REVIEWER IN REMEDIAL LAW Table of Contents

SPECIAL PROCEEDINGS
PRELIMINARY MATTERS 142 L. Proof where testator petitions for 152
A. Special Proceedings 142 allowance of holographic will
B. Applicable Rules 142 M. Certificate of allowance attached 152
C. Venues and Jurisdictions of Special 143 to prove will. To be recorded in
Proceedings the Office of Register of Deeds
V. Rule 77 Allowance of Will Proved 153
CHAPTER 1: General Provisions 144 Outside of Philippines and
I. Subject matter and applicability of 144 Administration of Estate
general rules Thereunder
II. Difference between action and 144 A. Will proved outside the 153
special proceeding Philippines
CHAPTER 2: Settlement of Estate of 145 B. Requisites for allowance: 153
Deceased Persons C. When will allowed, and effect 153
I. Venue and Process 145 thereof

SPECIAL PROCEEDINGS
A. Where estate of deceased persons 145 D. Estate, how administered 153
settled VI. Letters Testamentary and of 153
B. Where estate settled upon 146 Administration, When and to Whom
dissolution of marriage Issued
C. Process 146 A. Who cannot serve as executors or 153
D. Presumption of death 146 administrators:
II. Summary Settlement of Estate 146 B. The executor of an executor shall 153
A. Extrajudicial settlement by 146 not, as such, administer the
agreement between heirs estate of the first testator.
B. Summary settlement of small 147 C. Married woman may serve 153
value D. Letters testamentary issued when 154
C. Bond to be filed by distributees 148 will allowed
D. Liability of distributees and estate 148 E. Where some co-executors 154
E. Period for claim of minor or 149 disqualified others may act
incapacitated person F. When and to whom letters of 154
III. Production of Will. Allowance of 149 administration granted
Will Necessary VII. Rule 79 Opposing Issuance of 154
A. Allowance necessary. Conclusive 149 Letters Testamentary. Petition and
as to execution Contest For Letters Of
B. Custodian of will to deliver 150 Administration
C. Executor to present will and 150 A. Opposition to issuance of letters 154
accept or refuse trust testamentary
D. Custodian and executor subject 150 B. Contents of petition for letters of 155
to fine for neglect administration
E. Person retaining will may be 150 C. Court to set time for hearing. 155
committed Notice thereof
IV. Allowance or Disallowance of Will 150 D. Opposition to petition for 155
A. Who may petition for the 150 administration
allowance of will E. Hearing and order for letters to 155
B. Contents of the petition 151 issue
C. Court to appoint time for proving 151 F. When letters of administration 155
will. Notice thereof to be granted to any applicant
published VIII. Rule 80 Special Administrator 155
D. Heirs, devisees, legatees, and 151 A. Appointment of special 155
executors to be notified by mail or administrator
personally B. Powers and duties of special 156
E. Proof at hearing. What sufficient 151 administrator
in absence of contest C. When special administrator cease; 156
F. Proof of lost or destroyed will. 151 duties
Certificate thereupon IX. Rule 81 Bond of Executors and 156
G. Proof when witnesses do not 151 Administrators
reside in province A. Bond to be given issuance of 156
H. Proof when witnesses dead or 152 letters. Amount. Conditions.
insane or do not reside in the B. Bond of executor where directed 156
Philippines in will. When further bond
I. Grounds for disallowance of will 152 required
J. Contestant to file grounds for 152 C. Bonds of joint executors and 157
contest administrators
K. Subscribing witnesses produced 152 D. Bond for special administrator 157
or accounted for where will
contested

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REVIEWER IN REMEDIAL LAW Table of Contents
X. Revocation of Administration, 157 G. Mortgage debt due from estate 163
Death, Resignation, and Removal of H. Claim of executor or 163
Executors or Administrators administrator against an estate
A. Administration revoked if will 157 I. How to file a claim. Contents 163
discover. Proceedings thereupon thereof. Notice to executor or
B. Court may remove or accept 157 administrator
resignation of executor or J. Answer to the claim by executor 164
administrator. Proceedings upon or administrator. Offsets 164
death, resignation or removal K. Disposition of admitted claim 164
C. Acts before revocation, 158 L. Trial of contested claim 164
resignation, or removal to be valid M. Judgment appealable 164
D. Powers of new executor or 158 N. Costs 164
administrator XV. Actions By and Against Executors 165
XI. Inventory and Appraisal. Provision 158 and Administrators
for Support of Family A. Actions which may and which 165
A. Inventory and appraisal to be 158 may not be brought against

SPECIAL PROCEEDINGS
returned within 3 months executor or administrator
B. Articles not to be inventoried: 158 B. executor or administrator may 165
C. Allowance to widow and family 158 bring or defend actions which
D. Provision for support 158 survive
XII.General Powers and Duties of 158 C. Heir may not sue until share 166
Executors and Administrators assigned
A. Executor or administrator to have 158 D. Executor or administrator may 166
access to partnership books and compound with debtor
property. How right enforced E. Mortgage due estate may be 166
B. Keep buildings in tenantable 159 foreclosed
repair F. Proceedings when property 166
C. Right to possession and 159 concealed, embezzled or
management of the real and fraudulently conveyed
personal properties G. Powers entrusted with estate 166
XIII. Accountability and 159 compelled to render account
Compensation of Executors and H. Embezzlement before letters 167
Administrators issued
A. Executor or administrator 159 I. Property fraudulently conveyed by 167
chargeable with all estate and deceased may be recovered. When
income executor or administrator must
B. Not to profit by increase or lose by 159 bring action
decrease in value J. When creditor may bring action. 167
C. When not accountable 159 Lien for costs
D. Accountable for income from 159 XVI. Payment of the Debts of the 167
realty used by him Estate
E. Accountable if he neglects or 159 A. Debts paid in full if estate 168
delays to raise or pay money sufficient
F. When allowed money paid as 160 B. Part of estate from which debt 168
costs paid when provision made by will
G. What expenses and fees allowed 160 C. Personally first chargeable for 168
executor or administrator. Not to debts, then realty
charge for services as attorney. D. Estate to be retained to meet 168
Compensation provided by will contingent claims
controls unless renounced. E. Contingent claim; when allowed 168
H. When executor or administrator 160 F. Court to fix contributive shares 169
to render account where devisees, legates, or heirs
I. Examination on oath by court 161 have been in possession
J. Account to be settled on notice 161 G. Order of payment if estate is 169
K. Surety on bond may be party to 161 insolvent
accounting H. Dividends to be paid in proportion 169
XIV. Claims Against Estate 161 to claims
A. Notice to creditors to be issued by 161 I. Insolvent non-resident 169
court J. Insolvent resident; foreign 169
B. Time within which claims shall be 162 creditors
filed K. Order of payment of debts 169
C. Publication of notice to creditors 162 L. Appeal taken from a decision of 169
D. Filing copy of printed notice 162 the court concerning the claim
E. Claims which must be filed under 162 M. Time to time further orders of 169
the notice. If not filed, barred; distribution
exceptions N. Creditors to be paid in accordance 170
F. Solidary obligation of decedent 162 with terms of order

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REVIEWER IN REMEDIAL LAW Table of Contents
O. Court shall allow executor or 170 IV. Period to appeal and claim the 179
administrator a time for disposing estate
the estate any paying debts and V. Other actions for escheat 179
legacies
P. Ground for extension 170 CHAPTER 4: Special Rules 180
XVII. Sales, Mortgages, and Other 170 Implementing the Family Courts
Encumbrances of Property of I. Guardianship 180
Decedent A. Guardianship In General 180
A. Sale of personal estate; 170 B. Guardianship of Minors 180
requirements 1. Parents as Legal Guardians 180
B. Sale, mortgage, or encumbrance 170 (Art. 225, FC)
(s/m/e) of real property 2. Rule on Guardianship of 181
C. Requisites for disallowing s/m/e 171 Minors (A.M. No. 03-02-05-
real or personal SC)
D. Sale of whole or part of personal 171 a. Scope and Applicability 181
or real estate b. Petition for Appointment 181

SPECIAL PROCEEDINGS
E. Personal/real s/m/e is NOT 171 of Guardian
necessary to pay debts, expenses c. The Guardian 182
of administration or legacies in d. Selling and Encumbering 184
the PHILIPPINES the Property of the Ward
F. Court authorize s/m/e of realty 171 e. Removal, Resignation, 184
acquired on execution or and Termination of
foreclosure Guardianship
G. Regulations for authorizing 171 C. Guardianship of Incompetents 185
s/m/e: (Rules 92-98)
H. When court may authorize 172 a. Scope and Applicability 185
conveyance of realty which b. Petition for Appointment of 185
deceased contracted to convey Guardian
I. Where the deceased in his lifetime 173 c. The Guardian 186
held real property in trust for d. Selling and Encumbering the 188
another person Property of the Ward (Rule
XVIII. Distribution and Partition of 173 95)
the estate e. Termination of Guardianship 189
A. When order for distribution of 173 (Rule 97)
residue made II. Adoption 190
B. Questions as to advancement 174 A. Domestic Adoption 190
made, or alleged to have been a. Scope and Applicability 190
made, by the deceased to any heir b. The Adopter and the Adoptee 190
C. Expenses of partition 174 c. Petition for Adoption 192
D. Recording of the order of partition 174 d. Rescission of Adoption of the 196
of estate Adoptee
E. Effect of Final Decree of 174 B. Inter-Country Adoption (RA 8043) 197
Distribution 1. Scope and Applicability 197
XIX. Trustees 175 2. Inter-country Adoption as the 197
A. Where trustee appointed 175 Last Resort
B. Appointment and powers of 175 3. Petition for Adoption 197
trustee under will. Executor of III. Rules on Custody of Children (Rule 198
former trustee need not 99, Secs. 6 and 7)
administer trust A. Proceedings as to the child whose 198
C. New Trustee 175 parents are separated (Rule 99, 199
D. Trustee appointed abroad 176 Sec. 6)
E. Trustee must file bond before 176 B. Proceedings as to vagrant or 199
performing duties abused child (Rule 99, Sec. 7)
F. Conditions of the Bond 176 IV. Custody of Minors and Writ of 199
G. Appraisal and compensation of 177 Habeas Corpus in Relation to
trustee Custody of Minors (A.M. No. 03-04-
H. Removal or resignation of trustee 177 04-SC)
I. If sale or encumbrance of trust 177 V. Commitment of Children (A.M. No. 203
estate necessary or expedient 02-1-19-SC)
A. Involuntary Commitment of a 204
CHAPTER 3: Escheats 178 Dependent, Abandoned, or
I. When Allowed 178 Neglected Child
II. Duty of court; when petition 179 B. Voluntary Commitment of a 206
sufficient Dependent, Abandoned, or
III. Court shall adjudge that the estate 179 Neglected Child
shall escheat C. Commitment of a Disabled Child 207

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REVIEWER IN REMEDIAL LAW Table of Contents
CHAPTER 5: Other Special Proceedings 209 F. Penalties 232
I. Hospitalization of Insane Persons 209 G. Judgment and Appeal 232
(Rule 101) H. Return of Judgment, Hearing 232
A. Petition for Commitment 209 thereon
B. Petition for Discharge of Insane 209 I. Effects of Other Actions 232
II. Declaration of Absence (Rule 107) 209 J. Other Matters 232
and of Presumptive Death (Arts. IV. Writ Matrix 233
390-392, CC)
A. Absence 210 CHAPTER 8: Corporate Rehabilitation 240
B. Presumption of Death 210 I. Petition for Rehabilitation 240
III. Change of Name and Cancellation 210 II. Stay Order 241
or Correction of Entries in the Civil III. Hearing 242
Registry IV. Corporation plan of rehabilitation 242
A. Change of Name (Rule 103) 210 V. Final Orders and Appeals Therefom 243
B. Change of First name or 211
Nickname and Correction of

SPECIAL PROCEEDINGS
Clerical or Typographical Errors
in Entries in the Civil Registry (RA
9048)
1. Scope and Application 211
2. RA 9048 and Rule 103 211
Compared
3. The Petition 212
C. Cancellation or Correction of 215
Entries in the Civil Registry (Rule
108)
IV. Voluntary Dissolution of 215
Corporations
V. Naturalization 215
CHAPTER 6: Appeals in Special 219
Proceedings

CHAPTER 7: The Writs 220

I. Writ of Habeas Corpus 220
A. To What Habeas Corpus Extends 220
B. Who May Grant the Writ 222
C. Requisites of Application 222
D. When Writ not Allowed or 222
Discharge Authorized
E. When Writ Must be Granted and 223
Issued
F. Aspects of the Return 223
G. When person Lawfully Imprisoned 224
Recommitted, and When let to
Bail
H. When Prisoner Discharged if no 224
Appeal
I. Penalties 225
J. Record of Writ, Fees and Costs 225
II. Writ of Amparo 225
A. General principles 225
B. Aspects of Filing 226
C. Issuance and Service of the Writ 227
D. Aspects of the Return 227
E. Hearing on the Writ 227
F. Allowable Reliefs 228
G. Penalties 229
H. Burden of Proof 229
I. Judgment and Appeal 229
J. Effect of Other Actions 230
K. Other Matters 230
III. Writ of Habeas Data 230
A. General Principles 230
B. Aspects of Filing 230
C. Issuance and Service 231
D. Aspects of Return 231
E. Hearing on the Writ 231

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REVIEWER IN REMEDIAL LAW Preliminary Matters

Special Proceedings
FACULTY-STUDENT EDITORIAL BOARD AND LECTURES COMMITTEE

Prof. Theodore O. Te REMEDIAL LAW LECTURES

FACULTY EDITOR
Bryan San Juan Edel Cruz
SUBJECT EDITOR HEAD
ACADEMICS COMMITTEE
SPECIAL PROCEEDINGS --------
Samantha Poblacion
DIRECTOR FOR ACADEMICS Choi Ocampo Kae Guerrero
EDITOR-IN-CHIEF LEAD WRITER PRINTING AND DISTRIBUTION
--------
Rania Joya Robin Concepcion Leo Zulueta
DEPUTY DIRECTOR FOR ACADEMICS Shamby Yambot LOGO, COVER AND TEMPLATE DESIGN
LAYOUT HEAD WRITERS

SPECIAL PROCEEDINGS
Preliminary Matters
A. SPECIAL PROCEEDINGS
B. APPLICABLE RULES
C. VENUES AND JURISDICTIONS FOR
SPECIAL PROCEEDINGS

A. SPECIAL PROCEEDINGS –
 A remedy by which a party seeks to
establish a status, right or a particular
fact (Rule 1, Sec. 3(c)).

B. APPLICABLE RULES
 If special rules are provided, they shall
apply. But in the absence of such
special provisions, the rules applicable
in special proceedings shall be applied
(Rule 72, Sec. 2).
 There are special proceedings which are
not part of the ROC (e.g. Writs of
amparo and habeas data), as special
proceedings are in general cases
wherein one seeks to establish the
status/right of a party or a particular
fact.
 The State has an overriding interest in
each special proceeding, and the matter
is not a controversy between private
parties purely (Bautista).
 The distinction between final and
interlocutory orders in civil actions for
purposes of determining the issue of
applicability, is not strictly applicable to
orders in special proceedings, Rule 109
specifies the orders from which appeals
may be taken (Regalado).
 Rule 33 regarding judgment on
demurrer to evidence is applicable to
special proceedings (Matute v. CA
(1969)).

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REVIEWER IN REMEDIAL LAW Preliminary Matters

C. VENUES AND JURISDICTIONS FOR SPECIAL PROCEEDINGS

(Asked in the 1997 bar examinations)

Special Proceeding Venue Jurisdiction

Settlement of the Residence of the decedent MTC if gross value of the
Estate of a Deceased If non-resident, place where he had an estate estate does not exceed P
Person 300,000, or does not exceed
P400,000 in Metro Manila
- Else, RTC
Escheat Person dies intestate leaving no heir – RTC
Residence of the decedent or if non-resident,
place where he had estate
Reversion – where land lies in whole or in RTC
part
Unclaimed Balances Act – where deposits are RTC

SPECIAL PROCEEDINGS
located
Appointment of Where minor resides Family Court
Guardians Where incompetent resides RTC
Appointment of Where will was allowed or RTC
Trustees Where the property or portion thereof
affected by the trust is situated
Adoption Domestic – where adopter resides Family Court
ICAB – where adoptee resides if filed with the Family Court or ICAB
family court
Rescission of Adoption Where adoptee resides Family Court
Habeas Corpus If filed with RTC, where detainee is detained SC, CA, RTC, MTC in the
province or city in case there is
no RTC judge
Sandiganbayan only in aid of
its appellate jurisdiction
For the custody of minors, where petitioner Family Court, CA, SC
resides or where minor may be found
Habeas Data Where the petitioner or respondent resides, RTC generally
or that which has jurisdiction over the place If concerning public data files
where the data or information is gathered, or government offices, SC, CA
collected, or stored, at the option of the or Sandigabayan
petitioner
Amparo Where the threat, act or omission was RTC, Sandiganbayan, CA, SC
committed or any of its elements occurred or any justice thereof
Change of Name Judicial - where petitioner resides RTC
Administrative: Local Civil Registry/ Philippine
 Local civil registry where the record consulate
sought to be changed is kept
 Local civil registry of the place of
residence of the interested party (only if
petitioner migrated to another place in the
Philippines and it is impractical to file
where records sought to be changed are
kept)
 Philippine consulates only for non-
resident citizen
Appoinment of Where Absentee resides before his RTC
Representative of disappearance
Absentee/ Declaration
of Absence
Cancellation / Judicial - Where corresponding civil registry RTC
Correction of Entries is located
in Civil Registries Administrative - Same as change of name Local Civil Registry/ Philippine
consulate
Petition for declaration Where petitioner or respondent has been Family Court
of nullity, annulment, residing for at least 6 months prior to the
legal separation date of filing
If non-resident petitioner, where he may be
found at the election of the petitioner

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REVIEWER IN REMEDIAL LAW Chapter 1: General Provisions

Chapter 1: General Provisions II. Difference Between Action and

I. SUBJECT MATTER AND APPLICABILITY
OF GENERAL RULES
II. DIFFERENCE BETWEEN ACTION AND
SPECIAL PROCEEDING
I. Subject Matter and Applicability
of General Rules
 Rules of special proceedings are
provided for in the following cases:
1. Settlement of estate of deceased
persons;
Special Proceeding
 Action - formal demand of one’s right in
a court of justice in the manner
prescribed by the court or by the law
(Herrera).
 Special proceeding - application or
proceeding to establish the status or
right of a party, or particular fact. No
formal pleadings are required, unless
the statute expressly so provides
(Herrera).

SPECIAL PROCEEDINGS
2. Escheat; Ordinary Action Special Proceeding
3. Guardianship and custody of To protect/enforce a To establish a
children; right or prevent/ right/status/fact
4. Trustees; redress a wrong
5. Adoption; Involves 2 or more May involve only 1
parties party
6. Rescission and revocation of
Governed by ordinary Governed by special
adoption; rules supplemented rules, supplemented by
7. Hospitalization of insane persons; by special rules ordinary rules
8. Habeas corpus; Initiated by pleading, Initiated by petition,
9. Change of name; and parties respond parties respond through
10. Voluntary dissolution of through an answer an opposition
corporations;
11. Judicial approval of voluntary
recognition of minor natural
children;
12. Constitution of family home;
13. Declaration of absence and death;
14. Cancellation of correction of entries
in the civil registry.
 In the absence of special provisions, the
rules provided for in ordinary ctions
shall be, as far as practicable,
applicable in special proceedings.

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REVIEWER IN REMEDIAL LAW Chapter 2: Settlement of Estate of Deceased Persons

Chapter 2: Settlement of Estate of  Jurisdiction: court first taking

Deceased Persons cognizance shall exercise jurisdiction to
the exclusion of all other courts.
 The jurisdiction assumed by a court, so
I. VENUE AND PROCESS
II. SUMMARY SETTLEMENT OF ESTATE far as it depends on the place of
III. PRODUCTION OF WILL. ALLOWANCE OF residence of the decedent, or of the
WILL NECESSARY location of his estate, shall not be
IV. ALLOWANCE OR DISALLOWANCE OF contested in a suit or proceeding,
WILL except:
V. RULE 77 ALLOWANCE OF WILL PROVED In an appeal from that court, in the
OUTSIDE OF PHILIPPINES AND original case, OR
ADMINISTRATION OF ESTATE When the want of jurisdiction appears
THEREUNDER
on the record.
VI. LETTERS TESTAMENTARY AND OF
ADMINISTRATION, WHEN AND TO WHOM

SPECIAL PROCEEDINGS
ISSUED  Conversion of an intestate into
VII. RULE 79 OPPOSING ISSUANCE OF testate proceeding
LETTERS TESTAMENTARY. PETITION A matter of form and lies within the
AND CONTEST FOR LETTERS OF sound discretion of the court.
ADMINISTRATION
VIII. RULE 80 SPECIAL ADMINISTRATOR 1. Jurisdiction of MTCs
IX. RULE 81 BOND OF EXECUTORS AND  When the value of the estate does not
ADMINISTRATORS
exceed P300,000 or P400,000 in Metro
X. REVOCATION OF ADMINISTRATION,
DEATH, RESIGNATION, AND REMOVAL Manila.
OF EXECUTORS OR ADMINISTRATORS
XI. INVENTORY AND APPRAISAL. PROVISION 2. Rule 73 relates to venue and not to
FOR SUPPORT OF FAMILY jurisdiction
XII.GENERAL POWERS AND DUTIES OF  The place of residence of the deceased
EXECUTORS AND ADMINISTRATORS in settlement of estates, probate of will,
XIII. ACCOUNTABILITY AND and issuance of letters of administration
COMPENSATION OF EXECUTORS AND does not constitute an element of
ADMINISTRATORS
jurisdiction over the subject matter. It is
XIV. CLAIMS AGAINST ESTATE
XV. ACTIONS BY AND AGAINST EXECUTORS only constitutive of venue.
AND ADMINISTRATORS 3. Meaning of term “resides”
XVI. PAYMENT OF THE DEBTS OF THE  Resides - in the section is viewed in its
ESTATE popular sense, meaning, the personal,
XVII. SALES, MORTGAGES, AND OTHER actual or physical habitation of a
ENCUMBRANCES OF PROPERTY OF person, actual residence of place of
DECEDENT abode.
XVIII. DISTRIBUTION AND PARTITION OF 4. Probate court is of limited
THE ESTATE
jurisdiction
XIX. TRUSTEES
 General rule: When questions arise as
to ownership of property alleged to be
I. VENUE and PROCESS part of the estate of the deceased but
claimed by some other person to be his
A. WHERE ESTATE OF DECEASED PERSONS
property, not by virtue of any right of
SETTLED
B. WHERE ESTATE SETTLED UPON inheritance from the deceased but by
DISSOLUTION OF MARRIAGE title adverse to that of the deceased and
C. PROCESS his estate, such questions cannot be
D. PRESUMPTION OF DEATH determined in the courts of
administration proceedings. It must be
A. Where Estate of Deceased Persons settled in a separate action.
Settled  For the purpose of determining whether
a certain property should or should not
 If decedent is: be included in the inventory of the
Inhabitant of the Philippines at time of estate proceeding, the probate court
death (citizen/alien)  RTC of the may pass upon the title thereto, but
province in which he resides such determination is provisional, not
Inhabitant of foreign country  RTC of conclusive, and is subject to final
any province in which he had estate decision.

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REVIEWER IN REMEDIAL LAW Chapter 2: Settlement of Estate of Deceased Persons
 Exception: Questions to title to any II. SUMMARY SETTLEMENT OF
property apparently still belonging to ESTATE
the estate of the deceased may be
passed upon in the probate court, with A. EXTRAJUDICIAL SETTLEMENT BY
consent of all the parties, without AGREEMENT BETWEEN HEIRS
prejudice to third persons (Trinidad v. B. SUMMARY SETTLEMENT OF SMALL VALUE
CA). C. BOND TO BE FILED BY DISTRIBUTEES
5. Nature of proceedings: In rem. D. LIABILITY OF DISTRIBUTEES AND ESTATE
E. PERIOD FOR CLAIM OF MINOR OR
INCAPACITATED PERSON
B. Where Estate Settled upon
Dissolution of Marriage
A. Extrajudicial Settlement by
a. If one spouse died: the community
Agreement between Heirs
property shall be inventoried, (Asked in the 2005 Bar Examinations)

administered, and liquidated, and the
debts thereof paid, in the testate or
intestate proceedings of the deceased
spouse.
b. If both spouses have died: the
conjugal partnership shall be liquidated
in the testate or intestate proceedings of
either.
C. Process
 RTC may issue:
a. Warrants and process necessary:
i. To compel attendance of
witnesses
ii. To carry into effect their orders
and judgments
b. All other powers granted by law
c. Warrant for the apprehension and
imprisonment if a person does not
perform an order or judgment
rendered by the court until he
performs or is released.
D. Presumption of Death
 Presumption of death - if absent or
unheard of for the periods fixed in CC
 If proven to be alive:
a. He shall be entitled to the balance of
estate.
b. Recovered by motion in the same
proceeding.
 For purposes of settlement of his estate
only
 No independent action for declaration of
presumption of death.
SPECIAL PROCEEDINGS
1. Procedure:
a. Death of the decedent
b. Division of estate in public
instrument or affidavit of
adjudication
c. The public instrument or affidavit of
adjudication must be filed with the
proper Registry of Deeds
d. Publication of notice of the fact of
extrajudicial settlement once a week
for 3 consecutive weeks in a
newspaper of general circulation
e. Filing of bond equivalent to the
value of personal property
2. Requisites:
a. No will
b. No debts
o However, it is enough to meet
the requirement of no debts if
the heirs have already paid such
at the time of partition
c. Heirs are all of age or the minors are
represented by their judicial or legal
representatives
3. If there is no disagreement between
the heirs –
 The parties may divide the estate among
themselves by means of a public
instrument filed in the office of register
of deeds
4. If there is disagreement –
 They may divide the estate in an
ordinary action of partition.
5. If only 1 heir –
 He may adjudicate to himself the entire
estate by means of affidavit filed in the
office of register of deeds
6. Requirement common to all
instances –
 File a bond equal to the value of the
personal property involved as certified
to under oath by the parties,

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REVIEWER IN REMEDIAL LAW
conditioned upon the payment of any
just claim that may be filed
 It shall be presumed that the decedent
left no debts if no creditor files a
petition for letters of administration
within 2 years after the death of the
decedent.
7. Publication –
 Fact of the extrajudicial settlement or
administration shall be published in a
newspaper of general circulation 3
times a week, once each week;
8. Not binding on any person who:
a. Has not participated in the
extrajudicial settlement.
b. Had no notice thereof.
9. Judicial Administration
 General Rule: when a person dies
leaving property, the same should be
judicially administered and the
competent court should appoint a
qualified administrator, in the order
established in Sec 6. of Rule 78, in case
the deceased left no will, or in case he
had left one, should he fail to name an
executor therein.
 Exception: Summary settlement of
estate.
10. Different modes of settlement of
estate of deceased:
a. Extrajudicial settlement of estate
b. Partition
c. Summary settlement of estates of
small value
d. Probate of will
e. Petition for letters of administration
in intestacy.
11. Judicial administration not favored
 When a person dies without leaving
pending obligations to be paid, his
heirs, whether of age of not, are not
bound to submit the property to a
judicial administration, which is always
long and costly, or to apply for the
appointment of an administrator by the
court.
 In such case the judicial administration
and the appointment of an
administrator are superfluous and
unnecessary proceedings.
 There must be good reason to warrant
judicial administration. Among those
NOT good reasons:
Dispute among heirs;
Multiplicity of suits;
To have legal capacity to appear.
Chapter 2: Settlement of Estate of Deceased Persons
12. Validity of oral partition
 VALID, because there is no law that
requires partition among heirs to be in
writing to be valid
13. Validity of Compromise agreement
 VALID, binding upon the parties as
individuals, upon the perfection of the
contract, even without previous
authority of the court to enter into such
agreement.
B. Summary Settlement of Small
Value
SPECIAL PROCEEDINGS
 This shall be applicable to testate or
intestate proceedings
1. Procedure:
a. Death of the decedent
b. An application for summary
settlement with an allegation that
the gross value of the estate does
not exceed P10K
c. Publication of notice of the fact of
extrajudicial settlement once a week
for 3 consecutive weeks in a
newspaper of general circulation
(the court may also order notice to
be given to other persons as such
court may direct)
d. Hearing to be held not less than 1
month nor more than 3 months
from the date of the last publication
of notice
e. Court to proceed summarily,
without appointing an
executor/administrator (e/a), and to
make orders as may be necessary
f. Grant allowance of the will, if any
g. Determine persons entitled to estate
h. Pay debts of estate which are due
i. Filling of bond fixed by the court
j. Partition of estate.
2. Requisites:
a. Gross value of estate: x < P10,000
(now x < P300,000 outside Metro
Manila and x < 400,000 in Metro
Manila)
b. Fact is made to appear to the RTC
c. Through petition of an interested
person
d. Upon hearing
i. Held not less than 1 month nor
more than 3 months
ii. Counted from the date of the
last publication of a notice
e. Notice
i. Which shall be published once a
week for 3 consecutive weeks
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REVIEWER IN REMEDIAL LAW Chapter 2: Settlement of Estate of Deceased Persons
ii. In a newspaper of general satisfying such lawful
circulation in the province participation
iii. Note that it is not required that  There are debts outstanding which have
publication be for a complete 21 not been paid.
days. What is required is that it  An heir or other person has been
be published for once a week for unduly deprived of his lawful
3 consecutive weeks. participation payable in money
f. Notice to interested persons as the The court having jurisdiction of the
court may direct. estate may,
 Upon fulfillment of the requisites, the by order for that purpose,
court may proceed summarily after hearing,
 Without the appointment of an e/a settle the amount of such debts or
 Without delay, lawful participation, and
 To grant, if proper, allowance of the order how much and in what manner

SPECIAL PROCEEDINGS
will, if any there be, each distributee shall contribute in
the payment thereof, and
3. Court will: may issue execution, if circumstances
 Determine who are the persons require, against the bond provided
legally entitled to participate in the in the preceding section or against
estate, the real estate belonging to the
 Apportion and divide it among them deceased, or both.
after the payment of such debts of  Such bond and real estate shall remain
the estate as the court shall then charged with a liability to creditor, heirs
find to be due or other persons for the full period of 2
 Afterwards, the heirs shall be entitled to years after such distribution,
receive and enter into the possession of notwithstanding any transfers of real
the portions of the estate so awarded to estate that may have been made.
them respectively.
 There is no requirement regarding the 1. Duty of the court:
lack of debts (unlike extrajudicial  Hear the case
partition) in summary settlement of  Settle the amount
estates of small value since the court  Order how much and in what manner
will make provisions for such in its each distribute shall contribute in the
resolution of the proceedings payment thereof
 If circumstances require, issue
4. Recording: execution against the bond, or the real
 Orders and judgments  clerk of court estate belonging to the deceased, or
 Order of partition or award of real estate both
 registrar’s office
2. Bond and real estate remain
C. Bond to Be Filed by Distributees charged
 with a liability to creditors, heirs, or
1. Optional bond by distributees other persons for the full period of 2
 Before allowing partition years after such distribution,
 For those movables/ personal notwithstanding any transfers of real
properties forming the estate estate that may have been made
 Conditioned for the payment of any just
claim which may be filed. 3. Rule not applicable:
a. To persons who have participated or
taken part or had notice of the
D. Liability of Distributees and
extrajudicial partition
Estate
b. When the provisions of Sec. 1 of
 If it shall appear within 2 years after the Rule 74 have been strictly complied
settlement and distribution (summary with (all persons or heirs of the
settlement): decedent have taken part in the
 An heir or other person extrajudicial settlement or are
Has been unduly deprived of his lawful represented by themselves or
participation in the estate through guardians)
o He shall have a right to compel This is only a bar against the parties
the settlement of the estate in who had taken part in the
the courts for the purpose of extrajudicial proceedings, but

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REVIEWER IN REMEDIAL LAW
not against third persons not
parties thereto
4. Prescriptive period
 Action to annul a deed of extrajudicial
settlement upon the ground of fraud
may be filed within 4 years from the
discovery of the fraud (deemed to have
taken place when said instrument was
filed with the Register of Deeds and new
certificates of title were issued in the
name of respondents respectively).
 However in Amerol v. Bagumbaran (154
SCRA 396), the Court applied the New
Civil Code. Under Article 1144 (NCC),
the following actions must be brought
within 10 years from the time the right
of action accrues: (1) upon a written
contract; (2) upon an obligation created
by law; (3) upon a judgment.
 Since implied or constructive trusts are
obligations created by law, then the
prescriptive period to enforce the same
prescribes in 10 years. Thus, an action
for reconveyance based on an implied or
constructive trust must perforce
prescribe in 10 years and not otherwise.
5. Exception:
 Prescriptive period for the filling of the
action for reconveyance based on
implied trust should be reckoned from
the actual discovery of the fraud where
the registration where there was bad
faith in securing the certificates of titles
and, is therefore a holder of the said
certificate in bad faith. The Torrens title
does not furnish a shield for fraud.
6. Rescission
 is the proper remedy for preterition.
E. Period for Claim of Minor or
Incapacitated Person
 If on the date of the expiration of the
period of 2 years prescribed in the
preceding section the person authorized
to file a claim is:
a minor or mentally incapacitated, or is
in prison or
outside the Philippines,
 he may present his claim within 1 year
after such disability is removed.
Chapter 2: Settlement of Estate of Deceased Persons
III.PRODUCTION OF WILL.
ALLOWANCE OF WILL
NECESSARY
(Asked in the 2002 Bar Examinations)
A. ALLOWANCE NECESSARY. CONCLUSIVE
AS TO EXECUTION
B. CUSTODIAN OF WILL TO DELIVER
C. EXECUTOR TO PRESENT WILL AND
ACCEPT OR REFUSE TRUST
D. CUSTODIAN AND EXECUTOR SUBJECT TO
FINE FOR NEGLECT
E. PERSON RETAINING WILL MAY BE
COMMITTED
SPECIAL PROCEEDINGS
A. Allowance Necessary. Conclusive
as to Execution
 No will shall pass either real or personal
estate unless it is proved and allowed in
the proper court.
 Subject to the right of appeal, such
allowance of the will shall be conclusive
as to its due execution.
 Probate of will is mandatory.
1. Procedure:
a. Death of the decedent;
b. Petition for probate of the will, if
any;
c. Court order fixing the time and
place for probate;
d. The court shall cause notice of such
time and place to be published 3
weeks successively in a newspaper
of general circulation. Notice shall
also be given to the
designated/known heirs, legatees
and devisees, and the executor if the
one petitioning for allowance of the
will is not the testator;
e. Issuance of letters testamentary/
administration;
f. Filling of claims;
g. Payment of claims; sale/mortgage/
encumbrance of estate properties;
h. Distribution of remainder, if any
(but can be made before payment if
bond is filled by the heirs).
2. Probate does not look into intrinsic
validity
 Probate is merely the determination of
whether or not the testator, being of
sound mind, freely executed the will in
accordance with the formalities
prescribed by law
 Exception: Under exceptional
circumstances, the probate court is not
powerless to do what the situation
constrains it to do and pass upon
certain provisions of the will. It may
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REVIEWER IN REMEDIAL LAW Chapter 2: Settlement of Estate of Deceased Persons
pass upon the intrinsic validity of the IV. ALLOWANCE OR DISALLOWANCE
will because there is apparent defect in OF WILL
its face – this is also known as the (Asked in the 2003, 2005, and 2006
principle of practical consideration Bar Examinations)
(Nepomuceno v. CA).
 Example: on the face of the will the A. WHO MAY PETITION FOR THE
petitioner appears to be preterited ALLOWANCE OF WILL
 But remedy of certiorari is available, B. CONTENTS OF THE PETITION
where the grounds for dismissal are C. COURT TO APPOINT TIME FOR PROVING
indubitable (e.g. grave abuse of WILL. NOTICE THEREOF TO BE
discretion of the judge when there is PUBLISHED
D. HEIRS, DEVISEES, LEGATEES, AND
clearly preterition and the said judge
EXECUTORS TO BE NOTIFIED BY MAIL OR
still continues the probate proceedings) PERSONALLY
 Decree of probate is conclusive as to its E. PROOF AT HEARING. WHAT SUFFICIENT IN

due execution
Suit for forgery of a will, which has been
duly probated and such order
becoming final, bars such suit
because the will is conclusively
deemed as duly executed.
B. Custodian of Will to Deliver
1. Custodian of will
 Within 20 days after knowledge of
death.
 Deliver the will to the court or the
executor named in the will.
 Failure to attach original of will to
petition not critical where will itself was
adduced in evidence. It is not necessary
to attach original will to petition for
probate.
C. Executor to Present Will and
Accept or Refuse Trust
 The Executor named in will:
Within 20 days of
o Knowledge of death
o Or knowledge that he is named
as executor
Present such will to the court
o Unless the will is already with
the court
Signify in writing WON he accept the
trust or refuse it
D. Custodian and Executor Subject
to Fine for Neglect
 Fine for negligence of duties (S2 and
S3) without excuse  x < P1,000
E. Person Retaining Will May Be
Committed
 Imprisonment for custodian - when he
neglects to deliver when ordered to do
so
SPECIAL PROCEEDINGS
ABSENCE OF CONTEST
F. PROOF OF LOST OR DESTROYED WILL.
CERTIFICATE THEREUPON
G. PROOF WHEN WITNESSES DO NOT
RESIDE IN PROVINCE
H. PROOF WHEN WITNESSES DEAD OR
INSANE OR DO NOT RESIDE IN THE
PHILIPPINES
I. GROUNDS FOR DISALLOWANCE OF WILL
J. CONTESTANT TO FILE GROUNDS FOR
CONTEST
K. SUBSCRIBING WITNESSES PRODUCED OR
ACCOUNTED FOR WHERE WILL
CONTESTED
L. PROOF WHERE TESTATOR PETITIONS FOR
ALLOWANCE OF HOLOGRAPHIC WILL
M. CERTIFICATE OF ALLOWANCE ATTACHED
TO PROVE WILL. TO BE RECORDED IN
THE OFFICE OF REGISTER OF DEEDS
A. Who May Petition for the
Allowance Of Will
 Petitioner for the allowance of the will
a. Executor
b. Devisee
c. legatee
d. other person interested in the estate
e. testator himself, during his lifetime
1. Meaning of interest in estate
 In order that a person may be allowed
to intervene in a probate proceeding he
must have an interest in the estate, or
in the will, or in the property to be
affected by it either as executor or as a
claimant of the estate and an interested
party is one who would be benefited by
the estate such as an heir or one who
has claim against the estate like a
creditor.
2. Jurisdiction, how acquired:
Attaching a mere copy of will; or
Delivery of will, even if no petition is
filed; or
Filing of the original petition and
compliance with Sec 3-4 Rule 76.

