the expenses of partition
3, To satisfy the costs when a person is cited for examination in probate proceedings

SEVEN STAGES IN SETTLEMENT OF ESTATE

1. Petition
2. Hearing
17

3. Court Order
4. Claims Against Estate
5. Payment of Debts of Estate
6. Distribution and Partition of Estate
7. Closing

SETTLEMENT OF ESTATE
STAGES

PETITION

Testate Intestate

Filing of petition Filing of petition


for allowance for issuance of
of will – by executor, letters of
devisee, legatee, administration -
other interested person person
(Rule 76, Secs. 1 & 2) (Rule 79, Sec. 2)

Order setting petition for hearing

Notice of hearing

1. Publication of notice for


three consecutive weeks
(Rule 76, Sec. 3)

2. Notice by mail or personally


to designated or known heirs,
legatees, devisees, executor
(Rule 76, Sec. 4);

known heirs, creditors,


other interested persons
(Rule 79, Sec. 3)

II

HEARING

Proof of notice of hearing


(Rule 76, Sec. 5)
(Rule 79, Sec. 5)

Evidence for petitioner

1. Death of decedent
2. Residence at time of death

Testimony/ies of Decedent left no will or


subscribing there is no competent
witness/es and willing executor
(Rule 76 Secs. 5 & 11) (Rule 79, Sec. 5)

Petitioner is qualified for


appointment
(Rule 78, Secs. 1 & 6)
18

Proof when
testator is petitioner
(Rule 76, Sec. 12)

Evidence for Oppositor

File grounds for contest


(Rule 76, Sec. 10)

III

COURT ORDER

Order or decision allowing


will or admitting it to probate

Certificate of allowance
attached to prove will
(Rule 76, Sec. 13)

Order for issuance


of letters testamentary
(Rule 78, Sec. 4)

Order for issuance of


letters of administration
(Rule 79, Sec. 5)

Issuance of letters by clerk of court

Oath of executor or administrator

Filing of executor or administrator’s bond


(Rule 81, Sec. 1)

Filing of inventory within 3 mos.


(Rule 81, Sec. 1[a])

Accounting within 1 year


(Rule 81, Sec. 1 [c];
Rule 85, Sec. 8)

Actions by or against executor or administrator


(Rule 87)

IV

CLAIMS AGAINST ESTATE

Notice of filing of claims –


time for filing not more than
12 mos. nor less than 6 mos.
from first publication
(Rule 86, Secs. 1 & 2)

Publication of notice
for 3 consecutive weeks
and posting
(Rule 86, Secs. 3 & 4)
19

Filing of claim and answer thereto


(Rule 86, Secs. 9 & 10)

Trial of contested claim


(Rule 86, Sec. 12)

Judgment approving or
disapproving claim
(Rule 86, Sec. 13)

PAYMENT OF DEBTS OF ESTATE

Debts paid in full if estate sufficient


(Rule 88, Sec. 1)

Order of payment if estate insolvent


(Rule 88, Sec. 7)

Order for payment of debts


(Rule 88, Sec. 11)

Time for payment not to exceed


1 year, extendible for 1 more year
(Rule 88, Sec. 15)

Sales, mortgages and other encumbrances


of property of decedent for paying
debts. etc.
(Rule 89)

VI

DISTRIBUTION AND PARTITION OF ESTATE

Rule 90

Approval of final accounting


and project of partition

Actual distribution or delivery to


heirs of their respective shares

VII

CLOSING

Order declaring proceedings closed


and terminated

____________________________________________________________________________

Escheat (Rule 91)

 Escheat defined

Escheat is a proceeding whereby the real and personal property of a deceased person in the
Philippines, who died without leaving any will or legal heirs, become the property of the state upon his
death.

 Nature of Escheat Proceedings


20

- rests on the principle of ultimate ownership by the state of all property within its
jurisdiction.

 Parties in Escheat Proceedings

An escheat proceeding is initiated by the government through the Solicitor General. All
interested parties, especially the

- actual occupants and


- adjacent lot owners

shall be personally notified of the proceeding and given opportunity to present their valid claims;
otherwise, it will be reverted to the state.

When and by whom petition filed – Sec. 1

 Requisites for filing petition for escheat


1. person died intestate
2. he left properties in the Philippines
3. he left no heirs or persons entitled to the same.

 Where to file

Regional Trial Court of the place where the deceased was resident, or in which he had estste,
if he was a nonresident.

 Parties in a petition for escheat


Escheat proceeding must be initiated by the Solicitor General. All interested parties,
especially the actual occupant and the adjacent lot owners shall be personally notified of the
proceedings and given the opportunity to present their vaid claims, otherwise the property will
be reverted to the State (Tan vs. City of Davao, G.R. No. L-44347, September 26, 1988).

Order for hearing – Sec. 2

 Notice and Publication

1. Date of hearing not more than 6 months after entry of order.


2. Publication of order at least once a week for 6 consecutive weeks in newspaper of general
circulation in the province.

 Publication jurisdictional

Publication of the notice of hearing is a jurisdictional requisite, non-compliance with which


affects the validity of the proceedings (Divino v. Hilario, 62 Phil. 926).

Hearing and judgment – Sec. 3

Remedy of respondent against escheat petition

Motion to dismiss for failure to state a cause of action. where petition for escheat does not state
facts which entitle petitioner to the remedy prayed for (Go Poco Grocery vs. Pacific Biscuit Co., 65 Phil.
443; Rep. vs, PNB, G.R. No. L-16016, Dec. 30, 1961); or other grounds for dismissal under the rules
(Municipal Council of San Pedro, Laguna vs. Colegio de San Jose, 65 Phil. 318).

When and by whom claim to estate filed – Sec. 4

Filing of claim to estate

1. Devisee, legatee, widow, widower or other person entitled to such estate who
2. appears and files claim thereto within 5 years from date of judgment
(Note: 5-year period is prescribed to encourage would-be claimants to be punctilious in
asserting their claims, otherwise they may lose them forever in a final judgment.)
3. shall have possession and title thereto or if sold, municipality or city accountable to him for
proceeds, after deducting reasonable charges of care of estate.
4. Claim not made within said time barred forever.

Other actions for escheat – Sec. 5

Escheat and reversion distinguished – the same in effects; they only differ in procedure.
Escheat proceedings may be instituted as a consequence of a violation of Art. XIII of the Constitution
which prohibits transfers of private agricultrual land to aliens, whereas an action for reversion is
expressly authorized under the Public Land Act.
Bellosa vs, Gaw Chee Haw, G.R. No. L-1411, September 29, 1953, 93 Phil. 827
21

Escheat of unclaimed balances

Unclaimed balances which include credits or deposits of money, bullion, security or other evidence
of indebtedness of any kind, and interest thereon with banks in favor of any person unheard from for a
period of ten (10) years of more, together with the interest and proceeds thereof shall be deposited with
the Insular Government of the Philippines as the Philippine Legislature may direct (Act No. 3936,
Unclaimed Balances Act, Sec. 1)
Action to recover unclaimed balances shall be commenced by the Solicitor General in an action for
escheat in the name of the People of the Philippines in the Regional Trial Court of the province where
the bank is located, in which shall be joined as parties the bank and such creditors or depositors. All or
any member of such creditors or depositors or banks, may be included in one action.
Republic vs. Court of First Instance of Manila and Pres.. Roxas Rural Bank, Inc., G.R. No. L-30381,
August 30, 1988

General Guardians and Guardianship (Rules 92-97)

 Guardianship – a trust relation in which one person acts for another whom
the law regards as incapable of managing his own affairs. The person who
acts is called the guardian and the incompetent is called the ward.

 Basis of Guardianship (Parens Patriae)

Where minors are involved, the State acts as parens patriae. It is the duty of protecting the
rights of persons or individuals who because of age or incapability are in an unfavorable position vis-à-
vis other parties.

 Purpose of Guardianship

Safeguard the rights and interests of minors and incompetent persons Courts should be vigilant
to see that the rights of such persons are properly protected.

 Guardian – a person in whom the law has entrusted the custody and control
of the person or estate or both of an infant, insane, or other person incapable
of managing his own affairs.

Rule on guardianship of minors

Guardianship of minors as distinguished from “incompetents” other than minority is now governed
by the RULE ON GUARDIANSHIP OF MINORS (A.M. No. 003-03-05-SC), or RGM, effective May 1, 2003.
This was promulgated by the Supreme Court pursuant to the Family Courts Act of 1997 ( RA 8369).
which vested in the Family Courts exclusive jurisdiction on guardianship of minors.
Sections 1 and 27 of the RGM make it clear that it shall apply only to petitions for guardianship over
the person, property or both, of a minor. Petitions for guardianship of incompetents who are not minors
shall continue to be governed by Rules 92-97 and heard and tried by regular Regional Trial Cou(rts.
Rules 92-97 may therefore be deemed modified by the RGM.

Aside from the RGM, the Supreme Court also issued the following rules pursuant to the Family Courts
Act:

1. Rule on Examination of a Child Witness (A.M. No. 00-4-07-SC), effective December 15,
2000
2. Rule on Juveniles in Conflict with the Law (A.M.No. 02-1-18-SC), effective April 15,
2002
3. Rule on Commitment of Children (A.M. No. 02-1-19-SC), effective April 15, 2002
4. Rule on Domestic and Inter-Country Adoption (A.M.No. 02-6-02-SC), effective August
22, 2002
5. Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable
(A.M. No. 02-11-10-SC), effective March 15, 2003
6. Rule on Legal Separation (A.M. No. 02-11-11-SC), effective March 15, 2003
7. Rule on Provisional Orders (A.M. No. 02-11-12-SC), effetive March 15, 2003
8. Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Minors (A.M.
No. 03-04-04-SC), effective May 15, 2003
9. Rule on Violence Against Women and Their Childen (A.M. No. 04-10-11-SC),
effective November 15, 2004 (following the enactment of RA 9262, An Act Defining
Violence against Women and their Children, Providing for Protective Measures for
Victims, Prescribing Penalties Therefor, and for Other Purposes, or Anti-VAWCI Law,
effective March 27, 2004)

Minors – those below 18 years old.


Incompetents – include
a. persons suffering under the penalty of civil interdiction
b. hospitalized lepers
c. prodigals
d. deaf and dumb who are unable to read and write
22

e. those of unsound mind, even though they have lucid intervals


f. persons not being of unsound mind, but by reason of age, disease, weak mind,
and other similar causes, cannot, without outside aid, take care of themselves and
manage their property

General powers and duties of guardians

a. Care and custody of person of the ward and


b. Management of his estate, or
c. Management of his estate only
d. The guardian of the estate of a non-resident shall have the management of his estate within the
Philippines, and no other court than that in which such guardian was appointed shall have jurisdiction
over the guardianship (Sec. 1, Rule 96)

KINDS OF GUARDIANS

1) Legal Guardian – such by provision of law without the need for judicial appointment, as in the case
of the parents over the persons of their minor children, or in his absence the mother, with respect to the
property of the minor children not exceeding P50,000 in value; (2) Guardian ad litem, who is a
competent person appointed by the court for purposes of a particular action or proceeding involving a
minor; (3) the Judicial guardian, or a person appointed by the court for the person and/or property of
the ward to represent the latter in all civil acts and litigation .

 Parents as guardians

When the property of the child under parental authority is worth P2,000.00 or less, the father or the
mother, without the necessity of court appointment, shall be his legal guardian. When the property of
the child is worth more than P2,000.00, the father or the mother shall be considered guardian of the
child’s property, with the duties and obligations of guardians under these Rules, and shall file the
petition required by Section 2 hereof. For good reasons, the court may, however, appoint another
suitable person.(Sec. 7, Rule 93)

 Bond of parents as guardians of property of minor. -


If the market value of the property or the annual income of the child exceeds P50,000.00, the
parent concerned shall furnish a bond in such amount as the court may determine, but in no case less
than 10% of the value of such property or annual income, to guarantee the performance of the
obligations prescribed for general guardians. ( Sec. 16, RGM)

Conditions of the bond of the guardian

(a) Within 3 months after the issuance of letters of guardianship make inventory of all the property;
(b) faithfully execute the duties of the trust; (c) render a true and just account of all the property of the
ward; and (d) perform all orders of the court (Sec. 1, Rule 94)

 Who may petition for appointment of guardian of incompetent ? (Sec. 1, Rule 93)

Relative, friend, or other person on behalf of incompetent who has no parent or lawful guardian,
for the appointment of a general guardian for the person or estate or both of such incompetent.

 Who may petition for appointment of guardian of minor? (Sec. 2, RGM)

1. Relative or other person on behalf of the minor


2. Minor himself if 14 years of age or over
for the appointment of a general guardian over the person or property, or both, of such minor.

The petition may also be filed by the Secretary of Social Welfare and Development and
Secretary of Health in the case of an insane minor person who needs to be hospitalized.

Contents of petition (Sec. 2, Rule 93)


1. jurisdictional facts
a. incompetency
b. domicile
2 incompetency of person for whom guardianship is sought;
3. names, ages and residences of relatives of the incompetent and of persons
having him in their care
4. probable value and character of his estate
5. name of person for whom letters of guardianship are prayed

 Notice of application and hearing (Sec. 3) – NO PUBLICATION REQUIRED

Notice of hearing of the petition shall be served on


1. persons mentioned in the petition residing in the Philippines;
2. incompetent himself
23

* minor if 14 years of age or over (Sec. 8, RGM)

NOTICE IS JURISDICTIONAL

Service of notice upon the minor if 14 years of age or over or upon the incompetent is jurisdictional.
Without such notice, the court acquired no jurisdiction to appoint a guardian
Nery vs. Lorenzo, 44 SCRA 431 [1972]

The rules do not necessitate that creditors of the minor or incompetent be likewise identified and
notified. The reason is simple: because their presence is not essential to the proceedings for
appointment of a guardian. They will only insist that the supposed minor or incompetent is actually
capacitated to enter into contracts, so as to preserve the validity of said contracts and keep the
supposed minor or incompetent obligated to comply therewith.
Alamayri vs. Pabale, G.R. No. 151243, April 30, 2008

Grounds of petition (Sec. 4, RGM)


1. death, continued absence, or incapacity of his parents
2. suspension, deprivation or termination of parental authority
3. remarriage of his surviving parent, if the latter is found unsuitable to exercise parental
authority
4. when the best interests of the minor so require

Qualifications of a guardian (Sec. 5, RGM)


1. moral character
2. physical, mental and psychological condition
3. financial status
4. relationship of trust with the minor
5. availability to exercise the powers and duties of a guardian for the full period of the guardianship
6. lack of conflict of interest with the minor
7. ability to manage the property of the ward

Rules 92-97 do not contain a provision on the qualifications which the court may consider in appointing
a guardian

Who may be appointed guardian of the ward, or order of preference (Sec. 6. RGM)
1. surviving grandparent and in case several grandparents survive, the court shall select any of
them taking into account all relevant considerations
2. oldest brother or sister of the minor over 21 years of age, unless unfit or disqualitied
3. actual custodian of the minor over 21 years of age, unless unfit or disqualified
4. any other person, who in the sound discretion of the court, would serve the best interests of
the minor

Opposition to petition (Sec, 10, RGM)


1. majority of the minor
2. unsuitability of person for whom letters are prayed

Trustees (Rule 98)

When trustee appointed (Sec. 1)

1. A trustee necessary to carry into effect the provisions of a


a. Will
b. Written instrument
2. shall be appointed by the RTC in which the will is allowed, or
3. RTC of the province in which the property or some portion thereof affected by the trust is
situated

 Trust defined
A trust is a confidence reposed in one person, called the trustee, for the benefit of another
called the cestui que trust, with respect to property held by the former for the benefit of the latter.

 Exercise of sound judgment by the court in the appointment of a trustee

Although the will does not name a trustee, the probate court exercises sound judgment in
appointing a trustee to carry into effect the provisions of the will – where a trust is actually created by
the will by the provision that certain of the property shall be kept together undisposed during a fixed
period and for a stated purpose
Lorenzo v. Posadas, 64 Phil. 353

 Acquiring the trust by prescription


24

A trustee may acquire the trust estate by prescription provided there is a repudiation of the
trust, such repudiation being open, clear and unequivocal, known to the cestui qui trust
Salinas vs. Tuazon, 55 Phil. 729.

