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JURISTS BAR REVIEW CENTER™

SPECIAL PROCEEDINGS
Bar Review Guide 2018
Justice Magdangal M. de Leon

1. Distinction between civil action and special proceedings

a. Civil action – action by which a party sues another for enforcement or protection of
a right, or prevention or redress of a wrong.

b. Special proceeding – remedy by which a party seeks to establish a status, right or a


particular fact.

 Under Section 3, Rule 1 of the 1997 Revised Rules of Court, a civil action is defined as one by which
a party sues another for the enforcement or protection of a right, or the prevention or redress of a
wrong while a special proceeding is a remedy by which a party seeks to establish a status, a right, or
a particular fact. It is then decisively clear that the declaration of heirship can be made only in a
special proceeding inasmuch as the petitioners here are seeking the establishment of a status or
right. (Heirs of Ypon vs. Ricafrente, G.R. No. 198680, July 8, 2013)

2. Nature of special proceedings – initially non-adversarial in nature; in the course of proceedings,


there may be oppositors.

3. Generally, in special proceedings, formal pleadings and a hearing may be dispensed with, and the
remedy [is] granted upon mere application or motion. However, a special proceeding is not always
summary. The procedure laid down in Rule 108 is not a summary proceeding per se . (Republic vs.
Olaybar, G.R. No. 189538, February 10, 2014)

4. A petition for recognition of foreign judgment seeks to establish a status, right or particular fact.
(Fujki vs. Marinay, G.R. No. 196049, June 26, 2013) - Petition was filed by Fujiki to recognize the
Japanese Family Court judgment nullifying the marriage between Marinay and Maekara on the
ground of bigamy because the judgment concerns his civil status as married to Marinay. He has the
personality to file a petition under Rule 108 to cancel the entry of marriage between Marinay and
Maekara in the civil registry on the basis of the decree of the Japanese Family Court .

GENERAL PROVISION

Rule 72
Subject matter and Applicability
of General Rules

 Rules in civil actions applicable to special proceedings

Sec. 2. Applicability of rules of civil actions.


In the absence of special rules, the rules provided for in ordinary actions shall be, as far as
practicable, applicable to special proceedings.

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A. Settlement of Estate of Deceased Persons, Venue and Process

 Art. 777, Civil Code – rights to succession are transmitted from the moment of death of the
decedent.

This is only from the substantive aspect. From the PROCEDURAL aspect, there are certain
procedures that must be observed before actual transmission of the property, but rights of the heirs retroact
from the moment of death.

1. Which court has jurisdiction

 Settlement of estate

The determination of which court exercises jurisdiction over matters of probate depends upon the
GROSS VALUE of the estate of the decedent. Rule 73, Sec. 1 is deemed amended by BP 129, as
amended by RA 7691 (Lim vs. CA, G.R. No. 124715, January 24, 2000]), Hence, the court may be the MTC
or RTC. If more than P300,00.00/P400,00.00 – RTC.

Kinds of settlement based on the FORM of settlement:

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


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

2. Venue in judicial settlement of estates

Rule 73
VENUE AND PROCESS

Sec. 1. Where estate of deceased persons settled.

1. If residing in Philippines at time of death, whether citizen or not, court of PLACE OF


RESIDENCE.

2. If residing in a foreign country – court of ANY PLACE WHERE HE HAD ESTATE.

3. Venue may be assailed only when the estate proceedings are brought up on appeal or if a plain
reading of the records of the case will immediately show that venue was improperly laid.
However, the fact that the estate proceedings are initiated neither in the decedent’s residence
nor where the decedent’s estate is located is not jurisdictional and may be waived if not raised
Uriarte v. Court of First Instance, G.R. Nos. L-21938-39, May 29, 1970).

4. Court first taking cognizance of settlement of estate of a decedent shall exercise jurisdiction TO
THE EXCLUSION of all other courts.
- subject to preferential jurisdiction of court where TESTATE proceedings are filed.

5. Jurisdiction assumed by a court depending on


- place of residence of decedent, or
- location of estate
shall NOT BE CONTESTED in a suit or proceeding,
 except in an appeal from that court, or
 when want of jurisdiction appears in the record

 NOTES:

 Term ―resides‖ refers to ―actual or physical‖ residence, as distinguished from ―legal residence‖ or
―domicile.‖

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There is a distinction between ―residence‖ for purposes of election laws and ―residence‖ for
purposes of fixing the venue of actions. In election cases, ―residence‖ and ―domicile‖ are treated as
synonymous terms, that is, the fixed permanent residence to which when absent, one has the
intention of returning. However, for purposes of fixing venue under the Rules of Court, the
―residence‖ of a person is his personal, actual or physical habitation, or actual residence or place of
abode, which may not necessarily be his legal residence or domicile provided he resides therein with
continuity and consistency. Hence, it is possible that a person may have his residence in one place
and domicile in another. (San Luis vs. San Luis, G.R. No. 133743, February 6, 2007)

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

3. Where two proceedings filed, one intestate, the other testate – illustrative cases on which courts
should have ―jurisdiction‖:

 ROBERTS VS. LEONIDAS (G.R.No. L-55509, April 27, 1984) – intestate in CFI Manila
Branch 20, testate (reprobate) in CFI Manila, Branch 38. Ruling: priority to second branch of
same court (CFI Manila). a. Probate of will MANDATORY- anomalous that estate of person who
died testate should be settled in intestate proceedings. b. Intestate case should be
CONSOLIDATED with testate proceeding - Judge assigned to testate proceeding should
continue hearing the two cases.

 URIARTE VS. CFI OF NEGROS OCC. (G.R. Nos. L-21938-39, May 29, 1970) – intestate in
Negros court, testate in Manila court. Ruling: priority to first court. Petitioner in Manila court
should have submitted will for probate to Negros court, either in separate special proceeding or
motion. Testate proceeding takes precedence over intestate proceeding. If in the course of
intestate proceeding, it is found that decedent left a will, proceeding for probate of will should
REPLACE intestate proceeding.

 CUENCO VS. CA (G.R. No.L-24742, October 26, 1973) – intestate in Cebu court, testate in
QC court. Ruling: priority to second court. First court, upon learning that petition for probate has
been presented in another court, may DECLINE TO TAKE COGNIZANCE of and HOLD IN
ABEYANCE petition before it, and instead DEFER to second court. If the will is admitted to
probate, it will definitely DECLINE to take cognizance.

Explain difference between Uriarte and Cuenco rulings – In Uriarte, there was showing that
petitioner in probate proceeding knew before filing of petition in Manila that there was already intestate
proceeding in Negros.

PRESUMPTION OF DEATH

Sec. 4. For purposes of settlement of his estate, a person shall be


presumed dead if absent and unheard of for the periods fixed in the Civil
Code. If the absentee turns out to be alive, he shall be entitled to the balance of
his estate after payment of all his debts. The balance may be recovered by
motion in the same proceeding.

Under the Civil Code, absence of seven years, it being unknown whether or not the absentee lives, is
sufficient for the presumption of death to arise for all purposes except for succession. (Article 390, Civil
Code)

General Rule - A person is dead for the purpose of settling his estate if he has been missing for ten (10)
years. (Article 390, Civil Code )

Exception - However, if the absentee disappeared after the age of 75 years, an absence of five (5) years is
sufficient for the opening of succession.

The Following Persons Would be Considered Absent Even For the Purpose of Opening Succession
After Just Four (4) Years: (Article 391, Civil Code)

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1. A person on board a vessel lost during a sea voyage, or an airplane which is missing.
2. A person in the armed forces who has taken part in war.
3. A person who has been in danger of death under other circumstances.

General Rule - No Independent action for a declaration of presumptive death is allowed.

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

3. Extent of jurisdiction of probate court

 Probate court is of limited jurisdiction

1. Probate court cannot adjudicate or determine title to properties claimed to be a part of the
estate and equally claimed as belonging to outside parties.

2. It can only determine whether or not they should be included in the inventory or list of
properties to be administered by the administrator.

3. Probate court can only pass upon questions of title provisionally for the purpose of
determining whether a certain property should or should not be included in the inventory.

4. Parties have to resort to an ordinary action for final determination of conflicting claims of
title.

 Separate civil action for quieting of title - where issue of ownership of properties excluded from the
inventory is finally determined (Pobre vs. Gonong, 148 SCRA 553 [1987]).

4. Powers and duties of probate court

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

 It is within the jurisdiction of the probate court to approve the sale of properties of a deceased
person by his prospective heirs before final adjudication; to determine who are the heirs of the
decedent; the recognition of a natural child; the status of a woman claiming to be the legal wife of
the decedent; the legality of disinheritance of an heir by the testator; and to pass upon the validity of
a waiver of hereditary rights (Romero vs. Court of Appeals, G.R. No. 188921, April 18, 2012)

 Petitioners alleged that they are the lawful heirs of Magdaleno and based on the same, prayed
that the Affidavit of Self-Adjudication executed by Gaudioso be declared null and void and that
the transfer certificates of title issued in the latter’s favor be cancelled. While the foregoing
allegations, if admitted to be true, would consequently warrant the reliefs sought for in the said
complaint, the rule that the determination of a decedent’s lawful heirs should be made in the
corresponding special proceeding precludes the RTC, in an ordinary action for cancellation of
title and reconveyance, from granting the same. By way of exception, the need to institute a
separate special proceeding for the determination of heirship may be dispensed with for the
sake of practicality, as when the parties in the civil case had voluntarily submitted the issue to
the trial court and already presented their evidence regarding the issue of heirship, and the RTC
had consequently rendered judgment thereon, or when a special proceeding had been instituted
but had been finally closed and terminated, and hence, cannot be re-opened. (Heirs of Ypon vs.
Ricafrente, G.R. No. 198680, July 8, 2013)

 Matters relating to the rights of filiation and heirship must be ventilated in the proper probate court in
a special proceeding instituted precisely for the purpose of determining such rights. ( Joaquino vs.
Reyes, G.R. No. 154645, July 13, 2004, 434 SCRA 260).

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 Questions as to who are the heirs of the decedent, proof of filiation of illegitimate children and the
determination of the estate of the latter and claims thereto should be ventilated in the proper probate
court or in a special proceeding instituted for the purpose and cannot be adjudicated in the instant
ordinary civil action which is for recovery of ownership and possession. ( Agapay vs. Palang, G.R.
No. 116668, July 28, 1997)

 There appears to be only one parcel of land being claimed by the contending parties as their
inheritance from Juan Gabatan. It would be more practical to dispense with a separate special
proceeding for the determination of the status of respondent as the sole heir of Juan
Gabatan, specially in light of the fact that the parties to Civil Case No. 89-092, had voluntarily
submitted the issue to the RTC and already presented their evidence regarding the issue of heirship
in these proceeding. (Gabatan vs. Court of Appeals, G.R. No. 150206, March 13, 2009)

 Another case where there was no need for a special proceeding for the determination of heirship –
When a sole heir filed a suit to cancel tite in the name of the adverse party over land belongin to her
uncle, the Supreme Court held that no separate judicial declaration of heirship is necessary for a
sole heir to assert his or her right to the property of the deceased. (Capablanca vs. Heirs of Pedro,
G.R. No. 22414, June 28, 2017)

 The jurisdiction of the probate court extends to matters incidental or collateral to the settlement and
distribution of the estate, such as the determination of the status of each heir and whether the
property in the inventory is conjugal or exclusive property of the deceased spouse. (Agtarap vs.
Agtarap, G.R. No. 177099, June 8, 2011)

 In the exercise of probate jurisdiction. the court may issue warrants and process necessary to
compel the attendance of witnesses or to carry into effect their orders and judgments, and all other
powers granted to them by law (Rule 73, Sec. 3).