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REVIEWER IN REMEDIAL LAW
B. Contents of the Petition
a. Jurisdictional facts
b. Names, ages, and residences of the
heirs, legatees, and devisees of the
testator or decedent
c. Probable value and character of the
property of the estate
d. Name of the person for whom letters are
prayed
e. If the will has not been delivered to the
court, the name of the person having
custody of it.
1. Defect in petition –
 will not void the allowance of the will, or
the issuance of letters testamentary or
of administration with the will annexed.
2. Jurisdictional facts:
 Death of the decedent
 Residence at the time of death in the
province where the probate court is
sitting
 Or if he is an inhabitant of a foreign
country, his leaving his estate in such
province
C. Court to Appoint Time for Proving
Will. Notice Thereof to Be
Published
1. Duty of court having jurisdiction
 Fix a time and place for proving the will
 Cause notice of such time and place
Which notice to be published 3 weeks
successively previous to the time
appointed in newspaper of general
circulation in the province
o No publication needed - petition
for probate has been filed by the
testator himself
2. Notice requirement
 The requirement of law for allowance of
will was not satisfied by mere
publication of notice of hearing. Notice
of hearing to the designated heirs,
legatees and devisees is required.
D. Heirs, Devisees, Legatees, and
Executors to Be Notified by Mail
or Personally
 It is the duty of the court to cause
copies of the notice to be addressed to
the:
 Designated or other known heirs,
legatees and devisees of the testator
resident in the Philippines
Chapter 2: Settlement of Estate of Deceased Persons
 Notice to be deposited in the post
office postage prepaid
 At least 20 days before hearing
 If such residence is known
 Executor, if he be not the petitioner
 Co-executor not petitioning
 If residence known
 Personal service - equal to mailing,
provided done 10 days before hearing.
 Testator as petitioner - notice shall be
sent only to his compulsory heirs.
E. Proof at Hearing. What Sufficient
in Absence of Contest
SPECIAL PROCEEDINGS
 During hearing:
Before introduction of will
o Compliance with notice
requirement must be shown
before introduction of will
o Testimony taken under oath and
reduced to writing.
 No contest - Court will allow:
o On the testimony of 1 witness
o In absence of such, expert
testimony may be resorted to.
F. Proof of Lost or Destroyed Will.
Certificate Thereupon
1. Proof of lost or destroyed will (Asked
in the 1999 Bar Examinations)-
2. Establish the
 Execution and validity of the will
 Have been existence the time of death
or shown to be fraudulently or
accidently destroyed in the lifetime of
testator without his knowledge
 Provisions are clearly and distinctly
proved by a least 2 credible witnesses
 When a lost will is proved, the
provisions thereof must be distinctly
stated and certified by the judge, under
the seal of the court, and the certificate
must be filed and recorded as other
wills are filed and recorded
G. Proof When Witnesses Do Not
Reside in Province
1. Depositions, when made:
 None of the subscribing witnesses
resides in the province
 But the deposition of one or more of
them can be taken elsewhere
 Court may direct deposition to be taken
and authorize:
Photocopy of the will made and
presented to the witness on his
examination
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REVIEWER IN REMEDIAL LAW
H. Proof When Witnesses Dead or
Insane or Do Not Reside in the
Philippines
1. Subscribing witnesses dead, insane or
outside the Philippines:
 Court may admit the testimony of other
witnesses to prove the
sanity of testator,
due execution of the will,
proof of handwriting of testator and of
subscribing witnesses
I. Grounds for Disallowance of Will
1. If not executed and attested as required
by law;
2. If the testator was insane, or otherwise
mentally incapable to make a will, at
the time of its execution;
3. If executed under duress, or the
influence of fear, or threats;
4. If procured by undue and improper
pressure and influence, on the part of
the beneficiary, or of some other person
for his benefit;
5. If the signature of the testator was
procured by fraud or trick, and he did
not intend that the instrument should
be his will at the time of fixing his
signature thereto
 The grounds for disallowance of will are
exclusive.
 Separate wills may be probated jointly.
J. Contestant to File Grounds for
Contest
1. Duty of contestant:
 State in writing the grounds for
opposition
 Serve a copy thereof on the petitioner
and other parties interested in the
estate
K. Subscribing Witnesses Produced
or Accounted for Where Will
Contested
1. With contest
 Witnesses present and not insane
All the subscribing witnesses and the
notary must be produced and
examined
Death, absence, or insanity of any of
them must be satisfactorily shown
to the court
Chapter 2: Settlement of Estate of Deceased Persons
 All or some of such witnesses present in
the Philippines but outside the province
- deposition must be taken.
 Any or all of them testify against due
execution or do not remember having
attested to it, or are otherwise of
doubtful credibility - allowed, provided
court is satisfied from the testimony of
other witnesses and from all evidence
presented that the will was executed
and attested in accordance with law
2. Holographic will –
 Allowed if 3 witnesses who know the
handwriting of the testator testify to
SPECIAL PROCEEDINGS
such; expert testimony may also be
resorted to, nut both still needs be to
the satisfaction of the courts.
L. Proof Where Testator Petitions for
Allowance of Holographic Will
 Petition by testator himself of
holographic will
1. If there are no contests in
holographic wills –
 The fact that the affirms that the
holographic will and the signature are
in his own handwriting, shall be
sufficient evidence of the genuineness
and due execution thereof
2. If with contest –
 the burden of disproving the
genuineness and due execution thereof
shall be on the contestant
M. Certificate of Allowance Attached
to Prove Will. To Be Recorded in
the Office of Register of Deeds
1. When will allowed –
 Court will issue certificate of allowance
 Signed by judge
 Attested by the seal of the court
 Attached to the will
 Will and certificate filed and
recorded by the clerk
 If real estate is involved, both
will and certificate shall be
recorder in the register of deeds
in the province where the real
estate is
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REVIEWER IN REMEDIAL LAW
V. ALLOWANCE OF WILL PROVED
OUTSIDE OF PHILIPPINES AND
ADMINISTRATION OF ESTATE
THEREUNDER
A. WILL PROVED OUTSIDE THE PHILIPPINES
B. REQUISITES FOR ALLOWANCE:
C. WHEN WILL ALLOWED, AND EFFECT
THEREOF
D. ESTATE, HOW ADMINISTERED
A. Will Proved Outside The
Philippines
 Wills proved and allowed in a foreign
country, according to the laws of such
country, may be allowed, filed, and
recorded by the proper Court of First
Instance in the Philippines.
B. Requisites for Allowance
1. Copy of the will
2. Order or decree of the allowance in
foreign country
3. Filed with a petition for allowance in the
Philippines by executor or other person
interested
4. Court shall fix a time and place for the
hearing
5. Cause notice thereof to be given as in
case of an original will presented for
allowance.
C. When Will Allowed, and Effect
Thereof
1. Such will allowed:
 Certificate of allowance:
Signed by judge
Attested by the seal of the court
 Attached to the copy of the will
 Filed and recorded by the clerk
 The will shall have the same effect as
originally proven and allowed by such
court
D. Estate, How Administered
 Court shall grant letters testamentary
or letters of administration
Which shall extend to all the estate of
the testator in the Philippines
 Such estate shall be disposed of
according to such will (after payment of
debts and expenses of administration)
 The residue shall be disposed of as is
provided by law in cases of estates in
the Philippines belonging to persons
who are inhabitants of another state or
country.
Chapter 2: Settlement of Estate of Deceased Persons
1. Territorial limits of administration
 Administration extends only to the
assets of the decedent found within the
state or country where it was granted,
so that an administrator appointed in
one state or country has no power over
property in another state or country.
2. Need for ancillary administration
 When a person dies owning property in
the country of his domicile as well as in
foreign country, administration shall be
had in both countries.
 That which is granted in the jurisdiction
SPECIAL PROCEEDINGS
of the decedent’s domicile is termed the
principal administration, while any
other administration is termed ancillary
administration.
VI. LETTERS TESTAMENTARY AND
OF ADMINISTRATION, WHEN AND
TO WHOM ISSUED
(Asked in the 1998, 2002, and 2005
Bar Examinations)
A. WHO CANNOT SERVE AS EXECUTORS OR
ADMINISTRATORS
B. THE EXECUTOR OF AN EXECUTOR SHALL
NOT, AS SUCH, ADMINISTER THE ESTATE
OF THE FIRST TESTATOR.
C. MARRIED WOMAN MAY SERVE
D. LETTERS TESTAMENTARY ISSUED WHEN
WILL ALLOWED
E. WHERE SOME CO-EXECUTORS
DISQUALIFIED OTHERS MAY ACT
F. WHEN AND TO WHOM LETTERS OF
ADMINISTRATION GRANTED
A. Who Cannot Serve as E/A:
1. Minor;
2. Not a resident of the Philippines; and
3. In the opinion of the court unfit to
execute the duties of the trust by reason
of drunkenness, improvidence, or want
of understanding or integrity, or by
reason of conviction of an offense
involving moral turpitude.
B. The executor of an executor shall
not, as such, administer the
estate of the first testator.
C. Married Woman May Serve
 A married woman may serve as e/a,
and the marriage of a single woman
shall not affect her authority so to serve
under a previous appointment.
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REVIEWER IN REMEDIAL LAW
D. Letters Testamentary Issued
When Will Allowed
1. Letters testamentary, when issued:
 Will has been proved and allowed
 The court shall issue letters
testamentary thereon to the person
named as executor therein,
 if he is competent, accepts the trust,
and gives bond as required by these
rules
E. Where Some Co-Executors
Disqualified, Others May Act
 When all of the executors named
cannot act because of
a. incompetency,
b. refusal to accept the trust, or
c. failure to give a bond, on the part of
one or more of them,
 letters testamentary may issue to such
of them as are competent, accept and
give bond, and they may perform the
duties and discharge the trust required
by the will
F. When and to Whom Letters of
Administration Granted
1. Requisites:
 No executor named; or
 Executor or executors are incompetent,
refuse the trust, or fail to give bond; or
 Or person dies intestate.
2. Administration shall be granted to:
a. Surviving spouse or next of kin,
or both, or to such person as the
surviving spouse, or next of kin
requests to have appointed, if
competent and willing to serve.
b. If those in (a) be incompetent or
unwilling, or if the husband or
widow, or next of kin, neglects for
30 days after the death of the
person to apply for administration
or to request that administration be
granted to some other person, it
may be granted to one or more of
the principal creditors, if
competent and willing to serve.
c. If no (b), it may be granted to such
other person as the court may
select.
3. Reason for order of preference
 Those who would reap the benefit of a
wise, speedy and economical
administration of the estate, or, on the
other hand, suffer the consequences of
Chapter 2: Settlement of Estate of Deceased Persons
waste, improvidence or
mismanagement, have the highest
interest and most influential motive to
administer the estate correctly.
 Mere failure to apply for letters of
administration does not remove
preference.
4. 30-day period may be waived
 Just as the order of preference is not
absolute and may be disregarded for
valid cause, so may the 30-day period
be likewise waived under the permissive
tone in paragraph (b) of said rule which
merely provides that said letters as an
SPECIAL PROCEEDINGS
alternative, “may be granted to one or
more of the principal creditors.”
 Co-administrators may be appointed.
 Court may reject order of preference
when circumstances warrant.
VII. OPPOSING ISSUANCE OF
LETTERS TESTAMENTARY,
PETITION AND CONTEST FOR
LETTERS OF ADMINISTRATION
A. OPPOSITION TO ISSUANCE OF LETTERS
TESTAMENTARY
B. CONTENTS OF PETITION FOR LETTERS OF
ADMINISTRATION
C. COURT TO SET TIME FOR HEARING.
NOTICE THEREOF
D. OPPOSITION TO PETITION FOR
ADMINISTRATION
E. HEARING AND ORDER FOR LETTERS TO
ISSUE
F. WHEN LETTERS OF ADMINISTRATION
GRANTED TO ANY APPLICANT
A. Opposition to Issuance of Letters
Testamentary
 Any person interested in will;
 State in writing the grounds;
 Then the court shall hear.
 A petition may, at the time, be filed for
letters of administration with the will
annexed.
 Lack of interest in the proceedings is
equal to lack of legal capacity to
institute proceedings.
1. But issue of lack of interest may be
barred by estoppel under the Omibus
Motion rule.
 Example: When respondent did not file
a Motion to Dismiss on the ground of
lack of capacity to sue, but instead filed
an Opposition.
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REVIEWER IN REMEDIAL LAW
B. Contents of Petition for Letters of
Administration
1. Jurisdictional facts;
2. Names, ages, and residences of the
heirs, and the names and residences of
the creditors, of the decedent;
3. Probable value and character of the
property of the estate;
4. Name of the person for whom letters of
administration are prayed.
 But no defect in the petition shall
render void the issuance of letters of
administration.
C. Court to Set Time for Hearing.
Notice Thereof
1. Duty of court
a. To fix a time and place for hearing
such petition
b. Cause notice thereof to be given to
known heirs and creditors and to
any other persons believed to have
an interest
2. Notice requirement is jurisdictional
 The probate court must cause notice
through publication of the petition after
it receives the same
Where no notice has been given to
persons believed to have an interest
in the estate, the proceedings for the
settlement of the estate is void and
should be annulled.
D. Opposition to Petition for
Administration
1. Contest to such petition
 Any interested person may file a written
opposition to contest the petition
2. Grounds:
a. Incompetency of the person for
whom letters are prayed, or
b. contestant’s own right to the
administration
 He may pray that letters issue to
himself, or to any competent person or
person named in the opposition.
E. Hearing and Order for Letters to
Issue
1. Hearing of the petition
 Show that notice has been given as
hereinabove required, and thereafter the
court shall hear the proofs of the parties
Chapter 2: Settlement of Estate of Deceased Persons
in support of their respective
allegations, and if
a. Satisfied that the decedent left no
will, or
b. That there is no competent and
willing executor,
 It shall order the issuance of letters of
administration to the party best entitled
F. When Letters of Administration
Granted to Any Applicant
 Letters of administration may be
granted to any qualified applicant,
though it appears that there are other
SPECIAL PROCEEDINGS
competent persons having better right
to the administration, if such persons
fail to appear when notified and claim
the issuance of letters to themselves
VIII. RULE 80 – SPECIAL
ADMINISTRATOR (SA)
A. APPOINTMENT OF SPECIAL
ADMINISTRATOR
B. POWERS AND DUTIES OF SPECIAL
ADMINISTRATOR
C. WHEN SPECIAL ADMINISTRATOR CEASE;
DUTIES
A. Appointment of SA
1. SA will be appointed:
 When there is delay in granting letters
testamentary or administration; or
 By any cause, including an appeal from
allowance or disallowance of a will.
2. Special administrator:
 Will take possession and charge of the
estate
 Until:
the questions causing the delay are
decided and
e/a appointed
3. There must first be notice and
publication
 Notice through publication of the
petition is a jurisdictional requirement
even in the appointment of a SA.
 Appointment of special administrator
lies entirely in the sound discretion of
the court.
4. Order of appointment is
discretionary
 The basis for appointing a special
administrator is broad enough to
include any cause or reason for delay in
granting letters testamentary or of
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REVIEWER IN REMEDIAL LAW
administration as where a contest as to
the will is being carried on in the same
or in another court, or where there is an
appeal pending as to the proceeding on
the removal of an e/a, or in cases where
the parties cannot agree among
themselves.
 The phrase “by any cause” includes
those incidents clearly showing that
there is a delay in the probate of the will
and that the granting of letters
testamentary will consequently be
prolonged necessitating the immediate
appointment of a special administrator
5. Duty to submit an inventory
 SA is also duty bound to submit an
inventory of the estate
6. Nature of appointment of SA
 An order appointing a special
administrator is interlocutory in nature,
a mere incident to the judicial
proceedings. No appeal lies herein
B. Powers and Duties of SA
 Take possession and charge of the
goods, chattels, rights, credits, and
estate of the deceased and
 Preserve the same for the e/a
afterwards appointed,
 and for that purpose may commence
and maintain suits as administrator.
 May sell only such perishable and other
property as the court orders sold.
 Not liable - to pay any debts of the
deceased unless so ordered by the
court.
C. When Special Administrator
Cease; Duties
 When letters testamentary/
administration are granted on the estate
of the deceased
He shall deliver to the e/a the goods,
chattels, money, and estate of the
deceased in his hands.
The e/a may prosecute to final
judgment suits commenced by such
SA.
Chapter 2: Settlement of Estate of Deceased Persons
IX. BOND OF EXECUTORS AND
ADMINISTRATORS
A. BOND TO BE GIVEN ISSUANCE OF
LETTERS. AMOUNT. CONDITIONS.
B. BOND OF EXECUTOR WHERE DIRECTED
IN WILL. WHEN FURTHER BOND
REQUIRED
C. BONDS OF JOINT EXECUTORS &
ADMINISTRATORS
D. BOND FOR SPECIAL ADMINISTRATOR
A. Bond to Be Given Issuance of
Letters. Amount. Conditions.
SPECIAL PROCEEDINGS
 Before an e/a enters upon the execution
of his trust, and letters testamentary or
administration issue, he shall give a
bond, in such sum as the court directs
conditioned as follows:
1. Inventory - To make and return to
the court, within 3 months, a true
and complete inventory of all goods,
chattels, rights, credits, and estate
(GCRCE) of the deceased which
shall come to his possession,
knowledge, or to the possession of
any other person for him;
2. Administer - To administer
according to these rules, and, if an
executor, according to the will of the
testator, all GCRCE which shall at
any time come to his possession or
to the possession of any other
person for him, and from the
proceeds to pay and discharge all
debts, legacies, and charges on the
same, or such dividends thereon as
shall be decreed by the court;
3. Accounting - To render a true and
just account of his administration to
the court within 1 year, and at any
other time when required by the
court;
4. Perform court orders
 Administrator’s bond
Terms and effectivity of bond does not
depend on payment of premium and
does not expire until the
administration is closed.
As long as the probate court retains
jurisdiction of the estate, the bond
contemplates a continuing
liability.
B. Bond of Executor Where Directed
in Will. When Further Bond
Required
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REVIEWER IN REMEDIAL LAW
 Testator directs that executor served
without bond or only his individual
bond  executor may be allowed by the
court to give bond in such sum and
with such surety as the court approves
Condition - only to pay the debts of the
testator
 Court may require of the executor a
further bond
In case of a change in his circumstance,
or
For other sufficient case,
With the 4 conditions named in the last
preceding section.
Chapter 2: Settlement of Estate of Deceased Persons
 When testator’s will is discovered and
proved and allowed
 Administration shall be revoked and all
powers cease
The administrator shall surrender the
letters of administration to the court
Render his account
B. Court May Remove or Accept
Resignation of E/A. Proceedings
upon Death, resignation or
Removal
1. Removal or resignation of executor or

SPECIAL PROCEEDINGS
administrator
C. Bonds of Joint Executors and  Neglects to:
Administrators Render his account
Settle the estate according to law
 When two or more persons are Perform an order or judgment of the
appointed e/a the court may take a court, or a duty expressly provided
separate bond from each, or a joint by these rules; or
bond from all  Absconds; or
 Becomes insane; or
D. Bond for Special Administrator  Becomes incapable or unsuitable to
discharge the trust.
 Before entering upon his duties
 In such sum as the court directs 2. Effect
 Conditions  The remaining e/a may administer the
Make and return a true inventory of the trust alone
goods, chattels, rights, credits, and Unless the court grants letters to
estate of the deceased which come someone to act with him.
to his possession or knowledge  If there is no remaining e/a,
Truly account for such as are received administration may be to any suitable
by him when required by the court person.
Deliver the same to the person
appointed e/a, or to such other 3. Purpose of administration
person as may be authorized to  Liquidation of the estate and
receive them distribution of the residue among the
heirs and legatees.
X. REVOCATION OF 4. Liquidation
ADMINISTRATION, DEATH,  means the determination of all the
RESIGNATION, AND REMOVAL OF assets of the estate and payment of all
EXECUTORS OR debts and expenses. Approval of the
ADMINISTRATORS project of partition does not necessarily
terminate administration.
A. ADMINISTRATION REVOKED IF WILL
DISCOVER. PROCEEDINGS THEREUPON 5. Degree of care expected of
B. COURT MAY REMOVE OR ACCEPT administrator
RESIGNATION OF EXECUTOR OR  The administrator is required to
ADMINISTRATOR. PROCEEDINGS UPON exercise reasonable diligence and act in
DEATH, RESIGNATION OR REMOVAL entire good faith in the performance of
C. ACTS BEFORE REVOCATION, that trust.
RESIGNATION, OR REMOVAL TO BE VALID
 Although not a guarantor or insurer of
D. POWERS OF NEW EXECUTOR OR
ADMINISTRATOR the safety of the estate nor expected to
be infallible, yet the same degree of
prudence, care and judgment which a
A. Administration Revoked if Will
person of a fair average capacity and
Discovered. Proceedings ability exercises in similar transactions
Thereupon of his own, serves as the standard by
1. Administration revoked which his conduct is to be judged.

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REVIEWER IN REMEDIAL LAW
 Discretion to remove administrator lies
with the court’s discretion.
 Grounds enumerated are not exclusive
C. Acts Before Revocation,
Resignation, or Removal to Be
Valid
 The lawful acts of an e/a before the
revocation of his letters testamentary or
of administration, or before his
resignation or removal – remains valid
D. Powers of New (The Replacement
for the Removed) Executor or
Administrator
 Like powers to collect and settle the
estate not administered that the former
e/a had; and
 May prosecute or defend actions
commenced by or against the former
e/a; and
 Have execution on judgments recovered
in the name of such former e/a.
 An authority granted by the court to the
former e/a for the sale or mortgage of
real estate may be renewed in favor of
such person without further notice or
hearing.
XI. INVENTORY AND APPRAISAL.
PROVISION FOR SUPPORT OF
FAMILY
A. INVENTORY AND APPRAISAL TO BE
RETURNED WITHIN 3 MONTHS
B. ARTICLES NOT TO BE INVENTORIED
C. ALLOWANCE TO WIDOW & FAMILY
D. PROVISION FOR SUPPORT
A. Inventory and Appraisal to Be
Returned Within 3 Months
1. Inventory and appraisal –
 Within 3 months after his appointment
every e/a shall return to the court a
true inventory and appraisal of all real
and personal estate of the deceased
which has come into his possession or
knowledge.
 In the appraisement, the court may
order one or more of the inheritance tax
appraisers to give his or their assistance
2. Period not mandatory
 3-month period is not mandatory. The
fact that an inventory was filed after the
3-month period would not deprive the
probate court of jurisdiction to approve
it.
Chapter 2: Settlement of Estate of Deceased Persons
B. Articles Not to Be Inventoried:
 Wearing apparel of the surviving
husband or wife and minor children
 The marriage bed and bedding,
 Such provisions and other articles as
will necessarily be consumed in the
subsistence of the family of the
deceased
C. Allowance to Widow and Family
SPECIAL PROCEEDINGS
 The widow and minor or incapacitated
children of a deceased person, during
the settlement of the estate, shall
receive, under the direction of the court,
such allowance as are provided by law
D. Provision for Support
 This includes support even for children
who are of age (Family Code Art 133),
but does not include grandchildren.
XII. GENERAL POWERS AND
DUTIES OF EXECUTORS AND
ADMINISTRATORS
A. EXECUTOR OR ADMINISTRATOR TO HAVE
ACCESS TO PARTNERSHIP BOOKS &
PROPERTY. HOW RIGHT ENFORCED
B. KEEP BUILDINGS IN TENANTABLE REPAIR
C. RIGHT TO POSSESSION & MANAGEMENT
OF THE REAL & PERSONAL PROPERTIES
A. Executor or Administrator to
Have Access to Partnership Books
and Property. How Right Enforced
1. Access to partnership books and
property
 At all times:
have access to, and may examine and
take copies of, books and papers
relating to the partnership business,
Make examine and make invoices of the
property belonging to such
partnership;
The surviving partner or partners, on
request, shall exhibit to him all such
books, papers, and property in their
hands or control.
2. Court duty –
 Order any such surviving partner or
partners to freely permit the exercise of
the rights, and to exhibit the books,
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REVIEWER IN REMEDIAL LAW
papers, and property, as in this section
provided, and may punish any partner
failing to do so for contempt.
B. Keep Buildings in Tenantable
Repair
 Houses and other structures and fences
belonging to the estate, and
 Deliver the same in such repair to the
heirs or devisees when directed so to do
by the court.
C. Right to Possession and
Management of the Real and
Personal Properties
 So long as it is necessary for the
payment of the debts and the expenses
of administration
 Administrator cannot exercise the right
of legal redemption over a portion of the
property owned in common sold by one
of the other co-owners since this is not
within the powers of administrator.
 When the estate of a deceased is already
subject of a testate or intestate
proceeding, the administrator cannot
enter into any transaction involving it
without any prior approval of the Court.
 The right of an e/a to the possession
and management of the real and
personal properties of the deceased is
not absolute and can only be exercised
so long as it is necessary for the
payment of the debts and expenses of
administration
XIII. ACCOUNTABILITY AND
COMPENSATION OF EXECUTORS
AND ADMINISTRATORS
A. EXECUTOR OR ADMINISTRATOR
CHARGEABLE WITH ALL ESTATE &
INCOME
B. NOT TO PROFIT BY INCREASE OR LOSE BY
DECREASE IN VALUE
C. WHEN NOT ACCOUNTABLE
D. ACCOUNTABLE FOR INCOME FROM
REALTY USED BY HIM
E. ACCOUNTABLE IF HE NEGLECTS OR
DELAYS TO RAISE OR PAY MONEY
F. WHEN ALLOWED MONEY PAID AS COSTS
G. WHAT EXPENSES & FEES ALLOWED
EXECUTOR OR ADMINISTRATOR. NOT TO
CHARGE FOR SERVICES AS ATTORNEY.
COMPENSATION PROVIDED BY WILL
CONTROLS UNLESS RENOUNCED.
H. WHEN EXECUTOR OR ADMINISTRATOR TO
RENDER ACCOUNT
Chapter 2: Settlement of Estate of Deceased Persons
I. EXAMINATION ON OATH BY COURT
J. ACCOUNT TO BE SETTLED ON NOTICE
K. SURETY ON BOND MAY BE PARTY TO
ACCOUNTING
A. Executor or Administrator
Chargeable with all Estate and
Income
 Chargeable in his account with the
whole of the estate which has come into
his possession, at the value of the
appraisement contained in the
inventory:
With all the interest,
SPECIAL PROCEEDINGS
Profit, and
Income of such estate; and
With the proceeds of as much of the
estate as is sold by him, at the price
at which it was sold.
B. Not to Profit by Increase or Lose
by Decrease in Value
 No e/a shall profit by the increase, or
suffer loss by the decrease or
destruction, without his fault, of any
part of the estate
 Account for the excess (when sold for
more)
 If sold for less, not responsible for loss,
if in good faith
 If settled claim for less - He is entitled
to charge in his account only the
amount he actually paid on the
settlement
C. When Not Accountable
 For debts due the deceased which
remain uncollected without his fault
D. Accountable for Income from
Realty Used by Him
1. Accountable –
 If the e/a uses or occupies any part of
the real estate himself, he shall account
for it as may be agreed upon between
him and the parties interested, or
adjusted by the court with their assent;
and if the parties do not agree upon the
sum to be allowed, the same may be
ascertained by the court, whose
determination in this respect shall be
final
E. Accountable if He Neglects or
Delays to Raise or Pay Money
1. Accountable if:
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REVIEWER IN REMEDIAL LAW
 Neglects or unreasonably delays to raise
money, by collecting the debts or selling
the real or personal estate of the
deceased, or
 Neglects to pay over the money he has
in his hands, and the value of the estate
is thereby lessened or unnecessary cost
or interest accrues, or the persons
interested suffer loss.
 A/E’s responsibility for damages
incurred cannot be shifted to the
intestate estate.
F. When Allowed Money Paid as
Costs
 The amount paid by an e/a for costs
awarded against him shall be allowed in
his administration account
Unless it appears that the action or
proceeding in which the costs are
taxed was prosecuted or resisted
without just cause, and not in good
faith.
1. Necessary expenses
 Such expenses as are entailed for the
preservation and productivity of the
estate and for its management for
purpose of liquidation, payment of
debts, and distribution of the residue
among persons entitled thereto
2. Not necessary expenses
a. Expenses for death anniversary;
b. Expenses incurred by a presumptive
heir for her appearance and that of
her witnesses at the trial to oppose
the probate of an alleged will;
c. Expenses for the settlement of the
question as who are entitled to the
estate left by the deceased;
d. Expenses incurred by the e/a to
procure a bond
e. Personal expenses of the occupant
of the heir of the family residence;
f. Expenses for stenographic notes,
unexplained representation
expenses.
3. Attorney’s fees
 Administrator may not recover
attorney’s fees from estate
4. Procedure for collection of attorney’s
fees:
 Counsel must request the administrator
to make payment and file an action
against him in his personal capacity
and not as an administrator, should he
fail.
Chapter 2: Settlement of Estate of Deceased Persons
 If judgment is rendered against the
administrator and he pays, he may
include the fees so paid in his account
to the court.
 Attorney may also file a petition in the
testate or intestate proceeding and ask
the court, after notice to all persons
interested, to allow his claim and direct
the administrator to pay it as an
expense of administration.
 The award of the court is appealable by
Record on Appeal.
G. What Expenses and Fees Allowed
SPECIAL PROCEEDINGS
E/A; Not to Charge for Services as
Attorney; Compensation Provided
by Will Controls Unless
Renounced.
1. Compensation
 P4/per day
 Or a commission upon the value of so
much of the estate as comes into his
possession and is finally disposed by
him in the payment of debts, expenses,
legacies, or distributive shares
 Or 2% of the first P5,000 of such value
 1% as exceeds P5,000 – P30,000
 ½ % P31,000 – P100,000
 Special case - When estate is large,
and the settlement has been attended
with great difficulty, and has required a
high degree of capacity on the part of
the e/a, a greater sum may be allowed.
 If objection to the fees allowed be taken,
the allowance may be re-examined on
appeal.
2. 2 or more executors –
 The compensation shall be apportioned
among them by the court according to
the services actually rendered by them
respectively.
3. Executor/administrator also an
attorney –
 He shall not charge against the estate
any professional fees for legal services
rendered by him.
4. Compensation provided in will –
 That provision shall be a full
satisfaction for his services unless by a
written instrument filed in the court he
renounces all claims to the
compensation provided by the will.
H. When Executor or Administrator
to Render Account
1. Accounting –
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REVIEWER IN REMEDIAL LAW
 Within 1 year from the time of receiving
letters testamentary or of
administration
 Unless the court otherwise directs
because of extensions of time for
presenting claims against, or paying the
debts of, the estate, or for disposing of
the estate;
2. Further accounts - If court requires
 The rendering of an accounting by an
administrator of his administration
within 1 year from his appointment is
mandatory. The only exception is
when the court otherwise directs
because of extensions of time for
presenting claims against the estate or
for paying the debts or disposing the
assets of the estate
 The fact that the heirs of the estate have
entered into an extrajudicial settlement
and partition in order to put an end to
their differences cannot in any way be
interpreted as a waiver of the objections
of the heirs to the accounts submitted
by the administrator not only because
to so hold would be a derogation of the
pertinent rules but also because there is
nothing provided in said partition that
the aforesaid accounts shall be deemed
waived or condoned.
I. Examination on Oath by Court
 As to the correctness of his account
before the same is allowed, except when
no objection is made to the allowance of
the account and its correctness is
satisfactorily established by competent
proof
 The heirs, legatees, distributees, and
creditors of the estate shall have the
same privilege as the e/a of being
examined on oath on any matter
relating to an administration account
J. Account to Be Settled on Notice
 Notice requirement - Before the
account of an e/a is allowed, notice
shall be given to persons interested of
the time and place of examining and
allowing the same;
Such notice may be given personally to
such persons interested or by
advertisement in a newspaper or
newspapers, or both, as the court
directs.
K. Surety on Bond May Be Party to
Accounting
Chapter 2: Settlement of Estate of Deceased Persons
 Upon the settlement of the account of
an e/a, a person liable as surety in
respect to such account may, upon
application, be admitted as party to
such accounting.
XIV. CLAIMS AGAINST ESTATE
A. NOTICE TO CREDITORS TO BE ISSUED BY
COURT
B. TIME WITHIN WHICH CLAIMS SHALL BE
FILED
C. PUBLICATION OF NOTICE TO CREDITORS
D. FILING COPY OF PRINTED NOTICE
E. CLAIMS WHICH MUST BE FILED UNDER
SPECIAL PROCEEDINGS
THE NOTICE. IF NOT FILED, BARRED;
EXCEPTIONS
F. SOLIDARY OBLIGATION OF DECEDENT
G. MORTGAGE DEBT DUE FROM ESTATE
H. CLAIM OF EXECUTOR OR ADMINISTRATOR
AGAINST AN ESTATE
I. HOW TO FILE A CLAIM. CONTENTS
THEREOF. NOTICE TO EXECUTOR OR
ADMINISTRATOR
J. ANSWER TO THE CLAIM BY EXECUTOR OR
ADMINISTRATOR. OFFSETS
K. DISPOSITION OF ADMITTED CLAIM
L. TRIAL OF CONTESTED CLAIM
M. JUDGMENT APPEALABLE
N. COSTS
A. Notice to Creditors to Be Issued
by Court
1. Duty of court after granting letters
testamentary
 Issue a notice requiring all persons
having money claims against the
decedent to file them in the office of the
clerk of said court.
2. Estate burdened with lien of
creditors
 Upon the death of the person, all his
property is burdened with all his debts,
his debts creating an equitable lien
thereon for the benefit of the creditors.
 And such lien continues until the debts
are extinguished either by the payment,
prescription, or satisfaction in one of
the modes recognized by law
3. Purpose of presentation of claims
against estate
 To protect the estate of the deceased.
 That way, the e/a will be able to
examine each claim, determine whether
it is a proper one which should be
allowed.
 Further the primary object of the
provisions requiring presentation is to
appraise the administrator and the
probate court of the existence of the
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REVIEWER IN REMEDIAL LAW
claim so that a proper and timely
arrangement may be made for its
payment in full or by pro-rata portion in
the due course of the administration,
inasmuch as upon the death of a
person, his entire estate is burdened
with the payment of his debts and no
creditor shall enjoy any preference or
priority; all of them shall share pro-rata
in the liquidation of the estate of the
deceased
B. Time Within Which Claims Shall
Be Filed
 State the time for the filing of claims,
which shall not be more than 12 not
less than 6 months after the date of the
first publication of the notice
 Failure to meet period, court may allow;
requisites
Before order of distribution is entered
Within a time not exceeding 1 month
This exception is called the rule on
belated claims.
1. Statute of non-claims
 Purpose: to settle the estate with
dispatch, so that the residue may be
delivered to the persons entitled thereto
without their being afterwards called
upon to respond in actions for claims,
which, under the ordinary statute of
limitations have not yet prescribed.
 The period, once fixed by the courts, is
mandatory
2. Discretion to allow contingent claims
 The law gives the probate court
discretion to allow claims presented
beyond the period previously fixed
provided they are filed within 1 month
from the expiration of such period but
in no case beyond the date of entry of
the order of distribution.
 The presentation of money claim may
be waived.
C. Publication of Notice to Creditors
1. Duty of executor or administrator
after notice is issued
 Cause the notice to be published 3
weeks successively in a newspaper of
general circulation in the province, and
to be posted for the same period in four
public places in the province and in two
public places in the municipality where
the decedent last resided.
Chapter 2: Settlement of Estate of Deceased Persons
 If there is no notice, creditors will not be
barred from filing beyond the period
stated in the statue of non-claims
D. Filing Copy of Printed Notice
 Filed or cause to be filed in the court a
printed copy of the notice
together with affidavit setting forth:
o dates of the first and last
publication and
o name of newspaper
within 10 days after notice has been
published
SPECIAL PROCEEDINGS
E. Claims Which Must Be Filed
Under the Notice. If Not Filed,
Barred; Exceptions
1. Statute of non-claims –
 Must be filed within the time limited in
the notice, covering:
 Claims for money against the decedent
arising from contract
Express or implied
Due or not
Contingent or not;
 Claims for funeral expenses;
 Expenses for the last sickness;
 Judgment for money against the
decedent.
2. Effect of non-claim - forever barred;
 Exception: When set forth as
counterclaims in any action that the
e/a may bring against the claimants
3. If the decedent is creditor and
executor or administrator
commences an action or continues
the action:
 The debtor may set forth by answer the
claims he has against the decedent,
instead of presenting them
independently to the court.
 Mutual claims may be set off against
each other in such action.
4. Favorable judgment for debtor –
 Amount shall be considered the true
balance against the estate, as though
the claim had been presented directly
before the court in the administration
proceedings
 Claims not yet due, or contingent, may
be approved at their present value
F. Solidary Obligation of Decedent
1. Solidary obligation –
 The claim shall be filed against the
decedent as if he were the only debtor,
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REVIEWER IN REMEDIAL LAW
without prejudice to the right of the
estate to recover contribution from
other debtors.
2. Joint obligation –
 The claim shall be confined to the
portion belonging to him.
3. Claims required to be filed
 Money claims (including debts or
interest thereon)  only those which
are proper against the decedent – claims
upon a liability contracted before death.
 Period runs against all claimants -
residents, non-residents, infant, insane.
4. Support claims
 Claim for support should not be
granted, but must wait until all claims
against the estate have been settled
(Gutiererez Jr. v. Macandog (1087))
5. Execution of final judgment not
proper remedy but filing of claim
 While the judgment in a civil case may
have become final and executory,
execution is not the proper remedy to
enforce payment thereof.
 The ordinary procedure by which to
settle claims of indebtedness against
the estate is for the claimant to present
a claim before the probate court.
6. Mandamus not available
 In absence of any showing that judge
had already allowed the administrator
to dispose the estate and 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
7. This rule is mandatory
 The requirement is for the purpose of
protecting the estate of deceased. The
e/a is informed of claims against it,
thus enabling him to examine each
claim and to determine whether it is a
proper one which should be allowed.
 The above rule strictly requires the
prompt presentation and disposition of
claims against the decedent’s estate in
order to settle the affairs of the estate as
soon as possible, pay off its debts and
distribute the residue.
8. Charges against conjugal property
 Same rules apply for debts contracted
chargeable against the conjugal
property.
9. Meaning of contingent claim
Chapter 2: Settlement of Estate of Deceased Persons
 One by which, by its nature is
necessarily dependent upon an
uncertain event for its existence and
claim, and its validity and enforceability
depending upon an uncertain event.
 Contingency refers to uncertainty of
liability, not collection.
G. Mortgage Debt Due From Estate
1. Options of creditor holding a credit
secured by mortgage or other
collateral security (Which are
alternative, not successive):
SPECIAL PROCEEDINGS
a. Waive the mortgage and claim the
entire debt from the estate of
mortgagor as an ordinary claim; or
b. Foreclose the mortgage judicially
and prove the deficiency as an
ordinary claim; or
c. Rely on the mortgage exclusively, or
other security and foreclose the
same at anytime, before it is barred
by prescription, without the right to
file claim for deficiency.
2. Right of executor or administrator –
 Redeem the property, by paying the
debt, under the direction of the court, if
the court shall adjudge it to be for the
best interest of the estate that such
redemption shall be made
H. Claim of Executor or
Administrator against an Estate
1. If executor or administrator has
claim against the estate
 He shall give notice thereof to the court
 Court shall appoint a special
administrator
Who will have the same power and
liability, in the adjustment claims
 Court may order e/a to pay the special
administrator necessary funds to defend
such claim (one of the 2 instances of
appointment of special administrators
in the Rules, the other regarding delay
in proceedings, supra)
I. How to File a Claim. Contents
Thereof. Notice to E/A
 Deliver the claim
 With the necessary vouchers to the
clerk of court
 Serving a copy on the e/a
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REVIEWER IN REMEDIAL LAW
1. If founded on a bond, bill, note, or
other instrument - Original need not
be filed
 Only a copy with all endorsements shall
be attached with the claim
 Subject to exhibition of original on
demand .
 If original lost or destroyed -
Claimant must accompany his claim
with affidavit containing a copy OR
description and stating its loss or
destruction
2. When the claim is due, it must be
supported by affidavit stating:
 The amount justly due
 That no payments have been made
thereon which are not credited
 There are no offsets to the same, to the
knowledge of the affiant.
3. If the claim is not due, or is
contingent, when filed, it must also
be supported by affidavits stating the
particulars thereof.
 When the affidavit is made by a person
other than the claimant, he must set
forth therein the reason why it is not
made by the claimant.
 The claim once filed shall be attached to
the record of the case in which the
letters testamentary or of
administration were issued, although
the court in its discretion and as a
matter of convenience, may order all the
claims to be collected in a separate
folder.
4. Attorney’s fees as expenses of
administration
 Fees of the lawyer representing the e/a
are directly chargeable against the
client for whom the services have been
rendered and not against the estate of
the decedent.
J. Answer to the Claim by E/A.
Offsets
 Filed within 15 days after receipt of
copy
 He must admit or deny the claim and
set forth the substance of the matters
which are relied upon in admission or
denial
1. If he has no knowledge sufficient to
admit or deny –
 state such want of knowledge
 Allege also any offset claims which the
decedent before death had against the
Chapter 2: Settlement of Estate of Deceased Persons
claimant, and his failure to do so shall
bar the claim forever.
 A copy of the answer shall be served by
the e/a on the claimant.
2. Extension of time - court discretion.
K. Disposition of Admitted Claim
1. Admitted claim - Court has option to:
 Approve the same without hearing
 Order that known heirs, legatees or
devisees be notified and heard, BEFORE
approving
2. If opposed –
SPECIAL PROCEEDINGS
 Allow opposition 15 days to file an
answer to the claim in the manner
prescribed.
L. Trial of Contested Claim
1. After answer or period for answer
expired –
 Court shall set the claim for trial with
notice to both parties
 Refer the claim to a commissioner
M. Judgment Appealable
1. Court will rule on the claim
 Approve
Pay, in due course of administration the
amount due
Such shall not create any lien on the
property of the estate or give
judgment creditor payment priority.
 Disapprove
2. Judgment
 Filed, together with record of the
administration proceedings
 With notice to parties
 Appealable as in ordinary cases
N. Costs
1. Judgment creditor cannot recover
cost:
 When the e/a, in his answer, admits
and offers to pay part of a claim,
 And the claimant refuses to accept the
amount offered in satisfaction of his
claim,
 If he fails to obtain a more favorable
judgment,
 He must pay to the e/a costs from the
time of the offer
 Where an action commenced against
the deceased for money has been
discontinued and the claim embraced
therein presented as in this rule
provided, the prevailing party shall be
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REVIEWER IN REMEDIAL LAW Chapter 2: Settlement of Estate of Deceased Persons
allowed the costs of his action up to the XV. ACTIONS BY AND AGAINST
time of its discontinuance. EXECUTORS AND
ADMINISTRATORS