Rule 98 applies only to express trust, one which is created by will or written instrument, and
not to an implied trust, which is deducible from the nature of the transaction as a matter of intent, or
which are superinduced on the transaction by operation of law as matters of equity, independent of the
particular intention of the parties
O’Lao vs Co Co Chit, 220 SCRA 656

Distinguished from executor/administrator

A trustee, like an executor or administrator, holds an office of trust, particularly when the trustee
acts as such under judicial authority. Distinction: (1) duties of executors or administrators are fixed
and/or limited by law while those of the trustee of an express trust are usually governed by the
intention of the trustor or the parties, if established by contract; (2) duties of trustees may cover a
wider range than those of executors or administrators of the estate of deceased persons.
Araneta vs. Perez, G.R. Nos. L-16185-86, May 31, 1962

Conditions of the bond (Sec. 6)

The trustee must file a bond in an amount fixed by the court payable to the Government of the
Philippines. Failure to do so shall be cosidered as declining or resigning the trust. Conditions of the
bond:
1. Make and return to the court a true inventory of all real and personal estate that at the time
of the inventory shall have come to his possession or knowledge
2. Manage and dispose of all such estate according to law and the will of the testator or
provisions of the instrument or order under which he was appointed
3. Render a true account of the property in his hands
4. At the expiration of the trust, settle his accounts in court and pay over and deliver all the
estate remaining in his hands, or due from him on such settlement, to the person or persons
entitled thereto

Grounds for removal and resignation of a trustee (Sec. 8)

The court may remove a trustee on the following grounds:


1. The removal appears essential in the interest of the petitioners
2. The trustee is insane
3. The trustee is otherwise incapable of discharging the trust or is evidently unsuitable to act as
one
A trustee, whether appointed by the court or under a written instrument, may resign his trust if it
appears to the court proper so allow such resignation

Extent of authority of trustee

a. The powers of a trustee appointed by a Philippine court cannot extend beyond the confines of
the territory of the Republic of the Philippines. This is based on the principle that his authority cannot
extend beyond the jurisdiction of the country under whose courts he was appointed.
b. In the execution of trusts, the trustee is bound to comply with the directions contained in the
trust instrument defining the extent and limits of his authority, and the nature of his power and duties.

Adoption

 Nature and concept of adoption

Adoption is a juridical act, a proceeding in rem which creates between two persons a
relationship similar to that which results from legitimate paternity and filiation.

 Purpose of Adoption

Adoption used to be for the benefit of the adoptor. It was intended to afford persons who have
no child of their own the consolation of having one by creating thru legal fiction the relation of paternity
and filiation where none exists by blood relationship.

Present tendency – more toward the promotion of the welfare of the child, and enhancement of
his opportunities for a useful and happy life.

Under the law now in force, having legitimate, legitimated, acknowledged natural children or
children by legal fiction is no longer a ground for disqualification to adopt.

 Objectives of Rule on Adoption


25

a. Best interests of child – paramount consideration in all matters relating to his care, custody
and adoption.
b. The state shall provide alternative protection and assistance thru foster care or adoption for
every child who is a foundling, neglected, orphaned, or abandoned.

 Laws on adoption

The prevailing laws on adoption are RA 8552 ( Domestic Adoption Act of 1998) and RA
8043 (Inter-Country Adoption Act of 1995). Relevant also is the Family Code (EO 209, effective
August 3, 1988, which repealed the substantive provisions of PD 603 and EO 91 on adoption).

 Rule on Adoption (A.M. No. 02-6-02-SC), or ROA, effective August 22, 2002 – Guidelines
issued by the Supreme Court in petitions for adoption. The Rule repealed Rules 99-100. It covers
domestic adoption (Secs. 1-25) and inter-country adoption (Secs. 26-32).

Distinguish domestic adoption from inter-country adoption

KIND Domestic Adoption Inter-country Adoption


Type of Proceeding Judicial Adoption Extrajudicial Adoption
Who may adopt The following may adopt: An alien or a Filipino citizen
(a) Any Filipino citizen; permanently residing abroad
(b) Any alien possessing the may file an application for
same qualifications as above inter-country adoption of a
stated for Filipino nationals; Filipino child.
(c)The guardian with respect to
the ward.(Sec. 7)
Who may be adopted The following may be adopted: Only a legally free child may
(a) Any person below eighteen be the subject of inter-country
(18) years of age who has adoption
been administratively or
judicially declared available
for adoption;
(b) The legitimate son/daughter
of one spouse by the other
spouse;
(c) An illegitimate son/daughter
by a qualified adopter to
improve his/her status to that
of legitimacy;
(d) A person of legal age if, prior
to the adoption, said person
has been consistently
considered and treated by the
adopter(s) as his/her own
child since minority;
(e) A child whose adoption has
been previously rescinded; or
(f) A child whose biological or
adoptive parent(s) has died;
Provided, That no
proceedings shall be initiated
within six (6) months from
the time of death of said
parent(s) (Section 8)

Where to file application Family Court of the place where RTC having jurisdiction over
the adopter resides the child, or with the Inter-
Country Adoption Board,
through an intermediate
agency, whether
governmental or an
authorized and accredited
agency, in the country of the
prospective adoptive parents.
(Section 10)
What petition for adoption May include prayer for change of Only petition for adoption.
may include name, rectification of simulated
birth or declaration that the child
26

is a foundling, abandoned,
dependent or neglected child.
Supervised trial custody Supervised trial custody period in Supervised trial custody
the Philippines for at least six (6) period in the Philippines for at
months (Court may reduce least six (6) months. (Section
period or exempt parties from 14)
trial custody) (Section 12)

Domestic Adoption

Who may adopt (Sec. 7, RA 8552; Sec. 4, ROA)

1. Any FILIPINO
- of legal age
- in possession of full civil capacity and legal rights
- of good moral character
- has not been convicted of any crime involving moral turpitude
- emotionally and psychologically capable of caring for children
- at least 16 yrs. older than the adoptee
* may be waived when adopter is biological parent of adoptee or is spouse of adoptee’s
parent
- in a position to support and care for his children in keeping with means of the family.

2. Any ALIEN possessing same qualifications, subject to certain conditions.

Husband and wife must jointly adopt (Sec. 7, RA 8552; Sec. 4, ROA)

Exceptions:
a) if one spouse seeks to adopt legitimate child of the other;
b) if one spouse seeks to adopt his own illegitimate child (provided the other spouses signified his
consent thereto)
c) if the spouses are legally separated from each other.

In case husband and wife jointly adopt or one spouse adopts the illegitimate child of the
other, joint parental authority shall be exercised by the spouses.

Venue (Sec. 6, ROA)


Family court of province or city where prospective adoptive parents reside

Whose consent necessary (Sec. 9, RA 8552)

1. biological parents of adoptee, if known


*However, consent of biological parents, even if they are known, is not necessary if they
have ABANDONED the child (Lang vs. CA, 298 SCRA 128 [1998]).

2. adoptee, if 10 years of age or older


3. legitimate or adopted children of adopter or adoptee, if 10 years of age or older
4. illegitimate children of adopter, if living with him, if 10 years of age or older
5. spouse of adopter or adoptee

Change of name (Sec. 10, ROA)

In case petition also prays for change of name, title or caption must contain:

1. registered name of child


2. aliases of other names by which child has been known
3. full name by which child is to be known

Order of Hearing (Sec. 12, ROA)

PUBLICATION JURISDICTIONAL

Adoption is action in rem – involves the status of persons.

Decree of Adoption (Sec. 16, ROA)


If supervised trial custody SATISFACTORY and
- court CONVINCED from trial custody report and evidence adduced that
- adoption shall redound to BEST INTERESTS of adoptee
- DECREE OF ADOPTION issued which shall take effect as of date original petition filed even if
petitioners DIE before issuance

Effects of adoption – parental authority, legitimacy, succession (See Secs. 16-18, RA 8552)
27

(1) For civil purposes the adopted shall be deemed to be a legitimate child of the adoptioners and
both shall acquire the reciprocal rights and obligations arising from the relationship of parents and
child, including the right of the adopted to use the surname of the adopters; (2) The parental
authority of the parents by nature over the adoped shall terminate and be vested in the adopters,
except that if the adopter is the spouse of the parents by nature of the adopted, the parental
authority over the adopted shall be exercised jointely by both spouses; and (3) The adopted shall
remain an intestate heir of his parents and other blood relatives. (Art. 189, Family Code)

 Adoption strictly between adopter and adopted

If adopting parent should die before adopted child, latter cannot represent the adopter in the
inheritance from the parents and ascendants of the adopter. Adopted child is not related to the
deceased in that case because filiation created by fiction of law is exclusive between adopted and
adopter. By adoption, the adopters can make for themselves an heir but they cannot make one for their
relatives.
Republic vs. Valencia, G.R. No. L-32181, March 5, 1986

An illegitimate child, upon adoption by her natural father, may use the surname of her natural
mother as her middle name.
In the Matter of the Adoption of Stephanie Nathy Astorga Garcia, G.R. No. 148311, March 31, 2005.

Heirs of the adopted child (Art. 190, Family Code)

RESCISSION OF ADOPTION (Sec. 19, RA 8552; Sec. 19, ROA)

Filed by adoptee
- over 18 years of age
- with assistance of DSWD, if minor
- by guardian or counsel, if over 18 but incapacitated
Grounds committed by ADOPTER:
1. repeated physical and verbal maltreatment by adopter despite having undergone
counseling
2. attempt on life of adoptee
3. sexual assault or violence
4. abandonment or failure to comply with parental obligations

Adoption, being for best interests of child, not subject to rescission by ADOPTER. However, the adopter
may disinherit the adoptee for causes provided in Article 919 of the Civil Code.

Venue - Family Court of province where adoptee resides (Sec. 20, ROA)

Time within which to file petition (Sec. 21, ROA)

If MINOR – within 5 yrs. after reaching age of majority


If INCOMPETENT – within 5 yrs. after recovery from incompetency.

Effects of rescission of adoption (Sec. 23, ROA)

(a) parental authority of the biological parent of the adoptee, if known, or the legal custody of DSWD
is restored if the adoptee is still a minor or incapacitated;
(b) reciprocal rights and obligations of the adopter and adoptee to each other are extinguished;
(c) succession rights revert to their status prior to adoption, as of the date of judgment of rescission,
but vested rights acquired prior to rescission are to be respected
(d) court shall order adoptee to use the name stated In the original birth or foundling certificate
(e) court shall order the Civil Registrar where the adoption decree was registered to cancel the
new birth certificate of the adoptee and reinstate the original birth or foundling certificate

Inter-country Adoption
a. when allowed

Inter-country adoption of Filipino children by foreign nationals and Filipino citizens permanently
residing abroad is allowed by law if such children cannot be adopted by qualified Filipino citizens
or aliens.

b. functions of the RTC (Family Court)

A verified petition for inter-country adoption may be filed by a foreign national or Filipino citizen
permanently residing abroad with the Family Court having jurisdiction over the place where the child
resides or may be found. Its functions are (1) receive the application, (b) assess the qualification of the
prospective adopter and (3) refer its findings, if favorable, to the Inter-Country Adoption Board. The latter,
on its own, however, can receive the original application (Sec. 10, RA 8043; Secs. 28 & 32, ROA)

The Inter-Country Adoption Board is the central authority in matters relating to intercountry
28

adoption. It is the policy-making body for purposes of carrying out the provisions of the law, in
consultation and coordination with the DSWD, the different child-care and placement agencies, adoptive
agencies as well as non-governmental organizations engaged in child care and placement activities (Sec.
4, RA 8043).

c. “best interest of the minor” standard

Inter-country adoption is allowed only when the same shall prove beneficial to the child’s best
interests, and shall serve and protect his/her fundamental rights (Sec. 2, RA 8043,)

Only a child legally available for domestic adoption may be the subject of inter-country adoption
(Sec. 29, ROA).

Financial qualification in adoption

Since the primary consideration in adoption is the best interest of the child, it follows that the
financial capacity of prospective parents should also be carefully evaluated and considered.
Certainly, the adopter should be in a position to support the would-be adopted child or children, in
keeping with the means of the family..
Landingin vs. Republic, G.R. No. 164948, June 27, 2006

Habeas Corpus (Rule 102)

To what habeas corpus extends (Sec. 1)


1. All cases of illegal confinement of detention
2. by which any person is deprived of his liberty, or
3. by which the rightful custody of any person is withheld from the person entitled thereto

Purpose of habeas corpus – relieve a person from unlawful restraint.

Specifically:
1. to obtain immediate relief from illegal confinement
2. to liberate those who may be imprisoned without sufficient cause
3. to deliver them from unlawful custody

Essentially a writ of inquiry and is granted to test the right under which a person is detained
Velasco v. CA, 245 SCRA 677

In general, the purpose of the writ of habeas corpus is to determine whether or not a particular
person is legally held. A prime specification of an application for a writ of habeas corpus, in fact, is an
actual and effective, and not merely nominal or moral, illegal restraint of liberty.
In the Matter of the Petition of Habeas Corpus of Eufemia Rodriguez vs. Luisa Villanueva, G.R. No.
169482, January 29, 2008

It is a remedy intended to determine whether the person under detention is held under lawful
authority
In the second part of the same provision, however, Habeas Corpus may be resorted to in cases
where "the rightful custody of any person is withheld from the person entitled thereto." It may even be
said that in custody cases involving minors, the question of illegal and involuntary restraint of liberty is
not the underlying rationale for the availability of the writ as a remedy; rather, the writ of habeas
corpus is prosecuted for the purpose of determining the right of custody over a child.
Sombong v. CA, G.R. No. 111876, January 31, 1996

Habeas corpus is a summary remedy. It is analogous to a proceeding in rem when instituted for the
sole purpose of having the person of restraint presented before the judge in order that the cause of his
detention may be inquired into and his statements final.The writ of habeas corpus does not act upon
the prisoner who seeks relief, but upon the person who holds him in what is alleged to be the unlawful
authority.Hence, the only parties before the court are the petitioner (prisoner) and the person holding
the petitioner in custody, and the only question to be resolved is whether the custodian has authority to
deprive the petitioner of his liberty
Caballes vs. CA, G.R. No. 163108, February 23, 2005

Contents of the petition


a. That the person in whose behalf the application is made is imprisoned or restrained of his
liberty;
b. The officer or name of the person by whom he is so imprisoned or restrained;
c. The place where he is so imprisoned or restrained, if known;
d. Copy of the commitment or caue of detention of such person. If it can be procured without
any legal authority, such fact shall appear. (Sec. 3)

Contents of the return


a. Whether he has or has not the party in his custody or power, or under restraint;
29

b. If the party is in his custody or power, or under restraint -- the authority and the true and
whole cause thereof, with a copy of the writ, order, execution, or other processes upon which the
party is held
c. If the party, etc. , and is not produced – nature and gravity of sickness or infirmity
d. If the party was in his custody, etc. and has transferred such custody or restraint to another –
to whom, at what time, for what cause and by what authority such transfer was made. (Sec. 10)

Distinguish peremptory writ from preliminary citation

Peremptory writ of habeas corpus – unconditionally commanding the respondent to have


the body of the detained person before the court at a time and place therein specified.

Preliminary citation – requiring the respondent to appear and show cause why the
peremptory writ should not be granted.

