SPECIAL PROCEEDINGS - legal separation -provisional orders on support, custody of minor

Bar Review Guide children and administration of common property -violence against women
Justice Magdangal M. de Leon and their children and protection orders
1. Distinction between civil action and special proceedings 1. Proceedings under: Child & Youth Welfare Code (PD 1083) Child
a. Civil action action by which a party sues another for enforcement or Abuse Act (RA 7610) Child Employment Act (RA 7658)
protection of a right, or prevention or redress of a wrong. 2. -declaration of status as abandoned, dependent or neglected children
b. Special proceeding remedy by which a party seeks to establish a status, -voluntary or involuntary commitment of children -suspension,
right or a particular fact. termination or restoration of parental authority
2. Nature of special proceedings initially non-adversarial in nature; in 2. Domestic and Inter-country adoption
the course of proceedings, there may be oppositors. 3. Petition for corporate rehabilitation
GENERAL PROVISION 4. Petition for writ of amparo
Rule 72 Subject matter and Applicability of General Rules 5. Petition for writ of habeas data
Sec. 1. Subject matter of special proceedings. 6. Arbitration
1. Rules 73-75 ) Rules in civil actions applicable to special proceedings
2. Rules 76-81 ) Settlement of Estate of Sec. 2. Applicability of rules of civil actions.
3. Rules 82-86 ) Deceased Persons In the absence of special rules, the rules provided for in ordinary actions shall be, as far
4. Rules 87-90 ) as practicable, applicable to special proceedings.
5. A.M. No. 03-02-05-SC Guardianship of Minors 1. Rule 17 governing dismissal of actions by plaintiff in civil actions
6. Rules 92-97 Guardianship of Incompetents (Ventura vs. Ventura, Sept. 24, 1969)
7. A.M. No. 02-06-02-SC Adoption and Custody of Minors 2. Rules regarding: -preparation, filing and service of applications,
8. Rule 98 Trustees motions, and other papers -omnibus motions -subpoena -computation of
9. Rule 101 Hospitalization of Insane Persons time -motion for new trial -discovery -trial before commissioners -
10. Rule 102 Habeas Corpus procedure of appeal (Fernandez vs. Maravilla, 10 SCRA 589 [1964])
11. Rule 103 Change of Name 3. Rule 33 regarding judgment on demurrer to evidence (Matute vs. CA,
12. Rule 104 Voluntary Dissolution of Corporations (Deemed 26 SCRA 768 [1969])
repealed by the Corporation Code, Title XIV, Secs. 117-122) Recent jurisprudence
13. Rule 105 Judicial Approval of Voluntary Recognition of Minor In the absence of special provisions, rules in ordinary actions may be
Natural Children applied in special proceedings as much as possible and where doing so
14. Rule 106 Constitution of Family Home (Deemed repealed by the would not pose an obstacle to said proceedings. Nowhere in the Rules of
Family Code, Arts. 252-253) Court does it categorically say that rules in ordinary actions are inapplicable
15. Rule 107 Absentees or merely suppletory to special proceedings. Provisions of the Rules of
16. Rule 108 Cancellation or Correction of Entries Court requiring a certification of non-forum shopping for complaints and
17. Rule 109 Appeals in Special Proceedings initiatory pleadings, a written explanation for non-personal service and
Special Proceedings Under Various Laws filing, and the payment of filing fees for money claims against an estate
1. Summary proceedings under the Family Code would not in any way obstruct probate proceedings, thus, they are
2. Actions mentioned in the Family Courts Act of 1997 (RA 8369) applicable to special proceedings such as the settlement of the estate of a
- declaration of absolute nullity of void marriages and annulment of deceased person. (Sheker versus Estate of Alice Sheker, G.R. No. 157912 Dec
voidable marriages 13, 2007)
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 retroactfrom the
moment of death.
Recent jurisprudence
The right of respondents predecessors over the subject property is more
than sufficient to uphold respondents right to possession over the same.
Respondents right to the property was vested in her along with her siblings
from the moment of their fathers death. As heir, respondent had the right
to the possession of the property, which is one of the attributes of
ownership. Such rights are enforced and protected from encroachments
made or attempted before the judicial declaration since respondent
acquired hereditary rights even before judicial declaration in testate or
intestate proceedings.(Bunyi versus Factor. G.R. No. 172547, June 30, 2009)
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, 323 SCRA 102]),
Hence, the court may be the MTC or 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.
1. Court first taking cognizance of settlement of estate of a decedent
shall exercise
2. jurisdiction TO THE EXCLUSION of all other courts. -subject to
preferential jurisdiction of court where TESTATE proceedings are filed.
3. 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:
1. Term resides refers to actual or physical residence, as distinguished
from legal residence or domicile.
2. There is a distinction between residence for purposes of election laws
and residencefor 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 residenceof 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)
2. Sec. 1, Rule 73 prescribing court where decedents 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 (129 SCRA 33) 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. (33 SCRA 252) intestate in
Negros court, testate in Manila court. Ruling: priority to firstcourt.
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 (53 SCRA 360 [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.
Sec. 2.Where estate settled upon dissolution of marriage
A creditor cannot sue surviving spouse of a decedent in an ordinary
proceeding for collection of sum of money chargeable against the conjugal
property. Proper remedy file a claim in the settlement of estate of the
decedent. Reason: upon death of one spouse, powers of administration of
surviving spouse ceases and is passed to administrator appointed by
probate court in the settlement proceedings. (Alipio vs. CA, 341 SCRA 441
[2000])
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 titleprovisionally 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.
CASES: Vda. de Rodriguez vs. CA, 91 SCRA 540; Pastor vs. CA, 122 SCRA
885; Pereira vs. CA, 174 SCRA 154 .
Separate civil action for quieting of title -where issue or ownership of
properties excluded from the inventory is finally determined (Pobre vs.
Gonong, 148 SCRA 553 [1987]).
EXCEPTION:
Where interested parties are all heirs and rights of third parties are not
impaired, probate court can decide question of ownership (Coca vs.
Pangilinan, 81 SCRA 278 [1987]).
With consent of all the parties, without prejudice to third persons (Trinidad
vs. CA, 202 SCRA 106 [1991]).
4. Powers and duties of probate court
· However, probate court has jurisdiction to (a) determine heirs separate
action for declaration of heirs not proper (Solivio vs. CA, 182 SCRA 119
[1990]) and (b) distribute estate.
· 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 al lowed
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 personality 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. 4, 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.
· 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.
à 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]).
· Extrajudicial settlement on whom binding
The procedure outlined in Section 1 of Rule 74 is an ex parte proceeding.
The rule plainly states, however, that persons who do not participate or
had no notice of an extrajudicial settlement will not be bound
thereby. 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. (Cua vs.