A. ACTIONS WHICH MAY & WHICH MAY NOT

BE BROUGHT AGAINST EXECUTOR OR
ADMINISTRATOR
B. EXECUTOR OR ADMINISTRATOR MAY
BRING OR DEFEND ACTIONS WHICH
SURVIVE
C. HEIR MAY NOT SUE UNTIL SHARE
ASSIGNED
D. EXECUTOR OR ADMINISTRATOR MAY
COMPOUND WITH DEBTOR
E. MORTGAGE DUE ESTATE MAY BE

SPECIAL PROCEEDINGS
FORECLOSED
F. PROCEEDINGS WHEN PROPERTY
CONCEALED, EMBEZZLED OR
FRAUDULENTLY CONVEYED
G. POWERS ENTRUSTED WITH ESTATE
COMPELLED TO RENDER ACCOUNT
H. EMBEZZLEMENT BEFORE LETTERS
ISSUED
I. PROPERTY FRAUDULENTLY CONVEYED BY
DECEASED MAY BE RECOVERED. WHEN
EXECUTOR OR ADMINISTRATOR MUST
BRING ACTION
J. WHEN CREDITOR MAY BRING ACTION.
LIEN FOR COSTS

A. Actions Which May and Which

May Not Be Brought against
Executor or Administrator
 Actions not to be brought against e/a-
Claim for the recovery of money or debt
or interest
 Actions to be brought
Recover real or personal property or
interest therein;
Or to enforce a lien thereon; and
Actions to recover damages for an injury
to a person or property
1. Claims against the administrator may
be presented in the administration
proceedings but not against third
persons
 Administrator may not pull a third
person against his will into the
administration proceedings by mere
motion for a demand of rentals, but
must do so in a separate action

B. Executor or Administrator May

Bring or Defend Actions Which
Survive
1. Actions to be defended or may be
brought against –
 For the recovery or protection of the
property or rights of the deceased
actions for causes which survive

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REVIEWER IN REMEDIAL LAW
2. Injury
 Injury to property is not limited to
injuries to specific property, but extends
to other wrongs by which personal
estate is injured or diminished.
 Maliciously causing a party to
unnecessary expenses is certainly
injury to the party’s property.
C. Heir May Not Sue Until Share
Assigned
1. Not to sue on actions to recover title
or possession to lands or damages to
lands
 Until there is an order of the court
assigning such lands to such heir or
devisee; or
 Until the time allowed for paying debts
has expired
2. Previous declaration of heirship not
necessary
 In order that an heir may assert his
right to the property of a deceased, no
previous judicial declaration of heirship
is necessary.
3. Heirs may not sue administrator
until their shares are assigned.
 Before distribution or before any
residue is known, the heirs have no
cause of action against the e/a.
 This does not apply to a donation inter
vivos
4. When heirs may act in place of
administration
 Upon the commencement of the testate
or intestate proceedings, the heirs have
no standing in court actions for
recovery or protection of the property
rights of deceased, except when the e/a
is unwilling or fails or refuses to act, in
which event the heirs may act in his
place.
D. Executor or Administrator May
Compound with Debtor
 Compound with the debtor of deceased
for a debt due
 May give a discharge of such debt on
receiving a just dividend of the estate of
debtor
E. Mortgage Due Estate May Be
Foreclosed
 He may foreclose the mortgage
belonging to the estate.
Chapter 2: Settlement of Estate of Deceased Persons
 There is no need of special authority
from the court for the e/a to bring an
action for foreclosure on behalf of the
estate.
F. Proceedings When Property
Concealed, Embezzled or
Fraudulently Conveyed
1. Complainant –
 Executor, administrator, heir, legatee,
creditor, or other individual interested
in the estate of the deceased.
2. What:
SPECIAL PROCEEDINGS
 A person is suspected of having
concealed, embezzled, or conveyed away
any of the money, goods, or chattels of
the deceased; or
 That such person has in his possession
or has knowledge of any deed,
conveyance, bond, contract, or other
writing which contains evidence of or
tends or discloses the right, title,
interest, or claim of the deceased.
3. Duty of the court –
 May cite such suspected person to
appear before it any may examine him
on oath on the matter of such
complaint;
 If refuses to appear or answer -
Punish for contempt and commit to
prison until he submits to the order
 The interrogatories put any such
person, and his answers thereto, shall
be in writing and shall be filed in the
clerk's office.
4. Purpose of the rule
 To elicit information or secure evidence,
not to decide WON the property belongs
to the deceased or persons examined
(no power to adjudicate titles or
determine controverted rights).
G. Powers Entrusted with Estate
Compelled to Render Account
1. Complainant - Executor or
administrator
2. Duty of court
 May cite to appear before it a person
entrusted by an e/a with any part of the
estate of the deceased,
 May require such person to render a full
account
 On oath, of the money, goods, chattels,
bonds, account, or other papers
belonging to such estate as came to his
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REVIEWER IN REMEDIAL LAW
possession in trust for such e/a, and of
his proceedings thereon;
3. Refusal –
 May punish him for contempt as having
disobeyed a lawful order of the court.
H. Embezzlement Before Letters
Issued
 If a person before granting letters
testamentary or administration
 Embezzles or alienates
Any of the money, goods, chattels, or
effects of such deceased
1. Consequence –
 Such person shall be liable to an action
in favor of the e/a of the estate for
double the value of the property sold,
embezzled, or alienated, to be recovered
for the benefit of such estate.
2. Double value rule does not apply
 The liability for double the value of the
property does not apply to the manager
of the company who carries on the
business after the death of the principal
and applies the proceeds of sale to the
payment of debts contracted in running
the business.
I. Property Fraudulently Conveyed
by Deceased May Be Recovered.
When Executor or Administrator
Must Bring Action
1. Instances:
a. There is deficiency of assets
b. Deceased in his lifetime had
conveyed real or personal property,
right or interest therein, or debt or
credit
c. With intent to defraud his creditors
or avoid any right, debt or duty
d. Or had so conveyed such property,
right, interest, debt or credit
e. That by law the conveyance would
be void as against the creditors
f. And the subject of the attempted
conveyance would be liable to
attachment by any of them in his
lifetime.
2. Duty of executor/administrator
 May commence and prosecute to final
judgment an action for the recovery of
such property, right, interest, debt or
credit for benefit of the creditors
Chapter 2: Settlement of Estate of Deceased Persons
 Provided, creditors making the
application pay such part of the costs
and expenses or give security therefor.
J. When Creditor May Bring Action.
Lien for Costs
1. If executor/administrator failed to
commence such action
 With court permission
 Any creditor may commence and
prosecute to final judgment a like action
for the recovery of the subject of the
conveyance or attempted conveyance
 In the name of the e/a
 Provided, he files a bond, conditioned
SPECIAL PROCEEDINGS
to indemnify the e/a against the cost
and expenses incurred by such action
 Such creditor shall have a lien upon
any judgment recovered by him in the
action for such costs and other
expenses incurred therein as the court
deems equitable.
2. If conveyance or attempt in favor of
executor/administrator –
 The action which a creditor may bring
shall be in the name of all the creditors,
No need for: (1) permission and (2) bond
3. Administrator creditor cannot ask for
preliminary attachment
 The administrator of the estate, who is
also an alleged creditor of the estate
cannot ask for the issuance of a writ of
attachment.
 Money claim should be ventilated in the
estate case
XVI. PAYMENT OF THE DEBTS OF
THE ESTATE
(Asked in the 2002 Bar Examinations)
A. DEBTS PAID IN FULL IF ESTATE
SUFFICIENT
B. PART OF ESTATE FROM WHICH DEBT
PAID WHEN PROVISION MADE BY WILL
C. PERSONALLY FIRST CHARGEABLE FOR
DEBTS, THEN REALTY
D. ESTATE TO BE RETAINED TO MEET
CONTINGENT CLAIMS
E. CONTINGENT CLAIM; WHEN ALLOWED
F. COURT TO FIX CONTRIBUTIVE SHARES
WHERE DEVISEES, LEGATES, OR HEIRS
HAVE BEEN IN POSSESSION
G. ORDER OF PAYMENT IF ESTATE IS
INSOLVENT
H. DIVIDENDS TO BE PAID IN PROPORTION
TO CLAIMS
I. INSOLVENT NON-RESIDENT
J. INSOLVENT RESIDENT; FOREIGN
CREDITORS
K. ORDER OF PAYMENT OF DEBTS
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REVIEWER IN REMEDIAL LAW
L. APPEAL TAKEN FROM A DECISION OF THE
COURT CONCERNING THE CLAIM
M. TIME TO TIME FURTHER ORDERS OF
DISTRIBUTION
N. CREDITORS TO BE PAID IN ACCORDANCE
WITH TERMS OF ORDER
O. COURT SHALL ALLOW EXECUTOR OR
ADMINISTRATOR A TIME FOR DISPOSING
THE ESTATE ANY PAYING DEBTS &
LEGACIES
P. GROUND FOR EXTENSION
A. Debts Paid in Full If Estate
Sufficient
 After all money claims heard and
ascertained
 It appears that there are sufficient
assets to pay the debts
 E/A shall pay the same within the time
limited for that purpose.
 The probate court may hold in abeyance
intestate proceedings
pending determination of a civil case
against the administratrix. The heirs
of the estate may not demand the
closing of an intestate proceeding at
anytime where there is a pending
case against the administrator of the
estate. The court can rightfully hold
in abeyance until the civil case is
settled.
B. Part of Estate from Which Debt
Paid When Provision Made by Will
1. Testator provided for payment of
debt –
 Expenses of administration, or family
expenses shall be paid according to
such provisions
2. If not sufficient –
 The part of the estate not disposed of by
will shall be appropriated for the
purpose
C. Personally First Chargeable for
Debts, Then Realty
1. General Rule:
 Personal estate not disposed of by will
shall be FIRST chargeable
2. Exception:
 Not sufficient for the purpose
 Its sale will redound to the detriment of
the participants for the estate
3. in which case—
 The whole of the real estate not dispose
of by will, or so much thereof as is
necessary, may be sold, mortgaged, or
Chapter 2: Settlement of Estate of Deceased Persons
otherwise encumbered for that purpose
by the e/a,
 Court approval obtained first
 Any deficiency shall be met by
contributions in accordance with the
provisions of S6 of this rule.
D. Estate to Be Retained to Meet
Contingent Claims
 If court is satisfied that such claim is
valid:
It may order the e/a to retain in his
hands sufficient estate
For the purpose of paying the
SPECIAL PROCEEDINGS
contingent claim when such
becomes absolute.
 If estate insolvent - Retain a portion
equal to the dividend of the other
creditors.
E. Contingent Claim; When Allowed
 When it becomes absolute
 Presented to the court or e/a within 2
years from the time limited for other
creditors to present their claims
 Not disputed by e/a
1. If disputed –
 it may be proved and allowed or
disallowed by the court as the facts may
warrant
2. Court ruling:
 Allowance of contingent claim or
Disallowance
If allowed - Creditor shall receive
payment to the same extent as the
other creditors if the estate retained
by the e/a is sufficient.
 Claim not presented after becoming
absolute and allowed within 2 year
period
 The assets retained in the hands of
the e/a, not exhausted in the
payment of claims, shall be
distributed by the order of the court
to the persons entitled;
 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.
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REVIEWER IN REMEDIAL LAW
F. Court to Fix Contributive Shares
Where Devisees, Legates, or Heirs
Have Been in Possession
1. Possession before debts and expenses
paid:
 Court shall hear
 and settle the amount of their several
liabilities
 Order how much and in what manner
each shall contribute
 May issue execution as circumstances
require.
2. Liability of heirs and distributes
 Heirs are not required to respond with
their own property for the debts of their
deceased ancestors.
 But after partition of an estate, the
heirs and distributees are liable
individually for the payment of all lawful
outstanding claims against the estate in
proportion to the amount or value of the
property they have respectively received
from the estate
G. Order of Payment if Estate Is
Insolvent
 E/A pays the debts against the estate,
observing the provisions of Articles
1059 and 2239 to 2251 of the Civil
Code. (Preference of credits)
H. Dividends to Be Paid in
Proportion to Claims
 Each creditor within such class shall be
paid dividend in proportion to his claim.
 No creditor of any one class shall
receive any payment until those of the
preceding class are paid.
I. Insolvent Non-Resident
 His estate found in the Philippines shall
be so disposed of that his creditors here
and elsewhere may receive each an
equal share, in proportion to their
respective credits.
J. Insolvent Resident; Foreign
Creditors
1. Foreign claims proven in another
country
2. E/A in the Philippines had knowledge
of the presentation of such claims in
such country
3. E/A had opportunity to contest such
allowance
Chapter 2: Settlement of Estate of Deceased Persons
 The court shall:
Receive a certified list of such claims,
when perfected in such country,
And add the same to the list of claims
proved against the deceased person
in the Philippines
So that a just distribution of the whole
estate may be made equally among
all its creditors;
But the benefit of this and the
preceding sections shall not be
extended to the creditors in another
country if the property of such
deceased person there found is not
SPECIAL PROCEEDINGS
equally apportioned to the creditors
residing in the Philippines and the
other creditor, according to their
respective claims.
K. Order of Payment of Debts
 Before the expiration of the time limited
for the payment of the debts
 The court shall order the payment
thereof, and the distribution of the
assets received by the e/a for that
purpose among the creditors,
 As the circumstances of the estate
require and in accordance with the
provisions of this rule
L. Appeal Taken From a Decision of
the Court Concerning the Claim
 Court may suspend the order for the
payment
 And may order the distribution among
creditors whose claims are definitely
allowed
 Leaving in the hands of e/a sufficient
assets to pay the claim disputed and
appealed .
 When a disputed claim is finally settled
 court shall order the claim to be paid
out of the assets retained to the same
extent and in the same proportion with
the claims of other creditors.
M. Time to Time Further Orders of
Distribution
 Whole of the debts not paid on first
distribution
 And if the whole assets not distributed
 Or other assets afterwards come to the
hands of e/a.
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REVIEWER IN REMEDIAL LAW Chapter 2: Settlement of Estate of Deceased Persons

N. Creditors to Be Paid in XVII. SALES, MORTGAGES, AND

Accordance With Terms of Order OTHER ENCUMBRANCES OF
PROPERTY OF DECEDENT
 Creditors to be paid in accordance with
terms of order, as soon as the time of A. SALE OF PERSONAL ESTATE;
payment arrives, pay the creditors the REQUIREMENTS
amounts of their claims, or the dividend B. SALE, MORTGAGE, OR ENCUMBRANCE
thereon, in accordance with the terms (S/M/E) OF REAL PROPERTY
of such order. C. REQUISITES FOR DISALLOWING S/M/E
REAL OR PERSONAL
O. Court Shall Allow Executor or D. SALE OF WHOLE OR PART OF PERSONAL
OR REAL ESTATE
Administrator a Time for E. PERSONAL/REAL S/M/E IS NOT
Disposing the Estate Any Paying NECESSARY TO PAY DEBTS, EXPENSES
Debts and Legacies OF ADMINISTRATION OR LEGACIES IN

SPECIAL PROCEEDINGS
THE PHILIPPINES
1. Period: F. COURT AUTHORIZE S/M/E OF REALTY
 x < 1 year ACQUIRED ON EXECUTION OR
 Court may extend the time to x < 6 FORECLOSURE
months per extension G. REGULATIONS FOR AUTHORIZING S/M/E:
Whole period to the original e/a MUST H. WHEN COURT MAY AUTHORIZE
CONVEYANCE OF REALTY WHICH
be only x < 2 years
DECEASED CONTRACTED TO CONVEY
2. Requisites I. WHERE THE DECEASED IN HIS LIFETIME
HELD REAL PROPERTY IN TRUST FOR
 E/A must apply
ANOTHER PERSON
 Notice must be given as to time and
place of hearing
 Court must hear it
A. Sale of Personal Estate;
Requirements
P. Ground for Extension  Application of e/a
 Original e/a dies  Written notice to heirs and other
 New administrator appointed persons interested
The court may extend the time allowed  Court may order the sale of the
for the payment of the debts or  whole or part of personal estate.
legacies beyond the time allowed to 1. When:
the original e/a  If necessary for the purpose of paying
x < 6 months debts, expenses of administration or
Not exceeding 6 months at a time and legacies or
not exceeding 6 months beyond the  Preservation of property
time which the court might have
allowed to such original e/a B. Sale, Mortgage, or Encumbrance
 Notice shall be given of the time and
(S/M/E) of Real Property Proper
place for hearing such application, as
required in the last preceding section.
When:
 When personal estate not sufficient to
pay debts, expenses of administration
and legacies
 When sale of personal property may
injure the estate
 Where the testator has not made
sufficient provision for payment
1. Requisites
 E/A to apply with court
 Written notice to the heirs, devisees
and legatees residing in the
Philippines
 Authorize so much as may be
necessary of the real estate, in lieu
of personal estate
 For the purpose of paying such

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REVIEWER IN REMEDIAL LAW
 Provided, if it clearly appears
that such sale, mortgage or
encumbrance is beneficial to the
persons interested
2. If part cannot be s/m/e, without
injury to those interested in the
remainder –
3. Authority for s/m/e of the whole, or
so much necessary or beneficial
under the circumstances
C. Requisites for Disallowing S/M/E
Real or Personal
 Any person interested in the estate gives
a bond in fixed by the court
 Conditioned to pay the debts, expenses
of administration and legacies
 Within such time the court directs
 Bond shall be for the security of the
creditors and e/a, which may be
prosecuted for the benefit of either.
D. Sale of Whole or Part of Personal
or Real Estate
 When sale will be beneficial to heirs,
devisees, legatees and other interested
persons
 E/A application
 Notice to heirs, devisees, legatees,
interested persons
 Court may authorize e/a to sell the
whole or part of estate
Although not necessary to pay debts,
expenses of administration, legacies
1. Will not be granted - If inconsistent
with the provisions of a will.
 In case of such sale, the proceeds shall
be assigned to the persons entitled to
the estate in the proper proportions.
2. Requisites are mandatory
 The requirements of written notice of
the application as well as the time and
place of hearing to be served upon the
heirs, devisees and legatees residing in
the Philippines is mandatory. Without
such notice, the sale, mortgage or
encumbrance made is void.
 Notice to parents of minor is not
sufficient.
 Notice to counsel or guardian ad litem is
sufficient.
3. Reason for mandatory requirements
 The heirs are the presumptive owners.
Since they succeed to all the rights and
obligations of the deceased from the
moment of the latter’s death, they are
Chapter 2: Settlement of Estate of Deceased Persons
the persons directly affected by the sale
or mortgage and therefore cannot be
deprived of the property except in the
manner provided by law
E. Personal/Real S/M/E Is Not
Necessary to Pay Debts, Expenses
of Administration or Legacies in
the Philippines
 But if it appears from records and
proceedings of a probate court in
foreign country
 The estate of deceased in foreign
SPECIAL PROCEEDINGS
country is not sufficient
 Court here may authorize the e/a to
s/m/e
In same manner as for payment of debts
or legacies in the Philippines
F. Court Authorize S/M/E of Realty
Acquired on Execution or
Foreclosure
 Same circumstances and under the
same regulations as prescribed in this
rule for the sale, mortgage, or other
encumbrance of other real estate
G. Regulations for Authorizing
S/M/E:
1. Executor/administrator file a written
petition setting forth:
a. Debts due from deceased, expenses
of administration, legacies;
b. Value of personal estate;
c. Situation of the estate to be s/m/e;
d. Such other facts that show s/m/e is
necessary or beneficial.
2. Court to—
 Fix a time and place for hearing such
petition, and
 Cause notice stating the nature of the
petition, the reasons for the same, and
the time and place of hearing, to be
given personally or by mail to the
persons interested, and may cause such
further notice to be given, by
publication or otherwise, as it shall
deem proper.
3. E/A gives additional bond,
conditioned that such e/a will
account for the proceeds of the
s/m/e.
4. Court
a. If 1 – 3 complied with
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REVIEWER IN REMEDIAL LAW
b. Authorize s/m/e such part of estate
as is deemed necessary
c. Sale - either public or private
whichever most beneficial
d. E/A shall be furnished with a
certified copy of such order
5. Sale through public auction –
 The mode of giving notice of the time
and place of the sale shall be governed
by the provisions concerning notice of
execution sale
6. Recording –
 In the registry of deeds of the province
in which the real estate s/m/e together
with a certified copy of the order of the
court, together with the deed of the e/a
for such real estate, which shall be as
valid as if the deed had been executed
by the deceased in his lifetime
7. Regulations are mandatory
 The regulations provided in this section
apply to both testate and intestate
proceeding and are mandatory. An
order of sale not issued in accordance
with such regulations is void and the
sale made is also void
8. Estoppel to question regularity of
sale
 But where a party did not object to the
order of the court decreeing the sale of
property belonging to the estate by
sealed bids and even participated
therein by submitting his own bid, party
is estopped from subsequently
questioning the regularity of the sale to
highest bidder.
9. Need for approval of sale by court
 A sale of land under judicial
administration is not effective until
approved by the court, and although
leave of court to sell the property has
been obtained, a purported sale which
has not been approved and which varies
materially from the authority granted
cannot be made on the basis of an
action by the purchaser for specific
performance.
10. Power of probate court to nullify
unauthorized sale
 The probate court can declare null and
void the disposition of property under
administration, made by administrator,
the same having been effected without
authority from said court.
Chapter 2: Settlement of Estate of Deceased Persons
11. Authority of court to approve sale of
property by prospective heir
 The intestate court has the power to
execute its order with regard to the
nullity of an unauthorized sale of estate
property, otherwise its power to annul
the unauthorized or fraudulent
disposition of estate property would be
meaningless
 The sale of an immovable property
belonging to an estate of a decedent in a
special proceeding needs court
approval.
 But the court has no jurisdiction to
SPECIAL PROCEEDINGS
make pronouncement regarding the
existence or non-existence of
encumbrances or to cancel a mortgage
on real property in its order approving
the sale of the estate under
administration
12. Right of heirs to dispose of ideal
share
 The sale made by an heir of his share in
an inheritance, subject to the result of
the pending administration is valid and
in no way stands in the way of such
administration.
 There is no provision of law which
prohibits a co-heir from selling to a
stranger his share of an estate held in
common before the partition of the
property is approved by the court.
H. When Court May Authorize
Conveyance of Realty Which
Deceased Contracted to Convey
 Deceased in his lifetime under valid
contract to deed real property, or an
interest therein,
 On application
 The court will authorize the e/a to
convey such property according to such
contract, or with such modifications as
are agreed upon by the parties and
approved by the court;
 If the contract is to convey real property
to the e/a, the clerk of court shall
execute the deed.
 The deed executed by such executor,
administrator, or clerk of court shall be
as effectual to convey the property as if
executed by the deceased in his lifetime;
1. Not authorized
 But no such conveyance shall be
authorized until notice of the
application for that purpose has been
given personally or by mail to all
persons interested, and such further
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REVIEWER IN REMEDIAL LAW
notice has been given, by publication or
otherwise, as the court deems proper;
 Nor if the assets in the hands of the e/a
will thereby be reduced so as to prevent
a creditor from receiving his full debt or
diminish his dividend.
I. Where the Deceased in His
Lifetime Held Real Property in
Trust for Another Person
 Same notice requirement
 Court may authorize the e/a to deed
such property to the person or HIS e/a
 Court may order the execution of such
trust, whether created by deed or law
1. Effect of sales executed by heirs
 A contract of sale is not invalidated by
the fact that it is subject to probate
court approval.
2. Legal personality of special
administrator to seek review
 Not being a party in the proceedings
below, the special administratrix does
not have any legal personality to seek a
review by the Supreme Court of the
decisions of the SEC and the CA.
XVIII. DISTRIBUTION AND
PARTITION OF THE ESTATE
A. WHEN ORDER FOR DISTRIBUTION OF
RESIDUE MADE
B. QUESTIONS AS TO ADVANCEMENT MADE,
OR ALLEGED TO HAVE BEEN MADE, BY
THE DECEASED TO ANY HEIR
C. EXPENSES OF PARTITION
D. RECORDING OF THE ORDER OF
PARTITION OF ESTATE
E. EFFECT OF FINAL DECREE OF
DISTRIBUTION
A. When Order for Distribution of
Residue Made
 General Rule: The following must be
paid before distribution:
 Debts;
 Funeral charges;
 Expenses of administration;
 Allowance to the widow;
 Inheritance tax.
 Exception: The distributees give a bond
conditioned on the payment of above
obligations
1. Duty of the court
 On application of e/a or person
interested in the estate
 Notice
Chapter 2: Settlement of Estate of Deceased Persons
 Hearing
 Court shall assign the residue of the
estate to the persons entitled to the
same,
 Naming them and the proportions, or
parts, to which each is entitled,
 Such persons may demand and recover
their respective shares from the e/a, or
any other person having the same in his
possession.
 If there is a controversy as to who are
heirs or shares  heard and decided as
in ordinary cases.
2. The approval of a project of partition
SPECIAL PROCEEDINGS
does not necessarily terminate
administration.
 Before a court can make a partition and
distribution of the estate of a deceased,
it must first settle the estate in a special
proceeding instituted for the purpose.
 Trial courts trying an ordinary action
cannot resolve to perform acts
pertaining to a special proceeding
because it is subject to specific
prescribed rules.
3. Proceedings for the settlement of
estate is deemed ready for final
closure when:
a. There should have been issued
already an order of distribution or
assignment of the estate of the
decedent among or to those entitled
thereto by will or by law, but
b. Such order shall not be issued until
it is shown that the “debts, funeral
expenses and expenses of
administration, allowances, taxes,
etc., chargeable to the estate” have
been paid, which is but logical and
proper,
c. Besides, such an order is usually
proper and specific application for
the purpose of the interested party
or parties, and not of the court.
4. Before there could be a distribution
of estate, the following stages must
be followed:
a. Payment of obligations (liquidation
of estate)
b. Declaration of heirs  to determine
to whom the residue of the estate
should be distributed. Afterwards,
the residue may be distributed and
delivered to the heirs.
o Determination the right of a
natural child
o Determination of proportionate
shares of distributes.
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REVIEWER IN REMEDIAL LAW
5. Project of partition –
 the e/a has no duty to prepare and
present the same under the Rules.
 The court may, however, require him to
present such project to better inform
itself of the condition of the estate.
 A project of partition is merely a
proposal for the distribution of the
hereditary estate which the court may
accept or reject.
 It is the court that makes that
distribution of the estate and determine
the persons entitled thereto
6. When may proceedings be closed
 It is the order of distribution directing
the delivery of the residue of the estate
to the persons entitled thereto that
brings to a close the intestate
proceedings, puts an end to the
administration and thus far relieves the
administrator from his duties
B. Questions as to Advancement
Made, or Alleged to Have Been
Made, by the Deceased to Any
Heir
 There must be a hearing and final order
of the court thereon shall be binding on
the person raising the questions and on
the heir.
C. Expenses of Partition
 Paid by e/a when he has retained
sufficient effects in his hands
Will be paid when it appears equitable
to the court
And not inconsistent with the intention
of the testator
 Otherwise, paid by the parties in
proportion to their respective shares or
interest
The apportionment shall be settled and
allowed by the court, and, if any
person interested in the partition
does not pay his proportion or
share, the court may issue an
execution in the name of the e/a
against the party not paying the
sum assessed.
D. Recording of the Order of
Partition of Estate
 Certified copies of final orders and
judgments of the court relating to the
real estate or the partition thereof shall
be recorded in the registry of deeds of
the province where the property is
situated.
Chapter 2: Settlement of Estate of Deceased Persons
E. Effect of Final Decree of
Distribution:
1. Nature of proceedings –
 In rem, which is binding against the
whole world.
 All persons having interest in the
subject matter involved, whether they
are notified or not, are equally bound.
 The court acquires jurisdiction over all
persons interested, through the
publication of the notice prescribed and
any order that may be entered therein is
binding against all of them.
 The only instance where a party
SPECIAL PROCEEDINGS
interested in a probate proceeding may
have a final liquidation set aside is
when he is left out by reason of
circumstances beyond his control or
through mistake or inadvertence not
imputable to negligence.
 Even then, the better practice to secure
relief is reopening of the same case by
proper motion within reglamentary
period, instead of an independent
action, the effect of which, if successful,
would be for another court or judge to
throw out a decision or order already
final and executed and reshuffle
properties long ago distributed and
disposed of.
2. Prohibition against interference by
other courts
 General Rule: a court should not
interfere with probate proceedings
pending in a co-equal court.
 A separate action (example: to allow a
spurious child to present evidence on
his filiation and to claim his share in
the decedent’s estate) is not allowed. It
is the probate court that has exclusive
jurisdiction to make a just and legal
distribution of the estate.
3. Order is appealable
 An order which determines the
distributive shares of the heirs of a
deceased person is appealable. If not
appealed within the reglamentary
period, it becomes final.
4. Writ of execution
 The probate court generally cannot
issue a writ of execution because its
orders usually refer to the adjudication
of claims against the estate which the
e/a may satisfy without the necessity of
resorting to a writ of execution.
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REVIEWER IN REMEDIAL LAW
5. Instances when probate court may
issue writ of execution:
a. To satisfy the contributive shares of
devisees, legatees and heirs in
possession of the decedent’s assets
b. To enforce payment of expenses of
partition
c. To satisfy the costs when a person is
cited for examination in probate
proceedings
XIX. TRUSTEES
A. WHERE TRUSTEE APPOINTED
B. APPOINTMENT AND POWERS OF TRUSTEE
UNDER WILL. EXECUTOR OF FORMER
TRUSTEE NEED NOT ADMINISTER TRUST
C. NEW TRUSTEE
D. TRUSTEE APPOINTED ABROAD
E. TRUSTEE MUST FILE BOND BEFORE
PERFORMING DUTIES
F. CONDITIONS OF THE BOND
G. APPRAISAL AND COMPENSATION OF
TRUSTEE
H. REMOVAL OR RESIGNATION OF TRUSTEE
I. IF SALE OR ENCUMBRANCE OF TRUST
ESTATE NECESSARY OR EXPEDIENT
A. Where Trustee Appointed
 A trustee necessary to carry into effect
the provisions of a will on written
instrument shall be appointed by the
RTC in which the will was allowed, if it
be a will allowed in the Philippines,
otherwise by the RTC of the province in
which the property, or some portion
thereof, affected by the trust is situated.
1. Procedure
a. Allowance of the instrument
creating the trust
b. Petition by the e/a or the person
appointed as trustee in the
instrument
c. Appointment of trustee by the court
d. Notice to all interested parties
e. Filling of bond by the trustee
2. Discretion of the Court in the
appointment of a trustee
 The power to appoint a trustee is
discretionary with the court before
whom application is made, and the
appellate court will decline to interfere
except in cases of clear abuse.
Chapter 2: Settlement of Estate of Deceased Persons
B. Appointment and Powers of
Trustee Under Will. Executor of
Former Trustee Need Not
Administer Trust
 Testator has omitted in his will to
appoint a trustee
 A trustee is necessary to carry into
effect the provisions of the will
1. Duty of court
 Notice to persons interested
 Appoint a trustee
 No person succeeding to a trust as e/a
of a former trustee shall be required to
SPECIAL PROCEEDINGS
accept such trust.
2. Notice and consent of beneficiary are
not essential for the creation of trust
 This is because the acceptance by the
beneficiary is presumed
3. Creation of trust through an
inoperative will
 A written instrument though inoperative
as a will from want of compliance with
statutory requisitions, may yet operate
as a declaration of trust.
 But such writing must state the
fiduciary relation and the terms and
conditions of the trust with sufficient
certainty and it must be of such nature
that the party must have intended it as
a declaration of a trust
C. New Trustee
 Original trustee under a written
instrument declines, resigns, dies or
removed
 Before the objects of the trust are
accomplish
 And no adequate provision is made in
the instrument for supplying vacancy
 Court - notice to all persons interested,
appoint a new one to act alone or jointly
1. Power of new trustee –
 Have and exercise the same powers,
right, and duties as if he had been
originally appointed, and the trust
estate shall vest in him in like manner
as it had vested or would have vested,
in the trustee in whose place he is
substituted and the court may order
such conveyance to be made by the
former trustee or his representatives, or
by the other remaining trustees, as may
be necessary or proper to vest the trust
estate in the new trustee, either or
jointly with the others
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REVIEWER IN REMEDIAL LAW
2. Non-acceptance by trustee not
sufficient for failure of trust
 A trust will never fail for want of a
trustee and a court will always appoint
a trustee where necessary to the
administration of a trust or to prevent
failure of the trust, where the necessity
arises from failure of appointment, from
non-acceptance or disqualification of a
trustee or from other cause; or the court
will execute the trust by its officers or
otherwise effect its accomplishment.
D. Trustee Appointed Abroad
Chapter 2: Settlement of Estate of Deceased Persons
1. Failure to give bond - Considered to
have declined or resigned the trust.
2. Exemption by court from filing of
bond
 When testator has directed such
exemption
 All persons beneficially interested in the
trust, request also such exemption
 Exemption may be cancelled at any time
3. Effect of failure to file a bond
 If the trustee fails to furnish a bond as
required by the court, he fails to qualify
as such. Nonetheless the trust is not

1. Requisites
 Land in the Philippines held in trust
 In favor of persons resident
Philippines
 A trustee appointed abroad
2. Procedure:
a. Philippine land is held in trust for
Philippine residents, by a trustee
who derives authority from outside
the Philippines
b. Petition filed in the RTC of the
province where the land is situated
c. Notice to all interested parties
d. Trustee is ordered by the court to
apply for appointment.
3. Duty of such trustee
 Petition the CFI of province where land
is situated
 Notify all persons interested
 Apply to the court for appointment as
such
4. Failure to do these –
 Court will declare such trust vacant and
shall appoint new trustee.
5. Territoriality of authority of trustee
 The powers of a trustee appointed by a
Philippine court cannot extend beyond
the confines of the territory of the
Republic.
 This is based on the principle that his
authority cannot extend beyond the
jurisdiction of the Republic, under
whose courts he was appointed.
E. Trustee Must File Bond Before
Performing Duties
 Filed in the clerk of court
 Amount fixed by the judge
 Payable to the government
Philippines
 Sufficient and available for
protection of any party in interest
SPECIAL PROCEEDINGS
defeated by such a failure to give bond
of F. Conditions of the Bond
1. Inventory –
 That the trustee will make and return to
the court, at such time as it may order,
a true inventory of all the real and
personal estate belonging to him as
trustee, which at the time of the making
of such inventory shall have come to his
possession or knowledge;
2. Faithful management –
 That he will manage and dispose of all
such estate, and faithfully discharge his
trust in relation thereto, according to
law and the will of the testator or the
provisions of the instrument or order
under which he is appointed;
3. Accounting –
 That he will render upon oath at least
once a year until his trust is fulfilled,
unless he is excused in any year by the
court, a true account of the property in
his hands and the management and
disposition thereof, and will render such
other accounts as the court may order;
4. Settlement of account and deliver
estate –
 That at the expiration of his trust he
will settle his account 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 to thereto.
5. Exemption of inventory
 When trustee is not the original trustee
appointed
 Court’s discretion
 If an inventory has already been filed
of
the