Order to produce body not a grant of the remedy of habeas corpus

In a habeas corpus petition, the order to present an individual before the court is a preliminary step
in the hearing of the petition. The respondent must produce the person and explain the cause of his
detention. However, this order is not a ruling on the propriety of the remedy or on the substantive
matters covered by the remedy. Thus, the Court’s order to the Court of Appeals to conduct a factual
hearing was not an affirmation of the propriety of the remedy of habeas corpus.
In the Matter of the Petition for Habeas Corpus of Alejano vs. Cabuay, G.R. No. 160792, August 25,
2005

When not proper/applicable

a. For asserting or vindicating denial of right to bail (Enrile vs. Salazar, 186 SCRA 217 [1990])
b. For correcting errors in appreciation of facts and/or in the application of law. It is not a writ of error.
Sotto vs. Director of Prisons, May 30, 1962

When writ disallowed/discharged not authorized (Sec. 4)


a. When the person alleged to be restrained of his liberty is in the custody of an officer
1. under process issued by a court or judge or
2. by virtue of a judgment or order of a court of record and
3. the court or judge had jurisdiction to issue the process, render the judgment
or make the order
 the writ shall not be allowed
b. When a person is
1. charged with or
2. convicted of an offense or
3. suffering imprisonment under lawful judgment
 his discharge shall not be authorized

Writ of habeas corpus cannot be issued once person is charged with a criminal offense

Under Section 1, Rule 102 of the Rules of Court, the writ of habeas corpus extends to “all cases of
illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful
custody of any person is withheld from the person entitled thereto.” The remedy of habeas corpus has
one objective: to inquire into the cause of detention of a person, and if found illegal, the court orders
the release of the detainee. If, however, the detention is proven lawful, then the habeas corpus
proceedings terminate.
In the Matter of the Petition for Habeas Corpus of Kunting, G.R. No. 167193, April 19, 2006

 Effect of filing of charges in court


1. Once person detained is duly charged in court, he may no longer
question his detention by petition for habeas corpus
2. Remedy: motion to quash the information and/or warrant of arrest
3. Filing of bond for temporary release is waiver of illegality of detention
Bernarte vs. CA, G.R. No. 107741, October 18, 1996

Petitioner was detained pursuant to a final judgment of the Quezon City RTC convicting him for the
crimes of carnapping and illegal possession of firearms. He is therefore not entitled to the writ of habeas
corpus.
The rule is that if a person alleged to be restrained of his liberty is in custody of an officer under
process issued by a court or judge or by virtue of a judgment or order of a court of record the writ of
habeas corpus will not be allowed.
Barredo vs. Vinarao,. G.R. No. 168728, August 2, 2007

Once a person detained is duly charged in court, he may no longer question his detention through
a petition for issuance of a writ of habeas corpus. His remedy would be to quash the information
and/or the warrant of arrest duly issued. The writ of habeas corpus should not be allowed after
the party sought to be released had been charged before any court. The term “court” includes quasi-
judicial bodies or governmental agencies authorized to order the person’s confinement, like the
Deportation Board of the Bureau of Immigration.
30

The provisional or temporary release of Gao Yuan also effectively granted the petition for habeas
corpus insofar as the discharge of the detainee is concerned, since the main prayer in a petition for
habeas corpus relates to the release or discharge of the detainee. The general rule is that the release,
whether permanent or temporary, of a detained person renders the petition for habeas corpus moot
and academic.
Office of the Solicitor General vs. Judge de Castro, A.M. No. RTJ-06-2018 (Formerly Adm. Matter
OCA-IPI No. 05-2360-RTJ), August 3, 2007

The writ of habeas corpus should not be allowed after the party sought to be released had been
charged before any court. The term “court” in this context includes quasi-judicial bodies of
governmental agencies authorized to order the person’s confinement, like the Deportation Board of the
Bureau of Immigration. Likewise, the cancellation of his bail cannot be assailed via a petition for habeas
corpus. When an alien is detained by the Bureau of Immigration for deportation pursuant to an order of
deportation by the Deportation Board, the Regional Trial Courts have no power to release such alien on
bail even in habeas corpus proceedings because there is no law authorizing it
Go, Sr. vs. Ramos, G.R. No. 167569, September 4, 2009

Even if the arrest of a person is illegal, supervening events may bar his release or discharge from
custody, such as the filing of a complaint and issuance of order denying petition for bail. By then, the
restraint of liberty is already by virtue of the complaint or information and, therefore, the writ of habeas
corpus is no longer available.
Velasco vs. CA, G.R. No. 118644, July 7, 1995

Kidnapping & serious illegal detention


1. Filing of charges and issuance of warrant of arrest cures defect of
invalid detention
2. Absence of preliminary investigation – will not nullify information and warrant of arrest
Larrañaga vs. CA, G.R. No. 130644, March 13, 1998

Absence of preliminary investigation not a ground for habeas corpus. Remedy: motion to quash
warrant of arrest and/or information, or ask for investigation/reinvestigation
Paredes vs. Sandiganbayan, G.R. No. 89989, January 28, 1991

N.B. Rule 114, Sec. 26 of 2000 Revised Rules of Criminal Procedure: Bail not a bar to
objections on illegal arrest, lack of or irregular preliminary investigation, provided he raises them
BEFORE entering his plea

 Grant of writ

When court is satisfied that prisoner does not desire to appeal, the prisoner shall be forthwith
released (Sec. 15)

 Period to appeal – within 48 hours from notice of judgment or final order appealed from (Rule
41, Sec. 3, as amended by A.M.No. 01-1-03-SC, July 19, 2001).

 Habeas corpus as a post-conviction remedy

The writ of habeas corpus applies to all cases of illegal confinement or detention in which
individuals are deprived of liberty. The writ may not be availed of when the person in custody is under a
judicial process or by virtue of a valid judgment.
However, as a post-conviction remedy, it may be allowed when, as a consequence of a judicial
proceeding, any of the following exceptional circumstances is attendant: (1) there has been a
deprivation of a constitutional right resulting in the restraint of a person; (2) the court had no
jurisdiction to impose the sentence; or (3) the imposed penalty has been excessive, thus voiding the
sentence as to such excess.
Go vs. Dimagiba, G.R. No. 151876, June 21, 2005; Andal v. People, 307 SCRA 605
[1999]

 When constitutional rights disregarded – writ may issue Exceptional remedy to release
a person whose liberty is illegally restrained such as when the constitutional rights of the accused are
disregarded. Such defect results in the absence or loss of jurisdiction and therefore invalidates the trial
and consequent conviction of the accused. That void judgment may be challenged by collateral
attack which precisely is the function of habeas corpus. . This writ may issue even if another
remedy which is less effective may be availed of by the defendant. Thus, failure by the accused to
perfect his appeal before the Court of Appeals does not preclude a recourse to the writ. The writ may
be granted upon a judgment already final.
Chavez v. CA, . G.R. No. L-29169, August 19, 1968

Section 1, Rule 102 of the Rules of Court provides that a petition for the issuance of a writ of
habeas corpus may be availed of in cases of illegal confinement by which any person is deprived of his
liberty, or by which the rightful custody of any person is withheld from the person entitled thereto. The
writ may also be issued where, as a consequence of a judicial proceeding, (a) there has been a
deprivation of a constitutional right resulting in the restraint of a person; (b) the court had no
31

jurisdiction to impose the sentence; or (c) an excessive penalty has been imposed, as such sentence is
void as to such excess.
In the Matter of the Application for the Writ of Habeas Corpus Reclassifying Sentence to R.A. NO.
8353 in Behalf of Rogelio Ormilla, et al. vs, The Director, Bureau of Corrections, G.R. No. 170497,
January 22, 2007

 No right to bail where applicant is serving sentence by reason of


final judgment

Respondent judge contends that under Section 14, Rule 102 of the Rules of Court, he has the
discretion to allow Te to be released on bail. However, the Court reiterates its pronouncement in its
Resolution of February 19, 2001 in G.R. Nos. 145715-18 that Section 14, Rule 102 of the Rules of Court
applies only to cases where the applicant for the writ of habeas corpus is restrained by virtue of a
criminal charge against him and not in an instance, as in the case involved in the present controversy,
where the applicant is serving sentence by reason of a final judgment. (Vicente vs. Majaducon, A.M. No.
RTJ-02-1698 (Formerly OCA IPI No. 00-1024-RTJ), June 23, 2005)

 Retroactive effect of favorable law -


1. Caco sentenced to life imprisonment for violation of Dangerous Drugs Act (RA 6425)
2. Filed motion for modification of sentence pursuant to RA 7659 and People vs. Simon and People
vs. De Lara that where marijuana is less than 200 grams penalty is prision correccional
3. Petition granted – provisions of RA 7659 favorable to accused should be given retroactive effect.
4. Where decision already final, appropriate remedy of accused to secure release from prison is
petition for habeas corpus
People vs. Caco, G.R. Nos. 94994-95, March 7, 1997

 Habeas corpus and certIorari


1. Habeas corpus and certiorari may be ancillary where necessary to give effect to supervisory
power of higher courts
2. Habeas corpus – reaches body and jurisdictional matters but not the records
3. Certiorari – reaches record but not the body
4. However, habeas corpus does not lie where the petitioner has the remedy of appeal
or certiorari because it will not be permitted to perform the functions of a writ of error or appeal for the
purpose of reviewing mere errors or irregularities in the proceedings of a court having jurisdiction over
the person and the subject matter.
5. Habeas corpus is not ordinarily available in advance of trial to determine jurisdictional
questions that may arise.
6. Not appropriate for asserting right to bail – file petition to be admitted to bail
Galvez vs. CA, G.R. No. 114046 October 24, 1994

The record shows that Judge Perello granted the writs of habeas corpus even without the
pertinent copies of detention and judgment of conviction. This is contrary to the provisions of Section
3(d) of Rule 102 of the Rules of Court. The Rules clearly require that a copy of the commitment or
cause of detention must accompany the application for the writ of habeas corpus.
Office of the Court Administrator vs. Judge Perello, A.M. No. RTJ-05-1952, December 24, 2008

 Habeas corpus in custody cases

Habeas corpus may be resorted to in cases where rightful custody is withheld from a person
entitled thereto. Under Article 211 of the Family Code, respondent Loran and petitioner Marie Antonette
have joint parental authority over their son and consequently joint custody. Further, although the
couple is separated de facto, the issue of custody has yet to be adjudicated by the court. In the
absence of a judicial grant of custody to one parent, both parents are still entitled to the custody of
their child. In the present case, private respondent’s cause of action is the deprivation of his right to
see his child as alleged in his petition. Hence, the remedy of habeas corpus is available to him.
In a petition for habeas corpus, the child’s welfare is the supreme consideration. The Child and
Youth Welfare Code unequivocally provides that in all questions regarding the care and custody, among
others, of the child, his welfare shall be the paramount consideration.
Salientes vs. Abanilla, G.R. No. 162734, August 29, 2006

Marital rights including co-venture and living in conjugal dwelling may not be enforced by the
extraordinary writ of habeas corpus.
Ilusorio vs. Bildner, G.R. No. 139808, May 12, 2000

A writ of habeas corpus extends to all cases of illegal confinement or detention or by which the
rightful custody of person is withheld from the one entitled thereto. Respondent, as the judicial
guardian of Lulu, was duty-bound to care for and protect her ward. For her to perform her obligation,
respondent must have custody of Lulu. Thus, she was entitled to a writ of habeas corpus after she was
unduly deprived of the custody of her ward.
Hernandez vs. San Juan-Santos, G.R. No. 166470, August 7, 2009
32

Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors (A.M.
No. 03-04-04-SC) – took effect May 15, 2003
a. A verified petition for the rightful custody of a minor may be filed by any person claiming such
right. The petition shall be filed with the Family Court of the province or city where the petitioner resides
or where the minor may be found.
b. After trial, the court shall render judgment awarding custody of the minor to the proper party
considering the best interests of the minor.
c. However, if it appears that both parties are unfit to have the care and custody of the minor, the
court may designate either the paternal or maternal grandparent of the minor or his oldest brother or
sister, or any reputable person to take charge of such minor, or commit him to any suitable home for
children.
d. The court may issue any order that is just and reasonable permitting the parent who is
deprived of the care and custody of the minor to visit or have temporary custody.

Court of Appeals has jurisdiction to issue writs of habeas corpus in cases involving custody
of minors
There is nothing in RA 8369 which revoked the Court of Appeals’ jurisdiction to issue writs of
habeas corpus involving the custody of minors. (In the Matter of Application for the Issuance of a Writ
of Habeas Corpus: Thornton vs. Thornton, G.R. No. 154598, August 16, 2004) In fact, the Court of
Appeals and Supreme Court have concurrent jurisdiction with family courts in habeas corpus cases
where the custody of minors is involved. (Madriňan vs. Madriňan, G.R. No. 159374, July 12, 2007)

Distinguish from writ of amparo and habeas data (See Table)

WRIT OF HABEAS CORPUS AMPARO HABEAS DATA


DEFINITION “Habeas corpus” is a It is a remedy available It is a remedy
Latin phrase which to any person whose available to any
literally means “you right to life, liberty, and person whose right to
have the body.” It is a security has been privacy in life, liberty
writ directed to the violated or is threatened or security is violated
person detaining with violation by an or threatened by an
another, commanding unlawful act or omission unlawful act or
him to produce the body of a public official or omission of a public
of the prisoner at a employee, or of a official or employee,
designated time and private individual or or of a private
place, with the day and entity. The writ covers individual or entity
cause of his capture and extralegal killings and engaged in the
detention, to do, submit enforced gathering, collecting
to, and receive disappearances or or storing data or
whatsoever the court or threats thereof. information regarding
judge awarding the writ the person, family,
shall consider in that home and
behalf. correspondence of
the aggrieved party.
AVAILABILITY Sec. 1 Sec. 1 Sec. 1

To all cases of illegal To any person whose To any person whose


confinement or right to life, liberty and right to privacy in
detention: security is violated or life, liberty and
threatened with violation security is violated or
1. By which any person by an unlawful act or threatened with
is deprived of his liberty; omission of a public violation by an
or official or employee, or unlawful act or
of a private individual or omission of a public
2. By which the rightful entity. official or employee,
custody of any person is or of a private
withheld from the individual or entity
person entitled thereto. engaged in:

1. Gathering
2. Collecting
3. Storing

Of data or
information regarding
the person family,
home and
correspondence of
the aggrieved party.
PETITIONER Sec. 3 Sec. 2 Sec. 2
33

By the party for whose By the aggrieved party, General rule:


relief it is intended, or or by any qualified
by some other person in person or entity in the The aggrieved party
his behalf order provided in Sec. 2
Except:

In cases of extralegal
killings and enforced
disappearances:

1. Immediate family;
2. In default of no. 1,
ascendant,
descendant or
collateral relative
within the 4th civil
degree of
consanguinity or
affinity.
VENUE If filed with RTC, where Sec. 3 Sec. 3
detainee is detained
SC, CA and SB SC, CA and SB
.
RTC of the place where RTC:
the threat, act or
omission was committed 1. Where petitioner
or any of its elements resides; or
occurred. 2. Where respondent
resides; or
3. Which has
jurisdiction over the
place where data or
information is
gathered, etc.

All at the option of


petitioner.
EXTENT OF SC, CA and SB: Sec. 3 Sec. 4
ENFORCEABILITY anywhere in the
Philippines Anywhere in the Anywhere in the
Philippines [even if filed Philippines
RTC: only within its with the RTC]
judicial district

WHEN TO FILE/ Sec. 2 Sec. 3


EXEMPTION FROM
DOCKET FEES On any day and at any On any day and at any
time time.
Petitioner exempt from Sec. 5
docket fees
Indigent petitioner
exempt from docket
fees
SETTING OF HEARING Sec. 12 Sec. 6 Sec. 7

Hearing on return Not later than 7 days Not later than 10


from date of issuance of days from date of
writ issuance of writ
HOW SERVED Sec. 7 Sec. 8 Sec. 9

Service of the writ shall If the writ cannot be If the writ cannot be
be made by leaving the served personally on served personally on
original with the person respondent, the rules on respondent, the rules
to whom it is directed substituted service shall on substituted
and serving a copy on apply service shall apply
which to make return of
service. If that person
cannot be found, or has
not the prisoner in
custody then the service
shall be made on any
person having or
34

exercising such custody


FILING OF RETURN Sec. 10 Sec. 9 Sec. 9

Signed and shall also be Verified written return Verified written


sworn to if the prisoner within 5 workIng days return within 5 days
is not produced from service of writ from service of writ

- cannot be extended -may be reasonably


except on highly extended by the
meritorious grounds court for justifiable
grounds
EFFECT OF FAILURE TO Sec. 12 Sec. 14
FILE RETURN
In case respondent fails In case respondent
to file a return, the fails to return, the
court, justice or judge court, justice or judge
shall proceed to hear the shall proceed to hear
petition ex parte the petition ex parte,
granting petitioner
such relief as the
petition may warrant
unless the court in its
discretion requires
petitioner to submit
evidence.
PROHIBITED Sec. 11 Sec. 13
PLEADINGS AND
MOTIONS (a) Motion to dismiss; (a) Motion to dismiss;
(b) Motion for extension (b) Motion for
of time to file return, extension of time to
opposition, affidavit, file return,
position paper and other opposition, affidavit,
pleadings; position paper and
(c) Dilatory motion for other pleadings;
postponement; (c) Dilatory motion
(d) Motion for a bill of for postponement;
particulars; (d) Motion for a bill of
(e) Counterclaim or particulars;
cross-claim; (e) Counterclaim or
(f)Third-party complaint; cross-claim;
(g)Reply; (f) Third-party
(h) Motion to declare complaint;
respondent in default; (g) Reply;
(i)Intervention; (h) Motion to declare
(j)Memorandum; respondent in
(k)Motion for default;
reconsideration of (i) Intervention;
interlocutory orders or (j) Memorandum;
interim relief orders; and (k) Motion for
(l) Petition for certiorari, reconsideration of
mandamus or interlocutory orders
prohibition against any or interim relief
interlocutory order. orders; and
(l) Petition for
certiorari, mandamus
or prohibition against
any interlocutory
order.
SUMMARY HEARING Sec. 13 Sec. 15

The hearing on the Same as WOA


petition shall be
summary. However, the
court, justice or judge
may call for a
preliminary conference
to simplify the issues
and determine the
possibility of obtaining
stipulations and
admissions from the
parties.
35

The hearing shall be


from day to day until
completed and given the
same priority as
petitions for habeas
corpus.
INTERIM RELIEFS SEC. 12 Sec. 14

1. Unless for good cause (a) Temporary Protection


shown, the hearing is Order.
adjourned, in which
event the court shall (b) Inspection Order.
make an order for the
safekeeping of the (c) Production Order.
person imprisoned or
restrained as the nature (d) Witness Protection
of the case requires; Order.