Vargas, G.R. No. 156536, October 31, 2006)
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
decedents 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 whoparticipated 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 havetaken 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 decedents 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 Josefas estate all to himself. Rule 74,
Section 1 of the Rules of Court is clear. Adjudication by an heir of the
decedents 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. Summary settlement of estates of small value, when al lowed
Distinction between extrajudicial settlement (ES) and summary settlement
of estates of small value (SS):
1. ES-no court intervention SS-judicial adjudication although summary
2. ES-value of estate immaterial SS-applies only where gross value not
more than P10,000.00
3. ES-allowed only in intestate succession SS-both testate and intestate
4. ES-no outstanding debts of estate at time of settlement SS-even if
there are debts
5. 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 10 years, because an action for
reconveyance based on implied or constructive trust, being an obligation
created by law, prescribes in 10 years (Art. 1144, par. 2, Civil Code)
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 inPedrosa 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.
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).
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.
Art. 783, Civil Code defines a will as: an act whereby a person is permitted
with the formalities prescribed by law to control to a certain degree the
disposition of his estate to take effect after his death.
Petitioner should realize that the allowance of her husbands will is
conclusive only as to its due execution. The authority of the probate
court is limited to ascertaining whether the testator, being of sound mind,
freely executed the will in accordance with the formalities prescribed by
law. Thus, petitioners claim of title to the properties forming part of her
husbands estate should be settled in an ordinary action before the regular
courts. (Nittscher vs. Nittscher, G.R. No. 160530, November 20, 2007)
2. Probate of will (special proceeding to establish the validity of a will) is
MANDATORY.
a. The law enjoins probate of the will and public policy requires it. Unless
will is probated and notice given to the whole world, right of a person to
dispose of his property by will may be rendered nugatory (Maninang vs. CA,
114 SCRA 478 [1982]).
The Deed of Donation which is one of mortis causa, not having followed
the formalities of a will, is void and transmitted no right to
petitionersmother. But even assuming that the formalities were observed,
since it was not probated, no right to Lot Nos. 674 and 676 was
transmitted to Maria. (Aluad vs. Aluad, G.R. No. 176943, October 17, 2008
b. In intestate succession, no valid partition among heirs until after will has
been probated (Ralla vs. Judge Untalan, 172 SCRA 858 [1989]).
c. Presentation of will cannot be dispensed with on the ground of
ESTOPPEL because public policy requires that a will should be probated
(Fernandez vs. Dimaguiba, 21 SCRA 428 [1967]).
1. Nature of probate proceeding
PROBATE COURT DOES NOT LOOK INTO INTRINSIC
VALIDITY
GENERAL RULE: Probate courts authority is limited only to extrinsic
validity of the will, i.e.:
a. due execution voluntariness
b. testators 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
· 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:
· will in possession of petitioner or not
· will lost
· 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
1. residing in the Philippines
2. at their places of residence, if known
3. Personal service at least 10 days before hearing
4. Mailed service at least 20 days before hearing
5. 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
Jurisdictionalwhen 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
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
a. Uncontested one witness sufficient
b. Contested all subscribing witnesses and notary (wills executed under
Civil Code) other witnesses (under certain conditions)
4. Holographic will
a. Uncontested at least one witness who knows handwriting and signature
of testator; expert testimony (in the absence of competent witness)
b. Contested at least 3 witnesses who know handwriting of testator; expert
testimony (in the absence of competent witness)
5. Holographic will testator himself as petitioner
a. Contested contestant has burden of disproving genuineness and due
execution
b. Uncontested testator must affirm that will and signature are in his own
handwriting
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
Rule 76, Sec. 9. Grounds for disallowing will.
1. Legal formalities
a. not executed and attested as required by law
2. Testamentary capacity
b. testator insane or otherwise mentally incapable to make will at time of
execution
3. Due execution
c. executed under duress, or the influence of fear, or threats
d. procured by undue and improper pressure and influence on the part of
the beneficiary, or some other person, for his benefit.
e. signature of testator procured by fraud or trick and he did not intend
that the instrument be his will at time of fixing his signature
f. testator acted by mistake or did not intend that instrument be signed or should be his
will at the time of affixing his signature (Art. 389, Civil Code)
Grounds for Disallowance of Will Exclusive
Lists in Sec. 9, Rule 76 and Art. 389 are EXCLUSIVE NO OTHER
GROUND can serve to disallow a will.
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 testators SIGNATURE (Ajero vs. CA, supra).
Separate wills may be probated jointly (Vda. de Perez vs. Tolete, 232
SCRA 722 [1994]).
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 Audreys 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)
PUBLICATION AND NOTICE REQUIRED
Compliance with Secs. 3 and 4 of Rule 76, re publication and notice by
mail or personally to known heirs, legatees and devisees of testator resident
in the Philippines and to executor, if he is not the petitioner, required also
in wills for reprobate (Vda. de Perez vs. Tolete).
EFFECT OF PROBATE
When 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 decedents 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 On the matter of appointment osf administrator of the estate of the
ground of UNSUITABLENESS adverse interest or hostile to those deceased, the surviving spouse is preferred over the next of kin of the
immediately interested in the estate (Lim vs. Diaz-Maillares, 18 SCRA 371 decedent. When the law speaks of next of kin, the reference is to those
[1966]). who are entitled, under the statute of distribution, to the decedents
Failure to file an income tax returnis not a crime involving moral turpitude property; one whose relationship is such that he is entitled to share in the
because the mere omission is already a violation regardless of the estate as distributed, or, in short, an heir. In resolving, therefore, the issue
fraudulent intent or willfulness of the individual. (Republic vs. Marcos, G.R. of whether an applicant for letters of administration is a next of kin or an
No. 130371, August 4, 2009) heir of the decedent, the probate court perforce has to determine and pass
LETTERS TESTAMENTARY ISSUED WHEN WILL upon the issue of filiation. A separate action will only result in a multiplicity
ALLOWED (Rule 78, Sec. 4) When the will is proved and allowed, the of suits. (Angeles vs. Maglaya, G.R. No. 153798, September 2, 2005)
court shall issue LETTERS TESTAMENTARY thereon to the person 1. person requested by spouse or next of kin
named as EXECUTOR therein, if he is - 2. principal creditors
a. competent a. if spouse or next of kin is incompetent or unwilling or
b. accepts the trust and b. neglects for 30 days after death of decedent to apply for administration,
c. gives bond or to request that administration be granted to some other person
1. When and to whom letters of administration granted 3. other person selected by court if no creditor competent or willing
Rule 78, Sec. 6. When and to whom letters of administration granted The order of preference in the appointment of a regular administrator as
When administration granted provided in the afore-quoted provision does not apply to the selection of
1. No executor named in will ) letters of administration 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
2. Executor/s (is/are): ) with will annexed
administrator, and not of a special administrator, as the appointment of
a. Incompetent the latter lies entirely in thediscretion of the court, and is not
- Minor appealable. Not being appealable, the only remedy against the
appointment of a special administrator is Certiorari under Rule 65 of the
- Non-resident Rules of Court. (Tan vs. Gedorio, Jr., G.R. No. 166520, March 14, 2008)
- Unfit Court may reject order of preference
b. Refuse the trust While surviving spouse is entitled to preference in the appointment,
circumstances might warrant his rejection and appointment of someone
c. Fail to give bond else, at the discretion of the court.