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REVIEWER IN REMEDIAL LAW
6. Duties of trustee vis-à-vis executor or
administrator
 A trustee, like an e/a, holds an office of
trust, particularly when the trustee acts
as such under judicial authority.
 The duties of e/a rare however, fixed
and/or limited by law whereas those of
the trustee of an express trust are,
usually governed by the intention of the
trustor or the parties, if established by
contract.
 Besides, the duties of trustees may
cover a wider range than those of e/a of
the estate of deceased persons (Araneta
v. Perez (1962))
7. Nature of possession by trustee
 The possession of the property by the
trustee is not an adverse possession,
but only a possession in the name and
in behalf of the owner of the same.
 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 que
trust (Salinas v. Tuazon).
G. Appraisal and Compensation of
Trustee
1. Appraisal –
 When inventory is necessary and court
may require inheritance tax appraisers
to assist.
2. Compensation of trustee –
 According to the trust instrument; if
none it shall be fixed by the court
3. Factors affecting trustee’s
compensation
a. The character and powers of the
trusteeship
b. The risk and responsibility
c. Time
d. Labor and skill required in the
administrator of the trust, as well as
the care and management of the
estate.
Chapter 2: Settlement of Estate of Deceased Persons
H. Removal or Resignation of
Trustee
 Petition by parties beneficially
interested
 Due notice to the trustee
 Hearing
1. Grounds for removal
 Removal appears essential in the
interest of petitioner
 Trustee is insane or
 otherwise incapable of discharging his
trust or
 evidently unsuitable
SPECIAL PROCEEDINGS
2. Resignation –
 He may resign; court will determine if
proper
I. If Sale or Encumbrance of Trust
Estate Necessary or Expedient
 Petition
 Notice
 Hearing
 Court may order such to be made
 And the re-investment and application
of the proceeds thereof in such manner
as will best effect the objects of the trust
 The petition, notice, hearing, order of
sale or encumbrance, and record of
proceedings, shall conform as nearly as
may be to the provisions concerning the
sale or encumbrance by guardians of
the property of minors or other wards
1. Requirement of judicial order for sale
or encumbrance of trust estate
 it is of a perishable or transitory nature
and then only to convert it into
substantial, enduring and revenue-
producing investment.
 If a change be deemed necessary, or for
the interest of the beneficiary, the
permission or sanction of the court
should be obtained
Page 177 of 370
REVIEWER IN REMEDIAL LAW
Chapter 3: Escheats
(Asked in the 2002 Bar Examinations)
I. WHEN ALLOWED
II. DUTY OF COURT; WHEN PETITION
SUFFICIENT
III. COURT SHALL ADJUDGE THAT THE
ESTATE SHALL ESCHEAT
IV. PERIOD TO APPEAL AND CLAIM THE
ESTATE
V. OTHER ACTIONS FOR ESCHEAT
I. WHEN ALLOWED
 Person dies intestate
 Seized of real property in the Philippines
 Leaves no heir or person by law entitled
to the same
1. Procedure
a. Solicitor General or his
representative in behalf of the
Republic of the Philippines to file the
petition
b. In the RTC of the province where the
deceased last resided or in which he
had estate, if he resided out of the
Philippines
c. If petition is sufficient in form and
substance, the court shall fix a date
and place for the hearing
o Which date shall not be more
than 6 months after the entry of
the order
d. The court shall direct a copy of the
order to be published before the
hearing at least once a week for 6
consecutive weeks in some
newspaper of general circulation
published in the province, as the
court shall deem best
e. The court shall hear the case and
judge whether or not the estate shall
escheat
f. If the court rules in favor of the
Republic,
o It shall assign the personal
estate to the municipality or city
where the deceased last resided,
and the real estate to the
municipalities or cities,
respectively, in which the same
is situated.
o If the deceased never resided in
the Philippines, the whole estate
may be assigned to the
respective municipalities or
cities where the same is located.
o Such estate shall be for the
benefit of public schools, and
public charitable institutions
Chapter 3: Escheats
and centers in said
municipalities or cities.
o It may also order the
establishment of a permanent
trust, so that only the income
from the property shall be used.
2. Who may file:
 Solicitor General or his representative
3. Where to file:
 CFI of the province where deceased last
resided OR which he had estate
SPECIAL PROCEEDINGS
4. Nature of escheat
 Is not an ordinary civil action but a
special proceeding that should be
commenced not by complaint but by
petition.
 It is an incident or attribute of
sovereignty and rests on the principle of
ultimate ownership by the state of all
property within its jurisdiction.
 It is a substantial right of the state and
is not a claim based on charity, gratuity
or unearned benefit.
5. Parties
 It must be 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 the
opportunity to present their valid claims
 Any person alleging to have a direct
right or interest in the property sought
to be escheated, likewise an interested
and necessary party, may properly
oppose the petition for escheat or file
claim thereto with the court within the
period provided in the Rule.
6. Requisites for filing:
a. A person died intestate
b. He left no heirs or persons by law
entitled to the same
c. Deceased left properties
7. Proceedings in escheat cannot be
converted into settlement of the
estate.
 Proceedings in escheat cannot be
converted into settlement of the estate.
 The escheat court does not have the
power to order or proceed with, the
distribution of the estate of a decedent
in escheat proceedings and adjudicate
the properties to the oppositors
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REVIEWER IN REMEDIAL LAW Chapter 3: Escheats

II. DUTY OF COURT; WHEN  Thus where the right to escheat claimed
PETITION SUFFICIENT by municipality has existed long prior to
the registration proceedings instituted
 Fix a date and place for hearing by the Roman Catholic Archbishop of
Date - x < 6 months after the entry of Manila and the same has not been
the order asserted in said proceedings, it is
 Direct a copy of the order be published deemed to have been completely waived.
before the hearing
At least once a week for 6 successive
weeks IV. PERIOD TO APPEAL AND CLAIM
Newspaper of general circulation in the THE ESTATE
province
 Within 5 years from date of judgment;
otherwise, barred forever

III.COURT SHALL ADJUDGE THAT
THE ESTATE SHALL ESCHEAT
 Date and time published
 Right of government proven in court
 Payment of just debts and charges
1. Personal estate  goes to the
municipality or city of last residence
2. Real estate  goes to the
municipality or city where same is
situated
 If the deceased never resided in the
Philippines, the whole estate may be
assigned to the respective
municipalities or cities where the same
is located.
 Such estate shall be for the benefit of
public schools, and public charitable
institutions and centers in said
municipalities or cities.
 The court, at the instance of an
interested party, or on its own motion,
may order the establishment of a
permanent trust, so that the only
income from the property shall be used
SPECIAL PROCEEDINGS
1. By whom:
 Devisee, legatee, heir, widow, widower,
or other person entitled to such estate
appears
 Such person shall have possession of
and title to the same, or if sold, the
municipality or city shall be
accountable to him for the proceeds
after deducting reasonable charges for
the care of the estate
2. Period for filing claim –
 5 years from date the property was
delivered to the state.
V. OTHER ACTIONS FOR ESCHEAT
 Until otherwise provided by law, actions
reversion or escheat of properties
alienated in violation of the Constitution
or of any statute shall be governed by
this rule, except that the action shall be
 instituted in the province where the
land lies in whole or in part.

3. Conclusiveness of judgment of
escheat
 Conclusive upon persons notified by
advertisement to all persons interested.

4. Evidence required
 Escheats and forfeitures are not favored
by law, and the modern rule under
statutes regulating escheat proceedings
is that the burden of proof rests on the
state to prove that the property in
question is in all respects liable to
escheat.

5. Waiver
 The right to escheat may be waived,
either expressly or impliedly.

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REVIEWER IN REMEDIAL LAW Chapter 4: Special Rules Implementing the Family Courts

CHAPTER 4: Special Rules 3. Nature

Implementing the Family Courts  A trust relation of the most sacred
character (Herrera).
I. GUARDIANSHIP
II. ADOPTION 4. Purpose
III. RULES ON CUSTODY OF CHILDREN  To safeguard the right and interests of
(RULE 99, SECS. 6 AND 7) minors and incompetent persons.
IV. CUSTODY OF MINORS AND WRIT OF
HABEAS CORPUS IN RELATION TO 5. Basis: Parens Patriae
CUSTODY OF MINORS (A.M. NO. 03-04-  It is the State’s duty to protect the
04-SC) rights of persons/individuals who
V. COMMITMENT OF CHILDREN (A.M. NO.
02-1-19-SC)
because of age/incapacity are in an
unfavourable position vis-à-vis other
parties (Nery v. Lorenzo, 1972).
I. GUARDIANSHIP

SPECIAL PROCEEDINGS
Kinds of Guardians (Regalado)
A. GUARDIANSHIP IN GENERAL 1. Legal Guardian – deemed as guardian by
B. GUARDIANSHIP OF MINORS provision of law, without need of court
1. PARENTS AS LEGAL GUARDIANS (ART. appointment (Art. 320, CC; Art. 225, FC)
225, FC) 2. Guardian ad Litem – appointed by the
2. RULE ON GUARDIANSHIP OF MINORS court to prosecute or defend a minor, insane
(A.M. NO. 03-02-05-SC) or person declared to be incompetent, in a
a. SCOPE & APPLICABILITY court action.
b. PETITION FOR APPOINTMENT OF 3. Judicial Guardian – appointed by the
GUARDIAN court in pursuance to law, as guardians for
c. THE GUARDIAN insane persons, prodigals, minor heirs of
d. SELLING & ENCUMBERING THE deceased war veterans and other
PROPERTY OF THE WARD incompetent persons.
e. REMOVAL, RESIGNATION, & a. Guardian over the person.
TERMINATION OF GUARDIANSHIP b. Guardian of the property.
C. GUARDIANSHIP OF INCOMPETENTS c. General Guardian – has custody and
(RULES 92-98) care of the ward’s person and property.
a. SCOPE & APPLICABILITY
b. PETITION FOR APPOINTMENT OF
GUARDIAN
6. Ancillary Guardianship –
c. THE GUARDIAN  guardianship in a state other than that
d. SELLING & ENCUMBERING THE in which guardianship is originally
PROPERTY OF THE WARD (RULE 95) granted and which is subservient and
e. TERMINATION OF GUARDIANSHIP subsidiary to the latter.
(RULE 97)
B. Guardianship of Minors
A. Guardianship In General
1. Parents as Legal Guardians (Art.
1. Guardianship – 225, FC)
 the power of protective authority given
by law and imposed on an individual  The father and the mother shall jointly
who is free and in the enjoyment of his exercise legal guardianship over the
rights, over one whose weakness on property of their unemancipated
account of his age or other infirmity common child without the necessity of a
renders him unable to protect himself court appointment.
(Herrera).  Where the market value of the property
or the annual income of the child
2. Guardian – exceeds P50,000:
 a person lawfully invested with power The parent concerned shall be required
and charged with the duty of taking to furnish a bond in such amount
care of a person who for some as the court may determine, but not
peculiarity or status or defect of age, less than 10% of the value of the
understanding or self-control is property or annual income.
considered incapable of administering A verified petition for approval of the
his own affairs (Herrera). bond shall be filed in the Family
Court of the place where the child
resides, or if the child resides in a

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REVIEWER IN REMEDIAL LAW Chapter 4: Special Rules Implementing the Family Courts
foreign country, in the proper court Family Court of the province or city
of the place where the property or where his property or any part
any part thereof is situated. thereof is situated.
 In case of disagreement, the father’s
decision shall prevail, unless there is a Grounds for filing:
judicial order to the contrary. 1. Death, continued absence, or
incapacity of his parents;
Bautista vs. Bautista: A father or mother, as the 2. Suspension, deprivation or
natural guardian of the minor under parental termination of parental authority;
authority, does not have the power to dispose or 3. Remarriage of his surviving parent,
encumber the property of the latter. Such power if the latter is found unsuitable to
is granted by law only to a judicial guardian of
exercise parental authority;
the ward’s property and only with court’s
approval. 4. When the best interests of the minor
so require.

SPECIAL PROCEEDINGS
Valencia vs. Lagdameo: The remedy of vendees
prejudiced by the illegal transactions of a Contents of petition:
natural guardian involving the property of the 1. Jurisdictional facts;
minor child lies only against the natural 2. Name, age and residence of the
guardian, not however to recover ownership and prospective ward;
possession of the properties sold but only to 3. Ground rendering the appointment
recover damages.
necessary or convenient;
4. Death of the parents of the minor or
2. Rule on Guardianship of Minors the termination, deprivation or
(A.M. No. 03-02-05-SC) suspension of their parental
authority;
a. Scope and Applicability 5. Remarriage of the minor’s surviving
 The Rule on Guardianship of Minors parent;
applies to petitions for guardianship 6. Names, ages, and residences of
over the person or property, or both, relatives within the 4th civil degree
of a minor. of the minor, and of persons having
 The Rules on Guardianship (Rules him in their care and custody;
92-98, RoC) apply only to 7. Probable value, character and
guardianship of incompetents other location of the property of the minor;
than a minor. 8. Name, age and residence of the
person for whom letters of
b. Petition for Appointment of guardianship are prayed.
Guardian
Who may file:  The petition shall be verified and
 Resident minor accompanied by a certification
1. Any relative or other person on against forum shopping.
behalf of a minor;  No defect in the petition or
2. The minor himself, if 14 years of verification shall render void the
age or over; issuance of letters of guardianship.
3. The Secretary of DSWD or the
Secretary of DOH, in the case of Opposition
an insane minor who needs to  Who may file:
be hospitalized. 1. Any interested person;
 Non-resident minor 2. The social worker ordered to
1. Any relative or friend of such make the case study report, if he
minor; finds that the petition for
2. Anyone interested in his guardianship should be denied
property, in expectancy or (Sec. 9).
otherwise.  How: By filing a written opposition.
 Grounds for filing:
Where to file: 1. Majority of the minor;
 Resident minor 2. Unsuitability of the person for
Family Court of the province or city whom letters are prayed.
where the minor actually
resides.
 Non-resident minor

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REVIEWER IN REMEDIAL LAW
Procedure
1. Filing of petition.
2. Court shall fix a time and place for
hearing.
3. Notice Requirement
Court shall cause reasonable notice
to be given to:
a. The persons mentioned in
the petition;
b. The minor if he is fourteen
years of age or over.
For non-resident minors, notice
shall be given to the minor by
publication or any other means
as the court may deem proper.
Court may also direct other general
or special notice to be given.
4. Case Study Report – Court shall
order a social worker to conduct a
case study of the minor and all the
prospective guardians and submit
his report and recommendation to
the court for its guidance before the
scheduled hearing.
5. Hearing
 Compliance with notice requirement
must be shown.
 The prospective ward shall be
presented to the court. If the minor
is non-resident, the court may
dispense with his presence.
 At the discretion of the court, the
hearing on guardianship may be
closed to the public.
 The records of the case shall not be
released without court approval.
6. Issuance or denial of letters of
guardianship.
7. Service of final and executory
judgment or order upon the Local
Civil Registrar of the municipality or
city where the minor resides and the
Register of Deeds of the place where
his property or part thereof is
situated, who shall annotate the
same in the corresponding title, and
report to the court their compliance
within fifteen days from receipt of
the order.
c. The Guardian
Order of Preference of Appointment
(in default of parents or a court-
approved guardian)
1. The surviving grandparent. In case
several grandparents survive, the
court shall select any of them taking
into account all relevant
considerations.
Chapter 4: Special Rules Implementing the Family Courts
2. The oldest brother or sister of the
minor over 21 years of age, unless
unfit or disqualified.
3. The 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.
Qualifications
 The court shall consider the
guardian’s:
1. Moral character;
SPECIAL PROCEEDINGS
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 minor.
Powers and Duties
 In general
Guardian of resident minor: Care
and custody of the person of his
ward and the management of his
property, or only the
management of his property.
Guardian of non-resident minor:
Management of all his property
within the Philippines.
 Specific duties
1. To pay the just debts of the ward
out of:
a. Personal property and the
income of the real property of
the ward, if the same is
sufficient;
b. Real property of the ward
upon obtaining an order for
its sale or encumbrance.
2. To settle all accounts of his
ward;
3. To demand, sue for, receive all
debts due him, or, with the
approval of the court, compound
for the same and give discharges
to the debtor on receiving a fair
and just dividend of the property
and effects;
4. To appear for and represent the
ward in all actions and special
proceedings, unless another
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REVIEWER IN REMEDIAL LAW
person is appointed for that
purpose;
5. To manage the property of the
ward frugally and without waste,
and apply the income and profits
thereon, insofar as may be
necessary, to the comfortable
and suitable maintenance of the
ward. If such income and profits
be insufficient for that purpose,
to sell or encumber the real or
personal property, upon being
authorized by the court to do so;
6. To consent to a partition of real
or personal property owned by
the ward jointly or in common
with others, upon:
a. Authority granted by the
court after hearing;
b. Notice to relatives of the
ward, and;
c. A careful investigation as to
the necessity and propriety
of the proposed action.
7. To submit to the court a verified
inventory of the property of the
ward:
 Within three months after
his appointment;
 Annually, and;
 Whenever required upon the
application of an interested
person.
8. To report to the court any
property of the ward not
included in the inventory which
is discovered, or succeeded to, or
acquired by the ward within 3
months after such discovery,
succession, or acquisition;
9. To render to the court for its
approval an accounting of the
property:
 One year from his
appointment;
 Every year thereafter, and;
 As often as may be required.
Bonds of Guardians
 When filed: Before a guardian
enters upon the execution of his
trust, or letters of guardianship
issue.
 Amount: As determined by the
Court.
 Conditions: The guardian is:
1. To make and return to the court,
within three months after the
issuance of his letters of
guardianship, a true and
Chapter 4: Special Rules Implementing the Family Courts
complete inventory of all the real
and personal property of his
ward which shall come to his
possession or knowledge or to
the possession or knowledge of
any other person in his behalf;
2. To faithfully execute the duties
of his trust, to manage and
dispose the property according
to this rule for the best interests
of the ward, and to provide for
his proper care, custody and
education;
3. To render a true and just
SPECIAL PROCEEDINGS
account of all the property of the
ward in his hands, and of all
proceeds or interest derived from
them, and of the management
and disposition of the same, at
the time designated by this rule
and such other times as the
court directs; and at the
expiration of his trust, to settle
his accounts with the court and
deliver and pay over all the
property, effects, and monies
remaining in his hands, or due
from him on such settlement, to
the person lawfully entitled
thereto;
4. To perform all orders of the
court and such other duties as
may be required by law.
 Posting of new bond
Whenever necessary, the court may
require the guardian to post a
new bond and may discharge
from further liability the sureties
on the old bond.
 Requirements:
1. Due notice to interested persons;
2. No injury must result to those
interested in the property.
 Liability: In case of breach of any of
its conditions, the guardian may be
prosecuted in the same proceeding
for the benefit of the ward or of any
other person legally interested in the
property.
Reimbursement of Reasonable
Expenses and Payment of
Compensation
 The court may authorize
reimbursement to the guardian,
other than a parent, of reasonable
expenses incurred in the execution
of his trust.
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REVIEWER IN REMEDIAL LAW
 The court may allow payment of
compensation for his services as the
court may deem just, not exceeding
10% of the net income of the ward, if
any; otherwise, in such amount the
court determines to be a reasonable
compensation for his services.
Embezzlement, Concealment, or
Conveyance of Ward’s Properties
 The court may require any person
suspected of having embezzled,
concealed, or disposed of any
money, goods or interest, or a
written instrument belonging to the
ward or his property to appear for
examination concerning any thereof
and issue such orders as would
secure the property against such
embezzlement, concealment or
conveyance, upon complaint of:
 The guardian or ward, or;
 Any person having actual or
prospective interest in the property
of the ward.
d. Selling and Encumbering the
Property of the Ward
 Grounds
When the income of a property
under guardianship
insufficient to maintain and
educate the ward
When it is for the benefit of the ward
that his personal or real
property or any part thereof be
sold, mortgaged or otherwise
encumbered, and the proceeds
invested in safe and productive
security, or in the improvement
or security of other real
property.
 How: Verified petition filed by the
guardian.
 Order to Show Cause
a. The court shall order the ward’s
next of kin and all persons
interested in the property to
appear at a reasonable time and
place and show cause why the
petition should not be granted.
b. At the time and place designated
in the order to show cause, the
court shall hear the allegations
and evidence of the petitioner
and next of kin, and other
persons interested, together with
Chapter 4: Special Rules Implementing the Family Courts
their witnesses, and grant or
deny the petition as the best
interests of the ward may
require.
 Order for Sale or Encumbrance
Contents:
a. Grounds for the sale or
encumbrance;
b. Manner of sale (public or
private);
c. Time and manner of
payment;
d. Security, if payment
SPECIAL PROCEEDINGS
deferred;
e. Additional bond from
guardian, if required.
Duration: Not more than 1 year,
unless renewed.
 Investment of Proceeds and
Management of Property
The court may authorize and require
the guardian to invest the
proceeds of sales or
encumbrances, and any other
money of his ward in his hands,
in real or personal property, for
the best interests of the ward.
The court may make such other
orders for the management,
is investment, and disposition of
the property and effects, as
circumstances may warrant.
e. Removal, Resignation, and
Termination of Guardianship
 Removal
How: Upon reasonable notice to the
guardian.
Grounds: The guardian:
1. Becomes insane or otherwise
incapable of discharging his
trust;
2. Is found to be unsuitable;
3. Wasted or mismanaged the
property of the ward;
4. Failed to render an account or
make a return for thirty days
after it is due.
 Resignation
Ground: Any justifiable cause.
Upon the removal or resignation of
the guardian, the court shall
appoint a new one.
No motion for removal or resignation
shall be granted unless the
guardian has submitted the
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REVIEWER IN REMEDIAL LAW Chapter 4: Special Rules Implementing the Family Courts
proper accounting of the becoming thereby an easy prey for
property of the ward and the deceit and exploitation.
court has approved the same.
2. Petition for Appointment of
 Termination Guardian
Grounds:
1. The ward has come of age;  Who may file:
2. The ward has died. For resident incompetents
How: 1. Any relative, friend, or other
1. Court motu propio terminates person on behalf of the
guardianship; incompetent who has no parent
2. Upon verified motion of any or lawful guardian;
person allowed to file a petition 2. Health secretary, in favor of:
for guardianship. a. An insane person who

SPECIAL PROCEEDINGS
The guardian shall notify the court should be hospitalized;
of the fact of coming of age or b. An isolated leper.
death of the ward within 10 days For non-resident incompetents
of its occurrence. 1. Any relative or friend;
The final and executory judgment or 2. Anyone interested in the
order removing a guardian or incompetent’s estate.
terminating the guardianship
shall be served upon the Local  Where to file:
Civil Registrar of the For resident incompetents: RTC of the
municipality or city where the province or MTC of the municipality
minor resides and the Register of or chartered city where the
Deeds of the province or city incompetent resides.
where his property or any part For non-resident incompetents: RTC of
thereof is situated, who shall the province where the property of
enter the final and executory the incompetent or part thereof is
judgment or order in the situated.
appropriate books in their Transfer of Venue - The court taking
offices. cognizance of a guardianship
proceeding may transfer the same to
C. Guardianship of Incompetents the court of another province or
(RULES 92-98) municipality wherein the ward has
acquired real property, if he has
1. Scope and Applicability transferred thereto his bona-fide
residence.
 The Rules on Guardianship (Rules 92-
98, RoC) apply to guardianship over the  Contents
person or property, or both, of 1. Jurisdictional facts;
incompetents other than a minor. 2. Incompetency rendering the
 The Rule on Guardianship of Minors appointment necessary or
(A.M. No. 03-02-05-SC) governs convenient;
guardianship of minors. 3. Names, ages, and residence of the
relatives of the incompetent, and of
 Incompetents the person having him in their care;
a. Persons suffering the penalty of civil 4. Probable value and character of his
interdiction; estate;
b. Hospitalized lepers; 5. Name of the person for whom letters
c. Prodigals; of guardianship are prayed.
d. Deaf and dumb who are unable to read
and write; The petition shall be verified.
e. Those who are of unsound mind, even No defect in the petition or verification
though they have lucid intervals; shall render void the issuance of
f. Persons not being of unsound mind, but letters of guardianship.
by reason of age, disease, weak mind,
and other similar causes, cannot,  Opposition
without outside aid, take care of Who may file: Any interested person.
themselves and manage their property, How: By filing a written opposition.

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REVIEWER IN REMEDIAL LAW
Grounds:
1. Competency of the alleged
incompetent;
2. Unsuitability of the person for whom
letters are prayed.
 Procedure
1. Filing of petition for appointment of
guardian for an incompetent.
2. Court shall fix a time and place for
hearing the petition.
3. Court shall cause reasonable notice
of hearing to be given to the persons
mentioned in the petition residing in
the province, including the
incompetent himself, and may direct
other general or special notice to be
given.
o If incompetent is a non-resident,
notice shall be given to him in
such manner as the court deems
proper, by publication or
otherwise (Rule 93, Sec. 6).
4. Hearing
o The incompetent must be
present, if able to attend.
o Fulfilment of notice requirement
must be shown.
5. Issuance of letters of appointment of
a guardian.
6. The final order or judgment shall be
served upon the civil registrar of the
municipality or city where the minor
or incompetent person resides or
where his property or part thereof is
situated (Rule 93, Sec. 8).
Yangco vs. CFI: Notice to the ward’s relatives
is a jurisdictional requirement.
3. The Guardian
 Considerations in the Choice of the
Guardian
Francisco vs. CA (1984): The court may consider
the financial situation, the physical condition
and sound judgment, prudence and
trustworthiness, the morals, character and
conduct, and the present and past history of a
prospective appointee, as well as the probability
of his being able to exercise the powers and
duties of a guardian for the full period during
which guardianship will be necessary.
Guerrero vs. Tan: The courts should not appoint
as a guardian any person who is not personally
subject to their jurisdiction.
Garchitorena vs. Sotelo: If the interested person
is a creditor and mortgagee of the ward’s estate,
he cannot be appointed guardian of the ward’s
person and property.
Chapter 4: Special Rules Implementing the Family Courts
 Powers and Duties (Rule 96)
 In general
1. Guardian of resident incompetent:
Care and custody of the person of
his ward, and the management of
his estate, or the management of
the estate only
2. Guardian of non-resident
incompetent: Management of all the
estate of the ward within the
Philippines.
 Specific duties
1. To pay the just debts of the ward
out of:
SPECIAL PROCEEDINGS
a. Personal property and the
income of the real property of
the ward, if the same is
sufficient.
b. Real property of the ward upon
obtaining an order for its sale or
encumbrance.
2. To settle all accounts of his ward;
3. To demand, sue for, receive all debts
due him, or, with the approval of the
court, compound for the same and
give discharges to the debtor on
receiving a fair and just dividend of
the property and effects;
4. To appear for and represent the
ward in all actions and special
proceedings, unless another person
is appointed for that purpose;
5. To manage the property of the ward
frugally and without waste, and
apply the income and profits
thereon, insofar as may be
necessary, to the comfortable and
suitable maintenance of the ward. If
such income and profits be
insufficient for that purpose, to sell
or encumber the real or personal
property, upon being authorized by
the court;
6. To consent to a partition of real or
personal property owned by the
ward jointly or in common with
others, upon:
a. Authority granted by the court
after hearing;
b. Notice to relatives of the ward,
and;
c. A careful investigation as to the
necessity and propriety of the
proposed action.
7. To submit to the court:
a. An inventory of the estate of the
ward, sworn to by the guardian;
i. Within three months after
his appointment;
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REVIEWER IN REMEDIAL LAW
1. The estate of the ward
described in the first
inventory shall be
appraised. In the
appraisement the court
may request the
assistance of one or more
of the inheritance tax
appraisers.
ii. Annually after his
appointment. and;
iii. Whenever required upon the
application of an interested
person.
a. An account of the estate of the
ward, sworn to by the guardian:
i. Annually after his
appointment, and;
ii. Whenever required upon the
application of an interested
person.
8. To report to the court any property
of the ward not included in the
inventory which is discovered, or
succeeded to, or acquired by the
ward within 3 months after such
discovery, succession, or
acquisition.
Gorostiaga vs. Sarte: Jurisdiction over an
incompetent’s person cannot be had unless a
guardian was appointed upon whom summons
and notice of the proceedings may be served.
Zafra-Sarte vs. CA (1970): The guardian’s
appointment is good until set aside. Despite an
appeal, the guardian can do what is necessary
(under court’s direction) for the protection of the
ward and his estate.
 Bonds of Guardians (Rule 94)
When filed: Before a guardian enters
upon the execution of his trust, or
letters of guardianship issue.
Where filed: In the office of the Clerk of
Court.
Amount: As determined by the Court.
Conditions - The guardian is:
1. To make and return to the court,
within 3 months, a true and
complete inventory of all the real
and personal estate of his ward
which shall come to his possession
or knowledge of any other person for
him;
2. To faithfully execute the duties of
his trust, to manage and dispose of
the estate for the best interests of
the ward, and to provide for the
proper care, custody, and education
of the ward;
Chapter 4: Special Rules Implementing the Family Courts
3. To render a true and just account of
all the estate of the ward in his
hands, and of all proceeds or
interest derived from them, and of
the management and disposition of
the same, at the time designated
and such other times as the courts
directs, and at the expiration of his
trust to settle his accounts with the
court and deliver and pay over all
the estate, effects, and moneys
remaining in his hands, or due from
him on such settlement, to the
person lawfully entitled thereto;
SPECIAL PROCEEDINGS
4. To perform all orders of the court by
him to be performed.
Posting of new bond
o Whenever it is deemed necessary,
the court may require a new bond to
be given by the guardian, and may
discharge the sureties on the old
bond from further liability.
Requirements:
1. Due notice to interested persons;
2. No injury must result to those
interested in the property.
Liability for breach: In case of the
breach of a condition of the bond,
the guardian may be prosecuted in
the same proceeding or in a
separate action for the use and
benefit of the ward or of any other
person legally interested in the
estate.
Guerrero vs. Teran: The bond of the guardian is a
continuing one against the obligors and their
estates until all of its conditions are fulfilled. The
mere fact that the guardian was removed does
not relieve her or her bondsmen from liability
during the time she was duly acting as such
guardian.
Zubaldia vs. Hermanos: If the guardian delegates
his duties to another, he shall be responsible for
the other’s actions in the premises and for any
resulting loss. Exception: If the guardian shows
that he used reasonable care and discretion in
the manner of selecting those whom he employs.
Doronilla vs. Lopez: A guardian may be
imprisoned for failure to render his account and
to deliver the estate upon order to his successor
 Reimbursement of Reasonable
Expenses and Payment of
Consideration (Rule 96, Sec. 8)
 The guardian, other than a parent, shall
be allowed the amount of his reasonable
Page 187 of 370
REVIEWER IN REMEDIAL LAW
expenses incurred in the execution of
his trust.
 The guardian, other than a parent, shall
also be allowed such compensation for
his services as the court deems just, not
exceeding 15% of the net income of the
ward.
Ramos vs. PNB (1957): Extra allowance may be
made in each case as the importance and
difficulty of the management of the estate may
require.
 Embezzlement, Concealment or
Conveyance of Ward’s Properties
(Rule 96, Sec. 6)
The court may require any person
suspected of having embezzled,
concealed, or conveyed away any
money, goods or interest, or a
written instrument belonging to the
ward or his estate to appear for
examination touching such money,
goods, interest, or instrument, and
make such orders as will secure the
estate against such embezzlement,
concealment or conveyance, upon
complaint of:
a. The guardian or ward, or;
b. Any person having actual or
prospective interest in the
property of the ward as creditor,
heir, or otherwise.
4. Selling and Encumbering the
Property of the Ward (Rule 95)
 Grounds
a. When the income of a property
under guardianship is insufficient to
maintain the ward and his family;
b. When it is for the benefit of the ward
that his real estate or some part
thereof be sold, mortgaged or
otherwise encumbered, and the
proceeds thereof put out at an
interest, or invested in some
productive security, or in the
improvement or security of other
real estate.
 How: Verified petition filed by the
guardian to the Court which appointed
him.
 Order to Show Cause
The court shall order the ward’s next of
kin and all persons interested in the
estate to appear at a reasonable
time and place and show cause why
the petition should not be granted.
Chapter 4: Special Rules Implementing the Family Courts
At the time and place designated in the
order to show cause, the court shall
hear the proofs and allegations of
the petitioner and next of kin, and
other persons interested, together
with their witnesses, and grant or
deny the petition as the best
interests of the ward may require.
 Order for Sale or Encumbrance
Contents
f. Grounds for the sale or
encumbrance;
g. Manner of sale (public or
private);
SPECIAL PROCEEDINGS
h. Time and manner of payment;
i. Security, if payment deferred;
j. Additional bond from guardian,
if required.
Duration of Effect: Not more than 1
year, unless renewed.
The guardian cannot acquire by
purchase, even at a public or
judicial auction, the property of his
ward (Art. 1491, CC).
 Investment of proceeds and
Management of Property
The court may authorize and require
the guardian to invest the proceeds
of sales or encumbrances, and any
other money of his ward in his
hands, in real estate or otherwise,
for the best interests of the ward.
The court may make such other orders
for the management, investment,
and disposition of the estate and
effects, as circumstances may
warrant.
Inton vs. Quintana: The grounds for the sale and
encumbrance of ward’s property are exclusive.
No order will be issued for another purpose not
found in the Rules. Sale of the ward’s realty
without court order is void.
Singco vs. Longa: Notice to the next of kin is a
jurisdictional requirement which may not be
dispensed with.
Lopez vs. Teodoro (1950): The next of kin are
those relatives whose relationships are such as
to entitle them to shares in the estate as
distributes.
Appeal is the proper remedy against a court
authorizing the sale of the ward’s property.
Margate vs. Rabacal (1963): Generally, in order
that the sale of the ward’s property be valid, it is
essential that the sale first be confirmed by the
Court. However, where the authority to sell did
not impose the condition that the deed of sale
executed by the guardian should be approved by
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REVIEWER IN REMEDIAL LAW Chapter 4: Special Rules Implementing the Family Courts
the court, the approval of the sale by the court  Petition for Adjudgment of
would be merely pro forma, where the sale was Competency (Rule 97, Sec. 1)
already fait accompli and within the authority
given by the court. Who may file:
o The person declared
The cancellation of the authority of the guardian
to sell the property of the ward did not and could incompetent;
not affect the rights of the buyer, where at the o His guardian;
time that the order cancelling the authority to o His relative;
sell was entered, the guardian had already acted o His friend;
in accordance with the authority and sold the How: Petition verified by oath and
property. The authority has already been stating that the person is
exhausted and there was nothing to cancel. competent.
Procedure:
There being a presumption that the sale of the
o Filing of petition.
ward’s estate is valid, the same cannot be

attacked collaterally in the registration
proceedings. A separate action to avoid or
rescind the sale should be filed
Soriano vs. Latono: Confirmation may not be
necessary where the court’s order expressly
authorized the guardian to execute and deliver
to the purchaser definitely named a deed of
conveyance to a parcel of land specifically
described at a price already fixed, and it was
intended to be the approval itself of the sale that
was already perfected or agreed upon by the
seller and the buyer, and the sale had been
made without departure from the terms of the
order.
Mendoza vs. Labrador: If the authority to sell
was obtained under suspicious circumstances
indicative of fraud or collusion, the guardian’s
sale may subsequently be annulled by the court.
 Newly-acquired or Discovered
Properties (Rule 96, Sec. 7)
Whenever any property of the ward not
included in an inventory already
rendered is discovered, or succeeded
to, or acquired by the ward, like
proceedings shall be had for
securing an inventory and
appraisement thereof within 3
months after such discovery,
succession, or acquisition
5. Termination of Guardianship (Rule
97)
 Grounds for Termination of
Guardianship
a. Death of the guardian or the ward;
b. Marriage or voluntary emancipation;
o Note: Voluntary emancipation is
rendered obsolete by RA 6809,
making emancipation attainable
only by reaching the age of
majority.
c. Adjudgment of competency.
SPECIAL PROCEEDINGS
o Court shall fix a time for
hearing.
o Court shall cause reasonable
notice of hearing to be given to
the guardian of the person
declared incompetent, and to the
ward.
o Trial. The guardian or relatives
of the ward, and, in the
discretion of the court, any other
person, may contest the right to
the relief demanded, and
witnesses may be called and
examined by the parties or by
the court on its own motion.
o Adjudgment of competency.
Crisostomo vs. Endencia: The court which
appointed the guardian is also the court
competent to decide the petition for restoration
of capacity.
In Re Guardianship of the Incompetent Jose De
Encaustic: The required notice of hearing upon
the ward and guardian is not intended as a
personal service. The manner in which the court
procured service of the notice is of no
importance. It is sufficient that the notice was
given.
 Grounds for Removal of Guardian
a. When the guardian becomes insane;
b. When the guardian becomes
incapable of discharging his trust or
unsuitable;
c. When the guardian has wasted or
mismanaged the estate;
d. When the guardian failed for 30
days after it is due to render an
account or make a return.
 Ground for Resignation of Guardian:
When it appears proper to allow it.
Upon the guardian’s resignation or
removal the court may appoint
another in his place.