2. The court or judge


must be satisfied that
the person's illness is so
grave that he cannot be
produced without any
danger.
JUDGMENT Sec. 15 Sec. 18 Sec. 16

When the court or judge The court shall render Same with WOA with
has examined into the judgment within ten (10) an addition that upon
cause of caption and days from the time the finality, the judgment
restraint of the prisoner, petition is submitted for shall be enforced by
and is satisfied that he decision. If the the sheriff or any
is unlawfully imprisoned allegations in the lawful officers as may
or restrained, he shall petition are proven by be designated by the
forthwith order his substantial evidence, court, justice or judge
discharge from the court shall grant the within 5 working
confinement, but such privilege of the writ and days.
discharge shall not be such reliefs as may be
effective until a copy of proper and appropriate;
the order has been otherwise, the privilege
served on the officer or be shall denied.
person detaining the
prisoner. If the officer or
person detaining the
prisoner does not desire
to appeal, the prisoner
shall be forthwith
released.
APPEAL Sec. 15 in relation to Sec. 19 Sec. 19
Sec. 3 Rule 41 and Sec.
39 of BP 129: Rule 45 by petition for Same as WOA
review on certiorari with
48 hours from notice of peculiar features:
judgment appealed from
by ordinary appeal 1. Appeal may raise
questions of fact or law
or both;

2. Period of appeal shall


be 5 working days from
the date of notice of the
adverse judgment;

3. Same priority as
habeas corpus cases
INSTITUTION OF Sec. 21 Sec. 20
SEPARATE ACTIONS
This Rule shall not Same as WOA
preclude the filing of
separate criminal, civil
or administrative
actions.
EFFECT OF FILING Sec. 2 Sec. 21
36

CRIMINAL ACTION
When a criminal action Same as WOA
has been commenced,
no separate petition for
the writ shall be filed.
The reliefs under the
writ shall be available by
motion in the criminal
case.
CONSOLIDATION Sec. 23 Sec. 22

When a criminal action Same as WOA


is filed subsequent to
the filing of a petition for
the writ, the latter shall
be consolidated with the
criminal action.

When a criminal action


and a separate civil
action are filed
subsequent to a petition
for a writ of amparo, the
latter shall be
consolidated with the
criminal action.

Writ of Amparo (A.M. No. 07-9-12-SC) - October 24, 2007

Coverage – what the writ includes (Sec. 1) (See Table under Definition)

 “Extralegal killings” – killings committed without due process of law, i.e.,


without legal safeguards or judicial proceedings.

 “Enforced disappearances” – attended by the following characteristics: an


arrest, detention or abduction of a person by a government official or
organized groups or private individuals acting with the direct or indirect
acquiescence of the government; the refusal of the State to disclose the fate
or whereabouts of the person concerned or a refusal to acknowledge the
deprivation of liberty which places such persons outside the protection of law.

Nature of the writ of amparo


The remedy of the Writ of Amparo is an equitable and extraordinary remedy to safeguard the right of
the people to life, liberty and security as enshrined in the 1987 Constitution.The Rule on the Writ
of Amparo was issued as an exercise of the Supreme Court's power to promulgate rules concerning the
protection and enforcement of constitutional rights. It aims to address concerns such as, among others,
extrajudicial killings and enforced disappearances.
De Lima vs. Gatdula, G.R. No. 204528, February 19, 2013

The privilege of the writ of amparo is a remedy available to victims of extra-judicial killings and
enforced disappearances or threats of similar nature, regardless of whether the perpetrator of the
unlawful act or omission is a public official or employee or a private individual.
Rubrico vs. Arroyo, G.R. No. 183871, February 18, 2010

The remedy of the writ of amparo provides rapid judicial relief as it partakes of a summary
proceeding that requires only substantial evidence to make the appropriate reliefs available to the
petitioner; it is not an action to determine criminal guilt requiring proof beyond reasonable doubt, or
liability for damages requiring preponderance of evidence, or administrative responsibility requiring
substantial evidence that will require full and exhaustive proceedings.
Secretary of National Defense vs. Manalo, G.R. No. 180906, October 7, 2008

Both preventive and curative

The remedy of the writ of amparo serves both preventive and curative roles in addressing the
problem of extrajudicial killings and enforced disappearances. It is preventive in that it breaks the
expectation of impunity in the commission of these offenses, and it is curative in that it facilitates the
subsequent punishment of perpetrators by inevitably leading to subsequent investigation and action.
Rodriguez vs. Arroyo, G.R. No. 191805, November 15, 2011

Distinguish from habeas corpus and habeas data (See Table)


37

Differences between Amparo and search warrant

The production order under the Amparo Rule should not be confused with a search warrant or law
enforcement under Art. III, Sec. 2 of the Constitution. The Constitutional provision is a protection of the
people from the unreasonable intrusion of the government, not a protection of the government from the
demand of the people as such respondents. Instead, the amparo production order may be limited to the
production of documents or things under Sec. 1, Rule 27 of the Rules of Civil Procedure
Secretary of National Defense vs. Manalo, G.R. No. 180906, October 7, 2008

Who may file - Sec. 2 (See Table)

Venue and extent of enforceability - Sec. 3 (See Table)

Contents of Petition – Sec. 5

a. Personal circumstances of the petitioner;


b. Name and personal circumstances of the respondent responsible for the threat, act or omission,
or, if the name is unknown or uncertain, the respondent may be described by an assumed
appellation;

c. Right to life, liberty and security of the aggrieved party violated or threatened with violation by
an unlawful act or omission of the respondent, and how such threat or violation is committed
with the attendant circumstances detailed in supporting affidavits;

d. Investigation conducted, if any, specifying the names, personal circumstances, and addresses
of the investigating authority or individuals, as well as the manner and conduct of the
investigation, together with any report;

e. Actions and recourses taken by the petitioner to determine the fate or whereabouts of the
aggrieved party and the identity of the person responsible for the threat, act or omission; and

f. Relief prayed for.

The petition may include a general prayer for other just and equitable reliefs.

Issuance of the Writ - Sec. 6


Upon the filing of the petition,
1. the court, justice or judge shall immediately order the issuance of the writ if on its face it ought to
issue.
2. The clerk of court shall issue the writ under the seal of the court; or in case of urgent necessity,
3. the justice or the judge may issue the writ under his or her own hand, and may deputize any
officer or person to serve it.

Contents of return - Sec. 9

(a) Lawful defenses to show that respondent did not violate or thereaten with violation the right to
life, liberty or security of the aggrieved party, through any act or omisson .
(b) Steps or actions taken by the respondent to determine the facts or whereabouts of the
aggrieved party and person /s responsible for the threat, act or omission;
(c) All relevant information in the possession of respondent pertaining to the threat, act or omission
against the aggrieved party;
(d) If respondent is a public official or employee, the return shall further state the actions that have
been or will be taken:
(i) to verify the identity of the aggrieved party;
(ii) to recover and preserve evidence related to the death or disappearance of the person
identified in the petition which may aid in the prosecution of the person or persons responsible;
(iii) to identify witnesses and obtain statements from them concerning the death or disappearance
(iv) to determine the cause, manner, location and time of death or disappearance as well as any
pattern or practice that may have brought about the death or disappearance;
(v) to identify and apprehend the person or persons involved in the death or disappearance; and
(vi) to bring the suspected offenders before a competent court.

 A general denial of the allegations in the petition shall not be allowed.

 Omnibus waiver rule – Sec. 10


Defenses Not Pleaded Deemed Waived. -- All defenses shall be raised in the return, otherwise, they
shall be deemed waived

Effect of failure to file return - Sec. 12 (See Table)

Prohibited pleadings and motions – Sec. 11 (See Table)


38

Procedure for hearing - Sec. 13 (See Table on Summary Hearing)

Interim reliefs available to petitioner – Sec. 14 (See Table)

Interim reliefs available to respondent - Sec. 15

Quantum of proof in application for issuance of Writ of Amparo - Sec. 17

Burden of proof and standard of dilligence required – The parties shall establish their claims by
substantial evidence.
Respondent private individual or entity – prove that ordinary diligence as required by applicable
laws, rules and regulations was observed in the performance of duty.
Respondent public official or employee
– prove that extraordinary diligence as required, etc. was observed in the performance of duty.
 cannot invoke presumption that official duty has been regularly performed to evade
ressponsibility or liability

Judgment – Sec. 18 (See Table)


1. The court shall render judgment within ten (10) days from the time the petition is submitted
for decision.
2. If the allegations in the petition are proven by substantial evidence, the court shall grant
the privilege of the writ and such reliefs as may be proper and appropriate;
3. Otherwise, the privilege shall be denied.

Appeal – Sec. 19 (See Table)

Institution of separate actions - Sec 21 (See Table)

Effect of filing of a criminal action - Sec. 22 (See Table)

Consolidation - Sec. 23 (See Table)

 Jurisprudence

The remedy is initiated through a petition to be filed in a Regional Trial Court, Sandiganbayan, the
Court of Appeals, or the Supreme Court.The judge or justice then makes an "immediate" evaluation of
the facts as alleged in the petition and the affidavits submitted "with the attendant circumstances
detailed". After evaluation, the judge has the option to issue the Writ of Amparo or immediately
dismiss the case. Dismissal is proper if the petition and the supporting affidavits do not show that the
petitioner's right to life, liberty or security is under threat or the acts complained of are not unlawful. On
the other hand, the issuance of the writ itself sets in motion presumptive judicial protection for the
petitioner. The court compels the respondents to appear before a court of law to show whether the
grounds for more permanent protection and interim reliefs are necessary.
De Lima vs. Gatdula, G.R. No. 204528, February 19, 2013

The privilege of the Writ of Amparo should be distinguished from the actual order called
the Writ of Amparo. The privilege includes availment of the entire procedure outlined in A.M. No. 07-9-
12-SC, the Rule on the Writ ofAmparo. After examining the petition and its attached affidavits, the
Return and the evidence presented in the summary hearing, the judgment should detail the required
acts from the respondents that will mitigate, if not totally eradicate, the violation of or the threat to the
petitioner's life, liberty or security.
De Lima vs. Gatdula, G.R. No. 204528, February 19, 2013

The Rules on the Writs of Habeas Corpus and Amparo are clear; the act or omission or the
threatened act or omission complained of - confinement and custody for habeas corpus and violations
of, or threat to violate, a person’s life, liberty, and security for amparo cases - should be illegal or
unlawful.
Certainly, with the dismissal of the non-bailable case against accused Guisande, she is no longer
under peril to be confined in a jail facility, much less at the NCMH. Effectively, accused Guisande’s
person, and treatment of any medical and mental malady she may or may not have, can no longer be
subjected to the lawful processes of the RTC Mandaluyong City. In short, the cases have now been
rendered moot and academic
So vs. Tacla, G.R. No. 190108, October 19, 2010

The Rule on the Writ of Amparo explicitly states that the violation of or threat to the right to life,
liberty and security may be caused by either an act or an omission of a public official. Moreover, in the
context of amparo proceedings, responsibility may refer to the participation of the respondents, by
action or omission, in enforced disappearance. Accountability, on the other hand, may attach to
respondents who are imputed with knowledge relating to the enforced disappearance and who carry the
burden of disclosure; or those who carry, but have failed to discharge, the burden of extraordinary
diligence in the investigation of the enforced disappearance
Rodriguez vs. Arroyo, G.R. No. 191805, November 15, 2011
39

The writ of amparo partakes of a summary proceeding that requires only substantial evidence to
make the appropriate interim and permanent reliefs available to the petitioner. As explained in the
Decision, it is not an action to determine criminal guilt requiring proof beyond reasonable doubt, or
liability for damages requiring preponderance of evidence, or even administrative responsibility
requiring substantial evidence. The totality of evidence as a standard for the grant of the writ was
correctly applied by this Court, as first laid down in Razon v. Tagitis:
The fair and proper rule, to our mind, is to consider all the pieces of evidence adduced in
their totality, and to consider any evidence otherwise inadmissible under our usual rules to be
admissible if it is consistent with the admissible evidence adduced. In other words, we reduce
our rules to the most basic test of reason – i.e., to the relevance of the evidence to the issue at
hand and its consistency with all other pieces of adduced evidence. Thus, even hearsay
evidence can be admitted if it satisfies this basic minimum test.
Rodriguez vs. Arroyo, G.R. No. 191805, April 16, 2013

This Decision reflects the nature of the Writ of Amparo – a protective remedy against violations or
threats of violation against the rights to life, liberty and security. 3 It embodies, as a remedy, the court’s
directive to police agencies to undertake specified courses of action to address the disappearance of an
individual, in this case, Engr. Morced N. Tagitis. It does not determine guilt nor pinpoint criminal
culpability for the disappearance; rather, it determines responsibility, or at least accountability, for
the enforced disappearance for purposes of imposing the appropriate remedies to address the
disappearance.
Razon vs. Tagitis, G.R. No. 182498, December 3, 2009

For the protective writ of amparo to issue, allegation and proof that the persons subject thereof are
missing are not enough. It must also be shown and proved by substantial evidence that the
disappearance was carried out by, or with the authorization, support or acquiescence of, the State or a
political organization, followed by a refusal to acknowledge the same or give information on the fate or
whereabouts of said missing persons, with the intention of removing them from the protection of the
law for a prolonged period of time. Simply put, the petitioner in an amparo case has the burden of
proving by substantial evidence the indispensable element of government participation.
To fall within the ambit of A.M. No. 07-9-12-SC in relation to RA No. 9851 (An Act Defining And
Penalizing Crimes Against International Humanitarian Law, Genocide And Other Crimes Against
Humanity), the disappearance must be attended by some governmental involvement. This hallmark of
State participation differentiates an enforced disappearance case from an ordinary case of a missing
person.
Navia vs. Pardico, G.R. No. 184467, June 19, 2012

The threatened demolition of a dwelling by virtue of a final judgment of the court is not included
among the enumeration of rights for which the remedy of a writ of amparo is made available. Their
claim to their dwelling, assuming they still have any despite the final and executory judgment adverse
to them, does not constitute right to life, liberty and security. There is, therefore, no legal basis for the
issuance of the writ of amparo.
Canlas vs. Napico Homeowners Association I – XIII, Inc.,. G.R. No. 182795, June 5, 2008

Under these legal and factual situations, we are far from satisfied with the prima facie existence of
the ultimate facts that would justify the issuance of a writ of amparo. Rather than acts of terrorism that
pose a continuing threat to the persons of the petitioners, the violent incidents alleged appear to us to
be purely property-related and focused on the disputed land. Thus, if the petitioners wish to seek
redress and hold the alleged perpetrators criminally accountable, the remedy may lie more in the realm
of ordinary criminal prosecution rather than on the use of the extraordinary remedy of the writ of
amparo.
Tapuz vs. Judge del Rosario, G.R. No.182484, June 17, 2008

To start off with the basics, the writ of amparo was originally conceived as a response to the
extraordinary rise in the number of killings and enforced disappearances, and to the perceived lack of
available and effective remedies to address these extraordinary concerns. It is intended to address
violations of or threats to the rights to life, liberty or security, as an extraordinary and independent
remedy beyond those available under the prevailing Rules, or as a remedy supplemental to these
Rules. What it is not, is a writ to protect concerns that are purely property or commercial.
Neither is it a writ that we shall issue on amorphous and uncertain grounds.
Castillo vs. Cruz, G.R. No. 182165, November 25, 2009

Sec. 22 of the Amparo Rule proscribes the filing of an amparo petition should a criminal action have,
in the meanwhile, been commenced. The succeeding Sec. 23, on the other hand, provides that when
the criminal suit is filed subsequent to a petition for amparo, the petition shall be consolidated with the
criminal action where the Amparo Rule shall nonetheless govern the disposition of the relief under the
Rule.
Rubrico vs. Arroyo, G.R. No. 183871, February 18, 2010

Here, the restriction on petitioner’s right to travel as a consequence of the pendency of the criminal
case filed against him was not unlawful. Petitioner has also failed to establish that his right to travel was
impaired in the manner and to the extent that it amounted to a serious violation of his right to life,
40

liberty and security, for which there exists no readily available legal recourse or remedy. (Issuance of
Hold Departure Order against Fr. Robert Reyes, who was among those charged with rebellion in
connection with the Manila Peninsula siege)
Reyes vs. Gonzales, G.R. No. 182161, December 3, 2009