3. Person dies intestate ) letters of administration Interest in estate as principal consideration
4. Will void and not allowed ) 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
2. Order of preference administration or will suffer consequences of waste, improvidence or
mismanagement have the HIGHEST INTEREST and MOST
Order of preference in appointment of administrator (Rule 78, Sec. 6) INFLUENTIAL MOTIVE to administer estate correctly (Gonzales vs.
1. surviving spouse partner in conjugal partnership and heir of deceased Aguinaldo, 190 SCRA 112 [1990]).
2. next of kin The order of preference does not rule out the appointment of co-
Meaning of next of kin 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 contestfor
letters of administration
· LETTERS TESTAMENTARY issued to executor
· LETTERS OF ADMINISTRATION WITH WILL
ANNEXEDissued to administrator when there is no executor named in
will, or executor is incompetent, refuses trust or fails to give bond.
· LETTERS OF ADMINISTRATION issued to administrator in
intestate proceedings.
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 personhas been defined as one who would be benefited by
the estate, such as an heir, or one who has a claimagainst 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)
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
Powers:
a. Possess and manage estate of the deceased to pay debts and expenses of
administration. (Rule 84, Sec. 2)
b. (Executor or administrator of estate of a deceased partner) Have access
to, examine and take copies of, books and papers relating to the
partnership business, and examine and make invoices of the property
belonging to such partnership (Ibid., Sec. 1).
c. With the approval of the court, to compound or compromise with a
debtor of the deceased (Rule 87, Sec. 4)
Duties
a. Maintain the estate in tenantable repair, and.
b. Deliver the same to the heirs or devisees when directed by the court.
(Rule 84, Sec. 3)
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
2. 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 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)
PUBLICATION AND NOTICE REQUIRED
Even in the appointment of a special administrator, same jurisdictional
requirements under Sec. 3, Rule 79.
ORDER APPOINTING SPECIAL ADMINISTRATOR NOT
APPEALABLE
Order appointing special administrator interlocutory in nature and mere
incident in the judicial proceedings, hence not appealable (Samson vs.
Samson, 102 Phil. 735)
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)
Sec. 3. Acts before revocation, resignation, or removal to be valid.
Effect of revocation, resignation or removal of executor or
administrator on his previous acts lawful acts shall have same validity
as if no revocation, resignation or removal.
Rule on Precedence of Probate of Will
Sec. 1, Rule 82 was followed in Uriarte vs. CFI of Negros Occidental:
1. If in the course of intestate proceedings, it is found out that decedent
left a last will,
2. probate proceedings should REPLACE intestate proceedings
3. even if at that stage an administrator had already been appointed.
4. Administrator is required to
a. render final account
b. turn over estate in his possession to executor subsequently appointed
5. Without prejudice that proceeding shall continue as intestacy should
alleged will be rejected or disapproved.
Probate of the will is mandatory (Sec. 1, Rule 75) and therefore takes
precedence over intestate proceedings.
WHAT TO DO WITH PROCEEDINGS DISCRETIONARY
WITH COURT
Whether intestate proceedings already commenced should be discontinued
and a new proceeding under a separate number and title should be
constituted entirely a MATTER OF FORM and lies within SOUND
DISCRETION of court. Does not prejudice substantial rights of heirs and
creditors (Intestate Estate of Wolfson, 45 SCRA 381).
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.
One month does not commence from expiration of the original period for
filing claims. It begins from the date of the order of the courtallowing 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
a. 4 public places in the province and
b. 2 public places in the municipality where decedent last resided
PUBLICATION OF NOTICE TO CREDITORS
CONSTRUCTIVE NOTICE TO THE WHOLE WORLD
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)
1. Claims for money against the decedent arising fromcontract, express
or implied, whether due, not due or contingent
2. Claims for funeral expenses and expenses for last sickness of
decedent
3. Judgment for money against decedent
a. The judgment must be presented as a claim against the estate where the
judgment debtor dies before levy on execution of his properties (Evangelista
vs. La Provedra, 38 SCRA 379).
b. When the action is for recovery of money arising from contract, and
defendant dies before entry of final judgment, it shall not be dismissed but
shall be allowed to continue until entry of final judgment. A favorable
judgment obtained by plaintiff shall be enforced under Rule 86 (Rule 3,
Sec. 20).
Money claims against a deceased debtor
1. Section 5 of Rule 86 of the Rules of Court expressly allows the
prosecution of money claims arising from a contract against the estate of
a deceased debtor. Those claims are not actually extinguished. What is
extinguished is only the obligees action or suit filed before the court, which
is not then acting as a probate court. In the present case, whatever
monetary liabilities or obligations Santos had under his contracts with
respondent were not intransmissible by their nature, by stipulation, or by
provision of law. Hence, his death did not result in the extinguishment of
those obligations or liabilities, which merely passed on to his estate. Death
is not a defense that he or his estate can set up to wipe out the obligations
under the performance bond. (Stronghold Insurance Company, Inc. vs. Republic-
Asahi Glass Corporation, G.R. No. 147561, June, 2006)
2. Respondentsmonetary claim shall be governed by Section 20 (then
Section 21), Rule 3 In relation to Section 5, Rule 86 of the Rules of Court.
Thus, said money claims must be filed against the estate of petitioner
Melencio Gabriel. (Gabriel vs. Bilon, G.R. No. 146989, February 7, 2007)
Must be filed within the time limited in the notice, otherwise they are
BARRED FOREVER.
Exception may be set forth as COUNTERCLAIMS in any action executor
or administrator may bring against the claimants.
Rationale: 1) to protect the estate of the deceased by informing the
executor or administrator of the claims against it, thus enabling him to
examine each claim and to determine whether it is a proper one which
should be allowed; 2) speedy settlement of affairs of deceased; and 3) early
delivery of property to distributes, legatees, or heirs (Union Bank of the
Philippines vs. SantibaHez, G.R. No. 149926, February 23, 2005).
A money claim against an estate is more akin to a motion for creditors'
claims to be recognized and taken into consideration in the proper
disposition of the properties of the estate.
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 decedents death may be allowed as expenses of
administration.
Enumeration exclusive refers only to contractual money claims
Only claims for money, debt or interest thereon, arising from contract can
be presented in the testate or intestate proceedings.
Claims which survive death of accused
Claim for civil liability survives notwithstanding death of accused if the
same may also be based on a source of obligation other than delict
(contract, law, quasi-contract, quasi-delict)
Separate civil action may be enforced either against
a. Estate of accused (contract)
b. Executor/ administrator (law, quasi-contract, quasi-delict) (People vs.
Bayotas, 236 SCRA 239 [1994]).