B. Summary Settlement of Estates


1. Extrajudicial settlement by agreement between heirs, when allowed

Rule 74, Sec. 1. Extrajudicial settlement by agreement between the heirs

 REQUISITES OF EXTRAJUDICIAL SETTLEMENT

1. Decedent dies intestate


2. No outstanding debts at time of settlement*
3. Heirs all of legal age or minors represented by judicial guardians or legal representatives
4. Settlement made in public instrument duly filed with Register of Deeds
5. Publication in newspaper of general circulation in the province once a week for 3 consecutive
weeks
6. Bond equivalent to value of personal property posted with Register of Deeds**

* Presumed that decedent left no debts if no creditor filed petition for letters of administration within 2
years after death of decedent.

** Bond required only when personal property is involved in the extrajudicial settlement. Real estate is
subject to lien in favor of creditors, heirs or other persons for 2 years from distribution of estate,
notwithstanding any transfers of real estate that may have been made (Sec. 3, Rule 74).

 RATIONALE for Sec. 1, Rule 74 – when person dies without having obligations to be paid,
his heirs are not bound to submit property for judicial administration, which is always long and costly
(Utulo vs. Pasion, 66 Phil. 302).

 IF HEIRS DISAGREE – ordinary action for partition.

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 IF ONLY ONE HEIR – affidavit of self-adjudication.

 FILING OF EXTRAJUDICIAL SETTLEMENT WITH REGISTER OF DEEDS REQUIRED –


whether by public instrument, affidavit, stipulation in pending action for partition.

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

 DESPITE ITS PUBLICATION, extrajudicial settlement NOT BINDING on any person who
has not participated therein or who had no notice thereof (Sec. 1, last par., Rule 74;
Sampilo vs. CA, 101 Phil. 71 [1958]).

The publication of the settlement does not constitute constructive notice to the heirs who
had no knowledge or did not take part in it because the same was notice after the fact of
execution. The requirement of publication is geared for the protection of creditors and was never
intended to deprive heirs of their lawful participation in the decedent’s estate. (Spouses Tiro vs. Heirs of
Cuyos, G.R. No. 161220, July 30, 2008)

2. Two-year prescriptive period

 Action to annul deed of extrajudicial settlement – Sec. 4, Rule 74 provides a two year
prescriptive period (1) to persons who have participated or taken part or had notice of the
extrajudicial partition, and (2) when the provisions of Sec. 1 of Rule 74 have been strictly complied
with – that all persons or heirs of the decedent have taken part in the extrajudicial settlement or
are represented by themselves or through guardians (Pedrosa vs. CA, 353 SCRA 620 [2001]).

3. Affidavit of self-adjudication by sole heir

Adjudication by an heir of the decedent’s entire estate to himself by means of an affidavit is allowed
only if he is the sole heir to the estate (Delgado vda. de De la Rosa vs. Heirs of Marciana Rustia vda. de
Damian, 480 SCRA 334 [2006]).

Respondent, believing rightly or wrongly that she was the sole heir to Portugal’s estate, executed on
February 15, 1988 the questioned Affidavit of Adjudication under the second sentence of Rule 74,
Section 1 of the Revised Rules of Court. Said rule is an exception to the general rule that when a
person dies leaving a property, it should be judicially administered and the competent court should
appoint a qualified administrator, in the order established in Sec. 6, Rule 78 in case the deceased left no
will, or in case he did, he failed to name an executor therein. (Portugal vs. Portugal-Beltran, G.R.No.
155555, August 16, 2005)

Since Josefa Delgado had heirs other than Guillermo Rustia, Guillermo could not have validly
adjudicated Josefa’s estate all to himself. Rule 74, Section 1 of the Rules of Court is clear. Adjudication
by an heir of the decedent’s entire estate to himself by means of an affidavit is allowed only if he is the
sole heir to the estate. (In the Matter of the Intestate Estate of Delgado, G.R. No. 155733, January 27,
2006

4. Remedies of aggrieved parties after extrajudicial settlement of estate

The remedy of an heir who did not participate in, or had no knowledge of, the extrajudicial partition is to
file an action for reconveyance.

Prescriptive period for non-participants


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

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The period starts from issuance of title over the property (Marquez vs. CA, 300 SCRA 653 [1998]).
Constructive trusts under Art. 1456 are established to prevent unjust enrichment. In Marquez, husband
executed affidavit of self-adjudication without including the children

The ruling in Gerona vs. De Guzman, 11 SCRA 153 (1964), cited in Pedrosa vs. CA,, that prescriptive
period for non-participants is 4 years from discovery of fraud, i.e., when deed was filed with Register of
Deeds and new title issued, is not applicable, because the same was based on the old Code of Civil
Procedure (Sec. 43, which governed prescription). The Gerona doctrine was abandoned in Amerol vs.
Bagumbaran, 154 SCRA 396 (1987) and reiterated in Caro vs. CA, 180 SCRA 401 (1989) and Marquez vs.
CA.

Action to recover property not imprescriptible:


However, the action to recover property held in trust prescribes after 10 years from the time the cause of
action accrues, which is from the time of actual notice in case of unregistered deed. In this case, Eutropia,
Victoria and Douglas claimed to have knowledge of the extrajudicial settlement with sale after the death of
their father, Enrique, in 1994 which spouses Uy failed to refute. Hence, the complaint filed in 1997 was well
within the prescriptive period of 10 yea
(Neri vs. Heirs of Uy, G.R. No. 194366, October 10, 2012)

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

What is the effect of the issuance of TCTs in the name of petitioners? In other words, does the issuance of
the certificates of titles convert the action to one of reconveyance of titled land which, under settled
jurisprudence, prescribes in ten (10) years?
Precedents say it does not; the action remains imprescriptible, the issuance of the certificates of titles
notwithstanding.
(Macababbad vs. Masirag, G.R. No. 161237, January 14, 2009)

Additional exception to prescription of actions – when plaintiff, the legal owner, and not the defendant
registered owner, is in possession of the land to be reconveyed. Said action, when based on fraud, is
imprescriptible as long as the land has not passed to an innocent purchaser for value (Heirs of Saludares
vs. CA, 420 SCRA 54).

Remedy of excluded heir when land has passed to an innocent purchaser for value – claim for damages
against the heirs responsible for the fraudulent exclusion.
(PEZA vs. Fernandez, G.R. No. 138971, June 6, 2001)

C. Production and Probate of Will


Rule 75
Production of will,
Allowance of will necessary

1. Allowance of will is conclusive as to its due execution.

2. Probate of will (special proceeding to establish the validity of a will) is MANDATORY.


Probate of the will is mandatory (Sec. 1, Rule 75) and therefore takes precedence over intestate
proceedings.
1. The law enjoins probate of the will and public policy requires it. Unless will is probated and notice
given to the whole world, right of a person to dispose of his property by will may be rendered
nugatory (Maninang vs. CA, 114 SCRA 478 [1982]).

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

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

3. Presentation of will cannot be dispensed with on the ground of ESTOPPEL because public policy
requires that a will should be probated (Fernandez vs. Dimaguiba, 21 SCRA 428 [1967]).

1. Nature of probate proceeding

 PROBATE COURT DOES NOT LOOK INTO INTRINSIC VALIDITY

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

a. due execution – voluntariness


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

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

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

EXCEPTIONS:

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

2. Probate court may only disregard passing on extrinsic validity of will where intrinsic validity apparent
on face of will (Maninang vs. CA, supra)

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

4. In Nuguid, court ruled that will was intrinsically invalid as it completely preterited parents of the
testator.

a. Preterition – annuls institution of heirs


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

2. Who may petition for probate; persons entitled to notice

Rule 76
Allowance or Disallowance of Will

Sec. 1. Who may petition for allowance of will.

 WHO

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

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

 WHERE – court having jurisdiction

 WHAT – petition to have will allowed whether:

a. will in possession of petitioner or not


b. will lost
c. will destroyed

JURISDICTION HOW ACQUIRED

a. Attaching of mere copy of will sufficient – annexing of original of will to the petition is not
jurisdictional requirement.
b. Delivery of will sufficient even if no petition filed – under Sec. 3, Rule 76, ―when a will is
delivered to the court,‖ court could motu proprio take steps to fix time and place for proving the will, issue
corresponding notices.

 Only known heirs, legatees and devisees entitled to personal notice

Rule 76, Sec. 4.


Heirs, devisees, legatees and executor to be notified by mail or personally.

1. Notice of time and place of hearing should be addressed to

a. designated or known heirs, legatees and devisees


b. person named as executor (if he is not petitioner)
c. person named as co-executor not petitioning

2. residing in the Philippines


3. at their places of residence, if known
4. Personal service – at least 10 days before hearing
5. Mailed service – at least 20 days before hearing
6. IF TESTATOR asks for allowance of his own will – notice shall be sent only to his COMPULSORY
HEIRS.

 Notice to Designated Heirs, Legatees and Devisees Jurisdictional – when they are known AND
their places of residence are known (De Arranz vs. Galing, 161 SCRA 628).

Notice is required to be personally given to known heirs, legatees, and devisees of the testator.
[Sec. 4, Rule 76, Rules of Court]. A perusal of the will shows that respondent was instituted as the sole
heir of the decedent. Petitioners, as nephews and nieces of the decedent, are neither compulsory nor
testate heirs who are entitled to be notified of the probate proceedings under the Rules. Respondent had
no legal obligation to mention petitioners in the petition for probate, or to personally notify them of the
same. (Alaban vs. CA, G.R. No. 156021, September 23, 2005).

D. Allowance or Disalllowance of will

1. Contents of petition for allowance of will

Rule 76, Sec. 2. Contents of petition.

a. Jurisdictional facts:
1. that a person has died leaving a will; and
2. the testator at the time of death is a resident within the territorial jurisdiction of the court; or
3. the testator is a non-resident at the time of death but left property within the territorial jurisdiction
of the court
b. names, ages and residences of the heirs, legatees and devisees of the testator or decedent

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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 thereof

Rule 76, Sec. 3. Court to appoint time for proving the will. Notice thereof to be published.

Notice and Hearing; Publication

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

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

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

Probate of Will is In Rem

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


whole world.

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

Probate JURISDICTIONAL

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

Rule 76, Sec. 5. Proof of hearing. What sufficient in absence of contest.

 EVIDENCE INTRODUCED AT PROBATE OF WILL

1. Publication

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

3. Testimony of subscribing witnesses


 Uncontested – one witness sufficient
 Contested – all subscribing witnesses and
notary (wills executed under Civil Code)
other witnesses (under certain conditions)

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

5. Holographic will – testator himself as petitioner


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

 Substantial Compliance Rule

If will executed in substantial compliance with formalities of law, and possibility of bad faith obviated
– it should be admitted to probate (De Jesus vs. De Jesus, 134 SCRA 245).

2. Grounds for disallowing will

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Rule 76, Sec. 9. Grounds for disallowing will.

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

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

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

 Grounds for Disallowance of Will Exclusive

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

Example: If testator fails to sign and date some dispositions in holographic will, it affects only the validity
of the dispositions, but not the whole will. Exc. If unauthenticated alterations, cancellations or insertions are
made on the DATE of will of on testator’s SIGNATURE (Ajero vs. CA, supra).

3. Reprobate; Requisites before will proved outside allowed in the Philippines; effects of probate

Rule 77
Allowance of will proved outside of philippines
and administration of estate thereunder

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

 EVIDENCE NECESSARY FOR REPROBATE OF WILL or will probated outside the Philippines:

1. due execution of will in accordance with foreign laws


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

 Reprobate of will

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

A person who seeks to reprobate a will executed in a foreign country must prove the laws and
procedure of that foreign country on wills. As foreign laws do not prove themselves and our courts do not
take judicial notice of them, the petitioner in the probate proceedings has the burden to prove introduce
evidence of such foreign law. (Ancheta vs. Guersey-Dalaygon, G.R. No. 139868, June 8, 2006).