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REVIEWER IN REMEDIAL LAW
 Service of Judgment
Final orders or judgments terminating
or replacing a guardian shall be
served upon the civil registrar of the
municipality or city where the minor
or incompetent person resides or
where his property or part of it is
situated.
Olarte vs. Enriquez (1960): An order removing a
guardian is an order constituting a final
determination of his rights. Hence, the guardian
may appeal.
II. ADOPTION
A. DOMESTIC ADOPTION
1. SCOPE & APPLICABILITY
2. THE ADOPTER & THE ADOPTEE
3. PETITION FOR ADOPTION
4. RESCISSION OF ADOPTION OF THE
ADOPTEE
B. INTER-COUNTRY ADOPTION (RA 8043)
1. SCOPE & APPLICABILITY
2. INTER-COUNTRY ADOPTION AS THE
LAST RESORT
3. PETITION FOR ADOPTION
 Adoption –
A juridical act which creates between two
persons a relation similar to that which results
from filiation (Prasnick vs. Republic).
Lahum vs. Sibulo (2003): Adoption is a privilege
governed by the state’s determination of what
is for the best welfare of the child.
A. Domestic Adoption
1. Scope and Applicability
 RA 8552 (Domestic Adoption Act) and
the Rule on Adoption govern the
domestic adoption of Filipino children.
2. The Adopter and the Adoptee
 Qualified Adopters
a. Any Filipino citizen;
 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;
 At least 16 years older than the
adoptee;
 This requirement may be
waived when the adopter is
the biological parent of the
Chapter 4: Special Rules Implementing the Family Courts
adoptee or is the spouse of
the adoptee’s parent.
 Emotionally and psychologically
capable of caring for children,
and;
 Is in a position to support and
care for his children in keeping
with the means of the family.
b. Any alien;
 Possessing the same
qualifications as above-stated for
Filipino nationals;
 His country has diplomatic
relations with the Republic of
SPECIAL PROCEEDINGS
the Philippines;
 Has been living in the
Philippines for at least 3
continuous years prior to the
filing of the petition for adoption
and maintains such residence
until the adoption decree is
entered;
 Has been certified by his
diplomatic or consular office or
any appropriate government
agency to have the legal capacity
to adopt in his country, and;
 His government allows the
adoptee to enter his country as
his adopted child.
 The requirements on residency and
certification of the alien’s qualification
to adopt in his country may be waived
for the following:
a. A former Filipino citizen who seeks
to adopt a relative within the fourth
(4th) degree of consanguinity or
affinity;
b. One who seeks to adopt the
legitimate child of his Filipino
spouse;
c. One who is married to a Filipino
citizen and seeks to adopt jointly
with his spouse a relative within the
4th degree of consanguinity or
affinity of the Filipino spouse.
 The guardian with respect to the ward
after the termination of the
guardianship and clearance of his
financial accountabilities
 Joint Adoption of Spouses
 General Rule: Husband and wife shall
jointly adopt.
 Exceptions:
a. If one spouse seeks to adopt the
legitimate child of one spouse by the
other spouse;
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REVIEWER IN REMEDIAL LAW
b. If one spouse seeks to adopt his own
illegitimate child, provided that the
other spouse has signified his
consent;
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.
 Qualified Adoptees
a. Any person below 18 years of age
who has been voluntarily committed
to the DSWD under Articles 154,
155 and 156 of PD No. 603 or
judicially declared available for
adoption;
b. The legitimate child of one spouse,
by the other spouse;
c. An illegitimate child, by a qualified
adopter to raise the status of the
former to that of legitimacy;
d. A person of legal age regardless of
civil status, if, prior to the adoption,
said person has been consistently
considered and treated by the
adopters as their own child since
minority;
e. A child whose adoption has been
previously rescinded;
f. A child whose biological or adoptive
parents have died, provided that no
proceedings shall be initiated within
6 months from the time of death of
said parents;.
g. A child not otherwise disqualified by
law or these rules.
 Child –
one who is not more than 18 years old
at the time of the filing of the
petition for adoption.
 Child legally available for adoption
voluntarily or involuntarily committed
to DSWD or to a duly licensed and
accredited child-placing or child-
caring agency, freed of the parental
authority of his biological parents,
or in case of rescission of adoption,
his guardian or adopter/s.
[Note (though might not be a part of
the Bar): RA 9523, signed into law
as of March 2009, amended the
Domestic and Inter-country
Adoption act to the effect that the
authority to declare a child
abandoned and free for adoption
has been transferred to the DSWD
Chapter 4: Special Rules Implementing the Family Courts
from the courts. Only a DSWD
certification is required to declare
the child legally available for
adoption.]
 Voluntarily committed child –
one whose parents knowingly and
willingly relinquish parental
authority over him in favor of the
DWSD.
 Involuntarily committed child –
one whose parents, known or unknown,
have been permanently and
judicially deprived of parental
SPECIAL PROCEEDINGS
authority over him due to:
o Abandonment;
o Substantial, continuous or
repeated neglect and abuse;
o Incompetence to discharge
parental responsibilities.
 Foundling
Deserted or abandoned infant or child
whose parents, guardian or relatives
are unknown.
A child committed to an orphanage or
charitable or similar institution with
unknown facts of birth and
parentage and registered in the Civil
Register as a “foundling.”
 Abandoned child
One who has no proper parental care or
guardianship.
One whose parents have deserted him
for a period of at least 6 continuous
months and has been judicially
declared as such.
 Dependent child
One who is without a parent, guardian
or custodian.
One whose parents, guardian or other
custodian for good cause desires to
be relieved of his care and custody
and is dependent upon the public
for support.
 Neglected child –
one whose basic needs have been
deliberately not attended to or
inadequately attended to, physically
or emotionally, by his parents or
guardian.
 Physical neglect - when the child is
malnourished, ill-clad and without
proper shelter.
 Emotional neglect - when a child is
raped, seduced, maltreated,
exploited, overworked or made to
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REVIEWER IN REMEDIAL LAW Chapter 4: Special Rules Implementing the Family Courts
work under conditions not guardianship had been
conducive to good health or made to terminated and the guardian
beg in the streets or public places, had cleared his financial
or placed in moral danger, or accountabilities.
exposed to drugs, alcohol, gambling, d. If the adoptee is a foundling:
prostitution and other vices.  The entries which should
appear in his birth
3. Petition for Adoption certificate, such as name of
child, date of birth, place of
 Where to file: Family Court of the birth, if known;
province or city where the prospective  Sex, name and citizenship of
adoptive parents reside. adoptive mother and father,
and the date and place of
 Contents their marriage.

SPECIAL PROCEEDINGS
Allegations common to all petitions e. If the petition prays for a change
a. First name, surname or names, of name:
age and residence of the  The cause or reason for the
adoptee, as shown by his record change of name;
of birth, baptismal or foundling  The registered name of the
certificate and school records; child;
b. That the adoptee is not  Aliases or other names by
disqualified by law to be which the child has been
adopted; known;
c. Probable value and character of  Full name by which the child
the estate of the adoptee; is to be known.
d. First name, surname or names f. If petition seeks rectification of
by which the adoptee is to be simulated birth:
known and registered in the  That petitioner is applying
Civil Registry; for rectification of a
e. Certification of non-forum simulated birth;
shopping.  That the simulation of birth
o The petition shall be verified. was made prior to the date of
effectivity of RA 8552
At the heading of the initiatory pleading, (August 22, 2002) and the
whether the petition contains: application for rectification of
a. Application for change of name; the birth registration and the
b. Rectification of simulated birth; petition for adoption were
c. Voluntary or involuntary filed within 5 years from said
commitment of children; date;
d. Declaration of child as  That the petitioner made the
abandoned, dependent or simulation of birth for the
neglected. best interests of the adoptee;
 That the adoptee has been
Additional allegations consistently considered and
a. If the adopter is a Filipino treated by petitioner as his
citizen: own child.
 Jurisdictional facts; g. If the adoptee is a foundling, an
 Adopter’s qualifications; abandoned, dependent or
 That the adopter has neglected child:
undergone pre-adoption  Facts showing that the child
services. is a foundling, abandoned,
b. If the adopter is an alien: dependent or neglected;
 Jurisdictional facts;  Names of the parents, if
 Alien adopter’s known, and their residence.
qualifications; If the child has no known or
 That the adopter has living parents, then the
undergone pre-adoption name and residence of the
services. guardian, if any;
c. If the adopter is the legal  Name of the duly licensed
guardian of the adoptee, that the child-placement agency or

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REVIEWER IN REMEDIAL LAW
individual under whose care
the child is in custody;
 That the DSWD, child-
placement or child-caring
agency is authorized to give
its consent.
 Pre-adoption Services - Psycho-social
services provided by professionally-
trained social workers of DSWD, the
social services units of local
governments, private and government
health facilities, Family Courts, licensed
and accredited child-caring and child-
placement agencies and other
individuals or entities involved in
adoption as authorized by the DSWD.
 Annexes to the Petition
1. Birth, baptismal or foundling
certificate, as the case may be, and
school records showing the name,
age and residence of the adoptee;
2. Affidavit of consent of:
a. The adoptee, if 10 years of age or
over;
b. The biological parents of the
child, if known, or the legal
guardian, or the child-placement
agency, child-caring agency, or
the proper government
instrumentality which has legal
custody of the child;
c. The legitimate and adopted
children of the adopter and of
the adoptee, if any, who are 10
years of age or over;
d. The illegitimate children of the
adopter living with him who are
10 years of age or over;
e. The spouse, if any, of the
adopter or adoptee.
3. Child study report on the adoptee
and his biological parents;
4. If the petitioner is an alien,
certification by his diplomatic or
consular office or any appropriate
government agency that he has the
legal capacity to adopt in his
country and that his government
allows the adoptee to enter his
country as his own adopted child,
unless exempted;
5. Home study report on the adopters;
 If the adopter is an alien or
residing abroad but qualified to
adopt, the home study report by
a foreign adoption agency duly
accredited by the Inter-Country
Adoption Board (ICAB).
Chapter 4: Special Rules Implementing the Family Courts
6. Decree of annulment, nullity or legal
separation of the adopter as well as
that of the biological parents of the
adoptee, if any.
 Consent Requirement
Cang vs. CA (1998):
General Rule: The written consent of the
natural parent is indispensable for the validity
of the decree of adoption.
Exception: The requirement can be dispensed
with if the parent:
 Has abandoned the child;
 Is insane or hopelessly intemperate.
SPECIAL PROCEEDINGS
Abandonment means neglect or refusal to
perform the natural and legal obligations of
care and support which parents owe their
children. Physical estrangement alone, without
financial and moral desertion, is not
tantamount to abandonment.
 Procedure
1. Filing of petition for adoption.
2. Order of Hearing by the Court
Issued if the petition and
attachments are sufficient in
form and substance
Contents:
a. Registered name of the adoptee
in the birth certificate and the
names by which the adoptee has
been known which shall be
stated in the caption;
b. Purpose of the petition;
c. Complete name which the
adoptee will use if the petition is
granted;
d. Date and place of hearing which
shall be set within 6 months
from the date of the issuance of
the order;
e. A directive for the publication of
a copy of the order before the
date of hearing at least once a
week for 3 successive weeks in a
newspaper of general circulation
in the province or city where the
court is situated;
o In case of application for
change of name, the date set
for hearing shall not be
within 4 months after the
last publication of the notice
or within 30 days prior to an
election.
o The newspaper shall be
selected by raffle under the
supervision of the Executive
Judge.
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REVIEWER IN REMEDIAL LAW
f. A directive to the social worker
of the court, the social service
office of the local government
unit or any child-placing or
child-caring agency, or the
DSWD to prepare and submit
child and home study reports
before the hearing if such
reports had not been attached to
the petition due to unavailability
at the time of filing;
g. A directive to the social worker
of the court to conduct
counseling sessions with the
biological parents on the matter
of adoption of the adoptee and
submit her report before the
date of hearing;
h. At the discretion of the court,
copies of the order of hearing
shall be furnished the OSG
through the provincial or city
prosecutor, the DSWD and the
biological parents of the adoptee,
if known.
o If a change in the name of
the adoptee is prayed for in
the petition, notice to the
Solicitor General shall be
mandatory.
3. Child and home study reports by
the social worker
The social worker shall:
a. Verify with the Civil Registry the
real identity and registered name
of the adoptee;
b. If the birth of the adoptee was
not registered with the Civil
Registry, register the adoptee
and secure a certificate of
foundling or late registration, as
the case may be;
c. Establish that the child is legally
available for adoption and the
supporting documents are valid
and authentic;
d. Establish that the adopter has
sincere intentions and that the
adoption shall inure to the best
interests of the child;
e. If there are grounds to deny the
petition, make the proper
recommendation to the court,
furnishing a copy thereof to the
petitioner.
o If the adopter is an alien, the
home study report must
show:
Chapter 4: Special Rules Implementing the Family Courts
 His legal capacity to
adopt;
 That his government
allows the adoptee to
enter his country as his
adopted child.
4. Hearing
Upon satisfactory proof that the
order of hearing has been
published and jurisdictional
requirements have been
complied with.
The petitioner and the adoptee must
SPECIAL PROCEEDINGS
personally appear and the
former must testify before the
court on the date set for hearing.
The court shall:
a. Verify from the social worker
and determine whether the
biological parent has been
properly counseled against
making hasty decisions
caused by strain or anxiety
to give up the child;
b. Ensure that all measures to
strengthen the family have
been exhausted;
c. Ascertain if any prolonged
stay of the child in his own
home will be inimical to his
welfare and interest.
5. Supervised trial custody
Trial custody given the adopter
before issuance of the decree of
adoption for a period of at least
6 months within which the
parties are expected to adjust
psychologically and emotionally
to each other and establish a
bonding relationship.
Monitored by the social worker of
the court, the DSWD, or the
social service of the local
government unit, or the child-
placement or child-caring agency
which submitted and prepared
the case studies.
Temporary parental authority is
vested in the adopter.
o The court may, motu proprio
or upon motion of any party,
reduce the period or exempt
the parties if it finds that the
same shall be for the best
interests of the adoptee.
o General Rule: An alien
adopter must complete the
6-month trial custody.
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REVIEWER IN REMEDIAL LAW
o Exceptions:
a. A former Filipino citizen
who seeks to adopt a
relative within the 4th
degree of consanguinity
or affinity;
b. One who seeks to adopt
the legitimate child of his
Filipino spouse;
c. One who is married to a
Filipino citizen and seeks
to adopt jointly with his
or her spouse the latter’s
relative within the 4th
degree of consanguinity
or affinity.
If the child is below 7 years of age
and is placed with the
prospective adopter through a
pre-adoption placement
authority issued by the DSWD,
the court shall order that the
prospective adopter shall enjoy
all the benefits to which the
biological parent is entitled from
the date the adoptee is placed
with him.
The social worker shall submit to
the court a report on the result
of the trial custody within 2
weeks after its termination.
6. Issuance of decree of adoption
If the supervised trial custody is
satisfactory to the parties and
the court is convinced from the
trial custody report and the
evidence adduced that the
adoption shall redound to the
best interests of the adoptee.
Effectivity: As of the date the
original petition was filed even if
the petitioners die before its
issuance
Contents:
a. Name by which the child is to be
known and registered;
b. An order to the Clerk of Court to
issue to the adopter a certificate
of finality upon expiration of the
15-day reglementary period
within which to appeal;
c. An order to the adopter to
submit a certified true copy of
the decree of adoption and the
certificate of finality to the Civil
Registrar where the child was
originally registered within 30
days from receipt of the
certificate of finality;
Chapter 4: Special Rules Implementing the Family Courts
o In case of change of name,
the decree shall be
submitted to the Civil
Registrar where the court
issuing the same is situated.
d. An order to the Civil Registrar of
the place where the adoptee was
registered to:
o Annotate on the adoptee’s
original certificate of birth
the decree of adoption within
30 days from receipt of the
certificate of finality;
o Issue a certificate of birth
SPECIAL PROCEEDINGS
which shall not bear any
notation that it is a new or
amended certificate and
which shall show, among
others, the following:
a. Registry number;
b. Date of registration;
c. Name of child;
d. Sex;
e. Date of birth;
f. Place of birth;
g. Name;
h. Citizenship of adoptive
mother and father;
i. Date and place of their
marriage.
o Seal the original certificate of
birth in the civil registry
records which can be opened
only upon order of the court
which issued the decree of
adoption;
o Submit to the court issuing
the decree of adoption proof
of compliance within 30 days
from receipt of the decree;
o If the adoptee is a foundling,
annotate the decree of
adoption on the foundling
certificate and prepare a new
birth certificate.
 Book of Adoptions
The Clerk of Court shall keep a book of
adoptions showing the date of
issuance of the decree in each case,
compliance by the Civil Registrar
with the court’s order, and all
incidents arising after the issuance
of the decree.
 Confidentiality of Adoption
Proceedings
 All hearings in adoption cases, after
compliance with the jurisdictional
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REVIEWER IN REMEDIAL LAW
requirements shall be confidential and
shall not be open to the public.
 If the court finds that the disclosure of
the information to a third person is
necessary for security reasons or for
purposes connected with or arising out
of the adoption and will be for the best
interests of the adoptee, the court may,
upon proper motion, order the
necessary information to be released,
restricting the purposes for which it
may be used.
4. Rescission of Adoption of the
Adoptee
 Who may file:
Adoptee who is over 18 years of age;
If the adoptee is a minor, with the
assistance of the DSWD;
If the adoptee is over 18 years of age but
incapacitated, by his guardian or
counsel.
 Grounds: Committed by the adopter
1. Repeated physical and verbal
maltreatment despite having
undergone counseling;
2. Attempt on the life of the adoptee;
3. Sexual assault or violence;
4. Abandonment or failure to comply
with parental obligations.
Adoption, being in the best interests of
the child, shall not be subject to
rescission by the adopter.
However, the adopter may disinherit the
adoptee for causes provided in
Article 919 of the Civil Code.
 Where to file: Family Court of the city
or province where the adoptee resides.
 When to file:
1. Within 5 years after reaching age of
majority;
2. If he was incompetent at the time of
the adoption, within 5 years after
recovery from such incompetency.
 Procedure:
1. Filing of petition to rescind the
adoption.
2. Court shall issue an order requiring
the adverse party to answer the
petition within 15 days from receipt
of a copy thereof.
3. The order and copy of the petition
shall be served on the adverse party
in such manner as the court may
direct.
Chapter 4: Special Rules Implementing the Family Courts
4. Judgment.
o If the court finds that the
allegations of the petition are
true, it shall render judgment
ordering the rescission of
adoption, with or without costs,
as justice requires.
o The court shall:
a. Order that the parental
authority of the biological
parent of the adoptee, if
known, or the legal custody
of DSWD be restored if the
adoptee is still a minor or
SPECIAL PROCEEDINGS
incapacitated and declare
that the reciprocal rights and
obligations of the adopter
and the adoptee to each
other be extinguished;
b. Declare that successional
rights revert to its status
prior to adoption, as of the
date of judgment of judicial
rescission. Vested rights
acquired prior to judicial
rescission shall be respected;
c. Order the adoptee to use the
name stated in his original
birth or foundling certificate;
d. Order the Civil Registrar
where the adoption decree
was registered to cancel the
new birth certificate of the
adoptee and reinstate his
original birth or foundling
certificate.
5. Service of judgment
o A certified true copy of the
judgment together with a
certificate of finality issued by
the Branch Clerk of the Court
which rendered the decision
shall be served by the petitioner
upon the Civil Registrar
concerned within 30 days from
receipt of the certificate of
finality.
o The Civil Registrar shall
forthwith enter the rescission
decree in the register and
submit proof of compliance to
the court issuing the decree and
the Clerk of Court within 30
days from receipt of the decree.
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REVIEWER IN REMEDIAL LAW
B. Inter-Country Adoption (RA 8043)
1. Scope and Applicability
 RA 8043 (Inter-country Adoption Act)
governs the adoption of Filipino children
by:
1. Foreign nationals, and;
2. Filipino citizens permanently
residing abroad.
2. Inter-country Adoption as the Last
Resort
 Objectives of Inter-country Adoption
1. To consider inter-country adoption
as an alternative means of child
care, if the child cannot be placed in
a foster or an adoptive family or
cannot, in any suitable manner, be
cared for in the Philippines;
2. Ensure that the child subject of
inter-country adoption enjoys the
same protection accorded to
children in domestic adoption;
3. Take all measures to ensure that the
placement arising from it does not
result in improper financial gain for
those involved.
 The Inter-country Adoption Board
(ICAB) shall ensure that all
possibilities for adoption of the child
under the Family Code (domestic
adoption) have been exhausted and
that inter-country adoption is in the
best interest of the child (Sec. 7, RA
8043).
3. Petition for Adoption
 Who may be adopted: Only a child
legally available for domestic adoption.
 Child - A person below 15 years of age
unless sooner emancipated by law.
 Legally-free child - A child who has
been voluntarily or involuntarily
committed to the DSWD.
 Who may adopt: An alien or a Filipino
citizen permanently residing abroad if
he:
a. Is at least 27 years of age and at
least 16 years older than the child to
be adopted, at the time of
application unless the adopter is
the parent by nature of the child to
be adopted or the spouse of such
parent;
b. If married, his spouse must jointly
file for the adoption;
Chapter 4: Special Rules Implementing the Family Courts
c. Has the capacity to act and assume
all rights and responsibilities of
parental authority under his
national laws, and has undergone
the appropriate counselling from an
accredited counselor in his country;
d. Has not been convicted of a crime
involving moral turpitude;
e. Is eligible to adopt under his
national law;
f. Is in a position to provide the proper
care and support and to give the
necessary moral values and example
to all his children, including the
SPECIAL PROCEEDINGS
child to be adopted;
g. Agrees to uphold the basic rights of
the child as embodied under
Philippine laws, the UN Convention
on the Rights of the Child, and to
abide by the rules and regulations;
h. Comes from a country with whom
the Philippines has diplomatic
relations and whose government
maintains a similarly authorized
and accredited agency and that
adoption is allowed under his
national laws;
i. Possesses all the qualifications and
none of the disqualifications
provided in the applicable Philippine
laws.
 Where to file:
a. Family Court having jurisdiction
over the place where the child
resides or may be found;
b. Directly with the ICAB;
c. To the ICAB, through an
intermediate agency, whether
governmental or an accredited
agency, in the country of the
prospective adopters.
 Contents of petition
a. The adopter’s age and the age of the
child to be adopted, showing that he
is at least 27 years of age and at
least 16 years older than the child to
be adopted at the time of
application, unless the petitioner is
the parent by nature of the child to
be adopted or the spouse of such
parent;
b. If married, the name of the spouse
who must be joined as co-petitioner
except when the adoptee is a
legitimate child of his spouse;
c. That he has the capacity to act and
assume all rights and
responsibilities of parental authority
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REVIEWER IN REMEDIAL LAW
under his national laws, and has
undergone the appropriate
counseling from an accredited
counselor in his country;
d. That he has not been convicted of a
crime involving moral turpitude;
e. That he is eligible to adopt under his
national law;
f. That he can provide the proper care
and support and instill the
necessary moral values and example
to all his children, including the
child to be adopted;
g. That he agrees to uphold the basic
rights of the child, as embodied
under Philippine laws and the U N
Convention on the Rights of the
Child, and to abide by the rules and
regulations’
h. That he comes from a country with
which the Philippines has
diplomatic relations and whose
government maintains a similarly
authorized and accredited agency
and that adoption of a Filipino child
is allowed under his national laws;
i. That he possesses all the
qualifications and none of the
disqualifications provided in the
applicable Philippine laws.
 Annexes to the petition (written and
officially translated in English)
a. Birth certificate of petitioner;
b. Marriage contract, if married, and, if
applicable, the divorce decree, or
judgment dissolving the marriage;
c. Sworn statement of consent of
petitioner’s biological or adopted
children above 10 years of age;
d. Physical, medical and psychological
evaluation of the petitioner certified
by a duly licensed physician and
psychologist;
e. Income tax returns or any authentic
document showing the current
financial capability of the petitioner;
f. Police clearance of petitioner issued
within 6 months before the filing of
the petition;
g. Character reference from the local
church/minister, the petitioner’s
employer and a member of the
immediate community who have
known the petitioner for at least 5
years;
h. Full body postcard-size pictures of
the petitioner and his immediate
family taken at least 6 months
before the filing of the petition.
Chapter 4: Special Rules Implementing the Family Courts
 Procedure (when petition filed before
the Family Court)
a. Filing of petition.
b. Court shall determine whether or
not petition is sufficient in form and
substance and a proper case for
inter-country adoption.
c. Transmit the petition to the ICAB for
appropriate action.
III. RULES ON CUSTODY OF
CHILDREN (RULE 99, SECS. 6
AND 7)
SPECIAL PROCEEDINGS
A. PROCEEDINGS AS TO THE CHILD WHOSE
PARENTS ARE SEPARATED
(RULE 99, SEC. 6)
B. PROCEEDINGS AS TO VAGRANT OR
ABUSED CHILD (RULE 99, SEC. 7)
A. Proceedings as to the Child Whose
Parents Are Separated (RULE 99,
SEC. 6)
 When applicable: When husband and
wife are divorced or living separately
and apart from each other, and the
question as to the care, custody, and
control of a child or children of their
marriage is brought before a RTC by
petition or as an incident to any other
proceeding.
 The court, upon hearing the pertinent
testimony, shall award the care,
custody, and control of each such child
as will be for its best interest.
If the child is over 10 years of age,
the court shall permit him to choose
which parent it prefers to live,
unless the parent so chosen be
unfit to take charge of the child by
the reason of:
1. Moral depravity;
2. Habitual drunkenness;
3. Incapacity;
4. Poverty.
No child under seven years of age shall
be separated from its mother,
unless the court finds there are
compelling reasons to do otherwise.
If both parents are improper persons
to have the care, custody, and
control of the child, the court may
either:
1. Designate to take charge of the
child:
a. The paternal or maternal
grandparent of the child;
b. His oldest brother or sister;
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REVIEWER IN REMEDIAL LAW
c. Some reputable and discreet
person.
2. Commit the child to any suitable
asylum, children's home, or
benevolent society.
 The court may order either or both
parents to support or help support the
child, irrespective of who may be its
custodian.
 The court may make any order that is
just and reasonable permitting the
parent who is deprived of its care and
custody to visit the child or have
temporary custody over him.
 Either parent may appeal from the
order of the court.
B. Proceedings as to Vagrant or
Abused Child (RULE 99, SEC. 7)
 When applicable: When the parents of
any minor child:
a. Are dead;
b. Have abandoned the child by reason
of long absence or legal or physical
disability;
c. Cannot support the child through
vagrancy, negligence, or
misconduct, or neglect;
d. Refuse to support it;
e. Treat it with excessive harshness or
give it corrupting orders, counsels,
or examples, or;
f. Cause or allow it to engage in
begging or to commit offenses
against the law.
 How: Upon petition filed by some
reputable resident of the province.
RTC may issue an order requiring such
parents to show cause at a time and
place fixed in the order why the
child should not be taken from its
parents.
o If the parents are dead or cannot
be found, the RTC shall require
the fiscal of the province to show
cause.
If upon the hearing it appears that the
allegations of the petition are true,
and it is for the best interest of the
child, the court may make an order
taking the child from its parents, if
living, and committing it to any
suitable orphan asylum, children's
home, or benevolent society or
person to be ultimately placed, by
adoption or otherwise, in a home
found for it by such asylum,
children's home, society, or person.
Chapter 4: Special Rules Implementing the Family Courts
IV. CUSTODY OF MINORS AND WRIT
OF HABEAS CORPUS IN
RELATION TO CUSTODY OF
MINORS (A.M. NO. 03-04-04-SC)
 Applicability
Applies to petitions for custody of
minors and writs of habeas corpus
in relation thereto.
Rules of Court shall apply suppletorily.
 Petition for Rightful Custody
Verified petition for the rightful custody
of a minor may be filed by any
SPECIAL PROCEEDINGS
person claiming such right.
Party against whom it may be filed shall
be designated as the respondent.
Filed with the Family Court of the
province or city where the petitioner
resides or where the minor may be
found.
 Contents:
a. The personal circumstances of the
petitioner and of the respondent;
b. The name, age and present
whereabouts of the minor and his or
her relationship to the petitioner
and the respondent;
c. The material operative facts
constituting deprivation of custody;
d. Such other matters which are
relevant to the custody of the minor
Verified and accompanied with a
certificate against forum shopping
signed by the petitioner personally.
If court is satisfied that the petition is
sufficient in form and substance, it
shall direct the clerk of court to
issue summons, which shall be
served together with a copy of the
petition personally on the
respondent.
 Answer to the Petition
Motion to dismiss the petition is not
allowed. Any other ground that
might warrant the dismissal of the
petition may be raised as an
affirmative defense in the answer.
Exception: On the ground of lack of
jurisdiction over the subject matter
or over the parties.
Personally verified by him filed within 5
days after service of summons.
Upon the filing of the verified answer or
the expiration of the period to file it,
the court may order a social worker
to make a case study of the minor
and the parties and to submit to the
court at least 3 days before pre-trial.
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REVIEWER IN REMEDIAL LAW
 Mandatory pre-trial
Notice - 15 days after the filing of the
answer or the expiration of the
period to file answer, the court shall
issue an order:
a. Fixing a date for the pre-trial
conference;
b. Directing the parties to file and
serve their respective pre-trial
briefs;
c. Requiring the respondent to
present the minor before the
court.
o The notice of its order shall be
served separately on both the
parties and their respective
counsels.
Pre-trial brief contains the following:
a. A statement of the willingness of
the parties to enter indicating its
terms;
b. A concise statement of their
respective claims;
c. Admitted facts and proposed
stipulations of facts;
d. The disputed factual and legal
issues;
e. All the evidence to be presented;
f. The number and names of the
witnesses and their respective
affidavits;
g. Such other matters as the court
may require to be included.
o Failure to file the pre-trial brief
or to comply with its required
contents has same effect as
failure to appear at the pre-trial.
o If the petitioner fails to appear
personally at the pre-trial, the
case shall be dismissed.
o Unless his counsel or a duly
authorized representative
appears in court and proves a
valid excuse for the non-
appearance of the petitioner.
If the respondent has filed his answer
but fails to appear at the pre-trial,
the petitioner shall be allowed to
present his evidence ex parte.
o Court shall then render
judgment on the basis of the
pleadings and the evidence thus
presented.
At the pre-trial, the parties may agree
on the custody of the minor.
o If the parties fail to agree, the
court may refer the matter to a
mediator who shall have 5 days
to effect an agreement between
the parties.
Chapter 4: Special Rules Implementing the Family Courts
o If the issue is not settled
through mediation, the court
shall proceed with the pre-trial.
After an answer has been filed or after
expiration of the period to file it, the
court may issue a provisional order
awarding custody of the minor to:
a. Both parents jointly;
b. Either parent;
c. The grandparent, or if there are
several grandparents, the
grandparent chosen by the
minor over 7 years of age and of
sufficient discernment;
SPECIAL PROCEEDINGS
d. The eldest brother or sister over
21 years of age;
e. The actual custodian of the
minor over 21 years of age;
f. Any other person or institution
the court may deem suitable.
 Interim Reliefs
1. Temporary visitation rights -
court shall provide in its order
awarding provisional custody
appropriate visitation rights to the
non-custodial parent or parents.
Unless the court finds said parent
or parents unfit or disqualified.
The temporary custodian shall give
the court and non custodial
parent or parents at least 5 days'
notice of any plan to change the
residence of the minor or take
him out of his residence for more
than 3 days
2. Hold Departure Order – the minor
child shall not be brought out of the
country without prior order from the
court while the petition is pending.
Court, motu proprio or upon
application under oath, may
issue ex parte a hold departure
order, addressed to the Bureau
of Immigration and Deportation
(BID), directing it not to allow
the departure of the minor from
the Philippines without court
permission.
The Family Court issuing the hold
departure order shall furnish the
DFA and the BID of the DOJ a
copy of the hold departure order
within 24 hours from its
issuance.
The court may recall the hold
departure order motu proprio or
upon verified motion of any of
the parties after summary
hearing.
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REVIEWER IN REMEDIAL LAW
3. Protection Order (PO)- court may
issue a PO requiring any person:
a. To stay away from the home,
school, business, or place of
employment of the minor, other
parent or any other party, or
from any other specific place;
b. To cease and desist from
harassing, intimidating, or
threatening such minor or the
other parent or any person to
whom custody of the minor is
awarded;
c. To refrain from acts or omission
that create an unreasonable risk
to minor;
d. To permit a parent, or a party
entitled to visitation by a court
order or a separation agreement,
to visit the minor at stated
periods;
e. To permit a designated party to
enter the residence during a
specified period of time in order
to take personal belongings not
contested in a proceeding
pending with the Family Court;
f. To comply with such other
orders as are necessary for the
protection of the minor.
 Judgment
Court shall render judgment awarding
the custody of the minor to the
proper party considering the best
interests of the minor.
If 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.
Court may order either or both parents
to give an amount necessary for the
support, maintenance and
education of the minor, irrespective
of custodianship.
Chapter 4: Special Rules Implementing the Family Courts
The court may also 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.
 Appeal
Appeal from the decision shall be
allowed.
o Unless the appellant has filed a
motion for reconsideration or
new trial within 15 days from
notice of judgment.
An aggrieved party may appeal from the
SPECIAL PROCEEDINGS
decision by filing a Notice of Appeal
within 15 days from notice of the
denial of the motion for
reconsideration or new trial and
serving a copy on the adverse
parties.
 Petition for Writ of Habeas Corpus
 A verified petition for a writ of habeas
corpus involving custody of minors filed
with the Family Court.
 The writ shall be enforceable within
the judicial region the Family Court
belongs.
 However, the petition may be filed with
a regular court in the absence of the
presiding judge of the Family Court
provided that the regular court shall
refer the case to the Family Court as
soon as its presiding judge returns to
duty.
 Petition may also be filed with the
appropriate regular courts in places
where there are no Family Courts.
 The petition may be filed with the SC,
CA, or with any of its members and
shall be enforceable anywhere in the
Philippines. The writ may be made
returnable to a Family Court or to any
regular court within the region where
the petitioner resides or where the
minor may be found for hearing and
decision on the merits.
 Upon return of the writ, the court shall
decide the issue on custody of minors.
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REVIEWER IN REMEDIAL LAW Chapter 4: Special Rules Implementing the Family Courts
COMPARATIVE TABLE ON HABEAS CORPUS
HABEAS CORPUS (RULE 102)
HABEAS CORPUS FOR MINORS
Rights involved  Right to liberty Petition for the rightful custody of
 Rightful custody of the aggrieved a minor
party
Situations applicable Actual violation of the aggrieved Deprivation of rightful custody
party’s right
Party authorized to file Party for whose relief it is intended or
by some person in his behalf
Respondents May or may not be an officer
Before which court or 1. RTC or any judge thereof
judicial authority filed 2. CA or any member thereof in
instances authorized by law
3. SC or any member thereof
4. Special jurisdiction given to
first level courts in the absence
of RTC judges in a province or
city (SECTION 35, BP 129)
5. In aid of appellate jurisdiction
of the Sandiganbayan ( RA 8249
further expanding its
jurisdiction)
Contents of the petition Signed, verified either by the party
for whose relief it is intended, or by
some person in his behalf and shall
set forth: (PDIC)
(a) That the person in whose
behalf the application is made is
imprisoned or restrained on his
liberty;
(b) The officer or name of the
person by whom he is so
imprisoned or restrained; or, if both
are unknown or uncertain, such
officer or person may be described by
an assumed appellation, and the
person who is served with the writ
shall be deemed the person intended;
(c) The place where he is so
imprisoned or restrained, if known;
(d) A copy of the commitment or
cause of detention of such person,
if it can be procured without impairing
the efficiency of the remedy; or, if the
imprisonment or restraint is without
any legal authority, such fact shall
appear.
RULE ON CUSTODY AND
(A.M. 03-04-04)
A verified petition for a writ of
habeas corpus involving custody of
SPECIAL PROCEEDINGS
minors shall be filed with the
Family Court. The writ shall be
enforceable within its judicial
region to which the Family Court
belongs.
However, the petition may be filed
with the regular court in the
absence of the presiding judge of
the Family Court, provided,
however, that the regular court
shall refer the case to the Family
Court as soon as its presiding judge
returns to duty.
The petition may also be filed with
the appropriate regular courts in
places where there are no Family
Courts.
The verified petition shall allege the
following: (PRMO)
(a) The personal circumstances of
the petitioner and of the
respondent;
(b) The name, age and present
whereabouts of the minor and his
or her relationship to the
petitioner and the respondent;
(c) The material operative facts
constituting deprivation of custody;
and
(d) Such other matters which are
relevant to the custody of the
minor.
The verified petition shall be
accompanied by a certificate
against forum shopping, which the
petitioner must sign personally.
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REVIEWER IN REMEDIAL LAW Chapter 4: Special Rules Implementing the Family Courts

V. COMMITMENT OF CHILDREN 4. The name, address and written consent

(A.M. NO. 02-1-19-SC) of DSWD or duly licensed child-
placement or child-caring agency or
A. INVOLUNTARY COMMITMENT OF A individual to whose care the
DEPENDENT, ABANDONED, OR commitment of the child is sought to be
NEGLECTED CHILD entrusted.
B. VOLUNTARY COMMITMENT OF A
DEPENDENT, ABANDONED, OR  Summons
NEGLECTED CHILD If the court is satisfied that the petition
C. COMMITMENT OF A DISABLED CHILD
is sufficient in form and substance,
it shall direct the clerk of court to
A. Involuntary Commitment of a immediately issue summons which
Dependent, Abandoned, or shall be served together with a copy
Neglected Child of the petition and a notice of

 Child - a person below 18 years of age.
 Dependent child - one who is without
a parent, guardian or custodian, or one
whose parents, guardian or other
custodian for good cause desires to be
relieved of his care and custody, and is
dependent upon the public for support.
 Abandoned child - one who has no
proper parental care or guardianship, or
whose parents or guardian has deserted
him for a period of at least 6 continuous
months.
 Neglected child - one whose basic
needs have been deliberately
unattended to or inadequately attended
to, physically or emotionally, by his
parents or guardian.
 Who may file:
1. The Secretary of DSWD;
2. His authorized representative;
3. Any duly licensed child-placement
or child-caring agency having
knowledge of a child who appears to
be dependent, abandoned or
neglected.
 Where to file: Family Court of the
province or city in which the parent or
guardian resides or where the child is
found.
 Contents of Verified Petition
1. The names of the parents or guardian
and their place of residence;
If the child's parents are unknown,
petitioner must allege that diligent
efforts have been exerted to locate
them.
If said parents are deceased, petitioner
shall attach a certified true copy of
their death certificate
2. The facts showing that the child is
dependent, abandoned, or neglected;
3. The facts showing who has custody of
the child at the time of the filing of the
petition;
SPECIAL PROCEEDINGS
hearing, not less than 5 days before
the date of the hearing, upon:
1. The parents or guardian of the
child;
2. Office of the public prosecutor.
 The office of the public
prosecutor shall be directed to
immediately transmit the
summons to the prosecutor
assigned to the Family Court
concerned.
 If it appears from the petition that both
parents of the child are dead or that
neither parent can be found in the
province or city where the court is
located and the child has no guardian
residing therein, summons may not be
issued and the court shall thereupon
appoint a guardian ad litem and
proceed with the hearing of the case
with due notice to the provincial or city
prosecutor.
 Guardian Ad Litem of Child
When appointed
1. If neither of the parents nor the
guardian of the child can be located or
does not appear in court despite due
notice;
2. If the court finds the parents or the
guardian of the child incompetent to
protect the best interests of the child.
In making the appointment, the court
shall consider:
1. The background of the guardian ad
litem, and;
2. His familiarity with the judicial process,
social service programs and child
development.
o A member of the Philippine Bar
may be appointed guardian ad
litem.