Civil actions for tort or quasi-delict do not fall within the class of claims to
be filed under the notice to creditors required under Rule 86. These
actions, being civil, survive the death of the decedent and may be
commenced against the administrator pursuant to Section 1, Rule
87..(Hilado vs. Court of Appeals, G.R. No. 164108, May 8, 2009)
Execution of final judgment not proper remedy but filing of claim
When judgment in a civil case has become final and executory, execution
not proper remedy to enforce payment; claimant should PRESENT
CLAIM before probate court (Domingo vs. Garlitos, 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 Administrators
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
Administrators commission effectively, a claim by the specialadministrator
against the estate is the lower courts last word on the matter and one that
is appealable. (Briones vs. Henson-Cruz, G.R. No. 159130, August 22, 2008)
4. Payment of debts
Rule 88 Payment of debts of the estate
Sec. 1. Debts paid in full if estate sufficient
Sec. 2. Part of estate from which debt paid when provision made by
will.
Sec. 7. Order of payment if estate insolvent
-follow preference of credits under Arts. 1059, 2239-2251 of Civil Code
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 shallnot
exceed 2 years.
4. Successor of dead executor/administrator may have time extended
on notice not exceeding 6 months at a time and not exceeding 6
months beyond the time allowed to original executor/administrator.
Sec. 6. Court to fix contributive shares where devisees, legatees or
heirs have been in possession.
1. Where devisees, legatees or heirs have entered into possession or
the estate before debts and expenses settled and paid, and
2. have become liable to contribute for payment of such debts and
expenses,
3. Court may, after hearing, order settlement of their several liabilities
and order how much and in what manner each person shall contribute and
may issue execution as circumstances require.
NOTE: This provision clearly authorizes execution to enforce payment of
the debts of the estate. Legacy is not a debt of the estate legatees are
among those against whom execution is authorized to be issued (Pastor vs.
CA, 122 SCRA 885 [1983]).
Compare to: Rule 88, Secs. 15 & 16 Rule 89, Secs. 1-5, 7 (a) referring to
payment of debts and/or legacies
As ruled in Pastor, ordered payment of legacy violative of rule requiring
prior liquidation of estate (determination of assets of estate and payment
of debts and expenses) before apportionment and distributed of residue
among heirs; legatees and devisees.
Correct rule: Sec. 1 of Rule 90 does not include legacies as among those
that should be paid before order of distribution only debts, funeral charges,
expenses of administration, allowance to widow and inheritance tax.
After debts and expenses of administration paid, residue given to heirs and
those entitled by way of inheritance or legacy (Magbanua vs. Akol, 72 Phil.
567). Purpose of administration distribution of residue among heirs
and legatees after payment of debts and expenses (Luzon Surety vs. Quebrar,
127 SCRA 301).
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).
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 administ ra tors
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
2. 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 whichis
an action involving real property. It is an action that survivespursuant 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 Aa 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.
3. Requisites before creditor may bring an action for recovery of property fraudulently
conveyed by the deceased
Sec. 10. When creditor may bring action. Lien for costs.
When there is
1. Deficiency of assets
2. Deceased in his lifetime had made or attempted such a conveyance
(with intent to defraud creditors or to avoid any right, debt or duty) as
stated in Sec. 9, and
3. Executor or administrator has not commenced the action provided
in Sec. 9 (entitled Property fraudulently conveyed by the deceased may be recovered.
When executor or administrator must bring action)
à Any creditor of the estate may, with the permission of the court,
commence and prosecute to final judgment, in the name of the executor
or administrator, a like action for the recovery of the subject of the
conveyance or attempted reconveyance for the benefit of the creditors.
a. Creditor should file a BOND executed to the executor or
administrator, in an amount approved by the judge, conditioned to
indemnify the executor or administrator against the costs and expenses
incurred by reason of such action.
b. Creditor shall have a LIEN upon any judgment recovered by him for
reasonable costs and expenses à When conveyance or attempted
conveyance made by deceased in his lifetime in favor ofthe executor or
administrator, action shall be in the name of all the
creditors and permission of the court and filing of bond not necessary
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
· debts
· funeral charges
· expenses of administration
· allowance to widow
· inheritance tax
Exception: distribution before payment of obligations provided
distributees give BOND conditioned for payment thereof within such time
as court directs.
1. Liquidation
Requisites before distribution of estate
1. Liquidation -determination of all assets of the estate and payment of
all debts and expenses
2. Declaration of heirs to determine to whom residue of the estate
should be distributed. Separate action for declaration of heirs not proper.
The Regional Trial Court in the instant case, acting in its general
jurisdiction, is devoid of authority to render an adjudication and resolve
the issue of advancement of the real property in favor of herein petitioner
Natcher, inasmuch as Civil Case No. 71075 for reconveyance and
annulment of title with damages is not, to our mind, the proper vehicle to
thresh out said question.
The net estate of the decedent must be ascertained, by deducting all
payable obligations and charges from the value of the property owned by
the deceased at the time of his death; then, all donations subject to collation
would be added to it With the partible estate thus determined, the legitime
of the compulsory heir or heirs can be established; and only then can it be
ascertained whether or not a donation had prejudiced the legitimes. (Heirs
of Doronio versus Heirs of Doronio, G.R. No. 169454, December 27, 2007)
2. 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
heir from bringing an action to obtain his share, provided the prescriptive
period has not closed (Mari vs. Bonilla, 83 SCRA 1137).
The RTC of Makati, acting as a special commercial court, has no
jurisdiction to settle, partition, and distribute the estate of a deceased.
A probate court has the power to enforce an accounting as a necessary
means to its authority to determine the properties included in the inventory
of the estate to be administered, divided up, and distributed. Beyond this,
the determination of title or ownership over the subject shares (whether
belonging to Anastacia or Oscar) may be conclusively settled by the
probate court as a question of collation or advancement. (Reyes vs. RTC
Makati, Branch 142, G.R. No. 165744, August 11, 2008)
Partial distribution of the estate should not have been allowed. There was
no determination on sufficiency of assets or absence of any outstanding
obligations of the estate of the late Raymond Triviere made by the RTC in
this case. In fact, there is a pending claim by LCN against the estate, and
the amount thereof exceeds the value of the entire estate. (Quasha Ancheta
Pena and Nolasco Law Office vs. LCN Construction Corp., G.R. No. 174873,
August 26, 2008)
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 Where judgment has become final, what is the remedy for inclusion
properties included therein are under the control of the intestate court. of a party-heir?