An inspection order is an interim relief designed to give support or strengthen the claim of a
petitioner in an amparo petition, in order to aid the court before making a decision. A basic requirement
before an amparo court may grant an inspection order is that the place to be inspected is reasonably
determinable from the allegations of the party seeking the order. In this case, the issuance of inspection
order was properly denied since the petitioners specified several military and police establishments
based merely on the allegation that the testimonies of victims and witnesses in previous incidents of
similar abductions involving activists disclosed that those premises were used as detention centers. In
the same vein, the prayer for issuance of a production order was predicated on petitioners’ bare
allegation that it obtained confidential information from an unidentified military source, that the name
of James was included in the so-called Order of Battle. Indeed, the trial court could not have sanctioned
any "fishing expedition" by precipitate issuance of inspection and production orders on the basis of
insufficient claims of one party.
Balao vs. Arroyo, G.R. No. 186050, December 13, 2011

The Amparo Rule placed a potent safeguard—requiring the "respondent who is a public official or
employee" to prove that no less than "extraordinary diligence as required by applicable laws, rules and
regulations was observed in the performance of duty." Thus, unless and until any of the public
respondents is able to show to the satisfaction of the amparo court that extraordinary diligence has
been observed in their investigations, they cannot shed the allegations of responsibility despite the
prevailing scarcity of evidence to that effect.
With this in mind, We note that extraordinary diligence, as required by the Amparo Rule, was not fully
observed in the conduct of the police and military investigations in the case at bar.
Roxas vs. Arroyo, G.R. No. 189155, September 7, 2010

The right to security of a person includes the positive obligation of the government to ensure the
observance of the duty to investigate.
Secretary of National Defense vs. Manalo, G.R. No. 180906, October 7, 2008

The writ’s curative role is an acknowledgment that the violation of the right to life, liberty, and
security may be caused not only by a public official’s act, but also by his omission. Accountability may
attach to respondents who are imputed with knowledge relating to the enforced disappearance and who
carry the burden of disclosure; or those who carry, but have failed to discharge, the burden of
extraordinary diligence in the investigation of the enforced disappearance. The duty to investigate must
be undertaken in a serious manner and not as a mere formality preordained to be ineffective
Rodriguez vs. Arroyo, G.R. No. 191805, April 16, 2013

While the right to life under Article III, Section 1 guarantees essentially the right to be alive - upon
which the enjoyment of all other rights is preconditioned - the right to security of person is a guarantee
of the secure quality of this life.
First, the right to security of person is “freedom from fear.” (Universal Declaration of Human Rights
[UDHR] and International Covenant on Civil and Political Rights [ICCPR]) The Philippines is a signatory
to both the UDHR and the ICCPR.
Second, the right to security of person is a guarantee of bodily and psychological integrity or
security. (Article III, Section 12 of the 1987 Constitution)
Third, the right to security of person is a guarantee of protection of one’s rights by the government.
Protection includes conducting effective investigations, organization of the government apparatus to
extend protection to victims of extralegal killings or enforced disappearances (or threats thereof) and/or
their families, and bringing offenders to the bar of justice.
Secretary of National Defense vs. Manalo, G.R. No. 180906, October 7, 2008

Writ of Habeas Data (A.M. No. 08-1-16-SC) – February 2, 2008

Scope of writ (See Table under Definition)

The writ of habeas data provides a judicial remedy to protect a person’s right to control information
regarding oneself, particularly in instances where such information is being collected through unlawful
means in order to achieve unlawful ends. As an independent and summary remedy to protect the right
to privacy – especially the right to informational privacy – the proceedings for the issuance of the writ of
habeas data does not entail any finding of criminal, civil or administrative culpability. If the allegations
in the petition are proven through substantial evidence, then the Court may (a) grant access to the
database or information; (b) enjoin the act complained of; or (c) in case the database or information
contains erroneous data or information, order its deletion, destruction or rectification.
Rodriguez vs. Arroyo, G.R. No. 191805, November 15, 2011

The writ of habeas data is an independent and summary remedy designed to protect the image,
privacy, honor, information, and freedom of information of an individual, and to provide a forum to
enforce one’s right to the truth and to informational privacy. It seeks to protect a person’s right to
control information regarding oneself, particularly in instances in which such information is being
collected through unlawful means in order to achieve unlawful ends. It must be emphasized that in
41

order for the privilege of the writ to be granted, there must exist a nexus between the right to privacy
on the one hand, and the right to life, liberty or security on the other.
Gamboa vs. Chan, G.R. No. 193636, July 24, 2012

Availability of writ - Sec. 1 (See Table under Availability)

Distinguish from Habeas Corpus and Amparo (See Table)

Who may file - Sec. 2 (See Table)

Venue – Sec. 3 (See Table)

Extent of enforceability – Sec. 4 (See Table)

Contents of petition – Sec. 6

(a) The personal circumstances of the petitioner and the respondent;


(b) The manner the right to privacy is violated or threatened and how it affects the
right to life, liberty or security of the aggrieved party;
(c) The actions and recourses taken by the petitioner to secure the data or
information;
(d) The location of the files, registers or databases, the government office, and the
person in charge, in possession or in control of the data or information, if known;
(e) The reliefs prayed for, which may include the updating, rectification, suppression
or destruction of the database or information or files kept by the respondent. In case of
threats, the relief may include a prayer for an order enjoining the act complained of; and
(f) Such other relevant reliefs as are just and equitable

Issuance of the Writ. – Sec. 7


. Upon the filing of the petition,
1. the court, justice or judge shall immediately order the issuance of the writ if on its face it
ought to issue.
2. The clerk of court shall issue the writ under the seal of the court and cause it to be served
within three (3) days from the issuance; or,
3. In case of urgent necessity, the justice or judge may issue the writ under his or her own
hand, and may deputize any officer or person serve it.

Contents of return – Sec. 10

(a) Lawful defenses such as national security, state secrets, priviliged communication, confidentiality
of the source of information of media and others;
(b) If respondent in charge, in possession or in control of the data or information subject of the petition
--
(i) a disclosure of the data or information about petitioner, nature of such data or
information, and purpose of its collection;
(ii) steps or actions taken by respondent to ensure the security and confidentiality of the
data or information;
(iii) currency and accuracy of the data and information held; and
(c) other allegations relevant to the resolution of the proceeding;

A general denial of the allegations in the petition shall not be allowed.

Instances when petition heard in chambers – Sec. 12

Hearing in chambers may be conducted where respondent invokes the defense that the
release of the data or information shall compromise national security or state secrets, or when the
data or information cannot be divulged to the public due its nature or privileged character

Prohibited pleadings and motions – Sec. 13 (See Table)

N.B. No interim reliefs are available in writ of habeas data

Summary hearing – Sec. 15 (See Table)

Judgment – Sec. 16
1. The court shall render judgment within ten (10) days from the time the petition is submitted for
decision.
2. If the allegations in the petition are proven by substantial evidence, the court shall
a. enjoin the act complained of, or
b. order the deletion, destruction, or rectification of the erroneous data or information and
c. grant other relevant reliefs as may be just and equitable;
3. Otherwise, the privilege of the writ shall be denied.
42

Appeal – Sec. 19 (See Table)

Institution of separate action – Sec. 20 (See Table)

Effect of filing a criminal action – Sec. 21 (See Table)

Consolidation – Sec. 22 (SeeTable)

 Jurisprudence

Section 6 of the Rule on the Writ of Habeas Data requires material allegations of ultimate facts in a
petition for the issuance of a writ of habeas data:
Specifically, we see no concrete allegations of unjustified or unlawful violation of the right to privacy
related to the right to life, liberty or security. The petition likewise has not alleged, much less
demonstrated, any need for information under the control of police authorities other than those it has
already set forth as integral annexes. The necessity or justification for the issuance of the writ, based
on the insufficiency of previous efforts made to secure information, has not also been shown. In sum,
the prayer for the issuance of a writ of habeas data is nothing more than the “fishing expedition” that
this Court - in the course of drafting the Rule on habeas data - had in mind in defining what the purpose
of a writ of habeas data is not. In these lights, the outright denial of the petition for the issuance of the
writ of habeas data is fully in order.
Tapuz vs. Judge Rosario, G.R. No.182484, June 17, 2008

This Court rules that Gamboa was unable to prove through substantial evidence that her inclusion in
the list of individuals maintaining PAGs (private armed groups) made her and her supporters susceptible
to harassment and to increased police surveillance. In this regard, respondents sufficiently explained
that the investigations conducted against her were in relation to the criminal cases in which she was
implicated. As public officials, they enjoy the presumption of regularity, which she failed to overcome.
It is clear from the foregoing discussion that the state interest of dismantling PAGs far outweighs the
alleged intrusion on the private life of Gamboa, especially when the collection and forwarding by the
PNP of information against her was pursuant to a lawful mandate. Therefore, the privilege of the writ of
habeas data must be denied.
Gamboa vs. Chan, G.R. No. 193636, July 24, 2012

Needless to state, an indispensable requirement before the privilege of the writ may be extended is
the showing, at least by substantial evidence, of an actual or threatened violation of the right to privacy
in life, liberty or security of the victim. This, in the case at bench, the petitioner failed to do.
The main problem behind the ruling of the Court of Appeals is that there is actually no evidence on
record that shows that any of the public respondents had violated or threatened the right to privacy of
the petitioner. The act ascribed by the Court of Appeals to the public respondents that would have
violated or threatened the right to privacy of the petitioner, i.e., keeping records of investigations and
other reports about the petitioner’s ties with the CPP-NPA, was not adequately proven—considering that
the origin of such records were virtually unexplained and its existence, clearly, only inferred by the
appellate court from the video and photograph released by Representatives Palparan and Alcover in
their press conference. No evidence on record even shows that any of the public respondents had
access to such video or photograph
Roxas vs. Arroyo, G.R. No. 189155, September 7, 2010

Castillo v. Cruz underscores the emphasis laid down in Tapuz v. del Rosario that the writs of amparo
and habeas data will NOT issue to protect purely property or commercial concerns nor when the
grounds invoked in support of the petitions therefor are vague or doubtful. Employment constitutes a
property right under the context of the due process clause of the Constitution. It is evident that
respondent’s reservations on the real reasons for her transfer - a legitimate concern respecting the
terms and conditions of one’s employment - are what prompted her to adopt the extraordinary remedy
of habeas data. Jurisdiction over such concerns is inarguably lodged by law with the NLRC and the Labor
Arbiters.
In another vein, there is no showing from the facts presented that petitioners committed any
unjustifiable or unlawful violation of respondent’s right to privacy vis-a-vis the right to life, liberty or
security. To argue that petitioners’ refusal to disclose the contents of reports allegedly received on the
threats to respondent’s safety amounts to a violation of her right to privacy is at best speculative.
Respondent in fact trivializes these threats and accusations from unknown individuals in her earlier-
quoted portion of her July 10, 2008 letter as "highly suspicious, doubtful or are just mere jokes if they
existed at all." And she even suspects that her transfer to another place of work "betray[s] the real
intent of management]" and could be a "punitive move." Her posture unwittingly concedes that the
issue is labor-related.
Manila Electric Company vs. Lim, G.R. No. 184769, October 5, 2010

The Court has ruled that in view of the recognition of the evidentiary difficulties attendant to the filing
of a petition for the privilege of the writs of amparo and habeas data, not only direct evidence, but
circumstantial evidence, indicia, and presumptions may be considered, so long as they lead to
conclusions consistent with the admissible evidence adduced.
43

Given that the totality of the evidence presented by the petitioner failed to support his claims (his
inclusion in the “order of battle” and monitoring activities conducted against him), the reliefs prayed
for, therefore, cannot be granted. The liberality accorded to amparo and habeas data cases does not
mean that a claimant is dispensed with the onus of proving his case. "Indeed, even the liberal standard
of substantial evidence demands some adequate evidence."
Saez vs. Arroyo, G.R. No. 183533, September 25, 2012

It thus appears that respondents are not without recourse and have in fact taken full advantage of the
legal system with the filing of civil, criminal and administrative charges.avvphi1
It need not be underlined that respondents’ petitions for writs of amparo and habeas data are
extraordinary remedies which cannot be used as tools to stall the execution of a final and executory
decision in a property dispute.
At all events, respondents’ filing of the petitions for writs of amparo and habeas data should have
been barred, for criminal proceedings against them had commenced after they were arrested
in flagrante delicto and proceeded against in accordance with Section 6, Rule 112 of the Rules of Court.
Validity of the arrest or the proceedings conducted thereafter is a defense that may be set up by
respondents during trial and not before a petition for writs of amparo and habeas data. The reliefs
afforded by the writs may, however, be made available to the aggrieved party by motion in the criminal
proceedings.
Castillo vs. Cruz, G.R. No. 182165, November 25, 2009

Support for the habeas data aspect of the present petition only alleges that:

"1. [ … ] Similarly, a petition for a WRIT OF HABEAS DATA is prayed for so that the PNP may
release the report on the burning of the homes of the petitioners and the acts of violence
employed against them by the private respondents, furnishing the Court and the petitioners
with copy of the same;

[…]

66. Petitioners apply for a WRIT OF HABEAS DATA commanding the Philippine National Police
[PNP] to produce the police report pertaining to the burning of the houses of the petitioners in
the land in dispute and likewise the investigation report if an investigation was conducted by the
PNP."

These allegations obviously lack what the Rule on Writ of Habeas Data requires as a minimum, thus
rendering the petition fatally deficient. Specifically, we see no concrete allegations of unjustified or
unlawful violation of the right to privacy related to the right to life, liberty or security. The petition
likewise has not alleged, much less demonstrated, any need for information under the control of police
authorities other than those it has already set forth as integral annexes. The necessity or justification
for the issuance of the writ, based on the insufficiency of previous efforts made to secure information,
has not also been shown. In sum, the prayer for the issuance of a writ of habeas data is nothing more
than the "fishing expedition" that this Court - in the course of drafting the Rule on habeas data - had in
mind in defining what the purpose of a writ of habeas data is not. In these lights, the outright denial of
the petition for the issuance of the writ of habeas data is fully in order.
Tapuz vs. Judge del Rosario, G.R. No.182484, June 17, 2008

Change of Name

Rule 103
Change of Name

 Purpose of Rule

Under Art. 376, Civil Code – no person can change his name or surname without juridical
authority

Involving substantial changes, objective is the prevention of fraud.

 Nature of proceeding

To establish the status of a person involving his relation with others, that is, his legal position in,
or, with regard to the rest of the community

 Who may file petition

“Person” – all natural persons regardless of status. Includes


1. Alien - - domiciled in the Philippines, not one temporarily staying (Ong Huan Ting
vs. Rep., G.R. No. L-20997, April 27, 1967)
2. Adopted child (Rep. v. Wong, 209 SCRA 189)

Venue - Sec. 1
44

Regional Trial Court of place in which petitioner resides.