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REVIEWER IN REMEDIAL LAW
 Case Study Report
The Court shall direct the social worker
to submit, before the hearing, a case
study report of the child to aid it in
evaluating whether said child
should be committed to the care of
DSWD or any duly licensed child-
placement or child-caring agency or
individual.
The report shall bear the signature of
the social worker on every page.
 Appointment of Counsel
 The court, upon request of the child
capable of forming his own views or
upon request of his guardian ad litem,
shall appoint a lawyer to represent him
in the proceedings.
 Hearing
The provincial or city prosecutor shall:
o Appear for the State;
o Ascertain if there has been due
notice to all parties concerned
and that there is justification for
the declaration of dependency,
abandonment or neglect.
The court shall:
o Direct the person or agency
which has custody of the child to
bring the latter to the court on
the date of the hearing of the
petition;
o Ascertain the facts and
determine whether the child is
dependent, abandoned, or
neglected, and if so, the-cause
and circumstances of such
condition.
 Judgment.
If, after the hearing, the court shall find
the child to be dependent,
abandoned, or neglected, it shall
render judgment committing him to
the care and custody of DSWD or
any duly licensed child-placement or
child-caring agency or individual
until he reaches the age of 18.
If the child is committed to DSWD, it
shall notify the court within 30 days
from the order of commitment, the
name and address of the duly
licensed and accredited child-
placement or child-caring agency or
individual where the child shall be
placed.
The judgment shall likewise make
proper provisions for the custody of
Chapter 4: Special Rules Implementing the Family Courts
the property or money belonging to
the committed child.
If the court finds that the abandonment
or neglect of the child may be
remedied, the child may be allowed
to stay in his own home under the
care and control of his parents or
guardian, subject to supervision and
direction of DSWD.
 Visitation or Inspection
 Any duly licensed child-placement or
child-caring agency or individual to
whom a child has been committed by
SPECIAL PROCEEDINGS
the court shall be subject to visitation
or inspection by a representative of the
court or of the DSWD, as the case may
be or of both, to determine whether the
welfare and interests of the child are
being served.
 Report of Person or Institution.
Any duly licensed child-placement or
child-caring agency or individual to
whom a child has been committed
by judicial order may at any time be
required by the court to submit a
report, containing all necessary
information for determining whether
the welfare of the child is being
served.
 Temporary Custody of Child.
The duly licensed child-placement or
child-caring agency or individual to
whom a child has been committed
may file a verified motion with the
court which granted the petition for
involuntary commitment of a child
to place him in the care of any
suitable person, upon the latter's
request, for a period not exceeding 1
month at a time.
The court may order the social worker
to submit a case study report to aid
it in evaluating whether such
temporary custody shall be for the
best interests of the child.
The period of temporary custody of the
child may be extended by the court
for a period not exceeding 1 month
at a time upon motion of the duly
licensed child-placement or child-
caring agency or individual to which
the child has been committed.
The court, mote propriety, or upon
request of the child assisted by his
guardian ad litem, or at the instance
of the agency or person to whom the
child was committed, after due
notice and hearing, shall
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REVIEWER IN REMEDIAL LAW
discontinue the temporary custody
of the child if it appears that he is
not being given proper care.
After 1 month from the date temporary
custody of the child was given to
another suitable person, the agency
or individual shall submit to the
court a verified report on whether
the temporary custody of the child
has promoted his best interests.
 Change of Custody
If the child is committed to the DSWD,
it shall have the authority to change
the custody of a child it had placed
with any duly licensed child-
placement or child-caring agency or
individual if it appears that such
change is for the best interests of
the child.
The DSWD shall notify the court of any
change in custody of the child.
When conflicting interests arise among
child-placement or child-caring
agencies, the court which granted
the involuntary commitment of the
child, upon motion of the DSWD or
any of the agencies concerned, shall
order the change of commitment of
the child.
 Removal of Custody
A motion to remove custody of a child
may be filed by an authorized
representative of the DSWD with
knowledge of the facts against a
child-placement or child-caring
agency or individual to whose
custody a child has been committed
by the court on the ground of
neglect of such child.
 Neglect
Physical neglect occurs when the child
is malnourished, ill-clad and
without proper shelter.
Emotional neglect occurs when a child
is raped, seduced, mal-treated,
exploited, overworked or made to
work under conditions not
conducive to good health; made to
beg in the streets or public places,
or when placed in moral danger, or
exposed to drugs, alcohol, gambling,
prostitution and other vices.
The court shall set the motion for
hearing with notice to the public
prosecutor and the court-designated
social worker.
Chapter 4: Special Rules Implementing the Family Courts
If the court finds after hearing that the
allegations of the motion have been
established and that it is for the
best interests and welfare of the
child:
The court shall issue an order removing
him from the custody of the person
or agency and committing him to
the custody of another duly licensed
child-placement or child-caring
agency or individual.
The court may suspend or revoke the
license of the agency or individual
found guilty of such neglect
SPECIAL PROCEEDINGS
depending upon the gravity or
frequency of the offense.
Restoration of Parental Authority After
Involuntary Commitment
 Who may file petition; The parents or
guardian of a child committed to the
care of a person, agency or institution
by judicial order.
 Where and how filed: By a verified
motion for the restoration of his rights
over the child with the court which
granted the involuntary commitment.
 Ground: The parent or guardian is now
able to take proper care and custody of
said child, provided that the child has
not yet been adopted.
 Notice of Hearing.
The court shall:
o Fix the time and date for the hearing
of the motion, which shall not be
earlier than 30 days nor later than
60 days from the date of the filing of
said motion;
o Cause notice of the hearing to be
sent at least 5 days before the date
of hearing to:
1. The person, agency or institution
to which the child has been
committed;
2. The public prosecutor;
3. The court-designated social
worker.
 Hearing
Any person may be allowed to intervene
at the discretion of the court to
contest the right to the relief
demanded.
Witnesses may be called and examined
by the parties or by the court motu
proprio.
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REVIEWER IN REMEDIAL LAW
 Resolution
If it is found that the cause for the
commitment of the child no longer
exists and that the movant is
already able to take proper care and
custody of the child.
 Effects:
Terminates the parental authority of the
person, agency or institution to
whom the child was committed by
judicial order;
Restores parental authority to the
movant.
B. Voluntary Commitment of a
Dependent, Abandoned, or
Neglected Child
 The parent or guardian of a dependent,
abandoned or neglected child may
voluntarily commit him to the DSWD or
any duly licensed child-placement or
child-caring agency or individual.
 No child shall be committed unless he is
surrendered in writing by his parents or
guardian stating such voluntary
commitment and specifically naming
the office, agency, or individual to
whose custody the child is to be
committed.
Such written instrument should be
notarized and signed in the presence
of an authorized representative of
the DSWD after counselling and
other services have been made
available to encourage the child's
parents to keep the child.
Verified Petition for Removal of Custody
Who may file
1. The parents or guardian who voluntarily
committed the child;
2. In the absence or failure of the parents
or guardian, any person with knowledge
of the facts.
Grounds
1. Neglect of the child;
2. Voluntary commitment of the child was
unjustified.
Venue: Family Court of the province or city
where:
1. The child-placement or child-caring
agency to which the child has been
voluntarily committed is located ;
2. The child may be found.
Contents of Verified Petition
Chapter 4: Special Rules Implementing the Family Courts
1. Name and address of the child-
placement or child-caring agency or
individual to whose custody the child
has been voluntarily committed;
2. Facts showing that the child has been
neglected by the agency or in cases
where the voluntary commitment was
unjustified, that the parents of the child
are actually capable of taking care and
custody of the child;
3. Name, address and written consent of
the duly licensed child-placement or
child-caring agency or individual to
whose care the child may be
SPECIAL PROCEEDINGS
transferred;
4. Facts showing that petitioner has
exhausted the administrative remedies
available to him.
Notice of Hearing
 If the petition is sufficient in form and
substance, the court shall set the same
for hearing with notice to:
1. DSWD;
2. The public prosecutor;
3. The court-designated social worker;
4. The agency or individual to whom
the child has been committed;
5. In appropriate cases, the parents of
the child.
Judgment
 If after hearing the court finds that the
allegations of the petition have been
established and that it is for the best
interests and welfare of the child, it
shall issue an order:
Removing the child from the custody of
the person or agency concerned;
Committing him to the custody of
another duly licensed child-
placement or child-caring agency or
individual;
If proper, suspending or revoking the
license of the agency or individual
found guilty of such neglect
depending upon the gravity or
frequency of the offense.
Restoration of Parental Authority After
Voluntary Commitment
 The restoration of rights of the parent or
guardian over the child who has been
voluntarily committed shall be governed
by the rules of the DSWD,
Provided that the petition for
restoration is filed within 6 months
from the date of voluntary
commitment.
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REVIEWER IN REMEDIAL LAW
 In case the DSWD refuses to grant legal
custody and parental authority to the
parent or guardian over the child who
has been voluntarily committed to an
agency or individual, the parent or
guardian may file a petition in court for
restoration of parental authority (as in
involuntary commitment).
C. Commitment of a Disabled Child
Disabled child –
 includes mentally retarded, physically
handicapped, emotionally disturbed and
mentally ill children, children with
cerebral palsy and those with similar
afflictions.
Mentally retarded child - one who is:
1. Socially incompetent, that is, socially
inadequate, occupationally incompetent
and unable to manage his own affairs;
2. Mentally subnormal;
3. Intellectually retarded from birth or
early age;
4. Retarded at maturity;
5. Mentally deficient as a result of
constitutional origin through heredity or
diseases;
6. Essentially incurable.
Physically handicapped child – one who
is crippled, deaf-mute, blind, or otherwise
suffers from a defect which restricts his
means of action or communication with
others.
Emotionally disturbed child - one who,
although not afflicted with insanity or
mental defect, is unable to maintain normal
social relations with others and the
community in general due to emotional
problems or complexes.
Mentally ill child - one with any
behavioral disorder, whether functional or
organic, which is of such a degree of
severity as to require professional help or
hospitalization.
Who may file and when:
 Where a child appears to be mentally
retarded physically handicapped,
emotionally disturbed, mentally ill, with
cerebral palsy or with similar afflictions
and needs institutional care but his
parents or guardians are opposed
thereto, by:
1. The DSWD;
Chapter 4: Special Rules Implementing the Family Courts
2. Any duly licensed child-placement
or child-caring agency or individual.
 In case no immediate placement can be
arranged for the disabled child when his
welfare and interests are at stake, by
the parents or guardian of the child.
Venue:
Family Court of the place where:
1. The parent or guardian resides, or;
2. The child is found.
Contents of Verified Petition
1. The facts showing that the child
SPECIAL PROCEEDINGS
appears to be mentally retarded,
physically handicapped, emotionally
disturbed, mentally ill, with cerebral
palsy or with similar afflictions and
needs institutional care;
2. The name of the parents and their
residence, if known, or if the child has
no living parent, the name and
residence of the guardian;
3. The fact that the parents or guardian or
any duly licensed disabled child-
placement or child-caring agency has
opposed the commitment of such child;
4. The name and written conformity of the
institution where the child is to be
committed;
5. An estimate of the costs and other
expenses of maintaining the child in the
institution.
The verified petition shall be sufficient if
based upon the personal knowledge
of the petitioner.
Order of Hearing
 If the petition filed is sufficient in form
and substance, the court, by an order
 reciting the purpose of the petition,
shall fix the date of the hearing
 A copy of such order shall be served on:
1. The child alleged to be mentally
retarded, physically handicapped,
emotionally disturbed, mentally ill,
with cerebral palsy or with similar
afflictions;
2. The person having charge of him or
any of his relatives residing in the
province or city as the court may
deem proper.
 The order shall also direct the sheriff or
any other officer of the court to produce,
if necessary, the alleged disabled child
on the date of the hearing.
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REVIEWER IN REMEDIAL LAW
Hearing and Judgment
 The court shall:
1. Order his commitment to the proper
institution for disabled children;
The expense of maintaining a disabled
child in the institution to which he
has been committed shall be borne
primarily by the parents or guardian
and secondarily, by such disabled
child, if he has property of his own.
In all cases where the expenses for the
maintenance of the disabled child
cannot be paid in accordance with
above, the DSWD shall bear the
expenses, or such part thereof as
may remain unpaid.
2. Make proper provisions for the custody
of the property or money belonging to
the committed child;
3. Furnish the institution to which the
child has been committed with a copy of
its judgment, together with all the
reports and other data pertinent to the
case.
Chapter 4: Special Rules Implementing the Family Courts
Discharge of Judicially Committed
Disabled Child
 Upon motion of the parent, guardian or
institution to which the child has been
judicially committed.
 If it is established and certified by the
DSWD that:
1. He is no longer a danger to himself
and the community;
2. He has been sufficiently
rehabilitated from his physical
handicap or if of working age, is
already fit to engage in gainful
occupation;
SPECIAL PROCEEDINGS
3. He has been sufficiently relieved of
his psychological, mental and
emotional problems and is ready to
assume normal social relations.
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REVIEWER IN REMEDIAL LAW Chapter 5: Other Special Proceedings

CHAPTER 5: Other Special  Procedure

Proceedings 1. Filing of petition.
2. If the petition is sufficient in form and
substance, the court, by an order
I. HOSPITALIZATION OF INSANE PERSONS
(RULE 101) reciting the purpose of the petition,
A. PETITION FOR COMMITMENT shall fix a date for the hearing.
B. PETITION FOR DISCHARGE OF INSANE 3. A copy of such order shall be served on
II. DECLARATION OF ABSENCE (RULE 107) the person alleged to be insane, and to
AND OF PRESUMPTIVE DEATH (ARTS. the one having charge of him, or on
390-392, CC) such of his relatives residing in the
A. ABSENCE province or city as the judge may deem
B. PRESUMPTION OF DEATH proper.
III. CHANGE OF NAME AND CANCELLATION
4. The court shall order the sheriff to
OR CORRECTION OF ENTRIES IN THE
CIVIL REGISTRY produce the alleged insane person, if

SPECIAL PROCEEDINGS
A. CHANGE OF NAME (RULE 103) possible, on the date of the hearing.
B. CHANGE OF FIRST NAME OR 5. Hearing.
NICKNAME AND CORRECTION OF The provincial or city fiscal shall
CLERICAL OR TYPOGRAPHICAL prepare the petition for the Director
ERRORS IN ENTRIES IN THE CIVIL of Health and represent him in court
REGISTRY (RA 9048) in the proceedings.
4. SCOPE AND APPLICATION The burden of proving insanity is on the
5. RA 9048 AND RULE 103
person who alleges it (Director of
COMPARED
6. THE PETITION Health).
C. CANCELLATION OR CORRECTION OF 6. Order of commitment. The court shall
ENTRIES IN THE CIVIL REGISTRY make proper provisions for the custody
(RULE 108) of property or money belonging to the
IV. VOLUNTARY DISSOLUTION OF insane until a guardian be properly
CORPORATIONS appointed.
A. WHEN NO CREDITORS AFFECTED
(SEC. 118, CORPORATION CODE)
B. Petition for Discharge of Insane
B. WHEN CREDITORS ARE AFFECTED
(SEC. 119, CORPORATION CODE)
V. NATURALIZATION  Who may file: Director of Health.
 When filed: When, in the opinion of the
Director of Health, the person ordered
I. HOSPITALIZATION OF INSANE
to be committed to a hospital or other
PERSONS (Rule 101) place for the insane:
1. Is temporarily or permanently
Insanity – Condition of the mind where it is
cured;
so impaired in function or so deranged as 2. May be released without danger.
to induce deviation from normal conduct in
the person so afflicted. Chin Ah Foo vs. Concepcion: The Health
Secretary cannot order release without the
A. Petition for Commitment approval of the RTC.

 When filed: When the hospitalization of

the person, who in the judgment of the II. DECLARATION OF ABSENCE (Rule
Director of Health is insane, is for the 107) AND OF PRESUMPTIVE
public welfare or for the welfare of said DEATH (Arts. 390-392, CC)
person.
 Requisite: The person allegedly insane  Scope and Applicability
or the one having charge of him is Rule 107 is applicable only when the
opposed to his being taken to a hospital absentee has properties to be
or other place for the insane. administered.
 Who may file: Director of Health
 Where to file: RTC of the province
where the person alleged to be insane is
found.

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REVIEWER IN REMEDIAL LAW Chapter 5: Other Special Proceedings

A. Absence 1. State in writing his grounds

therefor;
 Petition for Appointment of a 2. Serve a copy thereof on the
Representative petitioner and other interested
When filed: When a person: parties on or before the date
1. Disappears from his domicile, designated for the hearing.
his whereabouts being
unknown;  Procedure
2. Has not left an agent to 1. Filing of petition for appointment of
administer his property or the representative or petition for
power conferred upon the agent declaration of absence.
has expired. 2. Court shall fix a date and place for
Who may file: the hearing of the petition where all
1. Any interested party; concerned may appear to contest

SPECIAL PROCEEDINGS
2. Relative; the petition.
3. Friend; 3. Copies of the notice of the time and
Where to file: RTC of the place where place fixed for the hearing shall be:
the absentee resided before his a. Served upon the known heirs,
disappearance. legatees, devisees, creditors and
other interested persons, at least
 Petition for Declaration of Absence 10 days before the day of the
and Appointment of Trustee or hearing;
Administrator b. Published once a week for 3
When filed: consecutive weeks prior to the
1. After 2 years: time designated for the hearing,
a. From the disappearance of in a newspaper of general
and without any news from circulation in the province or
the absentee, or; city where the absentee resides,
b. Since the receipt of the last as the court shall deem best.
news about him. 4. Hearing.
2. After 5 years, if the absentee left  Compliance with the notice and
an administrator of his property. publication requirements must
 Who may file: be shown.
1. Spouse present; 5. Issuance of order granting or
2. Heirs instituted in a will; denying the petition.
3. Relatives who will succeed by  The judge shall :
intestacy;  Take the necessary
4. Those who have over the measures to safeguard the
property of the absentee some rights and interests of the
right subordinated to the absentee;
condition of his death.  Specify the powers,
obligations and
 Contents of Petitions remuneration of his
1. Jurisdictional facts; representative, trustee or
2. Names, ages, and residences of the administrator, regulating
heirs instituted in the will, copy of them by the rules concerning
which shall be presented, and of the guardians.
relatives who would succeed by the 6. In case of declaration of absence,
law of intestacy; the same shall not take effect until 6
3. Names and residences of creditors months after its publication in a
and others who may have any newspaper of general circulation
adverse interest over the property of designated by the court and in the
the absentee; Official Gazette.
4. Probable value, location and
character of the property belonging Reyes vs. Alejandro: It is not necessary that a
to the absentee. declaration of absence be made in a proceeding
separate from and prior to a petition for
 Opposition administration.
Anyone appearing to contest the
petition shall:

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REVIEWER IN REMEDIAL LAW
 Who may be appointed
Representative, Administrator, or
Trustee
1. The spouse present, who shall be
preferred when there is no legal
separation;
2. Any competent person:
a. If the absentee left no spouse;
b. If the spouse present is a minor
or otherwise incompetent.
 Termination of Administration
1. When the absentee appears
personally or by means of an agent;
2. When the death of the absentee is
proved and his testate or intestate
heirs appear;
3. When a third person appears,
showing by a proper document that
he has acquired the absentee's
property by purchase or other title.
B. Presumption of Death
 Periods
For all purposes, except for succession –
7 years.
For the purpose of opening of
succession – 10 years.
o If disappeared after the age of 75
years – 5 years.
Cases where there is danger of death,
for all purposes, including
succession:
o A person on board a vessel lost
during a sea voyage, or an
aeroplane which is missing - 4
years since the loss of the vessel
or aeroplane.
o A person in the armed forces
who has taken part in war - 4
years.
o A person who has been in
danger of death under other
circumstances - 4 years.
For the purpose of remarriage – 4 years.
In cases where there is danger of death
– 2 years.
 Petition for Declaration of
Presumptive Death
No independent action is necessary for
the declaration of presumption of
death, except for purposes of
remarriage, where the present
spouse must first file a summary
proceeding for the declaration of
presumptive death of the absent
spouse before contracting a second
marriage (Art. 41, FC).
Chapter 5: Other Special Proceedings
III.CHANGE OF NAME AND
CANCELLATION OR CORRECTION
OF ENTRIES IN THE CIVIL
REGISTRY
(Asked in the 2005 and 2007 Bar
Examinations)
 Applicable Rules
Substantial changes in name: Rule 103
Substantial changes in entries in the
civil registry (other than name): Rule
108
Non-substantial changes in entries in
the civil registry (i.e., changes in
SPECIAL PROCEEDINGS
first name or nickname and
correction of clerical or
typographical errors) : RA 9048
A. Change of Name (RULE 103)
 Who may file:
1. The person desiring to change his
name;
2. Some other person on his behalf.
 Where to file: RTC of the province in
which he resides.
Ong Huan Tin vs. Republic (1967): An alien may
petition for a change of name but he must be
domiciled in the Philippines.
No Yao Siong vs. Republic (1966): The name that
can be changed is the name that appears in the
civil register, and not in the baptismal certificate
or that by which the person is known in the
community.
 Contents of Petition
1. That the petitioner has been a bona
fide resident of the province where
the petition is filed for at least 3
years prior to the date of such filing;
2. The cause for which the change of
the petitioner's name is sought;
3. The name asked for;
4. All names by which the petitioner is
known (Secan Kok vs. Republic
(1973); Go Chiu Beng vs. Republic
(1972)).
The petition shall be signed and
verified.
Go Chiung Beng vs. Republic (1972): All aliases of
the applicant must be set forth in the petition’s
title. Such defect is fatal, even if said aliases are
contained in the body of the petition.
Oshito vs. Republic (1967): Verification is a
formal, not a jurisdictional, requirement. The
lack of verification is not a ground for dismissing
the petition. However, before setting the petition
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REVIEWER IN REMEDIAL LAW
for hearing, the court should have required the
petitioner to have the petition verified.
 Valid grounds for filing
1. When the name is ridiculous,
dishonourable, or extremely difficult
to write or pronounce;
2. Consequence of a change in status;
3. To avoid confusion (Alfon vs.
Republic, 1980);
4. Having continuously used and been
known since childhood by a Filipino
name, unaware of his alien
parentage (Ang Chay vs. Republic,
1970);
Chapter 5: Other Special Proceedings
 Publication requirement
A change in name is a proceeding in
rem. As such, strict compliance with
all jurisdictional requirements,
particularly on publication, is
essential in order to vest the court
with jurisdiction (Regalado).
Jacobo vs. Republic: A discrepancy in the name
sought to be adopted as stated in the petition
and in the published order constitutes a
substantial defect because it did not correctly
identify the parties to the proceedings. It renders
the entire proceedings null and void since the
court has not acquired jurisdiction

SPECIAL PROCEEDINGS
.
5. A sincere desire to adopt a Filipino
name to erase signs of former
B. Change of First Name or
alienage, all in good faith and Nickname and Correction of
without prejudice to anyone (Uy vs. Clerical Or Typographical Errors
Republic, 1965). In Entries In The Civil Registry
(RA 9048)
Laperal vs. Republic (1962): Legal separation is
not a ground for the female spouse to apply for a 1. Scope and Application
change of name under Rule 103...
 RA 9048 governs non-substantial
 Opposition changes in entries in the civil registry,
Who may file: Any interested person. such as:
Procedure 1. Clerical or typographical errors,
1. Filing of petition for change of name. and;
2. Court shall promulgate an order 2. Changes of first name or nickname.
fixing a date and place for hearing
the petition. The date set for the 2. RA 9048 AND Rule 103 Compared
hearing shall not be:
 Within 30 days prior to an RA 9048 RULE 103
election, and; Nature of Administrative: Judicial
 Within 4 months after the last Proceeding Petition is filed
publication of the notice. before the local
3. Court shall direct a copy of the civil registrar or,
order to be published before the for non-resident
hearing at least once a week for 3 citizens, the
successive weeks in some consul general
Scope Correction of Substantial
newspaper of general circulation
clerical or changes in
published in the province. typographical name,
4. Hearing. errors and including
o The Solicitor General or the changes in first surname
proper provincial or city fiscal name or
shall appear on behalf of the nickname
Government of the Republic.
5. Judgment granting or denying the  General Rule: No person can change
change of name. his name or surname without judicial
6. Copy of judgments shall be authority (Art. 376, CC).
furnished the civil registrar of the  Exception: Changes of first name or
municipality or city where the court nickname under RA 9048.
issuing the same is situated, who
shall forthwith enter the same in the  Clerical or Typographical Error – A
civil register. mistake committed in the performance
of clerical work in writing, copying,
Secan Kok vs. Republic (1973): A change of name transcribing or typing an entry in the
granted by the court affects only a petitioner. A civil register that:
separate petition for change of name must be 1. Is harmless and innocuous;
filed for his/her spouse and children.

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REVIEWER IN REMEDIAL LAW
2. Is visible to the eyes or obvious to
the understanding;
3. Can be corrected or changed only by
reference to other existing record or
records;
4. Does not involve the change of
nationality, age, status or sex of the
petitioner.
3. The Petition
 Who may file: A natural person having
direct and personal interest in the
correction of a clerical or typographical
error in an entry or change of first name
or nickname in the civil register.
 Where to file:
General Rule: The local civil registry
office of the city or municipality
where the record being sought to be
corrected or changed is kept.
If the petitioner has already migrated to
another place in the country and it
would not be practical for him, in
terms of transportation expenses,
time and effort, to appear in person
before the local civil registrar
keeping the documents to be
corrected or changed: The local civil
registrar of the place where the
interested party is presently residing
or domiciled.
o The two local civil registrars
concerned will communicate to
facilitate the processing of the
petition.
If the petitioner is a Filipino citizen
presently residing or domiciled in
foreign countries: The nearest
Philippine Consulate.
 Grounds
1. Petitioner finds the first name or
nickname to be ridiculous, tainted
with dishonor or extremely difficult
to write or pronounce;
2. The new first name or nickname has
been habitually and continuously
used by the petitioner and he has
been publicly known by the first
name or nickname in the
community;
3. The change will avoid confusion.
 Number of changes of name of
allowed
Petition for change of name or
correction of clerical or
Chapter 5: Other Special Proceedings
typographical error can only be
availed once.
Silverio vs. Republic (2007): A person’s first
name cannot be changed on the ground of
sex reassignment. RA 9048 does not sanction
a change of first name on the ground of sex
reassignment. 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. Silverio failed
to show, or even allege, any prejudice that he
might suffer as a result of using his true and
official name. Rather than avoiding confusion,
SPECIAL PROCEEDINGS
changing petitioner’s first name may only
create grave complications in the civil registry
and the public interest.
No law allows the change of entry in the
birth certificate as to sex on the ground of
sex reassignment. RA 9048 only allows
correction of clerical or typographical errors. A
correction in the civil registry involving the
change of sex is not a mere clerical or
typographical error. 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.
People vs. Cagandahan (2008): Intersexuality
is a valid ground for change of name and
change of entry of sex in the civil registry.
Where the person is biologically or naturally
intersex the determining factor in his gender
classification would be what the individual,
having reached the age of majority, with good
reason, thinks of his sex. Sexual development
in cases of intersex persons makes the gender
classification at birth inconclusive. It is at
maturity that the gender of such persons is
fixed.
Failure to implead the local civil registrar as
well as all persons who have or claim any
interest did not render the petition fatally
defective. Cagandahan furnished the local civil
registrar a copy of the petition, the order to
publish, and all pleadings, orders or processes
in the course of the proceedings. There was
therefore substantial compliance of the
provisions of Rules 103 and 108 of the Rules
of Court.
 Form of petition
1. In the form of an affidavit;
2. Verified, and;
3. Subscribed and sworn to before any
person authorized by law to
administer oaths.
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REVIEWER IN REMEDIAL LAW
 Contents of petition
1. Facts necessary to establish the
merits of the petition;
2. A showing that the petitioner is
competent to testify to the matters
stated;
3. Particular erroneous entry or entries
which are sought to be corrected
and/or the change sought to be
made.
 Supporting documents
In correction of clerical or typographical
errors:
1. A certified true machine copy of the
certificate or of the page or of the
registry book containing the entry or
entries sought to be corrected or
changed;
2. At least 2 public or private
documents showing the correct
entry or entries upon which the
correction or change shall be based;
3. Other documents which the
petitioner or the city or municipal
civil registrar, or the consul general
may consider relevant and
necessary for the approval of the
petition.
In changes of first name or nickname:
1. A certified true machine copy of the
certificate or of the page or of the
registry book containing the entry or
entries sought to be corrected or
changed;
2. At least 2 public or private
documents showing the correct
entry or entries upon which the
correction or change shall be based;
3. Other documents which the
petitioner or the city or municipal
civil registrar, or the consul general
may consider relevant and
necessary for the approval of the
petition;
4. Certification from the appropriate
law enforcement agencies that the
petitioner has no pending case or no
criminal record.
 Procedure
1. Filing of petition. The petition and
its supporting papers shall be filed
in 3 copies to be distributed to:
a. The concerned city or municipal
civil registrar or the consul
general;
b. The Office of the Civil Registrar
General;
Chapter 5: Other Special Proceedings
c. The petitioner;
2. The City or Municipal Registrar or
the Consul General shall post the
petition in a conspicuous place for
ten 10 consecutive days after he
finds the petition and its supporting
documents sufficient in form and
substance.
3. In case of change of first name or
nickname, the petition shall be
published at least once a week for 2
consecutive weeks in a newspaper of
general circulation.
4. The City or Municipal Registrar or
SPECIAL PROCEEDINGS
the Consul General shall render a
decision not later than 5 working
days after the completion of the
posting and/or publication
requirement. He shall transmit a
copy of his decision together with
the records of the proceedings to the
Office of the Civil Registrar General
within 5 working days from the date
of the decision.
 Where the petition is denied by
the city or municipal civil
registrar or the consul general,
the petitioner may either appeal
the decision to the civil registrar
general or file the appropriate
petition with the proper court.
5. The Civil Registrar General shall,
within 10 working days from receipt
of the decision granting a petition,
exercise the power to impugn such
decision by way of an objection.
 Grounds for objection:
a. The error is not clerical or
typographical;
b. The correction of an entry or entries
in the civil register is substantial or
controversial as it affects the civil
status of a person;
c. The basis used in changing the first
name or nickname of a person does
not fall under one of the valid
grounds.
 If the civil registrar general fails
to exercise his power to impugn
the decision of the city or
municipal registrar or of the
consul general within the period,
such decision shall become final
and executory.
6. The civil registrar general shall
immediately notify the city or
municipal civil registrar or the
Page 214 of 370
REVIEWER IN REMEDIAL LAW Chapter 5: Other Special Proceedings
consul general of the action taken Rule 108 Compared with Rule 103 and
on the decision. RA 9048
7. Upon receipt of the notice thereof,
the city or municipal civil registrar Rule 108 RA 9048
or the consul general shall notify the Nature of Judicial Administrative:
petitioner of such action. Proceeding Petition is filed
8. Appeal. The petitioner may seek with the local
reconsideration with the civil civil registrar
registrar general or file the or, for non-
appropriate petition with the proper resident
court. citizens, the
consul general
C. Cancellation or Correction of Scope Substantial Correction of
Entries in the Civil Registry changes in clerical or

SPECIAL PROCEEDINGS
(RULE 108) entries in typographical
the civil errors and
 Scope registry, changes in first
other than name or
Rule 108 governs substantial changes in name nickname
entries in the civil registry, excluding name
which is governed by Rule 103. Rule 108 RULE 103
Nature of Judicial Judicial
Substantial Change – change that affects Proceeding
the civil status, citizenship, or nationality of Scope Substantial Substantial
a party. changes in changes in
entries in the name,
Entries Subject to Cancellation or civil registry, including
Correction other than surname
1. Births; name
2. Marriage; Who may Any person Person
3. Deaths; File interested in desiring to
4. Legal separations; any act, change his
5. Judgments of annulments of event, order, name or
marriage; or decree some other
6. Judgments declaring marriages void concerning person on
from the beginning; the civil his behalf
7. Legitimations; status of
8. Adoptions; persons.
9. Acknowledgments of natural Where and Verified Petition
children; How Filed petition filed filed in the
10. Naturalization; in the RTC RTC where
11. Election, loss or recovery of where the the
citizenship; corresponding petitioner
12. Civil interdiction; civil registry is resides
13. Judicial determination of filiation; located
14. Voluntary emancipation of a minor; Standing of Civil register Civil
15. Changes of name; Local Civil concerned is register is
Register made party to not a party
the to the
proceeding as proceeding.
a respondent.
Notice The court No mention
requirement shall cause of cause of
reasonable notice to be
notice to be sent.
given to
persons
named in the
petition.

Page 215 of 370

REVIEWER IN REMEDIAL LAW
Republic vs. Valencia: The procedure recited in
Rule 103 regarding change of name and in Rule
108 concerning the cancellation or correction of
entries in civil registry are separate and distinct.
They may not be substituted one for the other. If
both reliefs are to be sought in the same
proceedings all the requirements of Rule 103
and 108 must be complied with.
Who may file:
Any person interested in any act, event,
order, or decree concerning the civil status
of persons which has been recorded in the
civil registry.
How:
Verified petition.
Where to file:
RTC of the province where the
corresponding civil registry is located.
Who are made parties:
1. The civil registrar;
2. All persons who have or claim any
interest which could be affected.
Opposition
 Who may file:
1. The civil registrar;
2. Any person having or claiming any
interest under the entry whose
cancellation or correction is sought
 When filed: within 15 days from notice
of the petition or from the last date of
publication of the notice.
Procedure
1. Filing of the petition.
2. The court shall, by an order, fix the time
and place for the hearing of the petition.
3. The court shall cause reasonable notice
of the hearing to be given to the persons
named in the petition.
4. The court shall cause the order to be
published once a week for 3 consecutive
weeks in a newspaper of general
circulation in the province.
5. Hearing.
 The court may make orders
expediting the proceedings.
 The court may grant preliminary
injunction for the preservation of the
rights of the parties pending such
proceedings.
6. Judgment.
 A certified copy of the judgment
shall be served upon the civil
registrar concerned who shall
annotate the same in his record.
Chapter 5: Other Special Proceedings
IV. VOLUNTARY DISSOLUTION OF
CORPORATIONS (please refer
to the COMMERCIAL LAW
REVIEWER, p.116)
V. NATURALIZATION
 Naturalization – process that confers
to an alien a nationality after birth by
any of the means provided by law.
 Governing law- Commonwealth Act No.
473, as amended by Republic Act No.
530.
SPECIAL PROCEEDINGS
 Qualifications
1. The petitioner must not be less than
21 years of age on the date of
hearing the petition;
2. He must have resided in the
Philippines for a continuous period
of not less than 10 years;
Period may be reduced to 5 years if
the applicant:
a. Honorably held office under
the Government of the
Philippines or under any of
its provinces, cities,
municipalities, or political
subdivisions;
b. Established a new industry
or introduced a useful
invention in the Philippines;
c. Is married to a Filipino
woman;
d. Had been engaged as a
teacher in a public or
recognized private school not
established for the exclusive
instruction of children of
persons of a particular
nationality or race in any of
the branches of education or
industry for a period of 2
years;
e. Was born in the Philippines.
3. He must be of good moral character,
and believe in the principles
underlying the Philippine
Constitution, and must have
conducted himself in a proper and
irreproachable manner during the
entire period of his residence in the
Philippines in his relations with the
constituted government as well as
the community in which he is living;
Dy Lam Go v. Republic (5 SCRA 915
(1962)): Proper and irreproachable
conduct imposes a higher standard of
Page 216 of 370
REVIEWER IN REMEDIAL LAW
morality than the term good moral
character. It requires moral character of
the highest degree. Merely being a law-
abiding citizen is inadequate.
Proper and irreproachable conduct must
be proven by competent evidence such
as testimony of 2 character witnesses
who must be well known in the
community and enjoy a high reputation
for probity.
4. He must own real estate in the
Philippines worth not less than
P5,000, Philippine currency, or have
some lucrative trade, profession, or
lawful occupation;
Lucrative trade, profession, or lawful
occupation means substantial
gainful employment or the
obtaining of tangible receipts; an
appreciable margin of income
over expenses in order to provide
for adequate support for himself
and his family in case of
sickness, unemployment, or
disability to work.
5. He must be able to speak and write
English or Spanish, and any one of
the principal Philippine languages;
6. He must have enrolled his minor
children of school age in any of the
public schools or private schools
recognized by the Bureau of Private
Schools where Philippine history,
government, and civics are taught or
prescribed as part of the school
curriculum during the entire period
of the residence required of him,
prior to the hearing of his petition.
 Disqualifications
1. Persons opposed to organized
government or affiliated with any
association or group of persons who
uphold and teach doctrines
opposing all organized governments;
2. Persons defending or teaching the
necessity or propriety of violence,
personal assault, or assassination
for the success and predominance of
their ideas;
3. Polygamists or believers in the
practice of polygamy;
4. Persons convicted of crimes
involving moral turpitude;
5. Persons suffering from mental
alienation or incurable contagious
diseases;
6. Persons who, during the period of
their residence in the Philippines,
have not mingled socially with the
Chapter 5: Other Special Proceedings
Filipinos, or who have not evinced a
sincere desire to learn and embrace
the customs, traditions, and ideals
of the Filipinos;
7. Citizens or subjects of nations with
whom the United States and the
Philippines are at war, during the
period of such war;
8. Citizens or subjects of a foreign
country other than the United
States whose laws do not grant
Filipinos the right to become
naturalized citizens or subjects
thereof.
SPECIAL PROCEEDINGS
General Rule: Burden of proving
disqualification is upon the
state.
Caveat: SC has held that applicant
must prove he has none of
disqualifications. The law must
be strictly construed against the
applicant because naturalization
is a privilege and not a right.
 Procedure
1. Filing of declaration of intention to
become a citizen;
When: 1 year before petition is filed.
Where: Office of the Solicitor
General.
How: Declaration under oath.
Exemptions:
a. Persons born in the
Philippines and who have
received their primary and
secondary education in
public or private schools
recognized by the
Government, and not limited
to any race or nationality;
b. Those who have resided
continuously in the
Philippines for a period of
thirty years or more before
filing their application;
c. The widow and minor
children of an alien who
declared his intention to
become a citizen of the
Philippines and dies before
he is actually naturalized.
2. Filing of petition for naturalization;
Where: RTC of the province in
which the petitioner has resided
at least one year immediately
preceding the filing of the
petition
How: Petition in triplicate, signed
by the applicant in his own
handwriting
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REVIEWER IN REMEDIAL LAW
Contents:
a. Petitioner’s name and
surname;
b. His present and former
places of residence;
c. His occupation;
d. Place and date of his birth;
e. His civil status;
f. Names, ages, birthplaces and
residence of his wife and
children;
g. Approximate date of his
arrival in the Philippines, the
name of the port of
debarkation, and, the name
of the ship on which he
came;
h. Declaration that he has the
qualifications and none of
the disqualifications for
naturalization;
i. Declaration of compliance
with the declaration of
intention requirement;
j. Declaration that he will
reside continuously in the
Philippines from the date of
the filing of the petition up to
the time of his admission to
Philippine citizenship;
k. Affidavit of at least two
credible persons, stating that
they are citizens of the
Philippines and personally
know the petitioner to be a
resident of the Philippines
for the required period of
time and a person of good
repute and morally
irreproachable, and that said
petitioner has in their
opinion all the qualifications
necessary and is not in any
way disqualified to become a
citizen of the Philippines;
l. Names and post-office
addresses of witnesses the
petitioner may desire to
introduce at the hearing of
the case;
m. Certificate of arrival and the
declaration of intention;
n. 2 photographs of the
petitioner.
Chapter 5: Other Special Proceedings
3. Publication at the petitioner’s
expense once a week for three
consecutive weeks in the Official
Gazette or newspaper of general
publication in the province where
the petitioner resides of the petition;
4. Posting of copies of the petition and
a general notice of the hearing in a
public and conspicuous place;
5. Forwarding of copies of the petition,
the sentence, the naturalization
certificate, and other pertinent data
to the DILG, DOJ, the Provincial
Inspector of the Philippine
SPECIAL PROCEEDINGS
Constabulary of the province and
the MTC judge of the municipality
wherein the petitioner resides;
6. Hearing of petition;
No petition shall be heard within the
thirty days preceding any
election until after six months
from the publication of the
application.
The hearing shall be public. The
Solicitor-General shall appear on
behalf of the Republic.
7. Approval or denial of petition and
issuance of the Certificate of
Naturalization;
8. Rehearing of petition 2 years after
the promulgation of the judgment ;
The decision shall not become
executory until the court finds
that during the intervening time
the applicant has:
a. Not left the Philippines;
b. Dedicated himself
continuously to a lawful
calling or profession;
c. Not been convicted of any
offense or violation of
Government promulgated
rules;
d. Not committed any act
prejudicial to the interest of
the nation or contrary to any
Government announced
policies.
9. Taking of the oath of allegiance to
support and defend the Constitution
and the laws of the Philippines.
 Appeal
Final decision appealable to SC, at the
instance of either of the parties.
Page 218 of 370
REVIEWER IN REMEDIAL LAW Chapter 6: Appeals in Special Proceedings

CHAPTER 6: Appeals in Special  Advance Distributions

Proceedings Notwithstanding a pending
controversy/appeal in estate
 Appealable Orders and Judgments settlement proceedings, the court
1. If it dis/allows a will may permit that the estate’s parts
2. If it wholly determines who are the which are not affected by the
lawful heirs or the distributive controversy/appeal be distributed,
shares upon compliance with Rule 90
3. If it wholly or partially dis/allows a
claim against a decedent’s estate, or
any claim presented on the
decedent’s estate, or any claim
presented on the estate’s behalf on
offset to claim against it

SPECIAL PROCEEDINGS
4. If it settles the account of an
executor/administrator/trustee/gua
rdian
5. If it constitutes a final determination
in the lower court of the rights of the
party appealing in proceedings
relating to estate settlement or
administration of a
trustee/guardian
 Exception: Appointment of a special
administrator is not appealable
Remedy: Petition for certiorari under
Rule 65, if there is grave abuse of
discretion.
 If it is the final order/judgment
rendered in the case, and affects the
substantial rights of the person
appealing
Exception: Orders granting/ denying a
MFR/MNT

 While some of the items in Rule 109.