And not even the administrator may take possession of any property that After the decision became final and executory, the trial judge lost
is part of the estate without the prior authority of the Court. (Silverio, Jr. vs. jurisdiction over the case. Any modification that he would make, i.e., the
Court of Appeals, G.R. No. 178933, September 16, 2009) inclusion of Mary Lyon Martin would be in excess of his authority. The
3. Remedy of heir entitled to residue but not given his share remedy of Mary is to file an INDEPENDENT SUIT against the parties
To demand his share through and all other heirs for her share in the subject property, in order that all
a. a proper motion in the same probate or administration proceedings, OR the parties in interest can prove their respective claims (Nunal vs. CA, 221
b. motion to reopen if it had already been closed, and not through an SCRA 26 [1991]).
independent action which would be tried by another court or judge which 4. Instances when probate court may issue writ of execution
might reverse a decision or order of the probate court already final and As a general rule, a probate court cannot issue a writ of execution.
executed and reshuffle properties long ago distributed and disposed of Exceptions:
(Guilas vs. Judge of CFI of Pampanga, infra). 1. To satisfy the distributive shares of devisees, legatees and heirs in
· Four cases illustrate the proper remedy: Vda de Lopez vs. Lopez, possession of the decedents assets
Divinagracia vs. Rovira, Guillas vs. Judge of CFI of Pampanga and Heirs of Jesus 2. To enforce payment of the expenses of partition 3, To satisfy the
Fran vs. Salas. costs when a person is cited for examination in probate proceedings
· Lopez (35 SCRA 81 ) compared to Divinagracia (72 SCRA 307 ):
Both involved the issue of the reglementary period within which NON- SEVEN STAGES IN SETTLEMENT OF ESTATE
PARTIES to the partition, heir, devisee or any person interested in the 1. Petition
estate, can reopen the case. 2. Hearing
Conclusion if proceeding already closed, motion to reopen may be filed by 3. Court Order
a nonparty deprived of his lawful participation, as long as it is within 30 4. Claims Against Estate
days (now 15 days) or before order closing the proceedings becomes final. 5. Payment of Debts of Estate
Guilas (43 SCRA 111) compared to Fran (210 SCRA 303): 6. Distribution and Partition of Estate
Both involved PARTIES who have not received their shares. 7. Closing
Conclusion parties to partition agreement who have not received their SETTLEMENT OF ESTATE STAGES
shares can file a motion for execution within 5 YEARS. But if other I
grounds such as forgery of will are raised, final judgment cannot be PETITION
attacked except through a separate action. The validity of a final judgment Testate Intestate
can be assailed through a petition for relief under Rule 38, annulment of Filing of petition for allowance Filing of petition for issuance of
judgment under Rule 47, and petition for certiorari under Rule 65, of will by executor, devisee, letters of administration person
assuming the judgment is void for want of jurisdiction. legatee, other interested (Rule 79, Sec. 2)
REMEDY OF PRETERITED HEIR person (Rule 76, Secs. 1 & 2)
The intestate proceedings, although closed and terminated, can still be Order setting petition for hearing
opened within the prescriptive period upon petition by the preterited heir Notice of hearing
(Solivio vs. CA, 182 SCRA 1199) 1. Publication of notice for three consecutive weeks (Rule 76, Sec.
Prescriptive period 10 years. Action upon an obligation created by law 3)
must be brought within 10 years from the time the right of action accrues 2. Notice by mail or personally to designated or known heirs,
(Art. 1144, Civil Code). 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 subscribing Decedent left no will or there is
witness/es (Rule 76 Secs. 5 & 11) no competent and willing
executor (Rule 79, Sec. 5)
Proof when testator is petitioner Petitioner is qualified for
(Rule 76, Sec. 12) appointment (Rule 78, Secs. 1
& 6)
Evidence for Oppositor
File grounds for contest (Rule 76, Sec. 10)
III
COURT ORDER
Order or decision allowing will or admitting it to probate
Certificate of allowance attached to prove will (Rule 76, Sec. 13)
Order for issuance of letters testamentary (Rule 78, Sec. 4)
Order for issuance of letters of administration
(Rule 79, Sec. 5) Issuance of letters by clerk of court Oath of executor
or administrator Filing of executor or administrator's bond
(Rule 81, Sec. 1) Filing of inventory within 3 mos. (Rule 81, Sec. 1[a])
Accounting within 1 year (Rule 81, Sec. 1 [c]; Rule 85, Sec. 8) Actions
by or against executor or administrator (Rule 87)
IV
CLAIMS AGAINST ESTATE
Notice of filing of claims time for filing not more than 12 mos. nor
less than 6 mos. from first publication (Rule 86, Secs. 1 & 2)
Publication of notice for 3 consecutive weeks and posting (Rule 86,
Secs. 3 & 4)
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)
V Acquiring the trust by prescription
PAYMENT OF DEBTS OF ESTATE
Debts paid in full if estate sufficient (Rule 88, Sec. 1)
Order of payment if estate insolvent (Rule 88, Sec. 7)
Order for payment of debts (Rule 88, Sec. 11)
Time for payment not to exceed 1 year, extendible for 1 more year
(Rule 88, Sec. 15)
Sales, mortgages and other encumbrances of property of decedent
for paying debts. etc. (Rule 89)
VI
DISTRIBUTION AND PARTITION OF ESTATE
Rule 90
Approval of final accounting and project of partition
Actual distribution or delivery to heirs of their respective shares
VII
CLOSING
Order declaring proceedings closed and terminated
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
1. shall be appointed by the RTC in which the will is allowed, or
2. 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).
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 (OLao 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 considered 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
deliver all the estate remaining in his hands, or due from him on such
settlement, to the person or persons entitled thereto
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
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 valid 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).
Escheat of unclaimed balances
Unclaimed balances which include credits or deposits of money, bullion,
security or other evidence of indebtedness of any kind, and interest
thereon with banks in favor of any person unheard from for a period of
ten (10) years of more, together with the interest and proceeds thereof shall
be deposited with the Insular Government of the Philippines as the
Philippine Legislature may direct (Act No. 3936, Unclaimed Balances Act,
Sec. 1)
Action to recover unclaimed balances shall be commenced by the Solicitor
General in an action for escheat in the name of the People of the
Philippines in the Regional Trial Court of the province where the bank is
located, in which shall be joined as parties the bank and such creditors or
depositors. All or any member of such creditors or depositors or banks,
may be included in one action. (Id., Sec. 3; Republic vs. Court of First
Instance of Manila and Pres.. Roxas Rural Bank, Inc., G.R. No. L-30381,
August 30, 1988)
3. Remedy of respondent against petition; period for filing a claim
Remedy of respondent against escheat petition
Motion to dismiss for failure to state a cause of action. where petition for
escheat does not state facts which entitle petitioner to the remedy prayed
for (Go Poco Grocery vs. Pacific Biscuit Co., 65 Phil. 443; Rep. vs, PNB, G.R.
No. L-16016, Dec. 30, 1961); or other grounds for dismissal under the
rules (Municipal Council of San Pedro, Laguna vs. Colegio de San Jose, 65 Phil.
318).
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 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 childs 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 incompetentsother than
minority is now governed by the RULE ON GUARDIANSHIP OF
MINORS (A.M. No. 003-03-05-SC).
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.
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)
L. Adoption
· Nature and concept of adoption
· Purpose of Adoption
Adoption is a juridical act, a proceeding in rem which creates between two
persons a relationship similar to that which results
from legitimatepaternity and filiation.