Contents of petition - Sec. 2


1. Residence of petitioner in the place where the petition resided for at least 3 years prior to
date of filing.
2. Cause for which change of name is sought
3. Name asked for

Order for hearing – Sec. 3


1. If petition sufficient in form and substance,
2. The court, by an order reciting the purpose of the petition, shall
a. fix a date and place for the hearing thereof,
b. direct that copy of the order be published at least once a week for 3 successive weeks
in a newspaper of general circulation
3. The date set for hearing shall not be
a. within 30 days prior to an election nor
b. within 4 months after the last publication of the notice

Jurisdictional facts
1. Publication of petition for 3 consecutive weeks in newspaper, etc.
2. Both title or caption and body shall recite
a. name or names or alias of applicant
b. cause for which change of name is sought
c. new name asked for

Reason: change of name a matter of public interest


- petitioner might be in rogues gallery or hiding to avoid service of sentence or escaped
from prison
- if alien might have given case for deportation, or subject of deportation order

Differences under Rule 103, RA 9048 and Rule 108

Rule 103 Rule 108 R.A. 9048


Rule or Law Change of Name Cancellation/ Correction Clerical Error Act
of Entries in the Civil
Registry
Subject Matter Change of full name or Cancellation or Change of first name or
family name (substantial correction of civil nickname and
corrections) registry entries corrrection of civil
(substantial corrections) registry entries (only
typographical or clerical
errors)
Who may File A person desiring to Any person interested in Any person having direct
change his name. any act, event, order or and personal interest in
(Section 1) decree concerning the the correction of a
civil status of persons clerical or typographical
which has been error in an entry and/or
recorded in the civil change of first name or
register. (Section 1) nickname. (Section 3)
Venue RTC of the province in RTC of city or province 1. Local civil registry
which petitioner resided where the corresponding office of the city or
for 3 years prior to filing. civil registry is located. municipality where the
record being sought to
be corrected or changed
is kept;

2. Local civil registrar of


the place where the
interested party is
presently residing or
domiciled;

3. Philippine Consulate
Contents of petition (a) That petitioner has (a) Facts necessary to
been a bona fide establish the merits of
resident of the province petition;
where the petition is
filed for at least three (b) Particular erroneous
(3) years prior to the entry or entries, which
date of such filing; are sought to be
corrected and/or the
(b) The cause for which change sought to be
45

the change of made.


petitioner's name is
sought; Petition shall be
supported by the
(c) The name asked for. following documents:
(Section 2)
(1) A certified true
machine copy of the
certificate or of the page
of the registry book
containing the entry or
entries sought to be
corrected or changed;

(2) At least two (2)


public or private
documents showing the
correct entry or entries
upon which the
correction or change
shall be based; and

(3) Other documents


which petitioner or the
city or municipal civil
registrar or the consul
general may consider
relevant and necessary
for the approval of
petition. (Section 5)
Grounds 1. Name is ridiculous, Upon good and valid 1. Petitioner finds the
tainted with dishonor grounds. first name or nickname
and extremely difficult to be ridiculous, tainted
to write of pronounce; with dishonor or
extremely difficult to
2. Consequence of write or pronounce;
change of status;
2. The new first name or
3. Necessity to avoid nickname has been
confusion; habitually and
continuously used by
4. Having continuously petitioner and he has
used and been known been publicly known by
since childhood by a that first name or
Filipino name, unaware nickname in the
of her alien parentage; community; or

5. A sincere desire to 3. The change will avoid


adopt a Filipino name to confusion. (Section 4)
erase signs of former
alienage all in good faith
and without prejudicing
anybody.
Kind of proceeding Judicial Proceeding Judicial Proceeding Administrative
Proceeding
Adversarial in nature
because involves
substantial changes and
affects the status of an
individual
What to file File a signed and verified File a verified petition File an affidavit.
petition. for the cancellation or
correction of any entry.
.
Notice and Publication At least once a week for At least once a week for At least once a week for
three consecutive weeks three consecutive weeks two consecutive weeks
in a newspaper in a newspaper of (publish the whole
circulation (notice of general circulation affidavit) – in change of
hearing) (notice of hearing) first name or nickname
Posting No posting No posting Duty of the civil registrar
or Consul to post
petition in a conspicuous
46

place for 10 consecutive


days
Who participates on the The Solicitor General or The Civil Registrar. The CivilRegistrar or
part of the Government the proper provincial or Consul.
city fiscal shall appear
on behalf of the
Government of the
Republic.
Where to appeal: Appeal decision to the Appeal decision to the Appeal decision to the
Court of Appeals. Court of Appeals. Civil Registrar General
(head of NCSO).

Grounds for change of name

The State has an interest in the names borne by individuals and entities for purposes of
identification. A change of name is a privilege and not a right, so that before a person can be
authorized to change his name, he must show proper or reasonable cause, or any compelling reason
which may justify such change.

Grounds for change of name which have been held valid:


1) Name is ridiculous, dishonorable, or extremely difficult to write or pronounce;
2) Change results as a legal consequence, as in legitimation;
3) Change will avoid confusion;
4) When one has continuously used and been known since childhood by a Filipino name, and
was unaware of alien parentage;
5) Sincere desire to adopt Filipino name to erase signs of former alienage, all in good faith and
without prejudicing anybody;
6) Surname causes embarrassment and there is no showing that the desired change of name
was for a fraudulent purpose or that the change of name would prejudice public interest.
Republic vs. Wong, May 2, 1992, 209 SCRA 189

N. B. R.A. 9255 amended Article 176 of the Family Code allowing the Illegitimate Child To Use The
Surname Of The Father If The Latter Expressly Recognized Filiation In A Record Of Birth (approved
February 24, 2004). This modifies Leonardo vs. Court of Appeals (G. R. No. 125329, September 10,
2003) disallowing an illegitimate child the right to use his/her father’s name.

 Other cases

Change of name under Rule 108


The enactment in March 2001 of Republic Act No. 9048 has been considered to lend legislative
affirmation to the judicial precedence that substantial corrections to the civil status of persons recorded
in the civil registry may be effected through the filing of a petition under Rule 108. When all the
procedural requirements under Rule 108 are thus followed, the appropriate adversary proceeding
necessary to effect substantial corrections to the entries of the civil register is satisfied.
With respect to the correction in Carlito’s birth certificate of his name from “Carlito John” to
“Carlito,” the same was properly granted under Rule 108 of the Rules of Court. As correctly pointed out
by the CA, the cancellation or correction of entries involving changes of name falls under letter “o” of
the following provision of Section 2 of Rule 108: “Entries subject to cancellation or correction. — Upon
good and valid grounds, the following entries in the civil register may be cancelled or corrected: x x x
(o) changes of name.” Hence, while the jurisdictional requirements of Rule 103 (which governs
petitions for change of name) were not complied with, observance of the provisions of Rule 108 suffices
to effect the correction sought for.
Republic vs. Kho, G.R. No. 170340, June 28, 2007

Middle names serve to identify the maternal lineage or filiation of a person as well as further
distinguish him from others who may have the same given name and surname as he has. In the case at
bar, the only reason advanced by petitioner for dropping his middle name is convenience
In Re Petition for Change of Name and/or Correction/Cancellation of Entry of Civil Registry of Julian
Lin Carulasan Wang, G.R. No. 159966, March 30, 2005

A change of name should not be permitted if it will give a false impression of family relationship to
another where none actually exists.
Republic vs.Marcos, February 15, 1990, 182 SCRA 223

No need for change of name by married woman


In case of annulment of marriage or divorce, there is no need to file a petition for resumption of
maiden name or surname.The true and real name of a person is that given to him and entered in the
civil register which a woman may continue to use despite her marriage or cessation of marriage for
47

whatever cause. The use of the husband’s name is merely permissive which the wife may continue to
use except in case of legal separation.
Yasin vs. Judge, Sharia District Court, G.R. No. 94986, February 23, 1995

Under Art. 370 of the Civil Code, a married woman may use:
1. Her maiden first name and surname and add her husband’s surname,
2. Her maiden first name and her husband’s surname, or
3. Her husband’s full name, but prefixing a word indicating that she is hiswife, such as “Mrs.”

On the other hand, Art. 372 provides:


When legal separation has been granted, the wife shall continue using her name and surname
employed before the legal separation.

Under Art. 176 of the Civil Code, Giovanni is entitled to change his name as he was never recognized
by his father while his mother has always recognized him as her child. A change of name will erase
the impression that he was ever recognized by his father. It is also his best interest as it will
facilitate his mother’s intended petition to have him join her in the United States. The Court will not
stand in the way of the reunification of mother and son.
Republic of the Philippines vs. Capote, G.R. No. 157043, February 2, 2007

The court shall grant the petition under Rule 103 only when satisfactory proof has been presented in
open court that the order had been published as directed, the allegations in the petition are true, and
proper and reasonable causes appear for changing the name of the petitioner.
RE: FINAL REPORT ON THE JUDICIAL AUDIT CONDUCTED AT THE RTC, BR. 67, PANIQUI, TARLAC, A.M.
No. 06-7-414-RTC, October 19, 2007

A person’s first name cannot be changed on the ground of sex reassignment


Petitioner sought to have his name in his birth certificate changed from “Rommel Jacinto” to “Mely,”
and his sex from “male” to “female.” Petitioner’s basis in praying for the change of his first name was
his sex reassignment. He intended to make his first name compatible with the sex he thought he
transformed himself into through surgery. However, a change of name does not alter one’s legal
capacity or civil status. RA 9048 does not sanction a change of first name on the ground of sex
reassignment. Rather than avoiding confusion, changing petitioner’s first name for his declared purpose
may only create grave complications in the civil registry and the public interest. Also, there is no such
special law in the Philippines governing sex reassignment and its effects. In our system of government,
it is for the legislature, should it choose to do so, to determine what guidelines should govern the
recognition of the effects of sex reassignment. The need for legislative guidelines becomes particularly
important in this case where the claims asserted are statute-based.
Before a person can legally change his given name, he must present proper or reasonable cause or
any compelling reason justifying such change. In addition, he must show that he will be prejudiced by
the use of his true and official name. In this case, he failed to show, or even allege, any prejudice that
he might suffer as a result of using his true and official name. A change of name does not alter one’s
legal capacity or civil status.
Silverio vs. Republic, G.R. No. 174689, October 22, 2007

Where change of name allowed arising from change of gender


As for respondent’s change of name under Rule 103, this Court has held that a change of name is
not a matter of right but of judicial discretion, to be exercised in the light of the reasons adduced and
the consequences that will follow. The trial court’s grant of respondent’s change of name from Jennifer
to Jeff implies a change of a feminine name to a masculine name. Considering the consequence that
respondent’s change of name merely recognizes his preferred gender, we find merit in respondent’s
change of name. Such a change will conform with the change of the entry in his birth certificate from
female to male. (Republic vs. Cagandahan, G.R. No. 166676, September 12, 2008)

Absentees

Rule 107
Absentees

Who may file; when to file

Appointment of representative – Sec. 1

When a person disappears from his domicile, his whereabouts being unknown, and without having
left an agent to administer property or the power conferred on the agent has expired, an interested
party, relative or friend may file a petition in the RTC of the place where the absentee resided before
disappearanceo appoint provisionally a representative for him.

Declaration of absence; who may petition (appointment of trustee or administrator) – Sec. 2


48

After 2 years without any news or after 5 years if an agent was left to administer the absentee’s
property, a petition for declaration of absence and appointment of a trustee or administrator may be
filed.by any of the following:
1. spouse present
2, heirs instituted in a will, who may present an authentic copy thereof
3. relatives who would succeed by the law of intestacy
4. those who have over the property of the absentee some right subordinated to the
condition of his death

Notice and publication required - Sec. 4


Copies of the notice and hearing shall be served on known heirs and creditors and other interested
persons and published once a week for 3 consecutive weeks in a newspaper of general circulation in
the place where the absentee resides.

Proof at hearing; order – Sec. 6

1. Show compliance with Sec. 4


2. Upon satisfactory proof of allegations in the petition, court shall issue an order granting the
same and appointing the representative, trustee or administrator for the absentee
3. In case of declaration of absence, the same shall take not effect until six (6) months after its
publication in a newspaper of general circulation designated by the court and in the Offical
Gazette.

Who may be appointed – Sec. 7

1. Appointment of representative
a. spouse present shall be preferred when there is no legal separation
b. if absentee left no spouse, or spouse present is a minor or otherwise incompetent
- any competent person may be appointed by the court
2. Declaration of absence – trustee or administrator of absentee’s property shall be appointed in
accordance with the preceding paragraph.

Declaration of presumptive death

No independent action for declaration of presumption of death – presumption may arise and be
invoked in an action or special proceeding

Exception

Under Art. 41 of Family Code, for purpose of present spouse contracting a second marriage, he
must file summary proceeding for declaration of presumptive death of the absentee, without prejudice
to the latter’s reappearance.

This is intended to protect present spouse from criminal prosecution for bigamy under Art. 349 of
RPC. With judicial declaration that missing spouse is presumptively dead, good faith of present spouse
in contracting marriage is established.

Marriage contracted by any person during the subsistence of a previous marriage shall be null and
void, unless before the celebration of the subsequent marriage unless absent spouse was absent for:
4 consecutive years – spouse present had a well founded belief that absent spouse was already
dead
2 years – danger of death under circumstances set forth in Art. 391 of Civil Code

Cancellation or Correction of Entries in the Civil Registry

Rule 108

Who may file petition – Sec. 1


1. Any person interested in any
- act
- event
- decree
2. concerning the civil status of persons
3. which has been recorded in the civil registry
4. with the Regional Trial Court of place where corresponding civil registry is located

Parties – Sec. 3
1. When cancellation or correction of an entry in the civil registry is sought,
a. the. civil registrar and
b. all persons who have or claim any interest which would be affected thereby
2. shall be made parties to the proceeding
49

Notice and publication – Sec. 4


1. Upon the filing of the petition
2. the court shall
a. by an order fix the time and place of hearing,
b. cause reasonable notice to be given to the persons named in the petition, and
c. cause the order to be published once a week for 3 consecutive weeks in a
newspaper of general circulation in the province

Opposition - Sec. 5
1. The civil registrar and
2. any person having or claiming any interest under the entry whose cancellation or
correction is sought may
3. within 15 days from
a. notice of the petition, or
. b. last date of publication of such notice
4. file his opposition thereto

Expediting proceedings – Sec. 6


. The court in which the proceeding is brought may
a. make orders expediting the proceedings and
b. grant preliminary injunction for the preservation of the rights of the parties pending
such proceedings

Order – Sec. 6
1. After hearing, the court may either
a. dismiss the petition
b. issue an order granting the cancellation or correction prayed for
2. In either case, a certified copy of the judgment shall be served upon the civil registrar
concerned who shall annotate the same in the record

 Correction of entry under Rule 108 proceeding in rem – publication binds the whole
world

Substantial corrections or cancellations of entries in civil registry records affecting the status or
legitimacy of a person may be effected through the institution of a petition under Rule 108 of the
Revised Rules of Court, with the proper Regional Trial Court. Being a proceeding in rem, acquisition of
jurisdiction over the person of petitioner is therefore not required in the present case. It is enough that
the trial court is vested with jurisdiction over the subject matter.
The service of the order at No. 418 Arquiza St., Ermita, Manila and the publication thereof in a
newspaper of general circulation in Manila, sufficiently complied with the requirement of due process,
the essence of which is an opportunity to be heard. The publication of the order is a notice to all
indispensable parties, including Armi and petitioner minor, which binds the whole world to the judgment
that may be rendered in the petition.
Alba vs. CA, G.R. No. 164041, July 29, 2005

What surfaces as an issue is whether the failure to implead Marivel and Carlito’s parents rendered
the trial short of the required adversary proceeding and the trial court’s judgment void.
A similar issue was earlier raised in Barco v. Court of Appeals. That case stemmed from a petition
for correction of entries in the birth certificate of a minor, June Salvacion Maravilla, to reflect the name
of her real father (Armando Gustilo) and to correspondingly change her surname. The petition was
granted by the trial court.
Barco, whose minor daughter was allegedly fathered also by Gustilo, however, sought to annul the
trial court’s decision, claiming that she should have been made a party to the petition for correction.
Failure to implead her deprived the RTC of jurisdiction, she contended.
In dismissing Barco’s petition, this Court held that the publication of the order of hearing under
Section 4 of Rule 108 cured the failure to implead an indispensable party.
Given the above ruling, it becomes unnecessary to rule on whether Marivel or respondents’ parents
should have been impleaded as parties to the proceeding. It may not be amiss to mention, however,
that during the hearing on January 31, 2002, the city prosecutor who was acting as representative of
the OSG did not raise any objection to the non-inclusion of Marivel and Carlito’s parents as parties to
the proceeding.
Parenthetically, it seems highly improbable that Marivel was unaware of the proceedings to correct
the entries in her children’s birth certificates, especially since the notices, orders and decision of the
trial court were all sent to the residence she shared with Carlito and the children.
Republic vs. Kho, G.R. No. 170340, June 29, 2007

 Substantial corrections – strict compliance with Rule 108

The change being sought in respondent's petition goes so far as to affect his legal status in relation
to his parents. It seeks to change his legitimacy to that of illegitimacy. Rule 103 then would not suffice
to grant respondent's supplication.
Labayo-Rowe v. Republic categorically holds that "changes which may affect the civil status from
50

legitimate to illegitimate . . . are substantial and controversial alterations which can only be allowed
after appropriate adversary proceedings . . ."
Since respondent's desired change affects his civil status from legitimate to illegitimate, Rule 108
applies.
Rule 108 clearly directs that a petition which concerns one's civil status should be filed in the civil
registry in which the entry is sought to be cancelled or corrected - that of Makati in the present case,
and "all persons who have or claim any interest which would be affected thereby" should be made
parties to the proceeding.
As earlier stated, however, the petition of respondent was filed not in Makati where his birth
certificate was registered but in Quezon City. And as the above-mentioned title of the petition filed by
respondent before the RTC shows, neither the civil registrar of Makati nor his father and mother were
made parties thereto.
A reading of Sections 4 and 5 readily shows that Rule 108 clearly mandates two sets of notices to
different "potential oppositors." The first notice is that given to the "persons named in the petition" and
the second (which is through publication) is that given to other persons who are not named in the
petition but nonetheless may be considered interested or affected parties, such as creditors. That two
sets of notices are mandated under the above-quoted Section 4 is validated by the subsequent Section
5, also above-quoted, which provides for two periods (for the two types of "potential oppositors") within
which to file an opposition (15 days from notice or from the last date of publication).
What is clear then in Barco and Kho is the mandatory directive under Section 3 of Rule 108 to
implead the civil registrar and the parties who would naturally and legally be affected by the grant of a
petition for correction or cancellation of entries. Non-impleading, however, as party-respondent of one
who is inadvertently left out or is not established to be known by the petitioner to be affected by the
grant of the petition or actually participates in the proceeding is notified through publication.
When a petition for cancellation or correction of an entry in the civil register involves substantial and
controversial alterations including those on citizenship, legitimacy of paternity or filiation, or legitimacy
of marriage, a strict compliance with the requirements of Rule 108 is mandated.
Republic vs. Coseteng-Magpayo, G.R. No. 189476, February 2, 2011