Sec. 1 may be considered as
interlocutory under ordinary special
actions, the nature of special
proceedings declares them as
appealable as exceptions to Rule 41,
Sec. 2
 Since multiple appeals are
contemplated under this provision,
appeals in special proceedings
necessitate a record on appeal as the
original record should remain in the
trial court
 In a special proceeding, the period of
appeal is 30 days a notice of appeal and
a record on appeal being required. The
appeal period may be interrupted by the
filing of an MFR/MNT. Once the appeal
period expires without an
appeal/MF/MNT, the order becomes
final

Page 219 of 370

REVIEWER IN REMEDIAL LAW
CHAPTER 7: The Writs
I. WRIT OF HABEAS CORPUS
A. To What Habeas Corpus Extends
B. Who May Grant the Writ
C. Requisites of Application
D. When Writ not Allowed or Discharge
Authorized
E. When Writ Must be Granted and Issued
F. Aspects of the Return
G. When person Lawfully Imprisoned
Recommitted, and When let to Bail
H. When Prisoner Discharged if no Appeal
I. Penalties
J. Record of Writ, Fees and Costs
II. WRIT OF AMPARO
A. General principles
B. Aspects of Filing
C. Issuance and Service of the Writ
D. Aspects of the Return
E. Hearing on the Writ
F. Allowable Reliefs
G. Penalties
H. Burden of Proof
I. Judgment and Appeal
J. Effect of Other Actions
K. Other Matters
III. WRIT OF HABEAS DATA
A. General Principles
B. Aspects of Filing
C. Issuance and Service
D. Aspects of Return
E. Hearing on the Writ
F. Penalties
G. Judgment and Appeal
H. Return of Judgment, Hearing thereon
I. Effects of Other Actions
J. Other Matters
IV. WRIT MATRIX
I. WRIT OF HABEAS CORPUS
(Asked in the 1993, 1998, and 2003 Bar
Examinations)
A. To What Habeas Corpus Extends
Sec. 1 Except as otherwise expressly provided
by law, the writ of habeas corpus shall extend 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.
 Vital purposes:
To obtain relief from illegal confinement
To liberate those who may be
imprisoned without sufficient cause
To deliver them from unlawful custody
 Essentially a writ of inquiry, granted to
test the right under which a person is
detained, and to relieve a person if such
restrain is illegal
 Can only be suspended in cases if in
cases or rebellion or invasion and when
Chapter 7: The Writs
public interest requires it (Art. III Sec.
15)
 Extends to all cases of illegal
confinement or detention by which any
person any person is deprived of his
liberty, or by which the rightful custody
of any person is withheld from the
person entitled thereto
 Prime specification of the application for
a writ of habeas corpus is restraint of
liberty
 Not an inquisition between private
parties, but an inquisition by the
government proceedings in habeas
SPECIAL PROCEEDINGS
corpus are separate and distinct from
the main case from which the
proceedings spring
Ex parte Bollman: the question whether
one shall be imprisoned is always
distinct from the question of
whether the individual shall be
convicted or acquitted of the charge
on which he is tried, and therefore
these questions are separate, and
may be decided in different courts
 In the case if People v. Valte (1922), it
was stated that the writ of habeas
corpus is not designed to interrupt the
orderly administration of the laws by a
competent court acting within the limits
of its jurisdiction, but is available only
for the purpose relieving from illegal
restraint
Proceedings on habeas corpus to obtain
release from custody under final
judgment being in the nature of
collateral attack, the writ deals only
with such radical defects as render
the proceeding or judgment
absolutely void, and cannot have the
effect of appeal, writ of error or
certiorari, for the purpose of
reviewing mere error and
irregularities in the proceedings
 A release that renders a petition for a
writ of habeas corpus moot and
academic must be one which is free
from involuntary restraint
In Moncupa v. Enrile (1986), it was held that
(a) where a person continues to be unlawfully
denied one or more of his constitutional
freedoms,
(b) where there is present denial of due process,
(c) where the restraints not merely involuntary
but appear to be unnecessary, and
(d) where a deprivation of freedom originally
valid has, in light of subsequent
developments, become arbitrary,
the person concerned or those applying in his
behalf may still avail themselves of the privileges
of the writ
Page 220 of 370
REVIEWER IN REMEDIAL LAW
 General Rule: the release, whether
permanent or temporary, of a detained
person renders the petition for HC moot
and academic
 Exceptions: Unless there are restraints
attached to his release which precludes
freedom of action in which case the
Court can still inquire into the nature of
his involuntary restraints
E.g. In the aforementioned Moncupa
case, the restrictions imposed by the
military on the temporary release of
the petitioner constitute restraints
which limit the freedom of
movement on said petitioner (not
travel outside Manila, regular
reporting to the military, no press
interviews). It is not physical
restraint alone which is inquired
into by the WHC
In contrast, Villavicencio v. Lukban
(1919), the women who had been
illegally seized and transported
against their will were no longer in
any restraint because, unlike in
Moncupa, they were free to change
their domicile without asking for
official permission
 For denial of a constitutional right to
the accused, the hearing tribunal may
lose its jurisdiction to conduct further
proceedings, and HC may lie to obtain
release of the accused
Void judgment of conviction due to
disregard of constitutional rights
may be challenged by collateral
attack, which is the precise function
of WHC
Failure by the accused to perfect his
appeal before the Court of Appeals
does not preclude recourse to the
writ
However, it is only where:
1. there is no proof whatever to
sustain the order, or
2. where no fair hearing was
granted, or
3. where there was an arbitrary
disregard of the conceded or
undisputed facts,
that a WHC will issue
 While an excessive sentence or penalty
imposed by final judgment may be
corrected by HC, the cases where such
ruling was applied involved penalties
that could not be imposed under any
circumstances for the crime for which
the prisoner was convicted
 Correlatively, WHC may be applied to
persons sentenced to life imprisonment
Chapter 7: The Writs
for violations of Dangerous Drugs Law
the penalty for which was later on
reduced after the maximum of the
applicable penalties newly prescribed by
the Indeterminate Sentence Law.
All courts of competent jurisdiction may
entertain petitions for HC for this
purpose, and although deficient in
form, may be entertained so long as
they are sufficient in substance (de
Guzman v. Vinario, 1994)
 The WHC is the proper legal remedy :
To enable parents to regain custody of a
SPECIAL PROCEEDINGS
minor daughter, even though the
latter be in the custody of a third
person of her own free will
To resolve questions of custody of a
minor
o The underlying rationale is not
the illegality if the restraint but
the right of custody
 Requisites:
1. Petitioner has the right to the
custody of the minor
2. The rightful custody of the minor is
being withheld by the respondent
3. That it is the best interest of the
minor concerned to be in the
custody of petitioner and not that of
respondent
 While a writ of right, WHC it will not
issue as a matter of course or as a mere
perfunctory operation on the filing of
the petition
Judicial discretion is exercised, and
whether or not the petition is
sufficient in form and substance,
writ should issue if the petition
complies with the legal requirements
and its averments make a prima
facie case for relief
 WHC may be used with writ of certiorari
for purposes of review
The two writs may be ancillary to each
other where necessary to give effect
to the supervisory powers of higher
courts
WHC reaches the body of the
jurisdictional matters, but not the
record. Writ of certiorari reaches
the record but not the body
While generally, the WHC will not be
granted when there is and adequate
remedy like writ of error, appeal, or
certiorari, it may still be available in
exceptional cases
Page 221 of 370
REVIEWER IN REMEDIAL LAW
Generally, WHC is not the proper
remedy for the correction of errors of
fact or law
o Exception: Error affects court’s
jurisdiction (making the
judgment void)
WHC does not lie where the petitioner
has the remedy of appeal or
certiorari
WHC is not proper:
o To assert or vindicate denial of
right to bail
o For correcting errors in
appreciation of fact or law
 HC and not prohibition is the proper
remedy for reviewing proceedings for
deportation of aliens
B. Who May Grant the Writ
Sec. 2 The WHC may be granted by the SC, or
any member thereof, on any day at any time, or
by the CA or any member thereof in the
instances authorized by law, and if so granted it
shall be enforceable anywhere in the Philippines,
and may be made returnable before the court or
any member thereof, or before a RTC, or any
judge thereof for hearing and decision on the
merits. It may also be granted by a RTC, or a
judge thereof, on any day and at any time, and
returnable before himself enforceable only within
his judicial district.
 The SC,CA, and RTC have concurrent
jurisdiction to issue WHC
 In the absence of all RTC judges in a
province or city, municipal trial court
judges may hear and decide petitions
for a WHC (BP 129 Sec.9)
 It is only when the writ is issued by the
SC or CA that it is enforceable
anywhere in the Philippines
 Under the Family Court’s Act, family
courts have jurisdiction to hear
petitions for custody of minors and the
issuance of the WHC in relation to
custody of minors
Petitions may still be filed with regular
courts in the absence of the
presiding judge of the family court,
provided that regular courts shall
refer the case to the family court a
soon as its presiding judge returns
to duty
Petition may also be filed with
appropriate regular courts in place
where there are no family courts
 Matters pertaining to the guardianship
of an infant must be determined in
courts established for such matters;
however, this does not preclude the
Chapter 7: The Writs
rendition of an order awarding
temporary custody of a child in habeas
corpus proceedings. Such continues in
force until a court with jurisdiction over
the guardianship appoints a guardian of
his person
C. Requisites of Application
Sec. 3 Application for the writ shall be by
petition signed and verified by the party for
whose relief it is intended, or by some person on
his behalf, and shall set forth:
(a) That the person in whose behalf the
application is made is imprisoned or
SPECIAL PROCEEDINGS
restrained of his liberty;
(b) The officer or name of the person by whom
he is so imprisoned or retrained; or if both
are unknown or uncertain, such officer or
person may be described by an assumed
appellation, and the person who is served
with the writ shall be deemed the person
intended;
(c) The place where he is so imprisoned or
restrained, if known;
(d) A copy of the commitment or cause of
detention of such person, if it can be
procured without any legal authority, such
fact shall appear.
 A common law spouse has the
personality to institute on behalf of her
common law husband the HC aspect of
the petition, as she falls under the
purview of the term “some person”
Some person – any person who has a
legally justified interest in the
freedom of the person whose liberty
is restrained or who shoes some
authorization to make the
application
Where an application is made in a
person’s behalf, and the person for
whose behalf it is taken repudiates,
the writ will be denied
D. To When Writ Not Allowed or
Discharge Authorized
Sec. 4 If it appears that the person alleged to be
restrained of his liberty is in the 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, and that the court or judge had
jurisdiction to issue the process, render the
judgment; or make the order, the writ shall not
be allowed; or if the jurisdiction appears after
the writ is allowed, the person shall not be
discharged by reason of any informality or defect
in the process, judgment, or order. Nor shall
anything in this rule be held to authorize the
discharge of a person charged with or convicted
of an offense in the Philippines, or of a person
suffering imprisonment under lawful judgment.
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 General Rule: WHC will not issue
where the person alleged to be
restrained of his liberty is in custody of
an officer under a process issued by the
court which has jurisdiction to do so
 Even if the arrest of a person is illegal,
supervening events may bar his
release or discharge form custody
The legality of the detention is inquired
into at the earliest, the application
for a WHC
Among the supervening events is the
issuance of a judicial process
(defined as a writ, warrant,
subpoena, or other formal writing
issued by authority of law)
Another supervening event is the filing
before a trial court a complaint
which issued a hold departure order
and denied motion to dismiss and to
grant bail (Velasco v. CA,1995)
Filing of an information for the offense
for which the accused is detained
bars the availability of WHC
 Improper arrest or lack of preliminary
investigation is not a valid ground for
the issuance of WHC
Proper remedy is a motion to quash
warrant of arrest and/or
information before the trial court
 Posting of a bail is not a waiver of the
right to challenge the validity of the
arrest, and therefore the right to resort
to WHC (Revised Rules of Crim Pro Sec.
26)
 A person discharged on bail is not
entitled to WHC, because such person
is not imprisoned or restrained of his
liberty in such a way as to entitle him to
the WHC
E. When Writ Must Be Granted and
Issued
Sec. 5. A court or judge authorized to grant the
writ must, when a petition therefor is presented
and it appears that the writ ought to issue, grant
the same forthwith, and immediately thereupon
the clerk of the court shall issue the writ under
the seal of the court; or in the case of
emergency, the judge may issue the writ under
his own hand, and may depute any officer or
person to serve it.
 The operative act is detention or
restraint (whether or not physical). If
there is none, no WHC will issue despite
the possibility of respondent being liable
to civil, criminal, or administrative
action
Chapter 7: The Writs
 Judicial discretion is exercised in
issuance of the writ, and will not issue
as a matter of course
F. Aspects of the Return
Sec. 6. To whom writ directed, and what to
require. - In case of imprisonment or restraint
by an officer, the writ shall be directed to him,
and shall command him to have the body of the
person restrained of his liberty before the court
or judge designated in the writ at the time and
place therein specified. In case of imprisonment
or restraint by a person not an officer, the writ
shall be directed to an officer, and shall
SPECIAL PROCEEDINGS
command him to take and have the body of the
person restrained of his liberty before the court
or judge designated in the writ at the time and
place therein specified, and to summon the
person by whom he is restrained then and there
to appear before said court or judge to show the
cause of the imprisonment or restraint.
Sec. 7. How prisoner designated and writ
served. - The person to be produced should be
designated in the writ by his name, if known,
but if his name is not known he may be
otherwise described or identified. The writ may
be served in any province by the sheriff or other
proper officer, or by a person deputed by the
court or judge. Service of the writ shall be made
by leaving the original with the person to whom
it is directed and preserving a copy on which to
make return or service. If that person cannot be
found, or has not the prisoner in his custody,
then the service shall be made on any other
person having or exercising such custody.
Sec. 8. How writ executed and returned. -
The officer to whom the writ is directed shall
convey the person so imprisoned or restrained,
and named in the writ, before the judge allowing
the writ, or in case of his absence or disability,
before some other judge of the same court, on
the day specified in the writ, unless, from
sickness or infirmity of the person directed to be
produced, such person cannot, without danger,
be bought before the court or judge; and the
officer shall make due return of the writ,
together with the day and the cause of the
caption and restraint of such person according
to the command thereof.
Sec. 9. Defect of form. - No writ of habeas
corpus can be disobeyed for defect of form, if it
sufficiently appears therefrom in whose custody
or under whose restraint the party imprisoned
or restrained is held and the court or judge
before whom he is to be bought.
 Preliminary citation – requires the
respondent to appear and show cause
why the peremptory writ should not be
granted
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REVIEWER IN REMEDIAL LAW
 Peremptory writ – unconditionally
commands the respondent to gave the
body of the detained person before the
court at a time and place therein
specified
Sec. 10. Contents of return. - When the
person to be produced is imprisoned or
restrained by an officer, the person who makes
the return shall state therein, and in other cases
the person in whose custody the prisoner is
found shall state, in writing to the court or judge
before whom the writ is returnable, plainly and
unequivocably:
 (a) Whether he has or has not the party in
his custody or power, or under restraint;
 (b) If he has the party in his custody or
power, or under restraint, the authority and
the true and whole cause thereof, set forth
at large, with a copy of the writ, order
execution, or other process, if any, upon
which the party is held;
 (c) If the party is in his custody or power or
is restrained by him, and is not produced,
particularly the nature and gravity of the
sickness or infirmity of such party by reason
of which he cannot, without danger, be
bought before the court or judge;
 (d) If he has had the party in his custody or
power, or under restraint, and has
transferred such custody or restraint to
another, particularly to whom, at what time,
for what cause, and by what authority such
transfer was made.
 Sec. 11. Return to be signed and sworn
to. - The return or statement shall be
signed by the person who makes it; and
shall also be sworn by him if the prisoner is
not produced, and in all other cases unless
the return is made and signed by a sworn
public officer in his official capacity.
Sec. 12. Hearing on return. Adjournments. -
When the writ is returned before one judge, at a
time when the court is in session, he may
forthwith adjourn the case into the court, there
to be heard and determined. The court or judge
before whom the writ is returned or adjourned
must immediately proceed to hear and examine
the return, and such other matters as are
properly submitted for consideration, unless for
good cause shown the hearing is adjourned, in
which event the court or judge shall make such
order for the safekeeping of the person
imprisoned or restrained as the nature of the
case requires. If the person imprisoned or
restrained is not produced because of his alleged
sickness or infirmity, the court or judge must be
satisfied that it is so grave that such person
cannot be produced without danger, before
proceeding to hear and dispose of the matter. On
the hearing the court or judge shall disregard
matters of form and technicalities in respect to
any warrant or order of commitment of a court
or officer authorized to commit by law.
Chapter 7: The Writs
Sec. 13. When the return evidence, and when
only a plea. - If it appears that the prisoner is
in custody under a warrant of commitment in
pursuance of law, the return shall be considered
prima facie evidence of the cause of restraint,
but if he is restrained of his liberty by any
alleged private authority, the return shall be
considered only as a plea of the facts therein set
forth, and the party claiming the custody must
prove such facts.
 Failure of petitioners to file a reply to
the return of the writ warrants
dismissal of the petition
In consonance with the rule that unless
SPECIAL PROCEEDINGS
the allegations in the return are
controverted, they are deemed true
or admitted
G. When Person Lawfully Imprisoned
Recommitted, and When Let to
Bail
Sec. 14. If it appears that the prisoner was
lawfully committed, and is plainly and
specifically charged in the warrant of
commitment with an offense punishable by
death, he shall not be released, discharged, or
bailed. If he is lawfully imprisoned or restrained
on a charge of having committed an offense not
so punishable, he may be recommitted to
imprisonment or admitted to bail in the
discretion of the court or judge. If he be
admitted to bail, he shall forthwith file a bond in
such sum as the court or judge deems
reasonable, considering the circumstances of the
prisoner and the nature of the offense charged,
conditioned for his appearance before the court
where the offense is properly cognizable to abide
its order of judgment; and the court or judge
shall certify the proceedings, together with the
bond, forthwith to the proper court. If such bond
is not so filed, the prisoner shall be recommitted
to confinement.
 WHC would not lie after the Warrant of
Commitment was issued by the court
on the basis of the Information filed
against the accused
H. When Prisoner Discharged If No
Appeal
Sec. 15. When the court or judge has examined
into the cause of caption and restraint of the
prisoner, and is satisfied that he is unlawfully
imprisoned or restrained, he shall forthwith
order his discharge from confinement, but such
discharge shall not be effective until a copy of
the order has been served on the officer or
person detaining the prisoner. If the officer or
person detaining the prisoner does not desire to
appeal, the prisoner shall be forthwith released.
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REVIEWER IN REMEDIAL LAW
 BP 129 Sec. 39 states that appeals in
habeas corpus cases shall be 48 hours
from notice of the judgment appealed
from
 Sec. 15 of Rule 102 provides the order
for the discharge of a prisoner shall be
effective only if the office detaining the
prisoner does not appeal
 in the case of Saulo v. Brig Gen Cruz
(2001), it was held that the 48 hours for
appeal is not only mandatory but also
jurisdictional – therefore the court has
no alternative but to dismiss appeal
filed out of time
 appeal to the SC if pure questions of
law while to the CA if it involves factual
questions (Medina v. Yan, 1974)
I. Penalties
Sec. 16. A clerk of a court who refuses to issue
the writ after allowance thereof and demand
therefor, or a person to whom a writ is directed,
who neglects or refuses to obey or make return
of the same according to the command thereof,
or makes false return thereof, or who, upon
demand made by or on behalf of the prisoner,
refuses to deliver to the person demanding,
within six (6) hours after the demand therefor, a
true copy of the warrant or order of
commitment, shall forfeit to the party aggrieved
the sum of one thousand pesos, to be recorded
in a proper action, and may also be punished by
the court or judge as for contempt.
Sec. 17. Person discharged not to be again
imprisoned. - A person who is set at liberty
upon a writ of habeas corpus shall not be again
imprisoned for the same offense unless by the
lawful order or process of a court having
jurisdiction of the cause or offense; and a person
who knowingly, contrary to the provisions of this
rule, recommits or imprisons, or causes to be
committed or imprisoned, for the same offense,
or pretended offense, any person so set at
liberty, or knowingly aids or assists therein,
shall forfeit to the party aggrieved the sum of
one thousand pesos, to be recovered in a proper
action, notwithstanding any colorable pretense
or variation in the warrant of commitment, and
may also be punished by the court or judge
granting the writ as for contempt.
 The state cannot reserve the power to
re-arrest a person for an offense after a
court of competent jurisdiction has
absolved him of the offense.
Sec. 18. When prisoner may be removed from
one custody to another. - A person committed
to prison, or in custody of an officer, for any
criminal matter, shall not be removed therefrom
into the custody of another unless by legal
process, or the prisoner be delivered to an
inferior officer to carry to jail, or, by order of the
Chapter 7: The Writs
proper court or judge, be removed from one
place to another within the Philippines for trial,
or in case of fire epidemic, insurrection, or other
necessity or public calamity; and a person who,
after such commitment, makes signs, or
counter-signs any order for such removal
contrary to this section, shall forfeit to the party
aggrieved the sum of one thousand pesos, to be
recovered in a proper action.
J. Record of Writ, Fees and Costs
Sec. 19. The proceedings upon a writ of habeas
corpus shall be recorded by the clerk of the
court, and upon the final disposition of such
proceedings the court or judge shall make such
SPECIAL PROCEEDINGS
order as to costs as the case requires. The fees of
officers and witnesses shall be included in the
costs taxed, but no officer or person shall have
the right to demand payment in advance of any
fees to which he is entitled by virtue of the
proceedings. When a person confined under
color of proceedings in a criminal case is
discharged, the costs shall be taxed against the
Republic of the Philippines, and paid out of its
Treasury; when a person in custody by virtue or
under color of proceedings in a civil case is
discharged, the costs shall be taxed against him,
or against the person who signed the application
for the writ, or both, as the court shall direct.
II. WRIT OF AMPARO
A. General Principles
 Literally means to protect
 Came originally from Mexico and
evolved into may forms
Amparo libertad – for protection of
personal freedom
Amparo contra leyes – for judicial review
of the constitutionality of statutes
Amaparo casacion – judicial review of
constitutionality and legality of
judicial decisions
Amparo agrario – for protection of
peasants’ rights
 In the Philippines, the Constitution does
not explicitly provide for the writ of
amparo but some protection are
available therein (e.g. grave abuse
clause, judicial review)
 AM No 7-9-12-SC (Rules on the Writ of
Amparo) was promulgated by the
Supreme Court by virtue of the 1987
Constitution stating that the SC has the
power to “[p]romulgate rules concerning
the protection and enforcement of
constitutional rights…” (Art VIII Sec. 5).
Interpreted as the additional power to
promulgate rules to protect and
enforce rights guaranteed by the
fundamental law of the land.
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REVIEWER IN REMEDIAL LAW
Sec. 1 The petition for a writ of amparo is a
remedy available to any person whose right to
life, liberty and security is violated or threatened
with violation by an unlawful act or omission of
a public official or employee, or of a private
individual or entity.
The writ shall cover extralegal killings and
enforced disappearances or threats thereof.
Enumerates the constitutional rights
protected by the writ, which is only
the right to life, liberty and security
of persons
 Limits the coverage because other
constitutional rights are already
protected through different remedies
 However, the coverage is still broader
compared to other jurisdictions
Philippine writ covers both actual and
threatened violations of
constitutional rights
Covers not only the public but also
private individual and entities
 Covers
extralegal killings (killings committed
without due process of law) and
 enforced disappearances (Sec. of
National Defense v. Manalo 2008), the
elements of which are:
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
 “right to security” as a guarantee of
protection by the government, is
violated by the apparent threat to the
life, liberty and security of their person.
In Sec. of Justice v. Manalo (supra), it was held
that even if the respondents have escaped from
captivity and are physically free, there is a
continuing violation of their right to security
because there is a violation of freedom from
threat by the apparent threat to life, liberty and
security of their person from the following facts:
 Threat of killing their families if they tried to
escape
 Failure of the military to protect them from
abduction
 Failure of the military to conduct effective
investigation
Chapter 7: The Writs
B. Aspects of Filing
Sec. 2 Who may File. The petition may be filed
by the aggrieved party or by any qualified person
or entity in the following order:
(a) Any member of the immediate family
namely: the spouse, children and parents of
the aggrieved party;
(b) Any ascendant, descendant or collateral
relative of the aggrieved party within the
fourth civil degree of consanguinity or
affinity, in default of those mentioned in the
preceding paragraph; or
(c) Any concerned citizen, organization,
association or institution if there is no
known member of the immediate family or
SPECIAL PROCEEDINGS
relative of the aggrieved party.
The filing of a petition by the aggrieved party
suspends the right of all other authorized parties
to file similar petitions. Likewise, the filing of the
petition by an authorized party on behalf of the
aggrieved party suspends the right of all others,
observing the order established herein.
 This provides for the order which must
be followed by those who can sue for
the writ
Necessary for the prevention of
indiscriminate and groundless filing
of petitions for amparo which may
even prejudice the right to life,
liberty or security of the aggrieved
party
Untimely resort to the writ by a
nonmember of the family may
endanger the life of the aggrieved
party
 If authorized by (a) or (b), (c) may file
Sec. 3 Where to File. – The petition may be
filed on any day and at any time with the
Regional Trial Court of the place where the
threat act or omission was committed or any of
its element s occurred, or with the
Sandiganbayan, the CA, the SC, or any justice of
such courts. The writ shall be enforceable
anywhere in the Philippines.
When issued by a RTC or any judge thereof the
writ shall be returnable before such court or
judge.
When issued by the Sandiganbayan or the CA or
any of their justices, it may be returnable before
such court or any justice thereof, or to any
Regional Trial Court of the place where the
threat, act or omission was committed or any of
its elements occurred.
When issued by the SC or any of its justices, it
may be returnable before such Court or a justice
thereof, or before the Sandiganbayan or the C or
any of their justices, or to any RTC of the place
where the threat, act or omission was committed
or any of its elements occurred.
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REVIEWER IN REMEDIAL LAW
 May be filed o any day, including
Saturdays, Sundays, and holidays; from
morning until evening
 Includes Sandiganbayan, unlike the
writ of habeas corpus, because public
officials and employees will be
respondents in amparo petitions
Section 4 No Docket Fees. – The petitioner shall
be exempted from the payment of the docket and
other lawful fees when filing the petition. The
court, justice, or judge shall docket the petition
and act upon it immediately.
Section 5 Contents of the Petition. – The
petition shall be signed and verified and shall
allege the following:
(a) The personal circumstances of the
petitioner;
(b) The name and personal circumstances of
the respondent responsible for the threat,
actor omission or if the name is unknown or
uncertain, the respondent may be described
by an assumed appellation;
(c) The 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) The investigation conducted, if any,
specifying the names, the 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) The 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) The relief prayed for.
The petition may include a general prayer for
other just and equitable reliefs.
C. Issuance and Service
Sec. 6. Issuance of the Writ. – Upon the filing
of the petition, the court justice or judge shall
immediately order the issuance of the writ if on
its face it ought to issue. The clerk of court shall
issue the writ under the seal of the court; or in
case of urgent necessity, the justice or the judge
may issue the writ in his or her own hand, and
may deputize any officer or person to serve it.
The writ shall also set the date and time for
summary hearing of the petition which shall not
be later than seven (7) days from the date of its
issuance.
 Writ is issued as a matter of course
when on the face of the petition it ought
to issue
Chapter 7: The Writs
Sec. 8 How the Writ is Served. – The writ shall
be served upon the respondent by a judicial
officer or by a person deputized by the court,
justice or judge who shall retain a copy on which
to make a return of service. In case the writ
cannot be served personally on the respondent,
the rules in substituted service shall apply.
D. Aspects of Return
Sec. 9 Return; Contents. – Within seventy-two
(72) hours after service of the writ, the
respondent shall file a verified written return
together with supporting affidavits which shall,
among other things, contain the following:
SPECIAL PROCEEDINGS
(a) The lawful defenses to show that the
respondent did not violate or threaten with
violation the right to life, liberty and security
of the aggrieved party, through any act or
omission;
(b) The steps or actions taken by the
respondent to determine the fate or
whereabouts of the aggrieved party and the
person responsible for the threat, act or
omission;
(c) All relevant information in the possession of
the respondent pertaining to the threat, act
or omission against the aggrieved party; and
(d) If the respondent is a public official or
employee the return shall further state the
actions that have been or will still be
taken[...].
The return shall also state matters relevant to
the investigation, its resolution and the
prosecution of the case.
A general denial of the allegations in the petition
shall not be allowed.
 No general denials are allowed, unlike
the writ of habeas corpus
 Sec.3 points out the institutions where
the writ are returnable
Section 10 Defenses not pleaded deemed
waived. – All defenses shall be raised in the
return, otherwise, they shall be deemed waived.
Section 12 Effect of failure to file return. – In
case the respondent fails to file a return, the
court, justice or judge shall proceed to hear the
petition ex parte.
E. Hearing on the Writ
Section 11 Prohibited pleadings and motions.
– The following pleadings and motions are
prohibited:
a. Motion to dismiss;
b. Motion for extension of time to file return,
opposition, affidavit, position paper and
other pleadings;
c. Dilatory motion for postponement;
d. Motion for a bill of particulars;
e. Counterclaim or cross-claim;
f. Third-party complaint;
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REVIEWER IN REMEDIAL LAW
g. Reply;
h. Motion to declare respondent in default;
i. Intervention;
j. Memorandum’
k. Motion for reconsideration of interlocutory
orders or interim relief orders; and
l. Petition for certiorari, mandamus or
prohibition against any interlocutory order.
 Allows motion for new trial and petition
for relief from judgment
Section 13 Summary Hearing. – The heating
on the 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.
F. Allowable Reliefs
Section 14 Interim Reliefs. – Upon filing of the
petition or at any time before final judgment, the
court, justice, or judge may grant any of the
following reliefs:
(a) Temporary Protection Order. – The court,
justice or judge, upon motion or motu propio,
may order that the petitioner or the
aggrieved party and any member of the
immediate family be protected in a
government agency or by an accredited
person or private institution capable of
keeping and securing their safety. If the
petitioner is an organization, association or
institution referred to in Section 3(c) of this
Rule, the protection may ne extended to the
officers concerned.
The SC shall accredit the persons and
private institutions that shall extend
temporary protection to the petitioner or
aggrieved party and any member of the
immediate family, in accordance to the
guidelines which it shall issue.
The accredited persons and private
persons and private institutions shall
comply with the rules and conditions that
may be imposed by the court, justice or
judge.
 Different from the inspection and
production order in that the temporary
protection order and the witness
protection order do not need a
verification and may be issued motu
proprio or ex parte
(b) Inspection Order. – The court, justice or
judge upon verified motion and after due
hearing may order any person in possession
or control of a designated land or other
property, to permit entry for the purpose of
inspecting, measuring, surveying, or
photographing the property or any relevant
object or operation thereon.
The motion shall state in detail the place
Chapter 7: The Writs
or places to be inspected. It shall be
supported by affidavits or testimonies of
witnesses having personal knowledge of the
enforced disappearances or whereabouts of
the aggrieved party.
If the motion is opposed on the ground
of national security or of the privileged
nature of the information, the court, justice
or judge may conduct a hearing in chambers
to determine the merit of the opposition.
The movant must show that the
inspection order is necessary to establish
the right of the aggrieved party alleged to be
threatened or violated.
The inspection order shall specify the
person or persons authorized to make the
SPECIAL PROCEEDINGS
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. The order
shall expire five (5) days after the day of its
issuance, unless extended for justifiable
reasons.
 Requires hearing, may be availed of
both the petitioner and the respondent
 If the court, justice or judge gravely
abuses his or her discretion in issuing
the inspection order, the aggrieved party
is not precluded from filing a petition for
certiorari with the Supreme Court
(c) Production Order. – The court, justice or
judge, upon verified motion and after due
hearing 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 the return, to produce and
permit their inspection, copying or
photographing by or on behalf of the
movant.
The motion may be opposed on the
ground of national security or of the
privileged nature of the information, in
which case the court, justice or judge may
conduct a hearing in chambers to determine
the merit of the opposition.
The court, justice or judge shall
prescribe other conditions to protect the
constitutional rights of all the parties.
 Only granted upon motion and hearing
 Not the same as search warrant for law
enforcement under Art. III, Sec. 2 of the
Constitution since the latter is a
protection of the people from
unreasonable intrusion of the
government, not a protection of the
government from the demand of the
people such as respondents
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REVIEWER IN REMEDIAL LAW
 More similar to production of
documents or things under Sec. 1 Rule
27 of Rules of Civil Procedure
(d) Witness Protection Order. – The court,
justice or judge, upon motion or motu
propio, may refer the witnesses to the
Department of Justice for admission to the
Witness Protection, Security and Benefit
Program, pursuant to Republic Act No.
6981.
The court, justice or judge may also
refer the witnesses to other government
agencies, or to accredited persons or private
institutions capable of keeping and securing
their safety.
Section 15 Availability of Interim Reliefs to
Respondent. – Upon verified motion of the
respondent and after due heating, the court,
justice or judge may issue an inspection order or
production order under paragraphs (b) and (c) of
the preceding section.
A motion for inspection order under this section
shall be supported by affidavits or testimonies of
witnesses having personal knowledge of the
defenses of the respondent.
G. Penalties
Sec. 7 Panalty for Refusing to Issue or Serve
the Writ. – A clerk of court who refuses to issue
the writ after its allowance or a deputized person
who refuses to serve the same, shall be
punished by the court, justice or judge for
contempt without prejudice to other disciplinary
actions.
 Amparo proceedings enjoy priority and
cannot be delayed
Sec. 16 Contempt. – The court, justice or judge
may order the respondent who refuses to make a
return, or who makes a false return, or any
person who otherwise disobeys or resists a
lawful process or order of the court, to be
punished for contempt. The contemnor may be
imprisoned or imposed a fine.
H. Burden of Proof
Sec. 17 Burden of and Standard of Diligence
Required. – The parties shall establish their
claims by substantial evidence.
The respondent who is a private individual or
entity must prove that ordinary diligence as
required by applicable laws, rules and
regulations was observed in the performance of
duty.
The respondent who is a public official or
employee must prove that extraordinary
diligence as required as required by the
applicable laws, rules and regulations was
Chapter 7: The Writs
observed in the performance of duty.
The respondent public official or employee
cannot invoke the presumption that official duty
has been regularly performed to evade
responsibility or liability.
 Sec. of Justice v. Manalo (supra) states
that with the secret nature of an
enforced disappearance and the torture
perpetrated on the victim during
detention, it logically holds that much of
the information and evidence of the
ordeal will come from the victims
themselves
SPECIAL PROCEEDINGS
 Their statements can be corroborated
by other evidence such as physical
evidence left by the torture or
landmarks where detained.
I. Judgment and Appeal
Sec. 18 Judgment. – The court shall render
judgment within ten (10) days from the time the
petition is submitted for decision. 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; otherwise, the privilege
shall be denied.
 Short period is demanded by the
extraordinary nature of the writ.
Sec. 19 Appeal. – Any party may appeal from
the final judgment or order to the SC under Rule
45. The appeal may raise questions of fact or
law or both.
The period of appeal shall be five (5) working
days from the date of notice of the adverse
judgment.
The appeal shall be given the same priority as
habeas corpus cases.
 Rule 45 appeal herein is different
because it allows questions not only of
law but also of fact to be raised
 Amparo proceedings essentially involves
a determination of facts considering
that its subject is extralegal killings or
enforced disappearances, therefore a
review of errors of fact should be
allowed
 Disposition of appeals shall be
prioritized like habeas corpus cases
Section 20 Archiving and Revival of Cases. –
The court shall not dismiss the petition, but
shall archive it, if upon its determination it
cannot proceed for a valid cause such as the
failure of petitioner or witnesses to appear due
to threats on their lives.
A periodic review of the archived cases shall
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REVIEWER IN REMEDIAL LAW
be made by the amparo court that shall, motu
propio or upon motion by any party, order their
revival when ready for further proceedings. The
petition shall be dismissed with prejudice, upon
failure to prosecute the case after the lapse of
two (2) years from notice to the petitioner of the
order archiving the case.
The clerks of court shall submit to the Office
of the Court Administrator a consolidated list of
archived cases under this Rule, not later than
the first week of January every year.
 This is a liberalized rule on dismissal
due to failure to prosecute
 If the petitioner cannot proceed to prove
their allegations for justifiable reason,
the court will not dismiss the petition
but will archive it
 Parties will be notified before the
archiving, as the reason has to be
justified by a good reason, to be
determined after hearing
 Two years is reckoned from the date of
notice
J. Effects of Other Actions
Section 21 Institution of Separate Actions. –
This Rule shall not preclude the filing of
separate criminal, civil or administrative actions.
 The writ of amparo does not suspend
the filing of criminal, civil or
administrative actions
 Claim for damages should instead file in
a claim in a proper civil action
 If evidence so warrants, the amparo
court may refer the case to the
Department of Justice for criminal
prosecution,
because amparo proceeding is not
criminal in nature and will not
determine the criminal guilt of the
respondent.
Section 22. Effect of Filing of a Criminal
Action. – When a criminal action has been
commenced, no separate petition for the writ
shall be filed. The reliefs under the writ shall be
available by motion in a criminal case.
The procedure under this Rule shall govern the
disposition of the reliefs available under the writ
of amparo.
Section 23 Consolidation. – When a criminal
action is filed subsequent to the filing of a
petition for the writ, the latter shall be
consolidated with the criminal action. After
consolidation, the procedure under this Rule
shall continue to apply to the disposition of the
reliefs on the petition.
Chapter 7: The Writs
 This Rule shall continue to govern the
disposition of the reliefs for amparo
after consolidation.
K. Other Matters
Section 24 Substantive Rights. – This Rule
shall not diminish, increase or modify
substantive rights recognized and protected by
the Constitution.
Section 25 Suppletory Application of the
Rules of Court. – The Rules of Court shall apply
suppletorily insofar as it is not inconsistent with
this Rule.
SPECIAL PROCEEDINGS
Section 26 Applicability to Pending Cases. –
This Rule shall govern cases involving extralegal
killings enforced disappearances or threats
thereof pending in the trial and appellate courts.
III.WRIT OF HABEAS DATA
A. General Principles
Sec. 1 Habeas Data. – The writ of habeas data
is a remedy available to any person whose right
to privacy in life, liberty or security is violated or
threatened by an unlawful act or omission of a
public official or employee, or of a private
individual or entity or information regarding the
person, family, home and correspondence of the
aggrieved party.
B. Aspects of Filing
Sec. 2 Who May File. – Any aggrieved party
may file a petition for the writ of habeas data.
However, in cases of extralegal killings and
enforced disappearance, the petition may be
filed by:
(a) Any member of the immediate family of the
aggrieved party, namely: the spouse,
children and patents; or
(b) Any ascendant, descendant or collateral
relative of the aggrieved party within the
fourth civil degree of consanguinity or
affinity, in default of those mentioned in the
preceding paragraph; or
(c) Any concerned citizen, organization,
association or institution if there is no
known member of the immediate family or
relative of the aggrieved party.
The filing of a petition by the aggrieved party
suspends the right of all other authorized parties
to file similar petitions. Likewise, the filing of the
petition by an authorized party on behalf of the
aggrieved party suspends the right of all others,
observing the order established herein
Sec. 3 Where to File. – The petition may be
filed with the RTC where the petitioner or
respondent resides, or that which has
jurisdiction over the place where the data or
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REVIEWER IN REMEDIAL LAW
information is gathered, collected or stored, at
the option of the petitioner.
The petition may also be filed with the SC or CA
or the Sandiganbayan when the action concerns
public data files of the government offices.
Sec. 5 Docket Fees. – No docket and other
lawful fees shall be required from an indigent
petitioner. The petition of the indigent shall be
docked and acted upon immediately without
prejudice to subsequent submission of proof of
indigency not later than fifteen (15) days from
the filing of the petition.
Sec. 6 Petition. – A certified written petition for
a writ of habeas data should contain:
(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, register 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 form 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.
C. Issuance and Service
Sec. 7 Issuance of the Writ. - Upon the filing
of the petition, the court, justice or judge shall
immediately order the issuance of the writ if on
its face it ought to issue. 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, 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.
The writ shall also set the date and time for
summary hearing of the petition which shall not
be later than ten (10) work days from the date of
its issuance.
Sec. 9 How the Writ is Served. – The writ shall
be served upon the respondent by a judicial
officer or by a person deputized by the court,
justice or judge who shall retain a copy on which
to make a return of service. In case the writ
cannot be served personally on the respondent,
the rules substituted service shall apply.
D. Aspects of Return
Sec. 4 Where Returnable; Enforceable. –
When the writ is issued by a RTC or any judge
Chapter 7: The Writs
thereof, it shall be returnable before such court
or judge.
When issued by the CA or the SB or any of its
justices, it may be returnable before such court
or any justice thereof, or to any RTC of the place
where the petitioner or respondent resides, or
that which has jurisdiction over the place where
the data or information is gathered, collected or
stored.
When issued by the SC or any of its justices, it
may be returnable before such Court or any
justice thereof, or before the CA or the SB or any
of its justices, or to any RTC of the place where
the petitioner or respondent resides, or that
which has jurisdiction over the place where the
data or information is gathered, collected or
SPECIAL PROCEEDINGS
stored.
The writ of habeas data shall be enforceable
anywhere in the Philippines.
Sec. 10 Return; Contents. – The respondent
shall file a verified written return together with
supporting affidavits within five (5) working days
from service of the writ, which period may be
reasonably extended by the Court for justifiable
reasons. The return shall, among other things,
contain the following:
(a) The lawful defenses such as national
security, state secrets, privileged
communications, confidentiality of the
source of information of media and others;
(b) In case if respondent in charge, in
possession or in control of the data or
information sunject of the petition;
(i) A disclosure of the data or information
about the petitioner, the nature of such
data or information, and the purpose for
its collection;
(ii) The steps or actions taken by the
respondent to ensure the security and
confidentiality of the data or
information; and
(iii) The currency and accuracy of the data
or information held; and,
(c) Other allegations relevant to the resolution
of the proceedings. A general denial of the
allegations in the petition shall not be
allowed.
E. Hearing on the Writ
Sec. 12 When Defenses May be Heard in
Chambers. – A hearing in chambers may be
conducted where the respondent invokes the
defense that the release of the data or
information in question shall compromise
national security or state secrets, or when the
data or information cannot be divulged to the
public due to its nature or privileged character.
Sec. 13 Prohibited Pleadings and Motions. –
The following pleadings and motions are
prohibited:
(a) Motion to dismiss;
(b) Motion for extension of time to file return,
opposition affidavit, position paper and
other pleadings;
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REVIEWER IN REMEDIAL LAW
(c) Dilatory motion for a bill of particulars;
(d) Motion for a bill of particulars;
(e) Counterclaim or cross-claim;
(f) Third-party complaint;
(g) Reply;
(h) Motion to declare respondent in default;
(i) Intervention;
(j) Memorandum;
(k) Motion for reconsideration of interlocutory
orders or interim relief orders; and
(l) Petition for certiorari, mandamus or
prohibition against any interlocutory order.
Sec. 14 Summary Hearing. – The hearing on
the 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.
F. Penalties
Sec. 8 Penalty for Refusing to Issue or Serve
the Writ. – A clerk of court who refuses to the
writ after its allowance , or a deputized person
who refuses to serve the same, shall be
punished by the court, justice or judge for
contempt without prejudice to other disciplinary
actions.
Sec. 11 Contempt. – The court, justice or judge
may punish with imprisonment or fine a
respondent who commits contempt by making a
false return, or refusing to make a return; or any
person who otherwise disobeys or resist a lawful
process or order of the court.
Sec. 14 Return; Filing. – In case the
respondent fails to file a return, the court,
justice or judge shall proceed to hear the
petition ex parte, granting the petitioner such
relief as the petition may warrant unless the
court in its discretion requires the petitioner to
submit evidence.
G. Judgment and Appeal
Sec, 16 Judgment. – The court shall render
judgment within ten (10) days from the time the
petition is submitted for decision. If the
allegations in the petition are proven by
substantial evidence, the court shall enjoin the
act complained of, or order the deletion,
destruction, or rectification of the erroneous
data or information and grant other relevant
reliefs as may be just and equitable; otherwise,
the privilege of the writ shall be denied.
Upon its finality, the judgment shall be enforced
by the sheriff or any lawful officers as may be
designated by the court, justice or judge within
five (5) working days.
Sec. 19 Appeal. – Any party may appeal from
the final judgment or order to the Supreme
Court under Rule 45. The appeal may raise
questions of fact or law or both.
The period of appeal shall be five (5) working
Chapter 7: The Writs
days from the date of notice of the judgment or
final order.
The appeal shall be given the same priority as in
habeas corpus and amparo cases.
Sec. 15 Return of Service. – The officer who
executed the final judgment shall, within three
(3) days from its enforcement, make a verified
return to the court. The return shall contain a
fill statement of the proceedings under the writ
and a complete inventory of the database or
information, or documents and articles
inspected, updated, rectified, or deleted with
copies served on the petitioner and the
respondent.
The officer shall state in the return how the
SPECIAL PROCEEDINGS
judgment was enforced and complied with by the
respondent, as well as all objections of the
parties regarding the manner and regularity of
the service of the writ.
H. Return of Judgment, Hearing
Thereon
Sec. 18 Hearing on Officer’s Return. - The
court shall set the return for hearing with due
notice to the parties and act accordingly.
I. Effects of Other Actions
Sec. 20 Institution of Separate Actions. – The
filing of a petition for the writ of habeas data
shall not preclude the filing of separate criminal,
civil or administrative actions.
Sec. 21 Consolidation. – When a criminal
action 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 habeas data, the petition shall be
consolidated with the criminal action.
After consolidation, the procedure under
this Rule shall continue to govern the
disposition of the reliefs in the petition.
Sec. 22 Effect of Filing of a Criminal Action.
– When a criminal action has been commenced,
no separate petition for the writ shall be filed.
The relief under the writ shall be available to an
aggrieved party by motion in a criminal case.
The procedure under this Rule shall govern
the disposition of the reliefs available under the
writ of habeas data.
J. Other Matters
Sec. 24 Suppletory Application of the Rules of
Court. – The Rules of Court shall apply
suppletorily insofar as it is not inconsistent with
this Rule.
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REVIEWER IN REMEDIAL LAW Chapter 7: The Writs