Adoption used to be for the benefit of the adoptor. It was intended to
afford persons who have no child of their own the consolation of having
one by creating thru legal fiction the relation of paternity and filiation
where none exists by blood relationship.
Present tendency more toward the promotion of the welfare of the child,
and enhancement of his opportunities for a useful and happy life.
Under the law now in force, having legitimate, legitimated, acknowledged
natural children or children by legal fiction is no longer a ground for
disqualification to adopt.
· Objectives of Rule on Adoption
· Best interests of child paramount consideration in all matters relating (c) An illegitimate
to his care, custody and adoption. son/daughter by a
· The state shall provide alternative protection and assistance thru foster qualified adopter to
care or adoption for every child who is a foundling, neglected, orphaned, improve his/her status
or abandoned. to that of legitimacy;
· Laws on adoption (d) A person of legal
The prevailing laws on adoption are RA 8552 ( Domestic Adoption Act of age if, prior to the
1998) and RA 8043 (Inter-Country Adoption Act of 1995). adoption, said person
Rule on Adoption (A.M. No. 02-6-02-SC), August 22, 2002 Guidelines has been consistently
issued by the Supreme Court in petitions for adoption. The Rule repealed considered and treated
Rules 99-100. It covers domestic adoption (Secs. 1-25) andinter- by the adopter(s) as
country adoption (Secs. 26-32). his/her own child since
1. Distinguish domestic adoption from inter -adoption minority;
KIND Domestic Adoption Inter-country (e) A child whose
Adoption adoption has been
Type of Proceeding Judicial Adoption Extrajudicial previously rescinded;
Adoption or
Who may adopt The following may An alien or a Filipino (f) A child whose
adopt: citizen permanently biological or adoptive
(a) Any Filipino citizen; residing abroad may parent(s) has died;
(b) Any alien file an application for Provided, That no
possessing the same inter-country proceedings shall be
qualifications as above adoption of a Filipino initiated within six (6)
stated for Filipino child. months from the time
nationals; of death of said
(c)The guardian with parent(s) (Section 8)
respect to the ward. Where to file Family Court of the RTC having
Who may be The following may be Only a legally free application place where the jurisdiction over the
adopted adopted: child may be the adopter resides child, or with the
(a) Any person below subject of inter- Inter-Country
eighteen (18) years of country adoption Adoption Board,
age who has been through an
administratively or intermediate agency,
judicially declared whether
available for adoption; governmental or an
(b) The legitimate authorized and
son/daughter of one accredited agency, in
spouse by the other the country of the
spouse;
 prospective adoptive In case husband and wife jointly adopt or one spouse adopts the
parents. (Section 10) illegitimate child of the other, joint parental authority shall be exercised by
What petition for May include prayer for Only petition for the spouses.
adoption may change of name, adoption. Whose consent necessary
include rectification of 1. biological parents of adoptee, if known
simulated birth or *However, consent of biological parents, even if they are known, is not
declaration that the necessary if they have ABANDONED the child (Lang vs. CA, 298 SCRA
child is a foundling, 128 [1998]).
abandoned, dependent 1. adoptee, if 10 years of age or older
or neglected child. 2. legitimate or adopted children of adopter or adoptee, if 10 years of
Supervised trial Supervised trial Supervised trial age or older
custody custody period in the custody period in the 3. illegitimate children of adopter, if living with him, if 10 years of age
Philippines for at least Philippines for at least or older
six (6) months (Court six (6) months. 4. spouse of adopter or adoptee
may reduce period or (Section 14) Change of name
exempt parties from In case petition also prays for change of name, title or caption must
trial custody) (Section contain:
12) 1. registered name of child
2. Domestic Adoption 2. aliases of other names by which child has been known
Who may adopt 3. full name by which child is to be known
1. Any FILIPINO PUBLICATION JURISDICTIONAL
-of legal age Adoption is action in rem involves the status of persons.
-in possession of full civil capacity and legal rights Decree of Adoption
-of good moral character If supervised trial custody SATISFACTORY and -court CONVINCED
-has not been convicted of any crime involving moral turpitude from trial custody report and evidence adduced that -adoption shall
-emotionally and psychologically capable of caring for children redound to BEST INTERESTS of adoptee
-at least 16 yrs. older than the adoptee -DECREE OF ADOPTION issued which shall take effect as of date
* may be waived when adopter is biological parent of adoptee or original petition filed even if petitioners DIE before issuance
isspouse of adoptees parent a. effects of adoption
-in a position to support and care for his children in keeping with means (1) For civil purposes the adopted shall be deemed to be a legitimate
of the family. child of the adoptioners and both shall acquire the reciprocal rights and
2. Any ALIEN possessing same qualifications, subject to certain obligations arising from the relationship of parents and child, including the
conditions. right of the adopted to use the surname of the adopters; (2) Theparental
HUSBAND AND WIFE MUST JOINTLY ADOPT authority of the parents by nature over the adoped shall terminate and be
EXCEPTIONS: a) if one spouse seeks to adopt legitimate child of the vested in the adopters, except that if the adopter is the spouse of the
other; b) if one spouse seeks to adopt his own illegitimate child(provided parents by nature of the adopted, the parental authority over the adopted
the other spouses shall be exercised jointly by both spouses; and (3) The adopted shall remain
signified his consent thereto) c) if the spouses are legally separatedfrom an intestate heir of his parents and other blood relatives. (Art. 189, Family
each other. Code)
Adoption strictly between adopter and adopted
If adopting parent should die before adopted child, latter cannot
represent the adopter in the inheritance from the parents and ascendants
of the adopter. Adopted child is not related to the deceased in that case
because filiation created by fiction of law is exclusivebetween adopted and
adopter. By adoption, the adopters can make for themselves an heir but
they cannot make one for their relatives.(Republic vs. Valencia, G.R. No. L-
32181, March 5, 1986)
An illegitimate child, upon adoption by her natural father, may use
the surname of her natural mother as her middle name.(In the Matter
of the Adoption of Stephanie Nathy Astorga Garcia, G.R. No. 148311, March 31,
2005.)
b. instances when adoption may be rescinded
RESCISSION OF ADOPTION BY ADOPTEE
Petition VERIFIED
Filed by adoptee
-over 18 years of age
-with assistance of DSWD, if minor
- by guardian or counsel, if over 18 but incapacitated
Grounds committed by ADOPTER:
1. repeated physical and verbal maltreatment by adopter despite having
undergone counseling
2. attempt on life of adoptee
3. sexual assault or violence
4. abandonment or failure to comply with parental obligations
· Adoption, being for best interests of child, not subject to rescission by
ADOPTER
· Time within which to file petition
If MINOR within 5 yrs. after reaching age of majority If
INCOMPETENT within 5 yrs. after recovery from incompetency.