Courts will presume that the foreign law is the same as local law following the doctrine of processual
presumption in the absence of proof of the applicable foreign law. Where a foreign law is not pleaded or,

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even if pleaded, is not proved, the presumption is that the foreign law is the same as Philippine law.( ATCI
Overseas Corporation vs. Etchin, G.R. No. 178551, October 11, 2010)

PUBLICATION AND NOTICE REQUIRED


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

EFFECT OF REPROBATE
When the will is allowed, it shall have the same effect as if originally proved and allowed in such
court (Rule 77, Sec. 3).
The letters testamentary or of administration granted shall extend to all of the estate of the testator
in the Philippines. After payment of just debts and expenses of administration, the estate shall be
disposed of according to such will, so far as such will may operate upon it (Rule 77, Sec. 4).

E. Letters Testamentary and of Administration


Rule 78
Letters testamentary and of administration, when and to whom issued

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

 EXECUTOR – person named in the will to administer decedent’s estate to carry out provisions
thereof
 ADMINISTRATOR – person appointed by the court to administer the estate
 Administrator need not be an heir – can be a stranger to the deceased, such as a creditor.

GROUNDS FOR INCOMPETENCE

1. Minority
2. Non-residence
3. Unfitness
a. drunkenness
b. incompetence
c. want of understanding
d. want of integrity
e. conviction of offense involving moral turpitude (anything done contrary to justice, honesty, good
morals)

 Courts may refuse to appoint a person as executor or administrator on ground of


UNSUITABLENESS – adverse interest or hostile to those immediately interested in the
estate (Lim vs. Diaz-Maillares, 18 SCRA 371 [1966]).

Failure to file an income tax return‖ is not a crime involving moral turpitude because the mere
omission is already a violation regardless of the fraudulent intent or willfulness of the individual. (Republic
vs. Marcos, G.R. No. 130371, August 4, 2009)

LETTERS TESTAMENTARY ISSUED WHEN WILL ALLOWED (Rule 78, Sec. 4)


When the will is proved and allowed, the court shall issue LETTERS TESTAMENTARY thereon to
the person named as EXECUTOR therein, if he is --
a. competent
b. accepts the trust and
c. gives bond

1. When and to whom letters of administration granted

Rule 78, Sec. 6. When and to whom letters of administration granted

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 When administration granted

1 No executor named in will ) letters of administration


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

2. Order of preference

Order of preference in appointment of administrator (Rule 78, Sec. 6)

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


2. next of kin
3. person requested by spouse or next of kin
4. principal creditors
 if spouse or next of kin is incompetent or unwilling or
 neglects for 30 days after death of decedent to apply for administration, or to request that
administration be granted to some other person

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

The order of preference in the appointment of a regular administrator as provided in the afore-quoted
provision does not apply to the selection of a special administrator. The preference under Section 6, Rule
78 of the Rules of Court for the next of kin refers to the appointment of a regular administrator, and not of a
special administrator, as the appointment of the latter lies entirely in the discretion of the court, and is not
appealable. Not being appealable, the only remedy against the appointment of a special administrator is
Certiorari under Rule 65 of the Rules of Court. (Tan vs. Gedorio, Jr., G.R. No. 166520, March 14, 2008)

 Interest in estate as principal consideration

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

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

The order of preference does not rule out the appointment of co-administrators, especially in cases
where justice and equity demand that opposing parties or factions be represented in the management of the
estate.

3. Opposition to issuance of letters testamentary; simultaneous filing of petition for


administration

Rule 79
Opposing issuance of letters testamentary, petition and contest
for letters of administration

 LETTERS TESTAMENTARY – issued to executor

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


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

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

Sec. 1. Opposition to issuance of letters testamentary. Simultaneous petition for administration

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

Meaning of ―interested person” – one who would be benefited by the estate (heir), or one who has
a claim against the estate (creditor). Interest must be MATERIAL and DIRECT, not merely indirect or
contingent (Sagunsin vs. Lindayag, 6 SCRA 874).

An ―interested person‖ has been defined as one who would be benefited by the estate, such as
an heir, or one who has a claim against the estate, such as a creditor. The interest must be material and
direct, and not merely indirect or contingent (San Luis vs. San Luis, G.R. No. 133743, February 6, 2007)

Where the right of the person filing a petition for the issuance of letters of administration is
dependent on a fact which has not been established or worse, can no longer be established, such
contingent interest does not make her an interested party. (Tayag ve. Tayag-Gallor, G.R. No. 174680,
March 24, 2008)

Sec. 2 Contents of petition for letters of administration

The jurisdictional facts required in a petition for issuance of letters of administration are: (1) the death of
the testator; (2) residence at the time of death in the province where the probate court is located; and (3) if
the decedent was a non-resident, the fact of being a resident of a foreign country and that the decedent has
left an estate in the province where the court is sitting. (Garcia vda. de Chua vs. Court of Appeals, G.R. No.
116835 March 5, 1998)

PUBLICATION AND NOTICE REQUIRED (Sec. 3, Rule 79)

Publication and notice of hearing (per Sec. 3, Rule 76) jurisdictional.

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

4. Powers and duties of executors and administrators; restrictions on their powers

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

5. Appointment of special administrator

Rule 80
Special administrator

 WHEN IS SPECIAL ADMINISTRATOR APPOINTED

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


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

The appointment of a special administrator is justified only when there is delay in granting letters,
testamentary (in case the decedent leaves behind a will) or administrative (in the event that the decedent

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leaves behind no will, as in the Petition at bar) occasioned by any cause. The principal object of the
appointment of a temporary administrator is to preserve the estate until it can pass into the hands of a
person fully authorized to administer it for the benefit of creditors and heirs. (Tan vs. Gedorio, Jr., G.R. No.
166520, March 14, 2008)

 ORDER APPOINTING SPECIAL ADMINISTRATOR NOT APPEALABLE

Order appointing special administrator interlocutory in nature and mere incident in the judicial
proceedings, hence not appealable. The remedy is a petition for certiorari. (Manungas vs. Loreto, G.R.
No. 193161, August 22, 2011)

6. Grounds for removal of administrator

Rule 82
Revocation of Administration,Death,
Resignation and Removal of Executors
and Administrators

Sec. 1. Administration revoked if will discovered. Proceedings thereon.

1. If after letters of administration have been granted as if decedent died intestate, his will is PROVED
AND ALLOWED by the court,
2. letters of administration shall be REVOKED and all powers thereunder cease.
3. Administrator shall forthwith
a. surrender letters to the court and
b. render his account within such time as the court directs
4. Proceedings for issuance of letters testamentary or of administration will follow.

Sec. 2. Court may remove or accept resignation of executor or administrator.


Proceedings upon death, resignation, or removal.

Concerning complaints against the general competence of the administrator, the proper remedy is
to seek the removal of the administrator in accordance with Section 2, Rule 82. While the provision is silent
as to who may seek with the court the removal of the administrator, a creditor, even a contingent one, would
have the personality to seek such relief. After all, the interest of the creditor in the estate relates to the
preservation of sufficient assets to answer for the debt, and the general competence or good faith of the
administrator is necessary to fulfill such purpose. (Hilado vs. Court of Appeals, G.R. No. 164108, May 8,
2009)

F. Claims Against the Estate

Rule 86
Claims against Estate

 Notice to creditors – immediately after granting letters testamentary or of administration,


court shall issue
- NOTICE requiring all persons having MONEY CLAIMS against the estate
- to FILE them in the office of the clerk of court (Sec. 1).

1. Time within which claims shall be filed; exception

 Time for filing claims – not more than 12 months nor less than 6 months after date
of FIRST PUBLICATION of the notice (Sec. 2).

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

At any time before order of distribution is entered, creditor who failed to file his claim within the time
set may move to be allowed to file such claim. Court may for good cause shown and on such terms as
are just allow such claim to be filed within a period NOT EXCEEDING ONE MONTH.

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One month does not commence from expiration of the original period for filing claims. It begins from
the date of the order of the court allowing said filing (Barredo vs. CA, 6 SCRA 620).

2. Statute of Non-Claims

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

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

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

 Publication of notice to creditors (Sec. 3)


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

1. publication of said notice 3 weeks successively in newspaper of general circulation in the province,
and
2. posting for the same period in
 4 public places in the province and
 2 public places in the municipality where decedent last resided

PUBLICATION OF NOTICE TO CREDITORS CONSTRUCTIVE NOTICE TO THE WHOLE WORLD

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

 Claims that must be filed (Sec. 5)

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

 Implied contract includes quasi contract based on solution indebiti (unjust enrichment) -
Metrobank’s claim against Chua’s estate is based on a quasi-contract. It should reimburse
Metrobank in case Metrobank would be held liable in the third-party complaint filed against it by
AMC. (Metropolitan Bank & Trust Company vs. Absolute Management Corporation, G.R. No.
170498, January 9, 2013

 Money claims against a deceased debtor

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

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

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Exception – may be set forth as COUNTERCLAIMS in any action executor or administrator may
bring against the claimants.(Rule 86, Sec. 5)

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

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

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

 Claims arising after his death cannot be presented EXCEPT


- funeral expenses
- expenses for last sickness

N.B. Claims arising after decedent’s death may be allowed as expenses of administration.

 Execution of final judgment not proper remedy but filing of claim

When judgment in a civil case has become final and executory, execution not proper remedy to
enforce payment; claimant should PRESENT CLAIM before probate court (Domingo vs. Garlitos, June 29,
1963).

 Mandamus not available – immediate payment of claim by the administrator is NOT A MATTER
OF RIGHT (Echaus vs. Blanco, 179 SCRA 704 [1985]).

 Ordinary action for collection not allowed (Nacar vs. Nistal, 119 SCRA 29)

 Judgment appealable (Sec. 13) – judgment of the court approving or disapproving a claim is
APPEALABLE as in ordinary actions

3. Claim of executor or administrator against the estate

Rule 86, Sec. 8


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

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

SOLIDARY OBLIGATION OF DECEDENT AND MORTGAGE DEBT DUE FROM THE ESTATE
Where the obligation of the decedent is solidary with another debtor, the claim shall be filed against the
decedent as if he were the only debtor. without
prejudice to the right of the estate to recover contribution from the other debtor. In a joint obligation of the
decedent, the claim shall be confined to the portion belonging to him. (Sec. 6)

Creditor Holding a Claim against the Deceased Secured by Mortgage or Other Collateral Security –
He may

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1. Abandon the security and prosecute his claim against the estate and share in the general distribution
of the assets of thereof;
2. Foreclose his mortgage or realize upon his security by action in court, making the executor or
administrator a party defendant and if there is judgment for deficiency, he may file a contingent claim
against the estate within the statute of non-claims;
3. Rely solely on his mortgage and foreclose ( extrajudicial) the same at anytime within the period of the
statute of limitations but he cannot be admitted as creditor and shall not receive in the distribution of the
other assets of the estate. (Sec. 7)
Under the third option, the mortgagee has no right to file a claim for any deficiency
(PNB vs. CA, G.R. No. 121597, June 29, 2001)

 These remedies are distinct, independent and mutually exclusive from each other; thus, the
election of one effectively bars the exercise of the others.The plain result of adopting the last
mode of foreclosure is that the creditor waives his right to recover any deficiency from the estate.
Section 7, Rule 86 governs the parameters and the extent to which a claim may be advanced
against the estate, whereas Act No. 3135 sets out the specific procedure to be followed when the
creditor subsequently chooses the third option – specifically, that of extra-judicially foreclosing real
property belonging to the estate. (Maglasang vs. Manila Banking Corporation, G.R. No. 171206,
September 23, 2013)

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

4. Payment of debts

Rule 88
Payment of debts of the estate

Sec. 1. Debts paid in full if estate sufficient

If
a) after hearing all money claims against the estate, and
b) after ascertaining the amount of such claims
there are sufficient assets to pay the debts,
the executor or administrator shall pay the same
within the time limited for that purpose

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

Sec. 7. Order of payment if estate insolvent

If assets which can be appropriated for payment of debts are not sufficient, the executor or administrator
shall pay the debts against the estate, observing preference of credits under Arts. 1059, 2239-2251 of Civil
Code

If Estate is Sufficient

General rule: The payment of the debts of the estate must be taken (by order of preference):
1. From the portion or property designated in the will;
2. From the personal property, and
3. From the real property.
If there is still a deficiency, it shall be met by contributions by devisees, legatees, or heirs who have been
in possession of portions of the estate BEFORE debts and expenses have been settled and paid.(Secs. 1-
3, 6).