IV. WRIT MATRIX

WHC – Writ of Habeas Corpus WA – Writ of Amparo
WD – Writ of Habeas Data RWA - Rules on the Writ of Amparo
RWD – Rules on Habeas Data SC – Supreme Court
CA - Court of Appeals SB – Sandiganbayan
RTC – Regional Trial Court CoC – Clerk of Court

Habeas Corpus Amparo Habeas Data

Nature, All cases of illegal Involves right to life, liberty Involves the right to privacy
scope, confinement and detention and security violated or in life, liberty or security of
function which any person is threatened with violation the aggrieved party and
deprived of his liberty; or by an unlawful act or covers extralegal killings
rightful custody of any omission of a public official and enforced
person is withheld from the or employee or a private disappearances

SPECIAL PROCEEDINGS
person entitled (102.1) individual or entity
 Actual violation before It covers extralegal killings
writ issues. Note and enforced
Villavicencio v. Lukban disappearances or threats
on applicability of the thereof.
writ in case of
constructive restraint
Limitations May be suspended in cases Shall not diminish, Shall not diminish,
of invasion or rebellion increase or modify increase or modify
when public safety requires substantive rights (RWA substantive rights (RWD
it (Consti. Art. III Sec. 15) Sec. 23) Sec. 23)
Who may file By a petition signed and Petition filed by the Any aggrieved party may
verified by the party for aggrieved party or by any file a petition for the WHD
whose relief it is intended, qualified person or entity in - However, in cases of
or by some person on his the following order: extralegal killings and
behalf (102.3) a) Any member of the enforced
immediate family disappearances, the
b) Any ascendant, petition may be filed by
descendant or collateral (also successive):
relative of the aggrieved a) Any member of the
within the 4th civil degree immediate family of
of consanguinity or the aggrieved
affinity b) Any ascendant,
c) Any concerned citizen, descendant or
organization, association collateral relative of
or institution the aggrieved party
Filing by the aggrieved within the fourth
suspends the right of all civil degree of
others (RWA Sec. 2 ) consanguinity or
affinity, (RWD Sec.
2)
Where filed Granted by: Filed on any day and at any Petition may be filed with
 SC or any member time: RTC where the petitioner or
thereof, on any day and  SB, CA, SC, or any respondent resides or that
at any time justice of such courts which has jurisdiction over
 CA or any member  RTC of place where the the place where the data or
thereof in instances threat, act, or omission information is gathered,
authorized by law was committed or any collected or stored, at the
 RTC or a judge thereof, element occurred (RWA option of petitioner
on any day and at any Sec. 4) If public data files of
time, enforceable only government offices, petition
within his judicial district shall be filed with the SC,
(102.2) CA, or SB (RWD Sec. 3)
 MTC OR FIRST LEVEL
COURTS in the absence
of RTC judges in a
judicial region (section 35
BP 129)

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REVIEWER IN REMEDIAL LAW Chapter 7: The Writs
Habeas Corpus Amparo Habeas Data
Where If SC or CA issued, Writ shall be enforceable Writ shall be enforceable
enforceable anywhere in the Philippines anywhere in the Philippines anywhere in the Philippines
(RWA Sec. 4) (RWD Sec. 3)
If granted by the RTC or
judge thereof, it is
enforceable in any part of
the judicial region (Section
21, BP 129 which modified
the term judicial district in
Section 2, Rule 102 into
judicial region) where the
judge sits
Where If the one that granted the If the one that granted the If issued by:
returnable writ: writ: - The SC or any of its
- Is the SC or CA, or a - Is the SC or any of its justices, before such

SPECIAL PROCEEDINGS
member thereof, justices, before such Court or any justice
returnable before such court or any justice thereof, or CA or SB or
court or any member thereof, or before the SB any of its justices, or the
thereof or an RTC or CA or any of their RTC of the place where
- An RTC, or a judge justices, or to any RTC of the petitioner or
thereof, returnable the place where the respondent resides / has
before himself (102.2) threat, act or omission jurisdiction over the
was committed or any of place where the data or
its elements occurred information is gathered,
- The SB or CA or any of stored or collected
their justices, before - The CA or SB or any of
such court or any justice its justices, before such
thereof, or to any RTC of court or any justice
the place where the thereof, or the RTC
threat, act, or omission (same with scenario: SC
was committed or any of issued and then
its elements occurred returned in RTC)
(RWA Sec. 3) - RTC, returnable before
such court or judge
(RWD Sec. 4)
Docket Fees upon the final disposition Petitioner shall be None for indigent petitioner
of such proceedings the exempted from the Petition shall be docketed
court or judge shall make payment of the docket and and acted upon
such order as to costs as other lawful fees immediately, w/o
the case requires (102.19) - Court, justice or judge prejudice to subsequent
shall docket the petition submission of proof of
and act upon it indigency not later than 15
immediately (RWA Sec 4) days from filing (RWD Sec.
5)

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REVIEWER IN REMEDIAL LAW
Habeas Corpus
Essential Signed and verified either
allegations/ by the party for whose relief
Contents of it is intended or by some
petition person on his behalf,
setting forth:
a) The person in whose
behalf whose the
application is made is
imprisoned or restrained
of his liberty
b) Name of the person
detaining another or
assumed appellation
c) Place where he is
imprisoned or restrained
of his liberty
d) Cause of detention
(102.3)
When proper Court or judge must, when
a petition is presented and
it appears that it ought to
issue, grant the same and
then:
 the clerk of court (CoC)
shall issue the writ under
the seal of the court; or
 in case of emergency, the
judge may issue the writ
under his own hand, and
may depute any officer or
person to serve it (102.5)
Also proper to be issued
when the court or judge
has examined into the
cause of restraint of the
prisoner, and is satisfied
that he is unlawfully
imprisoned (102.5)
How and who Writ may be served in any
serves province by the (a) sheriff,
(b) other proper officer, or
(c) or person deputed by
the court or judge
Service is made by leaving
the original with the person
to whom it is directed and
preserving a copy on which
to make return of service
 If that person cannot be
found, or has not the
prisoner in his custody,
service shall be made on
any other person having
or exercising such
custody (102.7)
Amparo
Signed and verified and
shall allege:
a) The personal
circumstances of the
petitioner
b) Name or appellation and
circumstances of the
respondent
c) The right to life, liberty,
and security violated or
threatened with
violation,
d) The investigation
conducted, if any, plus
circumstances of each
e) The actions and
recourses taken by the
petitioner
f) Relief prayed for
May include a general
prayer for other just and
equitable reliefs (RWA Sec.
5)
Upon the filing of the
petition, the court, justice,
or judge shall immediately
order the issuance of the
writ if on its face it ought to
issue
 CoC shall issue the writ
under the seal of the
court; or
 In case of urgent
necessity, 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
The writ shall be served
upon the respondent by a
judicial officer or by a
person deputized by the
court, justice or judge who
shall retain a copy on
which to make a return of
service
 In case the writ cannot
be served personally
on the respondent, the
rules on substituted
service shall apply
(RWA Sec. 8)
Chapter 7: The Writs
Habeas Data
Verified and written
petition shall contain:
a) Personal circumstances
of petitioner and
respondent
b) Manner the right to
privacy is violated or
threatened and its
effects
c) Actions and recourses
taken by the petitioner
to secure the data or
information
d) The location of the files,
registers, or databases,
SPECIAL PROCEEDINGS
the government office,
and the person in charge
or control
e) The reliefs prayed for
Such other relevant reliefs
as are just and equitable
(RWD Sec. 6)
Upon filing of the petition,
the court, justice, or judge
shall immediately order the
issuance of the writ if on its
face it ought to issue.
 CIC shall issue the writ
under the seal of the
court and cause it to be
served within 3 days from
issuance; or
 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 to
serve it (RWD Sec. 7)
The writ shall be served
upon the respondent by a
judicial officer or by a
person deputized by the
court, justice or judge who
shall retain a copy on
which to make a return of
service
In case the writ cannot be
served personally on the
respondent, the rules on
substituted service shall
apply (RWD Sec. 9)
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REVIEWER IN REMEDIAL LAW Chapter 7: The Writs
Habeas Corpus Amparo Habeas Data
Respondent May or may not be an Respondent is a public A public official or
officer official or employee or employee or a private
private individual or entity individual or entity engaged
in gathering, collecting or
storing data
How The officer to whom the Respondent files the return Respondent files the return
executed and writ is directed shall convey
returned the person so imprisoned
or restrained before:
- the judge allowing the
writ,
- or, in his absence or
disability, before some
other judge of the same
court

SPECIAL PROCEEDINGS
on the day specified in the
writ,
 unless person directed to
be produced is sick or
infirm, and cannot,
without danger, be
brought therein

officer shall then make

due return of the writ, with
the day and cause of the
caption and restraint
according to the command
thereof (102.8)
When to file On the day specified on the Within 5 working days after Same with WA
return writ service of the writ

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REVIEWER IN REMEDIAL LAW
Habeas Corpus
Contents of When the person to be
return produced is imprisoned or
restrained by an officer the
person who makes the
return shall state, and in
other cases the person in
whose custody the prisoner
is found shall state in
writing to the court or
judge before whom the writ
is returnable:
a) Truth of custody/power
over the aggrieved
b) If has custody or power,
or under restraint, the
authority and the cause
thereof, with a copy of
the writ, order,
execution or other
process, if any upon
which the party is held;
c) If the party is in his
custody or power, and is
not produced,
particularly the nature
and gravity of the
sickness or infirmity
d) If he has had the party
in his custody or power,
and has transferred
such custody or
restraint to another,
particularly to whom, at
what time, for what
cause, and by what
authority such transfer
was made. (102.10)
Formalities Return or statement shall
of return be signed and sworn to by
the person who makes it if
the prisoner is not
produced,
 Unless the return is
made and signed by a
sworn public officer in
his official capacity
(102.11)
Chapter 7: The Writs
Amparo Habeas Data
Within 5 working days after a) Lawful defenses such as
service of the writ, the national security, state
respondent shall file a secrets, privileged
verified written return communications,
together with supporting confidentiality of the
affidavits which shall, , source of information of
contain: media etc.
a) Lawful defenses b) In case of respondent in
b) The steps or actions charge, in possession or
taken to determine the in control of the data or
fate or whereabouts of information subject of
the aggrieved party the petition:
c) All relevant information i. A disclosure of the
in the possession of the data or information
respondent pertaining to about the petitioner,
SPECIAL PROCEEDINGS
the threat, act or the nature of such
omission against the data or information,
aggrieved party and the purpose for
d) If the respondent is a its collection
public official or ii. The steps or actions
employee, the return taken by the
shall further state acts: respondent to ensure
i. To verify identity of the security and
aggrieved party confidentiality of the
ii. To recover and data or information
preserve evidence iii. The currency and
iii. To identify and collect accuracy of the data
witness statements or information held
iv. To determine cause, Other allegations relevant
manner, location, and to the resolution of the
time of death or proceeding (RWD Sec.10)
disappearance
v. To identify and
apprehend persons
involved
vi. Bring suspected
offenders before a
competent court (RWA
Sec.9)
… the respondent shall file Respondent shall file a
a verified written return verified written return
together with supporting together with supporting …
affidavits… (RWA Sec. 9) (RWD Sec. 10)
Page 237 of 370
REVIEWER IN REMEDIAL LAW Chapter 7: The Writs
Habeas Corpus Amparo Habeas Data
Penalties  CoC who refuses to issue  CoC who refuses to issue  COC who refuses to issue
the writ after allowance the writ after its the writ after its
For refusing and demand, allowance, or allowance, or
to issue or  Or a person to whom a  a deputized person who  a deputized person who
serve writ is directed, who: refuses to serve the refuses to serve the same,
 neglects/refuses to same,
obey or make return of shall be punished by the
the same according to shall be punished by the court, justice, or judge for
the command thereof, court, justice or judge for contempt without prejudice
 or makes false return, contempt without prejudice to other disciplinary
 or upon demand made to other disciplinary actions (RWD Sec. 8)
For faulty by or on behalf of the actions (RWA Sec. 7)
return prisoner, refuses to The court, justice, or judge
deliver to the person  The court, justice, or may punish with
demanding, within 6 judge may order the imprisonment or fine a

SPECIAL PROCEEDINGS
hours a true copy of respondent who refuses respondent who commits
the warrant or order of to make a return, or who contempt by:
commitment, makes a false return, or  Making a false return or
any person who  Refusing to make a
shall forfeit to the party otherwise disobeys or return; or
aggrieved the sum of resist a lawful process or  Any person who
P1000, recoverable in a order of the court to be otherwise disobeys or
proper action, and may punished for contempt resists a lawful process
also be punished for  Contemnor may be or order of the court
contempt (102.16) imprisoned or imposed (RWD Sec. 11)
a fine (RWA Sec. 16)
Is period of No, not even on highly Yes, by the court, for
return meritorious grounds. justifiable reasons (RWD
extendable? Sec. 10)
Is a general Yes. No prohibition in No, by virtue if A.M. No. No, by virtue of RWD Sec.
denial Rule. 07-9-12-SC 10, last sentence.
allowed?
Defenses not If not raised in return
pleaded deemed waived (RWA Sec
10)
Effect of Court or justice shall Court, judge, or justice
failure to file proceed to hear the petition shall hear the motion ex
return ex parte (RWA Sec. 12) parte, granting the
petitioner such reliefs as
the petition may warrant
Unless the court in its
discretion requires the
petitioner to submit
evidence (RWD Sec. 14)
Nature of Summary. However, the Summary. With possibility
Hearing court, justice, or judge may of preliminary conference
call for a preliminary similar to the writ of
conference to simplify the amparo (RWD Sec. 14)
issues and look at Hearing on chambers may
possibility of obtaining be conducted where
stipulations and respondent invokes the
admissions from the defense of national security
parties. or state secrets, or the data
 Hearing shall be from is of public or privileged
day to day until character (RWD Sec. 12)
completed; same
priority as petitions for
WHC
Date and As specified in the writ Not later than 7 days from Not later than 10 working
time of the issuance of the writ days from the date of
hearing issuance writ

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REVIEWER IN REMEDIAL LAW Chapter 7: The Writs
Habeas Corpus Amparo Habeas Data
Prohibited Motion to dismiss, Motion Same as writ of amparo
pleadings for extension of time to file (RWD Sec. 13)
opposition, affidavit,
position paper and other
pleadings, Dilatory motion
for postponement, Motion
for bill of particulars,
Counterclaims or cross-
claims, Third-party
complaint, Reply, Motion to
declare respondent in
default, Intervention,
Memorandum, Motion for
reconsideration of
interlocutory orders or

SPECIAL PROCEEDINGS
interim relief orders,
petition for certiorari,
mandamus, or prohibition
(RWA Sec.11)
Burden of Preponderance of evidence Establish claims by Substantial evidence
Proof substantial evidence required to prove the
 if respondent is a private allegations in the petition
individual or entity, (RWD Sec. 16)
ordinary diligence
 if public official or
employee, extraordinary
diligence
Presumption Yes. Consonant wit Public official or employee
of Official 102.13, stating that if cannot invoke the
duty warrant of commitment is presumption that official
in pursuance with law, duty has been regularly
serves as prima facie cause performed (RWA Sec. 17)
of restraint
Judgment The court shall render Within 10 days from the
judgment within 10 days time the petition is
from the time the petition submitted for decision
is submitted for (RWD Sec. 16)
decision (RWA Sec. 18)
Appeals Within 48 hours from 5 working days from the 5 working days from the
notice of the judgment of date of notice of adverse date of notice of adverse
final order appealed judgment; Rule 45 filed judgment; Rule 45 filed
with the SC with the SC
Consolidation May be consolidated with a May be consolidated with a
of actions criminal action filed criminal action filed
subsequent to the petition subsequent to the petition
(RWA Sec. 23) (RWD Sec. 21)
Effect of No more separate petition Same as WA
filing shall be filed. Reliefs
criminal available by motion in the
action criminal case (RWA Sec.
22)

Page 239 of 370

REVIEWER IN REMEDIAL LAW Chapter 8: Corporate Rehabilitation

CHAPTER 8: Corporate  Effect on pending rehabilitation

Rehabilitation proceedings
General Rule: any pending petition for
I. PETITION FOR REHABILITATION rehabilitation that has not
II.STAY ORDER undergone the initial hearing
III.
HEARING prescribed under the Interim Rules
IV.CORPORATION PLAN OF of Procedure for Corporate
REHABILITATION Rehabilitation (which are the rules
V. FINAL ORDERS AND APPEALS superseded by the current AM) at
THEREFOM the time of the effectivity (16
January 2009) of this Rule shall be
*this part covers only the general rules of corpo rehab governed by these Rules (Rule 9,
under AM No. 00-8-10 SC. There are more specific
requirements for each of the three types based on the Sec. 2)
party filing it, covered by Rules 4-6 of the said AM. Exception: Unless the court orders

SPECIAL PROCEEDINGS
otherwise to prevent manifest
 Corporate rehabilitation is distinct injustice.
and separate from insolvency
 Rehabilitation shall mean the  Procedure
restoration of the debtor to a position of 1. Petition for rehabilitation with
successful operation and solvency, if it rehabilitation plan and pertinent
is shown that its continuance of annexes included therein
operation is economically feasible and 2. Court issues Stay Order and
its creditors can recover by way of the appoints receiver (within 5 working
present value of payments projected in days from filing)
the plan, more if the corporation 3. Publication (once a week for 2
continues as a going concern than if it weeks) and service of copy to
is immediately liquidated. creditors
It is intended to enable a distressed 4. Creditors pass opposition (15 days
corporation to gain a new lease on before the date of initial hearing)
life and to continue its businesses 5. Initial Hearing (within 45-60 days
as a going concern from the filing of the petition)
Thrust the continuance of corporate life 6. Approval of Rehabilitation plan
and activities in an effort to restore (within 120 days of passing) and
and reinstate the corporation to its termination of stay order
former position of successful 7. Appeals / Termination of
operation and solvency rehabilitation proceedings
Insolvency, on the other hand, is intended
to close and liquidate an insolvent I. PETITION FOR REHABILITATION
corporation
 Venue
Corpo Rehab Insolvency New Rules now explicitly provides (Rule
To enable a distressed To close and liquidate 3, Sec. 2):
corporation to gain a insolvent corporation
1. It should be the office specified in its
new lease on life and
continue business
articles of incorporation or partnership.
Only available to Intended to close 2. Where the principal office of the
corporations, corporations but also corporation, partnership or association
partnerships or available to individuals is registered in the SEC as “Metro
associations and natural persons Manila”, the action must be filed in the
RTC of the city or municipality where
 Jurisdiction over corporate the head office is located.
rehabilitation was vested in the SEC 3. A joint petition by a group of companies
under PD 902-A, as amended shall be filed in the RTC which has
RA 8799 transferred this to regular jurisdiction over the principal office of
courts, and new Rules direct filing the parent company, as specified in its
in the RTCs, depending on the Articles of Incorporation.
operative venue  The Interim Rules only cover
Proceedings under this Rule shall be in rehabilitations that are:
rem and summary and non- (1) Debtor-Rehabilitation (Rule 4)
adversarial. (2) Creditor-Initiated (Rule 5)

Page 240 of 370

REVIEWER IN REMEDIAL LAW
(3) Pre-Negotiated Rehabilitation
(Rule 6)
 The General Provisions (Rule 3, and
what is covered by this part) applies to
all types. Also, certain provisions on
Debtor-Initiated Rehabilitation (Sections
5-12 of Rule 4) are expressly made
applicable to Creditor-Initiated
Rehabilitation (Rule 5).
 Recognition of foreign proceedings:
The provisions on Recognition of
Foreign Proceedings (Rule 7) are not
expressly provided in the Interim
Rules.
Such recognition in new Rules is a new.
Previously, the absence of express
provisions gave rise to many issues
that only delayed the speedy
resolution of the proceedings
New rules on the recognition of
foreign rehabilitation
proceedings – covers cases where
assistance is sought in Philippine
court by a foreign court in
connection with a foreign state
rehabilitation proceeding, or
assistance in both foreign and
domestic proceedings taking place
at the same time
II. STAY ORDER
 If the petition is sufficient in form and
substance, it will issue a Stay Order,
which shall include, among other
things, the appointment of a Receiver
and the suspension of all pending
claims against the corporation under
rehabilitation
 Issued 5 days from petition, generally
containing:
(a) appointing a rehabilitation receiver
and fixing his bond
(b) staying enforcement of all claims
 The new Rules (Rule 3, Sec. 7) expressly
provide that the “issuance of a stay
order does not affect the right to
commence actions or proceedings
insofar as it is necessary to preserve a
claim against the debtor.”
 Management will keep control of the
insolvent company but the receiver will
closely monitor its operations
Consideration of moral character,
knowledge, expertise, lack of conflict
of interest, ability to file bond,
independence, and integrity in the
appointment of a receiver
Upon receipt of stay order, receiver
accepts/declines within 10 days
Chapter 8: Corporate Rehabilitation
Receiver must post bond before entering
his duties, and shall be entitled to
reasonable professional fees and
reimbursement of expenses for such
performance of duty
Submits reports every 3 months or as
often as the court requires
Rehabilitation receiver shall be
considered as an officer of the court.
He shall be primarily tasked to
study the best way to rehabilitate
the debtor and to ensure that the
value of the debtor's property is
reasonably maintained pending the
SPECIAL PROCEEDINGS
determination of whether or not the
debtor should be rehabilitated, as
well as implement the rehabilitation
plan after its approval
Receiver may be removed upon motion
if he (a) fails to perform any of his
functions or on (b) any grounds for
removing a trustee
 The additions to the required contents
of the Stay Order:
New Rules have a proviso that states
that “the stay order shall not cover
claims against letters of credit and
similar security arrangements
issued by a third party to secure the
payment of the debtor’s obligations;
provided, further, that the stay
order shall not cover foreclosure by
a creditor of property not belonging
to a debtor under corporate
rehabilitation; provided, however,
that where the owner of such
property sought to be foreclosed is
also a guarantor or one who is not
solidarily liable, said owner shall be
entitled to the benefit of excussion
as such guarantor”.
Rules simply provide that the order
shall prohibit the debtor from
making any payment of its liabilities
“except as provided in items (e), (f)
and (g) of this Section or when
ordered by the court pursuant to
Section 10 of Rule 3.”
“directing the payment of new loans or
other forms of credit
accommodations obtained for the
rehabilitation of the debtor with
prior court approval”
 Stay order also directs the petitioner to
publish the Order in a newspaper of
general circulation in the Philippines
once a week for two (2) consecutive
weeks.
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REVIEWER IN REMEDIAL LAW
 Petitioner (also directed in stay order)
shall the furnish a copy of the petition
and its annexes, as well as the stay
order, to the creditors named in the
petition and the appropriate regulatory
agencies such as the Securities and
Exchange Commission, the Bangko
Sentral ng Pilipinas, the Insurance
Commission, the National
Telecommunications Commission, the
Housing and Land Use Regulatory
Board and the Energy Regulatory
Commission
The time to file a verified comment by
the creditors was increased to 15
days before the date of the first
initial hearing, from 10 days under
the Interim Rules.
 Stay order does not affect the right to
commence actions or proceedings
insofar as it is necessary to preserve a
claim against a debtor
 Relief from, modification, or termination
of Stay Order.
1. any of the allegations in the petition,
or any of the contents of any
attachment, or the verification
thereof has ceased to be true;
2. a creditor does not have adequate
protection over property securing its
claim;
3. the debtor's secured obligation is
more than the fair market value of
the property subject of the stay and
such property is not necessary for
the rehabilitation of the debtor; or
4. the property covered by the stay
order is not essential or necessary to
the rehabilitation and the creditor’s
failure to enforce its claim will cause
more damage to the creditor than to
the debtor.
5. The “stay order shall be effective
from the date of its issuance until
the approval of the rehabilitation
plan or the dismissal of the petition”
(Rule 3, Sec. 9)
III. HEARING
 Hearing (initial) shall then be conducted
not earlier than 45 days but not later
than 60 days from filing thereof
 Prohibited pleadings.
a. Motion to dismiss;
b. Motion for a bill of particulars;
c. Petition for relief;
d. Motion for extension;
e. Motion for postponement;
f. Third-party complaint;
Chapter 8: Corporate Rehabilitation
g. Intervention;
h. Motion to hear affirmative defenses;
and
i. Any pleading or motion which is
similar to or of like effect as any of
the foregoing.
 The following prohibited pleadings are
added under Rule 3, Sec. 1 of the new
Rules:
1. Motion to hear affirmative defenses;
and
2. Any pleading or motion which is
similar to or of like effect as any of
SPECIAL PROCEEDINGS
the foregoing.
 On the other hand, the following
grounds were removed from the list of
prohibited pleadings:
1. Petition for Relief
2. Memorandum
3. Reply or Rejoinder
4. Motion for New Trial or
Reconsideration. A party may file a
motion for reconsideration of any
order issued by the court prior to
the approval of the rehabilitation
plan. (Rule 8, Sec. 1)
IV. CORPORATION PLAN OF
REHABILITATION
 Rehab plan must include the desired
business targets and the duration and
coverage of its proposed implementation
 Must also lay down material financial
commitments to support the
rehabilitation and the means for their
execution
 The court may revoke such plan within
90 days from approval if it was procured
through fraud
 Court is given 120 days from the filing
of the petition to approve or reject the
rehabilitation plan
 An approved rehab plan may, upon
motion, be altered or modified if such is
necessary to achieve the desired targets
set forth therein
 Effects of rehab plan:
a. The plan and its provisions shall be
binding upon the debtor and all
persons who may be affected
thereby, including the creditors,
whether or not such persons have
participated in the proceedings or
opposed the plan or whether or not
their claims have been scheduled;
b. The debtor shall comply with the
provisions of the plan and shall take
Page 242 of 370
REVIEWER IN REMEDIAL LAW
all actions necessary to carry out
the plan;
c. Payments shall be made to the
creditors in accordance with the
provisions of the plan;
d. Contracts and other arrangements
between the debtor and its creditors
shall be interpreted as continuing to
apply to the extent that they do not
conflict with the provisions of the
plan; and
e. Any compromises on amounts or
rescheduling of timing of payments
by the debtor shall be binding on
creditors regardless of whether or
not the plan is successfully
implemented.
 Rehabilitation plan itself may be
extended, provided the period should
not extend beyond 15 years from the
expiration of the stipulated term
existing at the time of filing the petition,
as expressly stated in the Rules (Rule 3,
Sec. 19)
 The court shall, upon motion or upon
recommendation of the rehabilitation
receiver, terminate the proceeding in
any of the following cases:
a. Dismissal of the petition;
b. Failure of the debtor to submit the
rehabilitation plan;
c. Disapproval of the rehabilitation
plan by the court;
d. Failure to achieve the desired
targets or goals as set forth in the
rehabilitation plan;
e. Failure of the debtor to perform its
obligations under the plan;
f. Determination that the
rehabilitation plan may no longer be
implemented in accordance with its
terms, conditions, restrictions or
assumptions; or
g. Successful implementation of the
rehabilitation plan.
 Under the Interim Rules, the court may,
motu propio or on its own initiative,
terminate the proceedings.
 New rules now requires
motion/recommendation of receiver.
Deleted under the new Rules. (Rule 3,
Sec. 23) Also, the same provision
expressly adds the “dismissal of the
petition” in the enumeration of
grounds for termination of the
proceedings.
- end of Special Proceedings -
Chapter 8: Corporate Rehabilitation
V. FINAL ORDERS AND APPEALS
THEREFROM
 Orders issued by the court under Rule
shall be immediately executory
Petition for review of the order shall not
stay the execution of such unless
restrained or enjoined by the
appellate court
 Appeals shall be in accordance with the
Rules of Court
 No relief can be extended to the party
aggrieved by the court’s order on the
motion through a special civil action for
SPECIAL PROCEEDINGS
certiorari under Rule 65 of the Rules of
Court. Such order can only be elevated
to the Court of Appeals (CA) as an
assigned error in the petition for review
of the decision or order approving or
disapproving the rehabilitation plan.
 An order issued after the approval of
the rehabilitation plan can be reviewed
only through a special civil action for
certiorari under Rule 65 of the Rules of
Court. (Rule 8, Sec. 1)
 Review of decision on Rehabilitation
Plan.
The new Rules now expressly provide
that an order approving or
disapproving a rehabilitation plan
can only be reviewed through a
petition for review to the CA under
Rule 43 of the Rules of Court within
15 days from notice of the decision
or order. (Rule 8, Sec. 2)
 Receiver then submits his final report
after termination of the rehabilitation
proceedings
 Reports - The new Rules now indicate
that the report “shall include, at the
minimum, interim financial statements
of the debtor.” (Rule 3, Sec. 16)
Page 243 of 370