c. Effects of rescission of adoption (Rule on Adoption, Sec. 23)
(a) parental authority of the biological parent of the adoptee, if known, or
the legal custody of DSWD is restored if the adoptee is still a minor or
incapacitated;
(b) reciprocal rights and obligations of the adopter and adoptee to each
other are extinguished;
(c) succession rights revert to their status prior to adoption, as of the date
of judgment of rescission, but vested rights acquired prior to rescission are
to be respected
(d) court shall order adoptee to use the name stated In the original birth or
foundling certificate
(e) court shall order the Civil Registrar where the adoption decree was
registered to cancel the new birth certificate of the adoptee
and reinstate the original birth or foundling certificate
3. Inter -country Adoption
a. when allowed
Inter-country adoption of Filipino children by foreign nationals and
Filipino citizens permanently residing abroad is allowed by law if such
children cannot be adopted by qualified Filipino citizens or aliens.
b. functions of the RTC (Family Court )
A verified petition for inter-country adoption may be filed by a foreign
national or Filipino citizen permanently residing abroad with the Family
Court having jurisdiction over the place where the child resides or may be
found. Its functions are (1) receive the application, (b) assess the
qualification of the prospective adopter and (3) refer its findings, if
favorable, to the Inter-Country Adoption Board. The latter, on its own,
however, can receive the original application (RA 8043, Sec. 10; Rule on
Adoption, Secs. 28 & 32))
The Inter-Country Adoption Board is the central authority in matters
relating to intercountry adoption. It is the policy-making body for purposes
of carrying out the provisions of the law, in consultation and coordination
with the DSWD, the different child-care and placement agencies, adoptive
agencies as well as non-governmental organizations engaged in child care
and placement activities (RA 8043, Sec. 4).
c. best interest of the minorstandard
Inter-country adoption is allowed only when the same shall prove
beneficial to the childs best interests, and shall serve and protect his/her
fundamental rights (RA 8043, Sec. 2)
Only a child legally available for domestic adoption may be the subject of
inter-country adoption (Rule on Adoption, Sec. 29).
Financial qualification in adoption
Since the primary consideration in adoption is the best interest of the child,
it follows that the financial capacity of prospective parents should also be
carefully evaluated and considered. Certainly, the adopter should be in a
position to support the would-be adopted child or children, in keeping
with the means of the family..(Landingin vs. Republic, G.R. No. 164948, June
27, 2006)
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 v. CA, 21, 1966).
It is a summary remedy. (Caballes vs. CA, G.R. No. 163108, February 23,
2005)
When constitutional rights disregarded writ may issueExceptional
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 attackwhich precisely is the function of habeas
corpus.
This writ may issue even if another remedy which is less effective may be
availed of failure by accused to perfect his appeal before the CA does not
preclude recourse to the writ. The writ may be granted upon a judgment
already final (Chavez v. CA, 24 SCRA 663 [1968]).
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.
 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 Courts 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
6. Distinguish from writ of amparo and habeas data (SeeDiagram)
WRIT OF HABEAS AMPARO HABEAS To all cases To any person To any person
CORPUS DATA of illegal whose right to whose right to
DEFINITION Habeas It is a remedy It is a remedy confinement life, liberty and privacy in life,
corpus is a available to available to any or detention: security is liberty and
Latin phrase any person person whose 1. By which violated or security is
which whose right to right to privacy any person threatened violated or
literally life, liberty, in life, liberty is deprived with violation threatened
means you and security or security is of his by an unlawful with violation
have the has been violated or liberty; or act or by an unlawful
body.It is a violated or is threatened by 2. By which omission of a act or omission
writ directed threatened an unlawful act the rightful public official of a public
to the with violation or omission of custody of or employee, official or
person by an unlawful a public official any person or of a private employee, or
detaining act or or employee, is withheld individual or of a private
another, omission of a or of a private from the entity. individual or
commandin public official individual or person entity engaged
g him to or employee, entity engaged entitled in:
produce the or of a private in the thereto. 1. Gathering
body of the individual or gathering, 2. Collecting
prisoner at a entity. The collecting or 3. Storing
designated writ covers storing data or Of data or
time and extralegal information information
place, with killings and regarding the regarding the
the day and enforced person, family, person family,
cause of his disappearance home and home and
capture and s or threats correspondenc correspondenc
detention, to thereof. e of the e of the
do, submit aggrieved aggrieved
to, and party. party.
receive PETITIONER Sec. 3 Sec. 2 Sec. 2
whatsoever By the party By the General rule:
the court or for whose aggrieved The aggrieved
judge relief it is party, or by party
awarding the intended, or any qualified Except:
writ shall by some person or In cases of
consider in other person entity in the extralegal
that behalf. in his behalf order killings and
AVAILABILITY Sec. 1 Sec. 1 Sec. 1 provided in enforced
Sec. 2
 disappearances RTC: only
: within its
1. Immediate judicial
family; district
2. In default of WHEN TO FILE/ Sec. 2 Sec. 3 Indigent
no. 1, EXEMPTION On any day On any day petitioner
ascendant, FROM and at any and at any exempt from
descendant or DOCKET FEES time time. docket
collateral Petitioner fees
relative within exempt
the 4th civil from docket
degree of fees
consanguinity SETTING OF Sec. 12 Sec. 6 Sec. 7
or affinity. HEARING Hearing on Not later than Not later than
VENUE If filed with Sec. 3 Sec. 3 return 7 days 10
RTC, where SC, CA and SC, CA and SB from date of days from date
detainee is SB RTC of the RTC: issuance of of
detained place where 1. Where writ issuance of writ
the threat, act petitioner HOW SERVED Sec. 7 Sec. 8 Sec. 9
or omission resides; or Service of If the writ If the writ
was 2. Where the writ shall cannot be cannot be
committed or respondent be made by served served
any of its resides; or leaving the personally on personally on
elements 3. Which has original with respondent, respondent,
occurred. jurisdiction the person the rules on the rules
over the to whom it is substituted on substituted
place where directed service shall service shall
data or and apply apply
information is preserving a
gathered, etc. copy
All at the on which to
option of make return
petitioner. of service. If
EXTENT OF SC, CA and Anywhere in Anywhere in that person
ENFORCEABILIT SB: the the cannot be
Y anywhere in Philippines Philippines found, or
the has
Philippines not the
prisoner in
 custody then warrant unless
the service the
shall be court in its
made on any discretion
person requires
having or petitioner to
exercising submit
such evidence.
custody SUMMARY Sec. 13 Sec. 15
FILING OF Sec. 10 Sec. 9 Sec. 9 HEARING The hearing Same as WOA
RETURN Signed and Verified Verified on the
shall also written return written petition shall
be sworn to within 5 work return within 5 be
if the days from days summary.
prisoner is service of writ from service of However, the
not - cannot be writ court, justice
produced extended -may be or judge
except on reasonably may call for a
highly extended by preliminary
meritorious the court for conference
grounds justifiable to simplify the
grounds issues
EFFECT OF Sec. 12 Sec. 14 and determine
FAILURE In case In case the
TO FILE RETURN respondent respondent possibility of
fails fails to return, obtaining
to file a return, the stipulations
the court, court, justice or and
justice or judge shall admissions
judge shall proceed from the
proceed to to hear the parties.