 Indispensable parties must be notified

Under Sec. 3, Rule 108 not only the civil registrar but also all persons who have or claim any
interest which would be affected by a proceeding concerning the cancellation or correction of an entry
in the civil register must be made parties thereto.
No party could be more interested in the cancellation of Rosilyn’s birth certificate than Rosilyn
herself. Her filiation, legitimacy, and date of birth are at stake.
The lack of summons on Rosilyn was not cured by the publication of the order of the trial court
setting the case for hearing for three consecutive weeks in a newspaper of general circulation.
Summons must still be served, not for the purpose of vesting the courts with jurisdiction, but to comply
with the requirements of fair play and due process. This is but proper, to afford the person concerned
the opportunity to protect her interest if she so chooses.
Ceruila vs. Delantar, G.R. No. 140305, December 9, 2005

 Correction of clerical error in one’s name under Rule 108

The OSG posits that the conversion from "MARILYN" to "MERLYN" is not a correction of an innocuous
error but a material correction tantamount to a change of name which entails a modification or increase
in substantive rights. For the OSG, this is a substantial error that requires compliance with the
procedure under Rule 103, and not Rule 108.
The petition filed by Mercadera before the RTC correctly falls under Rule 108 as it simply sought a
correction of a misspelled given name. To correct simply means "to make or set aright; to remove the
faults or error from." To change means "to replace something with something else of the same kind or
with something that serves as a substitute." From the allegations in her petition, Mercadera clearly
prayed for the lower court "to remove the faults or error" from her registered given name "MARILYN,"
and "to make or set aright" the same to conform to the one she grew up to, "MERLYN." It does not take
a complex assessment of said petition to learn of its intention to simply correct the clerical error in
spelling. Mercadera even attempted to avail of the remedy allowed by R.A. No. 9048 but she
unfortunately failed to enjoy the expediency which the law provides and was constrained to take court
action to obtain
Besides, granting that Rule 103 applies to this case and that compliance with the
procedural requirements under Rule 108 falls short of what is mandated, it still cannot
be denied that Mercadera complied with the requirement for an adversarial
proceeding before the lower court. The publication and posting of the notice of hearing in a
newspaper of general circulation and the notices sent to the OSG and the Local Civil Registry are
sufficient indicia of an adverse proceeding. The fact that no one opposed the petition, including
the OSG, did not deprive the court of its jurisdiction to hear the same and did not make the
proceeding less adversarial in nature. Considering that the OSG did not oppose the petition and
the motion to present its evidence ex parte when it had the opportunity to do so, it cannot now
complain that the proceedings in the lower court were procedurally defective.
Republic vs. Mercadera, G.R. No. 186027, December 8, 2010
51

 In a special proceeding for correction of entry under Rule 108, the trial court has no
jurisdiction to nullify marriages and rule on legitimacy and filiation.

Rule 108 of the Rules of Court vis a vis Article 412 of the Civil Code charts the procedure by which an
entry in the civil registry may be cancelled or corrected. The proceeding contemplated therein may
generally be used only to correct clerical, spelling, typographical and other innocuous errors in the civil
registry. A clerical error is one which is visible to the eyes or obvious to the understanding; an error
made by a clerk or a transcriber; a mistake in copying or writing, or a harmless change such as a
correction of name that is clearly misspelled or of a misstatement of the occupation of the parent.
Substantial or contentious alterations may be allowed only in adversarial proceedings, in which all
interested parties are impleaded and due process is properly observed.

The allegations of the petition filed before the trial court clearly show that petitioners seek to nullify
the marriage between Pablo and Lucille on the ground that it is bigamous and impugn Patrick's filiation
in connection with which they ask the court to order Patrick to be subjected to a DNA test.

Petitioners insist, however, that the main cause of action is for the correction of Patrick's birth
records and that the rest of the prayers are merely incidental thereto.

Petitioners' position does not lie. Their cause of action is actually to seek the declaration of Pablo and
Lucille's marriage as void for being bigamous and impugn Patrick's legitimacy, which causes of action
are governed not by Rule 108 but by A.M. No. 02-11-10-SC which took effect on March 15, 2003, and
Art. 171 of the Family Code, respectively, hence, the petition should be filed in a Family Court as
expressly provided in said Code.
Braza vs. City Civil Registrar of Himamaylan City, Negros Occidental, G.R. No. 181174,
December 4, 2009

Entries subject to cancellation or correction under Rule 108, in relation to RA 9048

 Administrative correction of clerical or typographical errors

The obvious effect of Republic Act 9048 is merely to make possible the administrative correction of
clerical or typographical errors or change of first name or nickname in entries in the civil register,
leaving to Rule 108 the correction of substantial changes in the civil registry in appropriate adversarial
proceedings.
Republic v. Benemerito G.R. No. 146963, March 15, 2004.

The local civil registrar has primary, not exclusive, jurisdiction over such petitions for correction of
clerical errors and change of first name or nickname, with R.A. No. 9048 prescribing the procedure that
the petitioner and local civil registrar should follow.
Re: Final Report on the Judicial Audit Conducted at the RTC, BR. 67, Paniqui, Tarlac, A.M. No. 06-7-
414-RTC, October 19, 2007

 No intent on the part of the lawmakers to remove the authority of the trial courts to
make judicial corrections of entries in the civil registry

It can thus be concluded that the local civil registrar has primary, not exclusive, jurisdiction
over such petitions for correction of clerical errors and change of first name or nickname, with R.A. No.
9048 prescribing the procedure that the petitioner and local civil registrar should follow. Since R.A. No.
9048 refers specifically to the administrative summary proceeding before the local civil registrar it
would be inappropriate to apply the same procedure to petitions for the correction of entries in the civil
registry before the courts.
Re: Final Report on the Judicial Audit Conducted at the Regional Trial Court, Br. 67, Paniqui,
Tarlac, A.M. No. 06-7-414-RTC, October 19, 2007.

 Substantial corrections cannot be effected under RA 9048

Republic Act No. 9048 provides in Section 2 (3) that a summary administrative proceeding to correct
clerical or typographical errors in a birth certificate cannot apply to a change in nationality. Substantial
corrections to the nationality or citizenship of persons recorded in the civil registry should, therefore, be
effected through a petition filed in court under Rule 108 of the Rules of Court.
Kilosbayan Foundation vs. Ermita, G.R. No. 177721, July 3, 2007

 An illegitimate child whose filiation is not recognized by the father bears only a given
name and his mother’s surname, and does not have a middle name

The name of the unrecognized illegitimate child therefore identifies him as such. It is only when
the illegitimate child is legitimated by the subsequent marriage of his parents or acknowledged by the
father in a public document or private handwritten instrument that he bears both his mother’s surname
as his middle name and his father’s surname as his surname, reflecting his status as a legitimated child
or an acknowledged illegitimate child. Accordingly, the registration in the civil registry of the birth of
such individuals requires that the middle name be indicated in the certificate. The registered name of a
52

legitimate, legitimated and recognized illegitimate child thus contains a given or proper name, a middle
name, and a surname.
In Re: Petition for Change of Name and/or Correction/Cancellation of Entry in Civil Registry of Julian
Lin Carulasan Wang, G.R. No. 159966, March 30, 2005

 Change of first name is within the primary jurisdiction of the local civil registrar

RA 9048 now governs the change of first name. It vests the power and authority to entertain
petitions for change of first name to the city or municipal civil registrar or consul general concerned.
Under the law, therefore, jurisdiction over applications for change of first name is now primarily lodged
with the aforementioned administrative officers. The intent and effect of the law is to exclude the
change of first name from the coverage of Rules 103 (Change of Name) and 108 (Cancellation or
Correction of Entries in the Civil Registry) of the Rules of Court, until and unless an administrative
petition for change of name is first filed and subsequently denied. It likewise lays down the
corresponding venue, form and procedure. In sum, the remedy and the proceedings regulating change
of first name are primarily administrative in nature, not judicial
Silverio vs Republic, G.R. No. 174689, October 22, 2007

 Change of sex or gender allowed where person has both male and female sexual
characteristics

The trial court ordered the correction of entries in the birth certificate of respondent to change her
sex or gender, from female to male, on the ground of her medical condition known as Congenital
Adrenal Hyerplasia (CAH), and her name from “Jennifer” to “Jeff,” under Rules 103 and 108 of the Rules
of Court. xxx CAH is one of many conditions that involve intersex anatomy. The term “intersexuality”
applies to human beings who cannot be classified as either male or female. We respect respondent’s
congenital condition and his mature decision to be a male.
Where the person is biologically or naturally intersex the determining factor in his gender
classification would be what the individual, like respondent, having reached the age of majority, with
good reason thinks of his/her sex. Respondent here thinks of himself as a male and considering that his
body produces high levels of male hormones (androgen) there is preponderant biological support for
considering him as being male. Sexual development in cases of intersex persons makes the gender
classification at birth inconclusive. It is at maturity that the gender of such persons, like respondent, is
fixed.
Republic vs. Cagandahan, G.R. No. 166676, September 12, 2008

 No law allows the change of entry in the birth certificate as to sex on the ground of sex
reassignment.

The acts, events or factual errors contemplated under Article 407 of the Civil Code include even
those that occur after birth. However, no reasonable interpretation of the provision can justify the
conclusion that it covers the correction on the ground of sex reassignment. To correct simply means “to
make or set aright; to remove the faults or error from” while to change means “to replace something
with something else of the same kind or with something that serves as a substitute.” The birth
certificate of petitioner contained no error. All entries therein, including those corresponding to his first
name and sex, were all correct. No correction is necessary.
While petitioner may have succeeded in altering his body and appearance through the intervention
of modern surgery, no law authorizes the change of entry as to sex in the civil registry for that reason.
Thus, there is no legal basis for his petition for the correction or change of the entries in his birth
certificate.
Silverio vs Republic, G.R. No. 174689, October 22, 2007

 Other Jurisprudence

Ty Kong Tin vs. Rep, G.R. No. L-5609, February 5, 1954,: followed by Chua Wee vs. Rep., Wong vs.
Rep., Rep. vs. Medina – Rule 108 should be limited solely to implementation of Art. 412, the substantive
law on the matter of correcting errors in the civil register.

Art. 412 contemplates a summary procedure, involving correction of clerical errors, or a harmless,
innocuous nature, not changes involving civil status, nationality or citizenship, which are substantial
and/or controversial

Rep. vs. Macli-ing – proceedings, although filed under Rule 108, not summary because published for 3
consecutive weeks; Solicitor General notified and filed opposition, etc.

Rep. vs. Valencia, G.R. No. L-32181, March 5, 1986. – turning point, paradigm shift:
Rule 108 embodies two kinds of proceedings:
1. procedure summary in nature for correcting clerical or unsubstantial matters to make it less
tedious and expensive
2. procedure adversary in nature to govern proceedings involving substantial changes
53

If all procedural requirements have been followed, petition for correction/or cancellation even if
filed under Rule 108 no longer summary.

Even substantial errors may be corrected and true facts established prov. parties aggrieved by the
error avail of the appropriate adversary proceeding.

Appropriate proceeding:
a. where all relevant facts have been fully weighed and considered
b. where opposing counsel have been given opportunity to demolish the opposing party’s case
c. where evidence has been thoroughly weighed and considered

Procedure becomes ADVERSARY proceedings when opposition to petition is filed by LCR


or any person having or claiming interest in entries sought to be cancelled and/ or corrected and
opposition is actively prosecuted.

Substantial corrections allowed: citizenship from Chinese to Filipino; status from legitimate to
illegitimate’ status of mother from married to single

 Valencia ruling (en banc) reiterated in Chia Ben Lim vs. Zosa (en banc), Rep. vs. Bautista and
Zapanta vs. LCR of Davao

 Attempts to revert to Ty Kong Tin – Labayo Rowe vs. Rep., Leonor vs. CA and Rep. vs. Labrador

However, all doubts resolved in Lee vs. CA, G.R. No. 118387, October 11, 2001
1. Substantial corrections – Rule 108
2. Clerical or typographical errors (including change of first name) – RA 9048 (administrative
correction)

It is precisely the province of a special proceeding such as the one outlined under Rule 108 of the
Revised Rules of Court to establish the status or right of a party, or a particular fact.The petitions filed
by private respondents for the correction of entries in the petitioners' records of birth were intended to
establish that for physical and/or biological reasons it was impossible for Keh Shiok Cheng to have
conceived and given birth to the petitioners as shown in their birth records. Contrary to petitioners'
contention that the petitions before the lower courts were actually actions to impugn legitimacy, the
prayer therein is not to declare that petitioners are illegitimate children of Keh Shiok Cheng, but to
establish that the former are not the latter's children. There is nothing to impugn as there is no blood
relation at all between Keh Shiok Cheng and petitioners.

Further sanctioning private respondents' resort to Rule 108, the Court of Appeals adverted to our
ruling in the leading case of Republic vs. Valencia where we affirmed the decision of Branch XI of the
then Court of First Instance (CFI) of Cebu City ordering the correction in the nationality and civil status
of petitioner's minor children as stated in their records of birth from "Chinese" to "Filipino", and
"legitimate" to "illegitimate", respectively. Although recognizing that the changes or corrections sought
to be effected are not mere clerical errors of a harmless or innocuous nature, this Court, sitting en banc,
held therein that even substantial errors in a civil register may be corrected and the true facts
established provided the parties aggrieved by the error avail themselves of the appropriate adversary
proceeding. In the said case, we also laid down the rule that a proceeding for correction and/or
cancellation of entries in the civil register under Rule 108 ceases to be summary in nature and takes on
the characteristics of an appropriate adversary proceeding when all the procedural requirements under
Rule 108 are complied with
Lee vs. CA, supra

Adversary proceedings
“Appropriate adversary proceeding” is “one having opposing parties; contested, as distinguished
from an ex parte application, one of which the party seeking relief has given legal warning to the other
party, and afforded the latter an opportunity to contest it.”
When all the procedural requirements under Rule 108 are thus followed, the appropriate adversary
proceeding necessary to effect substantial corrections to the entries of the civil register is satisfied.
No substantial change or correction in an entry in a civil register can be made without a judicial
order, and, under the law, a change in citizenship status is a substantial change.
Republic vs. Kho, G.R. No. 170340, June 29, 2007

 Administrative correction of (a) day and month in the date of birth and (b) sex of
a person now allowed - provided it is patently clear that there was a clerical or typographical
error or mistake in the entry (RA 10172, September 8, 2012)

Appeal in Special Proceedings

Rule 109
54

Judgments and orders for which appeal may be taken

When to appeal

Sec. 1. Any INTERESTED PERSON may appeal from an order or judgment rendered by the RTC, where
such order or judgment

1. Allows or disallows a WILL


2. Determines who are the lawful heirs of a deceased or the DISTRIBUTIVE SHARE of the estate to
which he is entitled
3. Allows or disallows, in whole and any part, any CLAIM against the estate, or any CLAIM
presented in behalf of the estate IN OFFSET to any claim against it
4. Settles the ACCOUNT of an executor, administrator, trustee or guardian
5. Constitutes, in proceedings relating to the SETTLEMENT of the estate of the deceased, or the
ADMINISTRATION of a trustee or guardian, a FINAL DETERMINATION in the lower court of the
rights of the party appealing. Exception: no appeal from appointment of special administrator.
6. Is the FINAL ORDER or JUDGMENT rendered in the case, and affects the SUBSTANTIAL RIGHTS of
the person appealing. Unless it be an order granting or denying a motion for new trial or
reconsideration – Sec. 1 (a), Rule 41: no appeal may be taken from an order denying a motion
for new trial or reconsideration.

When the assailed Orders granting letters testamentary in solidum to respondents were issued by the
RTC, petitioner sought to question them by filing a petition for review on certiorari under Rule 45 of the
Rules of Court. Petitioner should have appealed said orders to the Court of Appeals under Rule 109 of
the Rules of Court.
Thus, the petition must necessarily fail.
Republic vs.. Marcos II, G.R. No. 130371, August 4, 2009

Modes of appeal

Rules 40, 41, 42 and 45 apply in conformity with Rule 72, Sec. 2 (applicability of rules of civil actions) .
If it is an ordinary appeal under Rules 40 or 41, and the special proceedings are subject to multiple
appeals, like settlement of estates, the appeal period is 30 days, a notice of appeal and record on
appeal being required.