The SAME principles apply if the debt of the estate is in another country.

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

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

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

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

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

Compare to: Rule 88, Secs. 15 & 16


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

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

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

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

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

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

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

Payment of Contingent Claims (Secs. 4 & 5)

G. Actions by and against Executors and Administrators

Rule 87
Actions by and against executors
and administrators

1. Actions that may be brought against executors and administrators

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

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

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

2. ALLOWED – actions which survive


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

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

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

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

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

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

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

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

 When heirs may file action in court

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

Exceptions:

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

Sec. 8. Embezzlement before letters issued.

 Double value rule

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


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

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H. Distribution and Partition
Rule 90
Distribution and partition of estate

Sec. 1. When order for distribution of residue made

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

Exception: distribution before payment of obligations provided distributees give BOND


conditioned for payment thereof within such time as court directs.

1. Project of partition

WHEN PROBATE COURT LOSES JURISDICTION

Project of partition – Towards the end of the proceedings in a settlement of estate petition, a project of
partition is usually prepared and presented to the court. The project of partition is a PROPOSAL for
distribution of the hereditary estimates and determines the persons entitled thereto (Moran, Comments on
the Rules of Court, 1997 ed., Vol. 3, pp. 688-689)

Finality of approval of project of partition by itself does NOT TERMINATE probate proceeding (Timbol
vs. Cano, 1 SCRA 1271).

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

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

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

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

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

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2. Remedy of heir entitled to residue but not given his share

To demand his share through -

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


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

Four cases illustrate the proper remedy: Vda de Lopez vs. Lopez (G.R. No. L-23915 September 28, 1970),
Divinagracia vs. Rovira (G.R. No. L-42615 August 10, 1976), Guillas vs. Judge of CFI of Pampanga (L-
26695, January 31, 1972) and Heirs of Jesus Fran vs. Salas. (G.R. No. L-53546 June 25, 1992)

 Lopez compared to Divinagracia :

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

Conclusion – if proceeding already closed, motion to reopen may be filed by a non-party deprived of
his lawful participation, as long as it is within 30 days (now 15 days) or before order closing the proceedings
becomes final.

 Guilas compared to Fran:

Both involved PARTIES who have not received their shares.

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

REMEDY OF PRETERITED HEIR

The intestate proceedings, although closed and terminated, can still be opened within the prescriptive
period upon petition by the preterited heir (Solivio vs. CA, G.R. No. 83484 February 12, 1990

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

4. Instances when probate court may issue writ of execution

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


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

SEVEN STAGES IN SETTLEMENT OF ESTATE

1. Petition
2. Hearing
3. Court Order
4. Claims Against Estate
5. Payment of Debts of Estate

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6. Distribution and Partition of Estate
7. Closing

SETTLEMENT OF ESTATE
STAGES

PETITION

Testate Intestate

Filing of petition Filing of petition


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

Order setting petition for hearing

Notice of hearing

1. Publication of notice for


three consecutive weeks
(Rule 76, Sec. 3)

2. Notice by mail or personally


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

known heirs, creditors,


other interested persons
(Rule 79, Sec. 3)

II

HEARING

Proof of notice of hearing


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

Evidence for petitioner

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

Testimony/ies of Decedent left no will or


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

Petitioner is qualified for

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appointment
(Rule 78, Secs. 1 & 6)
Proof when
testator is petitioner
(Rule 76, Sec. 12)

Evidence for Oppositor

File grounds for contest


(Rule 76, Sec. 10)

III

COURT ORDER

Order or decision allowing


will or admitting it to probate

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

Order for issuance


of letters testamentary
(Rule 78, Sec. 4)

Order for issuance of


letters of administration
(Rule 79, Sec. 5)

Issuance of letters by clerk of court

Oath of executor or administrator

Filing of executor or administrator’s bond


(Rule 81, Sec. 1)

Filing of inventory within 3 mos.


(Rule 81, Sec. 1[a])

Accounting within 1 year


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

Actions by or against executor or administrator


(Rule 87)

IV

CLAIMS AGAINST ESTATE

Notice of filing of claims –


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

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

Filing of claim and answer thereto


(Rule 86, Secs. 9 & 10)

Trial of contested claim


(Rule 86, Sec. 12)

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

PAYMENT OF DEBTS OF ESTATE

Debts paid in full if estate sufficient


(Rule 88, Sec. 1)

Order of payment if estate insolvent


(Rule 88, Sec. 7)

Order for payment of debts


(Rule 88, Sec. 11)

Time for payment not to exceed


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

Sales, mortgages and other encumbrances


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

VI

DISTRIBUTION AND PARTITION OF ESTATE

Rule 90

Approval of final accounting


and project of partition

Actual distribution or delivery to


heirs of their respective shares

VII

CLOSING

Order declaring proceedings closed

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and terminated
-------------------------------------------------

I. Trustees
Rule 98
Trustees

Sec. 1. When trustee appointed

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


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

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

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

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

 Acquiring the trust by prescription

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

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

1. Distinguished from executor/administrator

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

2. Conditions of the bond

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

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3. Grounds for removal and resignation of a trustee

The court may remove a trustee on the following grounds:


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

4. Extent of authority of trustee


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

J. Escheat
Rule 91
Escheat

 Escheat defined

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

Nature of Escheat Proceedings

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

Parties in Escheat Proceedings

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

- actual occupants and


- adjacent lot owners

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

1. When to file

2. Requisites for filing of petition

Requisites for filing petition for escheat


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

 Where to file

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

 Parties in a petition for escheat

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

 Notice and Publication (Sec. 2, Rule 91)

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


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

Publication jurisdictional

Publication of the notice of hearing is a jurisdictional requisite, non-compliance with which affects the
validity of the proceedings (Divino v. Hilario, 62 Phil. 926).

Filing of claim to estate (Sec. 4, Rule 91)

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

K. Guardianship

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

 Basis of Guardianship (Parens Patriae)

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

 Purpose of Guardianship

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

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

1. General powers and duties of guardians

a. Care and custody of person of the ward and


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

KINDS OF GUARDIANS

1) Legal Guardian – such by provision of law without the need for judicial appointment, as in the case of
the parents over the persons of their minor children, or in his absence the mother, with respect to the
property of the minor children not exceeding P50,000 in value; (2) Guardian ad litem, who is a competent

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person appointed by the court for purposes of a particular action or proceeding involving a minor; (3) the
Judicial guardian, or a person appointed by the court for the person and/or property of the ward to
represent the latter in all civil acts and litigation .

 Parents as guardians

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

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


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

2. Conditions of the bond of the guardian

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

3. Rule on guardianship over minors

 Governing rule on guardianship of minors

Guardianship of minors as distinguished from ―incompetents‖ other than minority is now governed by the
RULE ON GUARDIANSHIP OF MINORS (A.M. No. 003-03-05-SC), effective May 1, 2003. This was
promulgated by the Supreme Court pursuant to the Family Courts Act of 1997 ( RA 8369). which vested in
the Family Courts exclusive jurisdiction on guardianship of minors.

Sections 1 and 27 of the RGM make it clear that it shall apply only to petitions for guardianship over
the person, property or both, of a minor. Petitions for guardianship of incompetents who are not minors
shall continue to be governed by Rules 92-97 and heard and tried by regular Regional Trial Courts.

Rules 92-97 may therefore be deemed modified by the RGM.

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

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

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effective March 27, 2004)

Minors – those below 18 years old.


Incompetents – include
a. persons suffering under the penalty of civil interdiction
b. hospitalized lepers
c. prodigals
d. deaf and dumb who are unable to read and write
e. those of unsound mind, even though they have lucid intervals
f. persons not being of unsound mind, but by reason of age, disease, weak mind,
and other similar causes, cannot, without outside aid, take care of themselves and
manage their property

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

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

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

1. Relative or other person on behalf of the minor


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

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

 Jurisdictional facts (Sec. 2, Rule 93)


1. incompetency of person for whom guardianship is sought;
2. domicile

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

Notice of hearing of the petition shall be served on


1. persons mentioned in the petition residing in the Philippines;
2. incompetent himself
* minor if 14 years of age or over (Sec. 8, RGM)

NOTICE IS JURISDICTIONAL

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

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

Grounds of petition (Sec. 4, RGM)


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

Who may be appointed guardian of the ward, or order of preference (Sec. 6. RGM)

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1. surviving grandparent and in case several grandparents survive, the court shall select any of
them taking into account all relevant considerations
2. oldest brother or sister of the minor over 21 years of age, unless unfit or disqualitied
3. actual custodian of the minor over 21 years of age, unless unfit or disqualified
4. any other person, who in the sound discretion of the court, would serve the best interests of
the minor

M. Writ of Habeas Corpus

Rule 102
Habeas Corpus

 To what habeas corpus extends (Sec. 1)


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

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

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

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

It is a remedy intended to determine whether the person under detention is held under lawful
authority (Sombong vs. CA, G.R. No. 111876, January 31, 1996)

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

1. Contents of the petition


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

2. Contents of the Return


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

3. Distinguish peremptory writ from preliminary citation

Peremptory writ of habeas corpus – unconditionally commanding the respondent to have the
body of the detained person before the court at a time and place therein specified.

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

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

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

4. When not proper/applicable


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

5. When writ disallowed/discharged authorized (Sec. 4)


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

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

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

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

WRIT OF HABEAS CORPUS AMPARO HABEAS DATA


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

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behalf. home and
correspondence of
the aggrieved party.
AVAILABILITY Sec. 1 Sec. 1 Sec. 1

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


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

1. Gathering
2. Collecting
3. Storing

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

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


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

In cases of extralegal
killings and enforced
disappearances:

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

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or
3. Which has
jurisdiction over the
place where data or
information is
gathered, etc.

All at the option of


petitioner.
EXTENT OF SC, CA and SB: Anywhere in the Anywhere in the
ENFORCEABILITY anywhere in the Philippines Philippines
Philippines

RTC: only within its


judicial district
WHEN TO FILE/ Sec. 2 Sec. 3
EXEMPTION FROM
DOCKET FEES On any day and at any On any day and at any
time time. Petitioner exempt Indigent petitioner
from docket fees exempt from docket
fees
SETTING OF Sec. 12 Sec. 6 Sec. 7
HEARING
Hearing on return Not later than 7 days Not later than 10
from date of issuance of days from date of
writ issuance of writ
HOW SERVED Sec. 7 Sec. 8 Sec. 9

Service of the writ shall If the writ cannot be If the writ cannot be
be made by leaving the served personally on served personally on
original with the person respondent, the rules on respondent, the rules
to whom it is directed substituted service shall on substituted
and preserving a copy apply service shall apply
on which to make return
of service. If that person
cannot be found, or has
not the prisoner in
custody then the service
shall be made on any
person having or
exercising such custody
FILING OF RETURN Sec. 10 Sec. 9 Sec. 9

Signed and shall also Verified written return Verified written return
be sworn to if the within 5 work days from within 5 days from
prisoner is not produced service of writ service of writ

- cannot be extended -may be reasonably


except on highly extended by the
meritorious grounds court for justifiable
grounds
EFFECT OF FAILURE Sec. 12 Sec. 14
TO FILE RETURN
In case respondent fails In case respondent
to file a return, the court, fails to return, the
justice or judge shall court, justice or
proceed to hear the judge shall proceed

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

The hearing on the Same as WOA


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

The hearing shall be


from day to day until

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

1. Unless for good (a) Temporary


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

2. The court or judge


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

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

2. Period of appeal shall


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

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3. Same priority as
habeas corpus cases
INSTITUTION OF Sec. 21 Sec. 20
SEPARATE ACTIONS
This Rule shall not Same as WOA
preclude the filing of
separate criminal, civil
or administrative
actions.
EFFECT OF FILING Sec. 2 Sec. 21
CRIMINAL ACTION
When a criminal action Same as WOA
has been commenced,
no separate petition for
the writ shall be filed.
The reliefs under the
writ shall be available by
motion in the criminal
case.
CONSOLIDATION Sec. 23 Sec. 22

When a criminal action Same as WOA


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

When a criminal action


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

 Grant of writ

When court is satisfied that prisoner does not desire to appeal, the prisoner shall be forthwith
released (Sec. 15, Rule 102)

 Period to appeal – within 48 hours from notice of judgment or final order appealed from
(A.M.N. 01-1-03-SC, July 19, 2001).