Rationale for multiple appeals

The rationale behind allowing more than one appeal in the same case is to enable the rest of the
case to proceed in the event that a separate and distinct issue is resolved by the court and held to be
final. In this multi-appeal mode, the probate court loses jurisdiction only over the subject matter of the
appeal but retains jurisdiction over the special proceeding from which the appeal was taken for
purposes of further remedies the parties may avail of.
Where multi-appeals are allowed, we see no reason why a separate petition for certiorari cannot be
allowed on an interlocutory aspect of the case that is separate and distinct as an issue from the aspect
of the case that has been adjudged with finality by the lower court. To reiterate, the matter appealed
matter was the special administrator's commission, a charge that is effectively a claim against the
estate under administration, while the matter covered by the petition for certiorari was the appointment
of an auditor who would pass upon the special administrator's final account. By their respective natures,
these matters can exist independently of one another and can proceed separately as envisioned by the
Rules under Rule 109.
Briones vs. Henson-Cruz, G.R. No. 159130, August 22, 2008

Record of appeal is required only in cases where multiple appeals may arise

Rule 109 contemplates multiple appeals during the pendency of special proceedings. A record on
appeal – in addition to the notice of appeal – is thus required to be filed as the original records of the
case should remain with the trial court to enable the rest of the case to proceed in the event that a
separate and distinct issue is resolved by said court and held to be final.

In the present case, the filing of a record on appeal was not necessary since no other matter remained
to be heard and determined by the trial court after it issued the appealed order granting respondent’s
petition for cancellation of birth record and change of surname in the civil registry.1avvph
Republic vs. Nishina, G.R. No. 186053, November 15, 2010

Section 1, Rule 109 of the Rules of Court underscores the multi-part nature of special proceedings by
enumerating the particular judgments and final orders already subject of appeal by any interested party
despite other parts of the proceedings being still untried or unresolved.
55

The petitioners’ appeal comes under item (e) of Section 1, supra, due to the final order of May 3,
1995 issued in the settlement of the estate of L.J. Hodges being “a final determination in the lower court
of the rights of the party appealing.” In order to elevate a part of the records sufficient for appellate
review without the RTC being deprived of the original records, the remedy was to file a record on appeal
to be approved by the RTC
Lebin vs. Mirasol, G.R. No. 164255, September 7, 2011

Corporate rehabilitation – record on appeal required before change in the rules

Section 5 of the Interim Rules on Corporate Rehabilitation provides that "(t)he review of any order or
decision of the court or an appeal therefrom shall be in accordance with the Rules of Court x x x." Under
A.M. No. 00-8-10-SC, a petition for corporate rehabilitation is considered a special proceeding. Thus, the
period of appeal provided in paragraph 19(b) of the Interim Rules Relative to the Implementation
of Batas Pambansa Blg. 129 for special proceedings shall apply,that is, the period of appeal shall be 30
days since a record of appeal is required.22Thus:

19. Period of Appeal. -

(a) x x x

(b) In appeals in special proceedings in accordance with Rule 109 of the Rules of Court and other
cases wherein multiple appeals are allowed, the period of appeal shall be thirty (30) days, a
record of appeal being required.

On 14 September 2004, this Court issued A.M. No. 04-9-07-SC providing that all decisions and final
orders in cases falling under the Interim Rules of Corporate Rehabilitation and the Interim Rules of
Procedure Governing Intra-Corporate Controversies under Republic Act No. 8799 shall be appealed to
the Court of Appeals through a petition for review under Rule 43 of the Rules of Court, to be filed within
fifteen (15) days from notice of the decision or final order of the Regional Trial Court. However, in this
case, BFB filed a notice of appeal on 3 November 2003, before the effectivity of A.M. No. 04-9-07-SC.
Hence, at the time of filing of BFB’s appeal, the applicable mode of appeal is Section 2, Rule 41 of the
1997 Rules of Civil Procedure which provides:

Sec. 2. Modes of Appeal. -

(a) Ordinary appeal. - The appeal to the Court of Appeals in cases decided by the Regional Trial
Court in the exercise of its original jurisdiction shall be taken by filing a notice of appeal with the
court which rendered the judgment or final order appealed from and serving a copy thereof
upon the adverse party. No record on appeal shall be required except in special proceedings and
other cases of multiple or separate appeals where the law or these Rules so require. In such
cases, the record on appeal shall be filed and served in like manner.
BPI Family Savings Bank, Inc. vs Pryce Gases, Inc., G.R. No. 188365, June 29, 2011

Rule on advance distribution


Notwithstanding a pending controversy or appeal in prccedings to settle the estate of a decedent,
the court may, in its discretion and upon such terms as it may deem proper and just, permit that such
part of the estate as may be affected by the controversy or appeal be distributed among the heirs or
legatees, upon compliance with the conditions set forth in Rule 90.
Rule 90, Sec. 1 - Distribution before payment of obligations is allowed provided distributees give
BOND conditioned for payment thereof within such time as court directs.

VENUE OF SPECIAL PROCEEDINGS

1. Settlement of estate (Rule 73):


RTC (or MTC) of province where deceased last resided/property situated.

2. Escheat (Rule 91):


RTC of province where deceased last resided/property situated.

3. Guardianship:
(Rule on Guardianship of Minors [A.M. No. 03-02-05-SC])
Family Court of province or city where minor resides/property situated.

Rule 92
RTC of province or city where incompetent resides/property situated.

4. Adoption (Rule on Adoption [A.M. No. 02-6-02-SC]):


Family Court of province or city where prospective adoptive parents reside.
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Rescission – where adoptee resides.

5. Habeas Corpus (Rule 102):


If filed with RTC, where detainee is detained. SC, CA and RTC have concurrent jurisdiction.
However, the writ of habeas corpus issued by the RTC shall be enforceable only within its judicial
region (Sec. 21, BP 129).

Habeas Corpus for custody of minors:


Family courts have exclusive jurisdiction (Family Courts Act of 1997 [RA 8309].
However, under the Rule on Custody of Minors and Writ of Habeas Corpus in relation to Custody
of Minors (A.M. No. 03-04-04-SC), the petition may be filed with SC, CA or any of its members,
and the writ shall be enforceable anywhere in the Philippines.

6. Amparo (A.M. No. 07-9-12-SC)


SC, CA and SB

RTC of the place where the threat, act or omission was committed or any of its elements
occurred

7. Habeas Data (A.M. No. 08-1-16-SC)


SC, CA and SB

RTC:
1. Where petitioner resides; or
2. Where respondent resides; or
3. Which has jurisdiction over the place where data or information is gathered, etc.
All at the option of petitioner.

6. Change of name (Rule 103):


RTC of province of residence of petitioner.

7. Absentees (Rule 107):


RTC of place where absentee resided before his disappearance.

8. Cancellation or correction of entries (Rule 108):


RTC of place where civil registry is located.

Correction of clerical or typographical errors (RA 9048):


Local Civil Registrar of place where record is located.
Exc. – if impractical in terms of transportation expenses, time and effort as where petitioner
has transferred to another place – Local Civil Registrar of petitioner’s residence.

SPECIAL PROCEEDINGS THAT REQUIRE NO PUBLICATION

1. Guardianship
2. Trustees
3. Custody of minors
4. Hospitalization of insane persons
5. Rescission of adoption
6. Administrative cancellation or correction of entries
7. Habeas corpus
8. Writ of amparo
9. Writ of habeas data
10. Writ of kalikasan
11. Petitions for foster care and temporary custody
12. Cases of domestic violence against women and children
13. Summary proceedings

RULES OF PROCEDURE FOR ENVIRONMENTAL CASES


(A.M. No. 09-6-8-SC)

WRIT OF KALIKASAN

What is the Writ of Kalikasan?

It is a special remedy available to a natural or juridical person, entity authorized by law, people’s
organization, non-governmental organization, or any public interest group accredited by or registered
with any government agency, on behalf of persons whose constitutional right to a balanced and
healthful ecology is violated, or threatened with violation by an unlawful act or omission of a public
official or employee, or private individual or entity, involving environmental damage of such magnitude
57

as to prejudice the life, health or property of inhabitants in two or more cities or provinces (Sec. 1, Rule
7, A.M. No. 09-6-8-SC).

Environmental laws and regulations covered by the writ of kalikasan

1. Act No. 3572 - Prohibition Against Cutting of Tindalo,Akli, and Molave Trees;
2. P.D. No. 705 - Revised Forestry Code;
3. P.D. No. 856 - Sanitation Code;
4. P.D. No. 979 - Marine Pollution Decree;
5. P.D. No. 1067 - Water Code;
6. P.D. No. 1151 - Philippine Environmental Policy of 1977;
7. P.D. No. 1433 - Plant Quarantine Law of 1978;
8. P.D. No. 1586 - Establishing an Environmental Impact Statement System Including Other
Environmental Management Related Measures and for Other Purposes;
9. R.A. 3571 - Prohibition Against the Cutting, Destroying or Injuring of Planted or Growing
Trees, Flowering Plants and Shrubs or Plants of Scenic Value along Public Roads, in Plazas,
Parks, School Premises or in any Other Public Ground;
10. R.A. 4850 - Laguna Lake Development Authority Act;
11. R.A. 6969 - Toxic Substances and Hazardous Waste Act;
12. R.A. 7076 - People’s Small-Scale Mining Act;
13. R.A. 7586 - National Integrated Protected Areas System Act including all laws, decrees,
orders, proclamations and issuances establishing protected areas;
14. R.A. 7611 - Strategic Environmental Plan for Palawan Act;
15. R.A. 7942 - Philippine Mining Act;
16. R.A. 8371 - Indigenous Peoples Rights Act;
17. R.A. 8550 - Philippine Fisheries Code;
18. R.A. 8749 - Clean Air Act;
19. R.A. 9003 - Ecological Solid Waste Management Act;
20. R.A. 9072 - National Caves and Cave Resource Management Act;
21. R.A. 9147 - Wildlife Conservation and Protection Act;
22. R.A. 9175 - Chainsaw Act;
23. R.A. 9275 - Clean Water Act;
24. R.A. 9483 - Oil Spill Compensation Act of 2007;
25. Provisions in CA No. 141, The Public Land Act; R.A. 6657, Comprehensive Agrarian Reform
Law of 1988; R.A. 7160, Local Government Code of 1991; R.A. 7161, Tax Laws
Incorporated in the Revised Forestry Code and Other Environmental Laws (Amending the NIRC); R.A.
7308, Seed Industry Development Act of 1992; R.A. 7900, High-Value Crops Development Act; R.A.
8048, Coconut Preservation Act; R.A. 8435, Agriculture and Fisheries Modernization Act of 1997; R.A.
9522, The Philippine Archipelagic Baselines Law; R.A. 9593, Renewable Energy Act of 2008; R.A.
9637, Philippine Biofuels Act; and
26. Other existing laws that relate to the conservation, development, preservation, protection
and utilization of the environment and natural resources (Sec. 2, Rule 1, A.M. No. 09-6-8-
SC).

Who may avail of the writ?

The petition can be filed by the following:


a. A natural or juridical person;
b. Entity authorized by law; or
c. POs, NGOs or any public interest group accredited by or registered with any government agency
on behalf of persons whose constitutional right to a balanced and healthful ecology is violated
(Sec. 1, Rule 7, A.M. No. 09-6-8-SC 7).

Where should the petition be filed?

Supreme Court or Court of Appeals (Sec. 3, Rule 7, A.M. No. 09-6-8-SC 7).

What is the magnitude of environmental damage in a writ of kalikasan?

It must be of environmental damage of such magnitude as to prejudice the life, health or property of
inhabitants in two or more cities or provinces (Sec. 1, Rule 7, A.M..No. 09-6-8-SC).

Is the petitioner required to pay docket fees?

No, the petitioner is exempt from payment of docket fees (Sec. 4, Rule , A.M. No. 09-6-8-SC 7).

The exemption encourages the public to avail of the remedy.

Within what time should the issuance of the writ be made?


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Within three (3) days from the date of filing of the petition, if the petition is sufficient in form and
substance, the court shall give an order: (a) issuing the writ; and (b) requiring the respondent to file a
verified return as provided in Section 8 of Rule 8 (Sec. 5, Rule 7, A.M. No. 09-6-8-SC

What shall the return contain?

Within a non-extendible period of ten (10) days after service of the writ, the respondent shall file a
verified return which shall contain all defenses to show that respondent did not
a. violate or
b. threaten to violate, or
c. allow the violation of any environmental law, rule or regulation or
d. commit any act
resulting to environmental damage of such magnitude as to prejudice the life, health or property of
inhabitants in two or more cities or provinces.

All defenses not raised in the return shall be deemed waived.

The return shall include affidavits of witnesses, documentary evidence, scientific or other expert
studies, and if possible, object evidence, in support of the defense of the respondent.

A general denial of allegations in the petition shall be considered as an admission thereof.(Sec. 8, Rule
7, A.M .No. 09-6-8-SC).

What are the prohibited pleadings and motions?

1. Motion to dismiss;
2. Motion for extension of time to file return;
3. Motion for postponement;
4. Motion for a bill of particulars;
5. Counterclaim or cross-claim;
6. Third-party complaint;
7. Reply; and
8. Motion to declare respondent in default (Sec. 9, Rule 7, A.M. No. 09-6-8-SC).

What are the interim reliefs available to the petitioner upon filing a verified motion?

1. Ocular inspection; or
2. Production or inspection of documents or things (Sec. 12, Rule 7, A.M. No. 09-6-8-SC).

What are the requisites for granting an ocular inspection?

The motion must show:


1. that an ocular inspection order is necessary to establish the magnitude of the violation or the
threat as to prejudice the life, health or property of inhabitants in two or more cities or
provinces;
2. it shall state in detail the place or places to be inspected; and
3. It shall be supported by affidavits of witnesses having personal knowledge of the violation or
threatened violation of environmental law [Sec. 12(a), Rule 7, A.M. No. 09-6-8-SC].

What does the ocular inspection order contain?

The order shall specify the person or persons authorized to make the inspection and the date, time,
place and manner of making the inspection and may prescribe other conditions to protect the
constitutional rights of all parties [Sec. 12(a), Rule 7, A.M. No. 09-6-8-SC)

What must the motion asking for the issuance of a production order or inspection of
documents?

The motion must show that a production order is necessary to establish the magnitude of the violation
or the threat as to prejudice the life, health or property of inhabitants in two or more cities or provinces
[Sec. 12(b), Rule 7, A.M. No. 09-6-8-SC].

What must the production order state?

The production order shall specify the person or persons authorized to make the production and the
date, time, place and manner of making the inspection or production and may prescribe other
conditions to protect the constitutional rights of all parties (Sec. 12(b), Rule 7, A.M. No. 09-6-8-SC).

Note: After hearing, the court may order any person in possession, custody or control of any
designated documents, papers, books, accounts, letters, photographs, objects or tangible things, or
objects in digitized or electronic form, which constitute or contain evidence relevant to the petition or
59

the return, to produce and permit their inspection, copying or photographing by or on behalf of the
movant [Sec. 12(b), Rule 7, A.M. No. 09-6-8-SC].

On what grounds may a respondent be cited for contempt?

The court may after hearing punish the respondent who refuses or unduly delays the filing of a return,
or who makes a false return, or any person who disobeys or resists a lawful process or order of the court
for indirect contempt under Rule 71 of the Rules of Court (Sec. 13, Rule 7, A.M. No. 09-6-8-SC).
Note: This section is similar to Sec. 16 of the Rule on the Writ of Amparo.

When should the court render judgment?

Within sixty (60) days from the time the petition is submitted for decision, the court shall render
judgment granting or denying the privilege of the writ of kalikasan.(Sec. 15, Rule 7, Ibid.)

What reliefs may be granted under the writ?

(a) Directing respondent to permanently cease and desist from committing acts or neglecting
the performance of a duty in violation of environmental laws resulting in environmental
destruction or damage;

(b) Directing the respondent public official, government agency, private person or entity to
protect, preserve, rehabilitate or restore the environment;

(c) Directing the respondent public official, government agency, private person or entity to
monitor strict compliance with the decision and orders of the court;

(d) Directing the respondent public official, government agency, or private person or entity to
make periodic reports on the execution of the final judgment; and

(e) Such other reliefs which relate to the right of the people to a balanced and healthful ecology
or to the protection, preservation, rehabilitation or restoration of the environment, except the
award of damages to individual petitioners. .(Sec. 15, Rule 7, Ibid.)

What is the period to appeal from the judgment?

Within fifteen (15) days from the date of notice of the adverse judgment or denial of motion for
reconsideration, any party may appeal to the Supreme Court under Rule 45 of the Rules of Court. The
appeal may raise questions of fact. (Sec. 16, Rule 7, Ibid.)

May separate actions be filed after the filing of a petition for issuance of writ of kalikasan?

The filing of a petition for the issuance of the writ of kalikasan shall not preclude the filing of separate
civil, criminal or administrative actions.(Sec. 17, Rule 7. Ibid.)