 Habeas corpus as a post-conviction remedy

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

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In Evangelista vs. Sistoza (G.R. No. 143881, August 9, 2001), the accused filed a petition for habeas
corpus to secure his release from prison, due to the amendment of PD 1866 by RA 8249, reducing the
penalty for illegal possession of low powered firearms -- from reclusion temporal in its maximum period to
reclusion perpetua, to prision correcccional in its maximum period.The court granted the petition, as he
has already served 9 years in prison, more than the maximum term of his imprisonment for
robbery. He need not serve anymore his sentence of 18 years of reclusion temporal as minumum to
reclusion perpetua as maximum for illegal possession of firearm, in view of said amendment and the ruling
in People vs. Ladjaalam. (G.R. Nos. 136149-51, September 19, 2000).

 Retroactive effect of favorable law - People vs. Caco, 269 SCRA 271 (1997)

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

 When constitutional rights disregarded – writ may issue Exceptional remedy to release a
person whose liberty is illegally restrained such as when the constitutional rights of the accused are
disregarded. Such defect results in the absence or loss of jurisdiction and therefore invalidates the
trial and consequent conviction of the accused. That void judgment may be challenged by collateral
attack which precisely is the function of habeas corpus.

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

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

 Effect of filing of charges in court

Bernarte vs. CA, 263 SCRA 323 (1996)

1. Once person detained is duly charged in court, he may no longer


question his detention by petition for habeas corpus
2. Remedy: motion to quash the information and/or warrant of arrest
.
Office of the Solicitor General vs. Judge de Castro, A.M. No. RTJ-06-2018 (Formerly Adm. Matter OCA-IPI
No. 05-2360-RTJ), August 3, 2007

Once a person detained is duly charged in court, he may no longer question his detention through
a petition for issuance of a writ of habeas corpus. His remedy would be to quash the information and/or
the warrant of arrest duly issued. The writ of habeas corpus should not be allowed after the party sought to
be released had been charged before any court. The term “court” includes quasi-judicial bodies or
governmental agencies authorized to order the person’s confinement, like the Deportation Board of
the Bureau of Immigration.
The provisional or temporary release of Gao Yuan also effectively granted the petition for habeas
corpus insofar as the discharge of the detainee is concerned, since the main prayer in a petition for habeas
corpus relates to the release or discharge of the detainee. The general rule is that the release, whether
permanent or temporary, of a detained person renders the petition for habeas corpus moot and academic

.Go, Sr. vs. Ramos, G.R. No. 167569, September 4, 2009

The writ of habeas corpus should not be allowed after the party sought to be released had been
charged before any court. The term ―court‖ in this context includes quasi-judicial bodies of governmental

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agencies authorized to order the person’s confinement, like the Deportation Board of the Bureau of
Immigration. Likewise, the cancellation of his bail cannot be assailed via a petition for habeas corpus.
When an alien is detained by the Bureau of Immigration for deportation pursuant to an order of deportation
by the Deportation Board, the Regional Trial Courts have no power to release such alien on bail even in
habeas corpus proceedings because there is no law authorizing it.

Velasco vs. CA, 245 SCRA 667 (1995)


Even if arrest illegal, supervening events may bar his release or discharge from custody, such as
filing of complaint and issuance of order denying petition to bail.

 Absence of preliminary investigation not ground for habeas corpus

Paredes vs. SB, 193 SCRA 464: absence of preliminary investigation not a ground for habeas corpus.
Remedy: motion to quash warrant of arrest and/or information, or ask for investigation/reinvestigation

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

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

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

Strict compliance with the technical requirements for a habeas corpus petition as provided in the Rules
of Court may be dispensed with where the allegations in the application are sufficient to make out a case for
habeas corpus.
Nonetheless, we agree with the OSG that petitioner is not entitled to the issuance of the writ. A convict
may be released on parole after serving the minimum period of his sentence. However, the pendency of
another criminal case is a ground for the disqualification of such convict from being released on parole.
(Fletcher vs. The Director of Bureau of Corrections, UDK-14071, July 17, 2009)

Habeas corpus in custody cases

Habeas corpus may be resorted to in cases where rightful custody is withheld from a person entitled
thereto. Under Article 211 of the Family Code, respondent Loran and petitioner Marie Antonette have joint
parental authority over their son and consequently joint custody. Further, although the couple is separated
de facto, the issue of custody has yet to be adjudicated by the court. In the absence of a judicial grant of
custody to one parent, both parents are still entitled to the custody of their child. In the present case, private
respondent’s cause of action is the deprivation of his right to see his child as alleged in his petition. Hence,
the remedy of habeas corpus is available to him.

In a petition for habeas corpus, the child’s welfare is the supreme consideration. The Child and
Youth Welfare Code unequivocally provides that in all questions regarding the care and custody, among
others, of the child, his welfare shall be the paramount consideration. (Salientes vs. Abanilla, G.R. No.
162734, August 29, 2006)

A writ of habeas corpus extends to all cases of illegal confinement or detention or by which the rightful
custody of person is withheld from the one entitled thereto. Respondent, as the judicial guardian of Lulu,
was duty-bound to care for and protect her ward. For her to perform her obligation, respondent must have

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custody of Lulu. Thus, she was entitled to a writ of habeas corpus after she was unduly deprived of the
custody of her ward. (Hernandez vs. San Juan-Santos, G.R. No. 166470, August 7, 2009)

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

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

 Court of Appeals has jurisdiction to issue writs of habeas corpus in cases involving custody
of minors

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

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

Nature of the writ of amparo


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

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

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

1. Coverage (See Table under Definition)

 ―Extralegal killings‖ – killings committed without due process of law, i.e., without legal safeguards
or judicial proceedings.

 ―Enforced disappearances‖ – attended by the following characteristics: an arrest, detention or


abduction of a person by a government official or organized groups or private individuals acting with
the direct or indirect acquiescence of the government; the refusal of the State to disclose the fate or

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whereabouts of the person concerned or a refusal to acknowledge the deprivation of liberty which
places such persons outside the protection of law.

2. Differences between Amparo and search warrant

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

3. Who may file (See Table)

4. Contents of return

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

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

5. Effects of failure to file return (See Table)

6. Omnibus waiver rule


Defenses Not Pleaded Deemed Waived. --All defenses shall be raised in the return, otherwise, they shall
be deemed waived (Sec. 10).

7. Procedure for hearing (See Table on Summary Hearing)

Judgment – Sec. 18 (See Table)


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

Appeal – Sec. 19 (See Table)

8. Institution of separate action (See Table)

9. Effect of filing of a criminal action (See Table)

10. Consolidation (See Table)

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11. Interim reliefs available to petitioner and respondent (See Table)

12. Quantum of proof in application for issuance of Writ of Amparo

Burden of proof and standard of dilligence required – The parties shall establish their claims by
substantial evidence.
Respondent private individual or entity – prove that ordinary diligence as required by applicable laws,
rules and regulations was observed in the performance of duty.
Respondent public official or employee
– prove that extraordinary diligence as required, etc. was observed in the performance of duty.
- cannot invoke presumption that official duty has been regularly performed to evade ressponsibility or
liability (Sec. 17)

 Both preventive and curative

It is preventive in that it breaks the expectation of impunity in the commission of these offenses; it is
curative in that it facilitates the subsequent punishment of perpetrators as it will inevitably yield leads to
subsequent investigation and action.

 Jurisprudence

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

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

What is prohibited under Section 11 of A.M. No. 07-9-12-SC are motions for reconsideration directed
against interlocutory orders or interim relief orders, not those assailing the final judgment or order. The
pleadings and motions enumerated in Section 11 of A.M. No. 07-9-12-SC would unnecessarily cause
delays in the proceedings; they are, thus, proscribed since they would run counter to the summary nature of
the rule on the writ of amparo. A motion seeking a reconsideration of a final judgment or order in such
case, obviously, no longer affects the proceedings.
Nevertheless, considering that under Section 19 of A.M. No. 07-9-12-SC a party is only given five
working days from the date of notice of the adverse judgment within which to appeal to this Court through
a petition for review on certiorari, a motion for reconsideration of a final judgment or order must
likewise be filed within the same period. Thereafter, from the order denying or granting the motion for
reconsideration, the party concerned may file an appeal to the Court via a Rule 45 petition within five
working days from notice of the order pursuant to the fresh period rule
A writ of amparo may still issue in the respondent's favor notwithstanding that he has already been
released from detention. In such case, the writ of amparo is issued to facilitate the punishment of those
behind the illegal detention through subsequent investigation and action.

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The writ of amparo likewise covers violations of the right to security. At the core of the guarantee of
the right to security, as embodied in Section 2, Article III of the Constitution, is the immunity of one's
person, including the extensions of his/her person, i.e., houses, papers and effects, against unwarranted
government intrusion. Section 2, Article III of the Constitution not only limits the State's power over a
person's home and possession, but more importantly, protects the privacy and sanctity of the person
himself.
The right to security is separate and distinct from the right to life. The right to life guarantees
essentially the right to be alive - upon which the enjoyment of all other rights is preconditioned. On the
other hand, the right to security is a guarantee of the secure quality of life, i.e., the life, to which
each person has a right, is not a life lived in fear that his person and property may be unreasonably
violated by a powerful ruler.(Mamba vs. Bueno, G.R. No. 191416, February 7, 2017)

Proceedings on a writ of amparo may be archived for a valid cause, as when witnesses fail to appear due
to threats on their lives or analogous causes, or when the attendant investigation reaches an impasse.
(Balao vs. Ermita, G.R. Nos. 186050 &186059, August 1, 2017)

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

Here, the restriction on petitioner’s right to travel as a consequence of the pendency of the criminal case
filed against him was not unlawful. Petitioner has also failed to establish that his right to travel was impaired
in the manner and to the extent that it amounted to a serious violation of his right to life, liberty and security,
for which there exists no readily available legal recourse or remedy. (Issuance of Hold Departure Order
against Fr. Robert Reyes, who was among those charged with rebellion in connection with the Manila
Peninsula siege)
Reyes vs. Gonzales, G.R. No. 182161, December 3, 2009

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

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

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

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

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unlawful means in order to achieve unlawful ends. It must be emphasized that in order for the privilege
of the writ to be granted, there must exist a nexus between the right to privacy on the one hand, and the
right to life, liberty or security on the other.
Gamboa vs. Chan, G.R. No. 193636, July 24, 2012
1. Scope of writ (See Table under Definition)

2. Availability of writ (See Table under Availability)

3. Distinguish from Habeas Corpus and Amparo (See Table)

4. Who may file (See Table)

5. Contents of petition

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


(b) The manner the right to privacy is violated or threatened and how it affects the right to
life, liberty or security of the aggrieved party;
(c) The actions and recourses taken by the petitioner to secure the data or information;
(d) The location of the files, registers or databases, the government office, and the person
in charge, in possession or in control of the data or information, if known;
(e) The reliefs prayed for, which may include the updating, rectification, suppression or
destruction of the database or information or files kept by the respondent. In case of threats, the
relief may include a prayer for an order enjoining the act complained of; and
(f) Such other relevant reliefs as are just and equitable (Sec. 6).

Issuance of the Writ - Sec. 6


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

6. Contents of return

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

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

 Omnibus waiver rule – Sec. 10


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

7. Instances when petition heard in chambers

Hearing in chambers may be conducted where respondent invokes the defense that the release of
the data or information shall compromise national security or state secrets, or when the data or
information cannot be divulged to the public due its nature or privileged character (Sec.12).

Judgment – Sec. 18 (See Table)

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

Appeal – Sec. 19 (See Table)

8. Consolidation (SeeTable)

9. Effect of filing a criminal action (See Table)

10. Institution of separate action (See Table)

 Jurisprudence

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

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

The writ of habeas data can be availed of as an independent remedy to enforce one’s right to
privacy, more specifically the right to informational privacy. The remedies against the violation of such
right can include the updating, rectification, suppression or destruction of the database or information or files
in possession or in control of respondents.
STC did not violate petitioners’ daughters’ right to privacy. There can be no quibbling that the images
in question, or to be more precise, the photos of minor students scantily clad, are personal in nature, likely
to affect, if indiscriminately circulated, the reputation of the minors enrolled in a conservative institution.
However, the records are bereft of any evidence, other than bare assertions that they utilized Facebook’s
privacy settings to make the photos visible only to them or to a select few. Without proof that they placed
the photographs subject of this case within the ambit of their protected zone of privacy, they cannot
now insist that they have an expectation of privacy with respect to the photographs in question.
Had it been proved that the access to the pictures posted were limited to the original uploader, through
the ―Me Only‖ privacy setting, or that the user’s contact list has been screened to limit access to a select
few, through the ―Custom‖ setting, the result may have been different, for in such instances, the intention to
limit access to the particular post, instead of being broadcasted to the public at large or all the user’s friends

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en masse, becomes more manifest and palpable. (Vivares vs. St. Theresa’s College, G.R. No. 202666,
September 29, 2014)

As defined in Section 1 of the Habeas Data Rule, the writ of habeas data now stands as ―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 engaged in the
gathering, collecting or storing of data or information regarding the person, family, home, and
correspondence of the aggrieved party.‖ Thus, in order to support a petition for the issuance of such
writ, Section 6 of the Habeas Data Rule essentially requires that the petition sufficiently alleges, among
others, “[t]he manner the right to privacy is violated or threatened and how it affects the right to life,
liberty or security of the aggrieved party.” In other words, the petition must adequately show that there
exists a nexus between the right to privacy on the one hand, and the right to life, liberty or security
on the other. Corollarily, the allegations in the petition must be supported by substantial evidence
showing an actual or threatened violation of the right to privacy in life, liberty or security of the victim. In this
relation, it bears pointing out that the writ of habeas data will not issue to protect purely property or
commercial concerns nor when the grounds invoked in support of the petitions therefor are vague and
doubtful.

In this case, the Court finds that Ilagan was not able to sufficiently allege that his right to privacy in
life, liberty or security was or would be violated through the supposed reproduction and threatened
dissemination of the subject sex video. While Ilagan purports a privacy interest in the suppression of this
video – which he fears would somehow find its way to Quiapo or be uploaded in the internet for public
consumption – he failed to explain the connection between such interest and any violation of his right to life,
liberty or security. Indeed, courts cannot speculate or contrive versions of possible transgressions. As the
rules and existing jurisprudence on the matter evoke, alleging and eventually proving the nexus between
one’s privacy right to the cogent rights to life, liberty or security are crucial in habeas data cases, so much
so that a failure on either account certainly renders a habeas data petition dismissible, as in this case. (Lee
vs. Ilagan, G.R. No. 203254, October 8, 2014)

P. Change of Name
Rule 103
Change of Name

 Purpose of Rule

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

Involving substantial changes, objective is the prevention of fraud.

 Nature of proceeding

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

 Who may file petition


―Person‖ – all natural persons regardless of status. Includes
1. Alien - - domiciled in the Philippines, not one temporarily staying (Ong Huan Ting
vs. Rep., G.R. No. L-20997, April 27, 1967)
2. Adopted child (Rep. v. Wong, 209 SCRA 189)

 Venue - Sec. 1
Regional Trial Court of place in which petitioner resides.

 Order for hearing – Sec. 3


1. If petition sufficient in form and substance,
2. The court, by an order reciting the purpose of the petition, shall
a. fix a date and place for the hearing thereof,
b. direct that copy of the order be published at least once a week for 3 successive weeks

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in a newspaper of general circulation
3. The date set for hearing shall not be
a. within 30 days prior to an election nor
b. within 4 months after the last publication of the notice

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

Reason: change of name a matter of public interest


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

1. Differences under Rule 103, RA 9048 and Rule 108

Rule 103 Rule 108 R.A. 9048


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

2. Local civil registrar of


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

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

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

(2) At least two (2)


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

(3) Other documents


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

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


adopt a Filipino name to confusion. (Section 4)
erase signs of former
alienage all in good faith
and without prejudicing
anybody.
Kind of proceeding Judicial Proceeding Judicial Proceeding Administrative
Proceeding
Adversarial in nature
because involves

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substantial changes and
affects the status of an
individual
What to file File a signed and File a verified petition File an affidavit.
verified petition. for the cancellation or
correction of any entry.
.
Notice and Publication At least once a week for At least once a week for At least once a week for
three consecutive three consecutive two consecutive weeks
weeks in a newspaper weeks in a newspaper (publish the whole
circulation (notice of of general circulation affidavit) – in change of
hearing) (notice of hearing) first name or nickname
Posting No posting No posting Duty of the civil registrar
or Consul to post
petition in a
conspicuous place for
10 consecutive days
Who participates on the The Solicitor General or The Civil Registrar. The CivilRegistrar or
part of the Government the proper provincial or Consul.
city fiscal shall appear
on behalf of the
Government of the
Republic.
Where to appeal: Appeal decision to the Appeal decision to the Appeal decision to the
Court of Appeals. Court of Appeals. Civil Registrar General
(head of NCSO).

2. Grounds for change of name

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

Grounds for change of name which have been held valid:


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

 Other cases

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

Middle names serve to identify the maternal lineage or filiation of a person as well as further distinguish
him from others who may have the same given name and surname as he has. In the case at bar, the only
reason advanced by petitioner for dropping his middle name is convenience (In Re Petition for Change of

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Name and/or Correction/Cancellation of Entry of Civil Registry of Julian Lin Carulasan Wang, G.R. No.
159966, March 30, 2005)

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


Petitioner sought to have his name in his birth certificate changed from ―Rommel Jacinto‖ to ―Mely,‖ and
his sex from ―male‖ to ―female.‖. Petitioner’s basis in praying for the change of his first name was his sex
reassignment. He intended to make his first name compatible with the sex he thought he transformed
himself into through surgery. However, a change of name does not alter one’s legal capacity or civil status.
RA 9048 does not sanction a change of first name on the ground of sex reassignment. Rather than avoiding
confusion, changing petitioner’s first name for his declared purpose may only create grave complications in
the civil registry and the public interest.
Before a person can legally change his given name, he must present proper or reasonable cause or any
compelling reason justifying such change. In addition, he must show that he will be prejudiced by the
use of his true and official name. In this case, he failed to show, or even allege, any prejudice that he
might suffer as a result of using his true and official name.
In sum, the petition in the trial court in so far as it prayed for the change of petitioner’s first name was not
within that court’s primary jurisdiction as the petition should have been filed with the local civil registrar
concerned, assuming it could be legally done. It was an improper remedy because the proper remedy was
administrative, that is, that provided under RA 9048. It was also filed in the wrong venue as the proper
venue was in the Office of the Civil Registrar of Manila where his birth certificate is kept. More importantly, it
had no merit since the use of his true and official name does not prejudice him at all (Silverio vs Republic,
G.R. No. 174689, October 22, 2007)

Where change of name allowed arising from change of gender


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

Q. Absentees
Rule 107
Absentees

1. Purpose of the rule

2. Who may file; when to file

 Provisional representative
When a person disappears from his domicile, his whereabouts being unknown, and without having
left an agent to administer property or the power conferred on the agent has expired, an interested party,
relative or friend may file a petition in the RTC of the place where the absentee resided before
disappearance to appoint provisionally a representative for him (Sec. 1).

 Declaration of absence; Trustee or administrator


After 2 years without any news or after 5 years if an agent was left to administer the absentee’s
property, a petition for declaration of absence and appointment of a trustee or administrator may be
filed.(Sec. 2)

 Notice and publication required


Copies of the notice and hearing shall be served on known heirs and creditors and other interested
persons and published once a week for 3 consecutive weeks in a newspaper of general circulation. (Sec.
4)

 Declaration of presumptive death

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

Exception

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

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

 Period of absence of spouse before subsequent marriage


- 4 consecutive years – well founded belief that absent spouse already dead
- 2 years – danger of death

 Mere absence without effort to locate is insufficient


Before a judicial declaration of presumptive death can be obtained, it must be shown that
the absent spouse had been absent for four (4) consecutive years and the present spouse
had a well founded belief that the absent spouse was already dead. The ―well founded
belief‖ in the absentee’s death requires the the present spouse to prove that his/her belief
was the result of diligent and reasonable efforts to locate the absent spouse and that based
on these efforts and inquiries he/she believes that under the circumstances, the absent
spouse is already dead. The mere absence of the spouse for such periods under the law,
lack of any news that such absentee spouse is still allive, faillure to communicate, or
general presumption of absence under the Civil Code would not suffice. (Republic vs.
Tampus, G.R. No. 2142423, March 16, 2016)

Mere allegations without documents to corroborate the allegation and the lack of any
attempt to seek the aid of the authorities regarding the spouse’s disappearance will warrant
the dismissal of the petition. (Republic vs. Orcelino-Villanueva, G.R. No. 210929, July 29,
2015)

 Judicial review of declaration of absence


A petition for certiorari under Rule 65 is the proper remedy to challenge the decision of a lower
court declaring a person presumptively dead. Since the said decision pursuant to Article 41 of the
Family Code is immediately final and executory, the Court of Appeals has no jurisdiction to entertain
a notice of appeal pertaining to such judgment. Instead the losing party may file a petition for
certiorari with the Court of Appeals on the ground that the trial court committed grave abuse of
discretion amounting to lack of jurisdiction. (Republic vs. Saregonon, G.R. No. 199194, February 10,
2016)

The proper remedy for a judicial declaration of presumptive death obtained by extrinsic fraud is an
action to annul the judgment, not the filing of an affidavit of reappearance. Annulment of judgment is
the remedy when the judgment, order, or resolution has become final, and the remedies of new trial,
appeal and petition for relief and other appropriate remedies are no longer available through no fault
of the petitioner. The filing of an affidavit of reappearance is not the proper remedy when the person
declared presumptively dead has never been absent. Such affidavit would not suffice to nullify the
effects of the declaration of presumptive death and the subsequent marriage. (Santos vs. Santos,
G.R. No. 187061, October 8, 2014)

Cancellation or Correction of Entries in the Civil Registry

Rule 108
Cancellation or correction of entries
in the civil registry

 Who may file petition

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1. Any person interested in any
- act
- event
- decree
2. concerning the civil status of persons
3. which has been recorded in the civil registry

 Venue
Regional Trial Court of place where corresponding civil registry is located (Sec. 1)

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

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

 Indispensable parties must be notified

Under Sec. 3, Rule 108 not only the civil registrar but also all persons who have or claim any interest
which would be affected by a proceeding concerning the cancellation or correction of an entry in the civil
register must be made parties thereto.
No party could be more interested in the cancellation of Rosilyn’s birth certificate than Rosilyn herself.
Her filiation, legitimacy, and date of birth are at stake.

The lack of summons on Rosilyn was not cured by the publication of the order of the trial court setting
the case for hearing for three consecutive weeks in a newspaper of general circulation. Summons must still
be served, not for the purpose of vesting the courts with jurisdiction, but to comply with the requirements of
fair play and due process. This is but proper, to afford the person concerned the opportunity to protect her
interest if she so chooses. (Ceruila vs. Delantar, G.R. No. 140305, December 9, 2005)

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

 Administrative correction of clerical or typographical errors

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

Republic Act 9048

 Who may file petition

1. Any person of legal age


2. having direct and personal interest in the
3. correction of a clerical or typographical error in an entry and/or
4. change of first name or nickname in the civil register

A person is considered to have direct and personal interest when he is the owner of the record, or the
owner's spouse, children, parents, brothers, sisters, grandparents, guardian, or any other person duly
authorized by law or by the owner of the document sought to be corrected:

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 Venue
Local Civil Registrar of place where record is located.
Exc. (a) If impractical in terms of transportation expenses, time and effort as where petitioner has
transferred to another place – LCR of petitioner’s residence.
(b) If person presently residing or domiciled in a foreign country -- nearest Philippine Consulate,
or LCR of place where record is located

 Change of name under Rule 108

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

 Registered name of illegitimate child

An illegitimate child whose filiation is not recognized by the father bears only a given name
and his mother’s surname, and does not have a middle name. The name of the unrecognized
illegitimate child therefore identifies him as such. It is only when the illegitimate child is legitimated by the
subsequent marriage of his parents or acknowledged by the father in a public document or private
handwritten instrument that he bears both his mother’s surname as his middle name and his father’s
surname as his surname, reflecting his status as a legitimated child or an acknowledged illegitimate child.
Accordingly, the registration in the civil registry of the birth of such individuals requires that the middle name
be indicated in the certificate. The registered name of a legitimate, legitimated and recognized illegitimate
child thus contains a given or proper name, a middle name, and a surname. (In Re: Petition for Change of
Name and/or Correction/Cancellation of Entry in Civil Registry of Julian Lin Carulasan Wang, G.R. No.
159966, March 30, 2005).

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

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

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

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

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

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

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

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

 Administrative correction of (a) day and month in the date of birth and (b) sex of a person
now allowed - provided it is patently clear that there was a clerical or typographical error or mistake
in the entry (RA 10172, which amended RA 9048, effective August 15, 2012)

 Other Jurisprudence

Ty Kong Tin (1954): followed by Chua Wee vs. Rep., Wong vs. Rep., Rep. vs. Medina – Rule 108
should be limited solely to implementation of Art. 412, the substantive law on the matter of correcting errors
in the civil register.

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

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

Rep. vs. Valencia (141 SCRA 462 [1986]) – turning point, paradigm shift:
Rule 108 embodies two kinds of proceedings:
1. procedure summary in nature for correcting clerical or unsubstantial matters to make it less
tedious and expensive
2. procedure adversary in nature to govern proceedings involving substantial changes

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

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

 Appropriate proceeding:

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

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


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

 Substantial corrections allowed: citizenship from Chinese to Filipino; status from


legitimate to illegitimate’ status of mother from married to single

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

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

However, all doubts resolved in Lee vs. CA (367 SCRA 110 [2001]):
1. Substantial corrections – Rule 108
2. Clerical or typographical errors (including change of first name) – RA 9048 (administrative
correction)

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

N.B. A correction is SUBSTANTIAL OR CONTROVERSIAL if it involves the change of the age, sex,
nationality or civil status of a person. (Rule 11.1.2, Implementing Rules and Regulations, RA 9048)

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

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

A petition for declaratory relief may be instituted by an alien for the recognition of foreign divorce
because a foreign divorce decree is a presumptive evidence of a right that clothes an alien with legal
interest to file a petition for its recognition before local courts. However, the recognition of the decree in the
declaratory relief case does not authorize the cancellation of the marriage entry in the civil registry as what
is required is a proceeding under Rule 108 of the Rules of Court. (Corpuz vs. Tirol Sto. Tomas, G.R. No.
186571, August 11, 2010)

S. Appeal in Special Proceedings


Rule 109
Appeals in special proceeding

1. Judgments and orders for which appeal may be taken

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2. When to appeal

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

 Allows or disallows a WILL


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

 In certain kinds of special proceedings, such as settlement of estate, appeal may be taken at
various stages of the proceedings.

3. Modes of appeal

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

Rationale for multiple appeals


The rationale behind allowing more than one appeal in the same case is to enable the rest of the case to
proceed in the event that a separate and distinct issue is resolved by the court and held to be final. In this
multi-appeal mode, the probate court loses jurisdiction only over the subject matter of the appeal but retains
jurisdiction over the special proceeding from which the appeal was taken for purposes of further remedies
the parties may avail of.
Where multi-appeals are allowed, we see no reason why a separate petition for certiorari cannot be
allowed on an interlocutory aspect of the case that is separate and distinct as an issue from the aspect of
the case that has been adjudged with finality by the lower court. (Briones vs. Henson-Cruz, G.R. No.
159130, August 22, 2008)

Record of appeal is required only in cases where multiple appeals may arise
Rule 109 contemplates multiple appeals during the pendency of special proceedings. A record on appeal
– in addition to the notice of appeal – is thus required to be filed as the original records of the case should
remain with the trial court to enable the rest of the case to proceed in the event that a separate and distinct
issue is resolved by said court and held to be final.
In the present case, the filing of a record on appeal was not necessary since no other matter remained to
be heard and determined by the trial court after it issued the appealed order granting respondent’s petition
for cancellation of birth record and change of surname in the civil registry.(Republic vs. Nishina, G.R. No.
186053, November 15, 2010)

4. Rule on advance distribution


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

VENUE OF SPECIAL PROCEEDINGS

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1. Settlement of estate (Rule 73):
RTC (or MTC) of province where deceased last resided/property situated.

2. Escheat (Rule 91):


RTC of province where deceased last resided/property situated.

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

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

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


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

5. Habeas Corpus (Rule 102):


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

Habeas Corpus for custody of minors:


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

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


SC, CA and SB

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

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


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

8. Kalikasan (A.M. No. 09-6-8 – SC)


SC and CA

9. . Change of name (Rule 103):


RTC of province of residence of petitioner.

Absentees (Rule 107):


RTC of place where absentee resided before his disappearance.

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


RTC of place where civil registry is located.

Correction of clerical or typographical errors (RA 9048):


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

SPECIAL PROCEEDINGS THAT REQUIRE NO PUBLICATION

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

5. RULES OF PROCEDURE FOR ENVIRONMENTAL CASES (A.M. No. 09-6-8-SC, April 29, 2010)

A. Scope and Applicability of the Rule

These Rules shall govern the procedure in civil, criminal, and special civil actions before the Regional
Trial Courts, Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts and
Municipal Circuit Trial Courts involving enforcement or violations of environmental and other related laws,
rules and regulations such as but not limited to the following:

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

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B. Civil Procedure

1. Prohibition against temporary restraining order and preliminary


injunction

Except the Supreme Court, no court can issue a TRO or writ of preliminary injunction against lawful
actions of government agencies that enforce environmental laws or prevent violations thereof.

2. Pre-trial conference; consent decree

The parties and their counsels shall remain under oath in all pre-trial conferences.

Judge to persuade the parties to arrive at a settlement of the dispute; former may issue a consent
decree approving the agreement between the parties in accordance with law, morals, public order
and public policy to protect the right of the people to a balanced and healthful ecology.

Evidence not presented during the pre-trial, except newly discovered evidence, shall be deemed
waived.

3. Prohibited pleadings and motions

1. Motion to dismiss
2. Motion for extension of time to file return
3. Motion for postponement
4. Motion for a bill of particulars;
5. Counterclaim or cross-claim
6. Third-party complaint
7. Reply
8. Motion to declare respondent in default

4. Temporary environmental protection order (TEPO)

a) Issuance

If it appears from the verified complaint with a prayer for the issuance of an Environmental
Protection Order (EPO) that the matter is of extreme urgency and the applicant will suffer grave
injustice and irreparable injury, the executive judge of the multiplesala court before raffle or the
presiding judge of a single-sala court as the case may be, may issue ex parte a TEPO effective for
only seventy-two (72) hours from date of the receipt of the TEPO by the party or person enjoined.
Within said period, the court where the case is assigned, shall conduct a summary hearing to
determine whether the TEPO may be extended until the termination of the case.

The court where the case is assigned, shall periodically monitor the existence of acts that are the
subject matter of the TEPO even if issued by the executive judge, and may lift the same at any time
as circumstances may warrant.

The applicant shall be exempted from the posting of a bond for the issuance of a TEPO.

b) Dissolution

The grounds for motion to dissolve a TEPO shall be supported by affidavits of the party or person
enjoined which the applicant may oppose, also by affidavits.

The TEPO may be dissolved if it appears after hearing that its issuance or continuance would cause
irreparable damage to the party or person enjoined while the applicant may be fully compensated for
such damages as he may suffer and subject to the posting of a sufficient bond by the party or
person enjoined.

5. Judgment and execution; reliefs in a citizen’s suit

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a) Reliefs in a Citizen Suit

If warranted, the court may grant to the plaintiff proper reliefs which shall include the protection,
preservation or rehabilitation of the environment and the payment of attorney’s fees, costs of suit
and other litigation expenses.
It may also require the violator to submit a program of rehabilitation or restoration of the
environment, the costs of which shall be borne by the violator, or to contribute to a special trust fund
for that purpose subject to the control of the court.

b) Judgment Not Stayed by Appeal

Any judgment directing the performance of acts for the protection, preservation or rehabilitation of
the environment shall be executory pending appeal unless restrained by the appellate court.

6. Permanent environmental protection order; writ of continuing


mandamus

In the judgment, the court may convert the TEPO to a permanent EPO or issue a writ of continuing
mandamus directing the performance of acts which shall be effective until the judgment is fully
satisfied.

The court may, by itself or through the appropriate government agency, monitor the execution of the
judgment and require the party concerned to submit written reports on a quarterly basis or sooner as
may be necessary, detailing the progress of the execution a satisfaction of the judgment.

The other party may, at its option, submit its comments or observations on the execution of the
judgment.

7. Strategic lawsuit against public participation

A legal action filed to harass, vex, exert undue pressure or stifle any legal recourse that any person,
institution or the government has taken or may take in the enforcement of environmental laws,
protection of the environment or assertion of environmental rights shall be treated as a SLAPP and
shall be governed by these Rules.

C. Special Proceedings

1. Writ of Kalikasan

a) Nature of the Writ

The writ is a remedy available to a natural or juridical person, entity authorized by law, people’s
organization, non-governmental organization, or any public interest group accredited by or
registered with any government agency, on behalf of persons whose constitutional right to a
balanced and healthful ecology is violated, or threatened with violation by an unlawful act or
omission of a public official or employee, or private individual or entity, involving environmental
damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more
cities or provinces.

b) Contents of the Verified Petition

1. The personal circumstances of the petitioner


2. The name and personal circumstances of the respondent or if the name and personal
circumstances are unknown and uncertain, the respondent may be described by an assumed
appellation
3. The environmental law, rule or regulation violated or threatened to be violated, the act or omission
complained of, and the environmental damage of such magnitude as to prejudice the life, health or
property of inhabitants in two or more cities or provinces

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4. All relevant and material evidence consisting of the affidavits of witnesses, documentary evidence,
scientific or other expert studies, and if possible, object evidence
5. The certification of petitioner under oath that:
a) Petitioner has not commenced any action or filed any claim involving the same issues in any
court, tribunal or quasi-judicial agency, and no such other action or claim is pending therein
b) If there is such other pending action or claim, a complete statement of its present status; (3) if
petitioner should learn that the same or similar action or claim has been filed or is pending, petitioner
shall report to the court that fact within five (5) days therefrom; and
6. The reliefs prayed for which may include a prayer for the issuance of a TEPO.

c) Where to File

The petition shall be filed with the Supreme Court or with any of the stations of the Court of Appeals.

d) No Docket Fees

The petitioner shall be exempt from the payment of docket fees.

e) Issuance of the Writ

Within three (3) days from the date of filing of the petition, if the petition is sufficient in form and
substance, the court shall give an order issuing the writ
And requiring the respondent to file a verified return as provided in Section 8 of this Rule.

The clerk of court shall forthwith issue the writ under the seal of the court including the issuance of a
cease and desist order and other temporary reliefs effective until further order.

f) How the Writ is Served

The writ shall be served upon the respondent by a court officer or any person deputized by the court,
who shall retain a copy on which to make a return of service.

In case the writ cannot be served personally, the rule on substituted service shall apply.

2. Prohibited pleadings and motions

1. Motion to dismiss
2. Motion for extension of time to file return
3. Motion for postponement
4. Motion for a bill of particulars
5. Counterclaim or cross-claim
6. Third-party complaint
7. Reply
8. Motion to declare respondent in default

3. Discovery Measures

A Party May File A Verified Motion For the Following Reliefs:


1. Ocular Inspection; order — The motion must show that an ocular inspection order is necessary to
establish the magnitude of the violation or the threat as to prejudice the life, health or property of
inhabitants in two or more cities or provinces. It shall state in detail the place or places to be inspected. It
shall be supported by affidavits of witnesses having personal knowledge of the violation or threatened
violation of environmental law. After hearing, the court may order any person in possession or control of a
designated land or other property to permit entry for the purpose of inspecting or photographing the
property or any relevant object or operation thereon. The order shall specify the person or persons
authorized to make the inspection and the date, time, place and manner of making the inspection and
may prescribe other conditions to protect the constitutional rights of all parties.

2. Production or inspection of documents or things; order – The motion must show that a production
order is necessary to establish the magnitude of the violation or the threat as to prejudice the life, health

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or property of inhabitants in two or more cities or provinces. After hearing, the court may order any person
in possession, custody or control of any designated documents, papers, books, accounts, letters,
photographs, objects or tangible things, or objects in digitized or electronic form, which constitute or
contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or
photographing by or on behalf of the movant. The production order shall specify the person or persons
authorized to make the production and the date, time, place and manner of making the inspection or
production and may prescribe other conditions to protect the constitutional rights of all parties.

*** WRIT OF KALIKASAN


What is the Writ of Kalikasan?

It is a special remedy available to a natural or juridical person, entity authorized by law, people’s
organization, non-governmental organization, or any public interest group accredited by or registered with
any government agency, on behalf of persons whose constitutional right to a balanced and healthful
ecology is violated, or threatened with violation by an unlawful act or omission of a public official or
employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice
the life, health or property of inhabitants in two or more cities or provinces (Sec. 1, Rule 7, A.M. No. 09-6-8-
SC).

Who may avail of the writ?

The petition can be filed by the following:


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

Where should the petition be filed?

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

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

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

Is the petitioner required to pay docket fees?

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

The exemption encourages the public to avail of the remedy.

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

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

What shall the return contain?

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

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

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

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

What are the prohibited pleadings and motions?

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

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

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

What are the requisites for granting an ocular inspection?

The motion must show:


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

What does the ocular inspection order contain?

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

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

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

What must the production order state?

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

Note: After hearing, the court may order any person in possession, custody or control of any designated
documents, papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized
or electronic form, which constitute or contain evidence relevant to the petition or the return, to produce and
permit their inspection, copying or photographing by or on behalf of the movant [Sec. 12(b), Rule 7, A.M.
No. 09-6-8-SC].

On what grounds may a respondent be cited for contempt?

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

When should the court render judgment?

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

What reliefs may be granted under the writ?

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

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

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

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

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

What is the period to appeal from the judgment?

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

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

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

-------------------------------------------------------------------------------------

4. Writ of Continuing Mandamus

a) Petition

When any agency or instrumentality of the government or officer thereof unlawfully neglects the
performance of an act which the law specifically enjoins as a duty resulting from an office, trust or
station in connection with the enforcement or violation of an environmental law rule or regulation or a
right therein, or unlawfully excludes another from the use or enjoyment of such right and there is no
other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby
may file a verified petition in the proper court, alleging the facts with certainty, attaching thereto
supporting evidence, specifying that the petition concerns an environmental law, rule or regulation, and
praying that judgment be rendered commanding the respondent to do an act or series of acts until the
judgment is fully satisfied, and to pay damages sustained by the petitioner by reason of the malicious
neglect to perform the duties of the respondent, under the law, rules or regulations. The petition shall
also contain a sworn certification of non-forum shopping.

b) Where to File

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The petition shall be filed with the Regional Trial Court exercising jurisdiction over the territory where the
actionable neglect or omission occurred or with the Court of Appeals or the Supreme Court.

c) No Docket Fees

The petitioner shall be exempt from the payment of docket fees.

d) Order to Comment

If the petition is sufficient in form and substance, the court shall issue the writ and require the
respondent to comment on the petition within ten (10) days from receipt of a copy thereof. Such order
shall be served on the respondents in such manner as the court may direct, together with a copy of the
petition and any annexes there

D. Criminal Procedure

1. Who may file

Any offended party, peace officer or any public officer charged with the enforcement of an environmental
law may file a complaint before the proper officer in accordance with the Rules of Court.

2. Institution of criminal and civil action

When a criminal action is instituted, the civil action for the recovery of civil liability arising from the
offense charged, shall be deemed instituted with the criminal action unless the complainant waives the
civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal
action.

Unless the civil action has been instituted prior to the criminal action, the reservation of the right to
institute separately the civil action shall be made during arraignment.

In case civil liability is imposed or damages are awarded, the filing and other legal fees shall be imposed
on said award in accordance with Rule 141 of the Rules of Court, and the fees shall constitute a first lien
on the judgment award.

The damages awarded in cases where there is no private offended party, less the filing fees, shall
accrue to the funds of the agency charged with the implementation of the environmental law violated.
The award shall be used for the restoration and rehabilitation of the environment adversely affected.

3. Arrest without warrant, when valid

A peace officer or an individual deputized by the proper government agency may, without a warrant,
arrest a person:
1. When, in his presence, the person to be arrested has committed, is actually committing or is
attempting to commit an offense
2. When an offense has just been committed, and he has probable cause to believe based on personal
knowledge of facts or circumstances that the person to be arrested has committed it.

Individuals deputized by the proper government agency who are enforcing environmental laws shall
enjoy the presumption of regularity under Section 3(m), Rule 131 of the Rules of Court when effecting
arrests for violations of environmental laws.

4. Procedure in the custody and disposition of seized items

a) Custody and Disposition of Seized Items

The custody and disposition of seized items shall be in accordance with the applicable laws or rules
promulgated by the concerned government agency.

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b) Procedure

In the absence of applicable laws or rules promulgated by the concerned government agency, the
following procedure shall be observed:
1. The apprehending officer having initial custody and control of the seized items, equipment,
paraphernalia, conveyances and instruments shall physically inventory and whenever practicable,
photograph the same in the presence of the person from whom such items were seized.
2. Thereafter, the apprehending officer shall submit to the issuing court the return of the search warrant
within five (5) days from date of seizure or in case of warrantless arrest, submit within five (5) days
from date of seizure, the inventory report, compliance report, photographs, representative samples
and other pertinent documents to the public prosecutor for appropriate action.
3. Upon motion by any interested party, the court may direct the auction sale of seized items,
equipment, paraphernalia, tools or instruments of the crime. The court shall, after hearing, fix the
minimum bid price based on the recommendation of the concerned government agency. The sheriff
shall conduct the auction.
4. The auction sale shall be with notice to the accused, the person from whom the items were seized,
or the owner thereof and the concerned government agency.
5. The notice of auction shall be posted in three conspicuous places in the city or municipality where
the items, equipment, paraphernalia, tools or instruments of the crime were seized.
6. The proceeds shall be held in trust and deposited with the government depository bank for
disposition according to the judgment.

5. Bail

a) Where Filed

Bail in the amount fixed may be filed with the court where the case is pending, or in the absence or
unavailability of the judge thereof, with any regional trial judge, metropolitan trial judge, municipal trial
judge or municipal circuit trial judge in the province, city or municipality.

If the accused is arrested in a province, city or municipality other than where the case is pending, bail
may also be filed with any Regional Trial Court of said place, or if no judge thereof is available, with any
metropolitan trial judge, municipal trial judge or municipal circuit trial judge therein.

If the court grants bail, the court may issue a hold-departure order in appropriate cases.

a) Duties of the Court

Before granting the application for bail, the judge must read the information in a language
known to and understood by the accused and require the accused to sign a written
undertaking, as follows:
1. To appear before the court that issued the warrant of arrest for arraignment purposes on the date
scheduled, and if the accused fails to appear without justification on the date of arraignment,
accused waives the reading of the information and authorizes the court to enter a plea of not guilty
on behalf of the accused and to set the case for trial
2. To appear whenever required by the court where the case is pending
3. To waive the right of the accused to be present at the trial, and upon failure of the accused to appear
without justification and despite due notice, the trial may proceed in absentia.

6. Arraignment and plea

a) Arraignment

The court shall set the arraignment of the accused within fifteen (15) days from the time it acquires
jurisdiction over the accused, with notice to the public prosecutor and offended party or concerned
government agency that it will entertain plea-bargaining on the date of the arraignment.

b) Plea Bargaining

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On the scheduled date of arraignment, the court shall consider plea-bargaining arrangements.
Where the prosecution and offended party or concerned government agency agree to the plea offered
by the accused, the court shall:
1. Issue an order which contains the plea-bargaining arrived at
2. Proceed to receive evidence on the civil aspect of the case, if any
3. Render and promulgate judgment of conviction, including the civil liability for damages

7. Pre-trial

a) Setting of Pre-Trial Conference

After the arraignment, the court shall set the pre-trial conference within thirty (30) days. It may refer the
case to the branch clerk of court, if warranted, for a preliminary conference to be set at least three (3)
days prior to the pre-trial.

b) Manner of Questioning

All questions or statements must be directed to the court.

c) Agreements or Admissions

All agreements or admissions made or entered during the pre-trial conference shall be reduced in writing
and signed by the accused and counsel; otherwise, they cannot be used against the accused. The
agreements covering the matters referred to in Section 1, Rule 118 of the Rules of Court shall be
approved by the court.

d) Record of Proceedings

All proceedings during the pre-trial shall be recorded, the transcripts prepared and the minutes signed by
the parties or their counsels.

e) Pre-Trial Order

The court shall issue a pre-trial order within ten (10) days after the termination of the pre-trial, setting forth
the actions taken during the pre-trial conference, the facts stipulated, the admissions made, evidence
marked, the number of witnesses to be presented and the schedule of trial. The order shall bind the
parties and control the course of action during the trial.

8. Subsidiary liabilities

In case of conviction of the accused and subsidiary liability is allowed by law, the court may, by motion of
the person entitled to recover under judgment, enforce such subsidiary liability against a person or
corporation subsidiarily liable under Article 102 and Article 103 of the Revised Penal Code.

E. Evidence

1. Precautionary principle

a) Applicability

When there is a lack of full scientific certainty in establishing a causal link between human activity and
environmental effect, the court shall apply the precautionary principle in resolving the case before it.
The constitutional right of the people to a balanced and healthful ecology shall be given the benefit of the
doubt.

b) Standards for Application

In applying the precautionary principle, the following factors, among others, may be
considered:
1. threats to human life or health

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2. inequity to present or future generations
3. prejudice to the environment without legal consideration of the environmental rights of those
affected.

2. Documentary evidence

a) Photographic, Video and Similar Evidence

Photographs, videos and similar evidence of events, acts, transactions of wildlife, wildlife by-products or
derivatives, forest products or mineral resources subject of a case shall be admissible when
authenticated by the person who took the same, by some other person present when said evidence was
taken, or by any other person competent to testify on the accuracy thereof.

b) Entries in Official Records

Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a
person in performance of a duty specially enjoined by law, are prima facie evidence of the facts therein
stated.

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