hear the petition The hearing
petition ex ex parte, shall be
parte granting from day to
petitioner such day until
relief completed and
as the petition given
may the same
priority as
 petitions When the judgment an addition
forhabeas court or within ten (10) that upon
corpus. judge days from the finality, the
INTERIM SEC. 12 Sec. 14 has time the judgment shall
RELIEFS 1. Unless for(a) Temporary examined petition is be enforced by
good Protection into the submitted for the sheriff or
cause Order. cause of decision. If the any
shown, the (b) Inspection caption and allegations in lawful officers
hearing is Order. restraint of the as
adjourned, (c) Production the prisoner, petition are may be
in Order. and is proven by designated
which event (d) Witness satisfied that substantial by the court,
the court Protection he evidence, justice
shall make Order. is unlawfully the court shall or judge within
an order for imprisoned grant the 5
the or privilege of working days.
safekeeping restrained, the writ and
of the he shall such reliefs as
person forthwith may be
imprisoned order his proper and
or discharge appropriate;
restrained as from otherwise, the
the nature confinement privilege
of the case , but such shall be
requires; discharge denied.
2. The court shall not be
or judge effective
must be until a copy
satisfied that of
the person's the order
illness is so has been
grave that he served on
cannot be the officer
produced or
without any person
danger. detaining
JUDGMENT Sec. 15 Sec. 18 Sec. 16 the
The court Same with
shall render WOA with
 prisoner. If INSTITUTION OF Sec. 21 Sec. 20
the officer SEPARATE This Rule shall Same as WOA
or ACTIONS not
person preclude the
detaining filing of
the separate
prisoner criminal, civil
does not or
desire administrative
to appeal, actions.
the prisoner EFFECT OF Sec. 2 Sec. 21
shall be FILING When a Same as WOA
forthwith CRIMINAL criminal action
released. ACTION has been
APPEAL Sec. 15 in Sec. 19 Sec. 19 commenced,
relation to Rule 45 by Same as WOA no separate
Sec. 3 Rule petition for petition for
41 and Sec. review the writ shall
39 of BP oncertiorari wit be filed.
129: h The reliefs
48 hours peculiar under the
from notice features: writ shall be
of 1. Appeal may available by
judgment raise motion in the
appealed questions of criminal
from fact or law case.
by ordinary or both; CONSOLIDATIO Sec. 23 Sec. 22
appeal 2. Period of N When a Same as WOA
appeal shall criminal action
be 5 working is filed
days from subsequent to
the date of the filing of a
notice of the petition for
adverse the writ, the
judgment; latter shall
3. Same be
priority as consolidated
habeas with the
corpuscases
 criminal the Court reiterates its pronouncement in its Resolution of February 19,
action. 2001 in G.R. Nos. 145715-18 that Section 14, Rule 102 of the Rules of
When a Court applies only to cases where the applicant for the writ of habeas
criminal action corpus is restrained by virtue of a criminal charge against him and not in
and a separate an instance, as in the case involved in the present controversy, where the
civil applicant is serving sentence by reason of a final judgment. (Vicente vs.
action are filed Majaducon, A.M. No. RTJ-02-1698 (Formerly OCA IPI No. 00-1024-RTJ),
subsequent to June 23, 2005)
a petition Marital rights including co-venture and living in conjugal dwelling
for a writ of may not be enforced by the extraordinary writ of habeas
amparo, the corpus. (Ilusorio vs. Bildner, et.al.,
latter shall be G.R. No. 139808, May 12, 2000)
consolidated Writ of habeas corpus cannot be issued once person is charged with
with the a criminal offense
criminal Under Section 1, Rule 102 of the Rules of Court, the writ of habeas corpus
action. extends to all case of illegal confinement or detention by which any person
Grant of writ is deprived of his liberty, or by which the rightful custody of any person is
When court is satisfied that prisoner does not desire to appeal, the prisoner withheld from the person entitled thereto.The remedy of habeas corpus
shall be forthwith released (Sec. 15, Rule 102) has one objective: to inquire into the cause of detention of a person, and
Period to appeal within 48 hours from notice of judgment or final order if found illegal, the court orders the release of the detainee. If, however,
appealed from the detention is proven lawful, then the habeas corpus proceedings
(A.M.N. 01-1-03-SC, July 19, 2001). terminate. (In the Matter of the Petition for Habeas Corpus of Kunting, G.R. No.
Habeas corpus as a post-conviction remedy 167193, April 19, 2006)
The writ of habeas corpus applies to all cases of illegal confinement or Habeas corpus in custody cases
detention in which individuals are deprived of liberty. The writ may not be Habeas corpus may be resorted to in cases where rightful custody is
availed of when the person in custody is under a judicial process or by withheld from a person entitled thereto. Under Article 211 of the Family
virtue of a valid judgment. Code, respondent Loran and petitioner Marie Antonette have joint
However, as a post-conviction remedy, it may be allowed when, as a parental authority over their son and consequently joint custody. Further,
consequence of a judicial proceeding, any of the following exceptional although the couple is separated de facto, the issue of custody has yet to
circumstances is attendant: (1) there has been a deprivation of a be adjudicated by the court. In the absence of a judicial grant of custody
constitutional right resulting in the restraint of a person; (2) the court had to one parent, both parents are still entitled to the custody of their child.
no jurisdiction to impose the sentence; or (3) the imposed penalty has been In the present case, private respondents cause of action is the deprivation
excessive, thus voiding the sentence as to such excess. (Go vs. of his right to see his child as alleged in his petition. Hence, the remedy of
Dimagiba, G.R. No. 151876, June 21, 2005; Andal v. People, 307 SCRA 605 habeas corpus is available to him.
[1999]) In a petition for habeas corpus, the childs welfare is the supreme
No right to bail where applicant is serving sentence by reason of consideration. The Child and Youth Welfare Code unequivocally provides
final judgment that in all questions regarding the care and custody, among others, of the
Respondent judge contends that under Section 14, Rule 102 of the Rules child, his welfare shall be the paramount consideration. (Salientes vs.
of Court, he has the discretion to allow Te to be released on bail. However, Abanilla, G.R. No. 162734, August 29, 2006)
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
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
3. Filing of bond for temporary release is waiver of illegality of detention
· 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
· Larrañaga vs. CA, 287 SCRA 581 (1998) Kidnapping & serious illegal
detention
1. Filing of charges and issuance of warrant of arrest cures defect of
invalid detention
2. Absence of preliminary investigation will not nullify information and
warrant of arrest
Galvez vs. CA , 237 SCRA 685
1. Habeas corpus and certiorari may be ancillary where necessary to give
effect to supervisory power of higher courts
2. Habeas corpus reaches body and jurisdictional matters but not the
records
3. Certiorari reaches record but not the body
4. Not appropriate for asserting right to bail file petition to be admitted
to bail
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.
Recent Jurisprudence
Section 1, Rule 102 of the Rules of Court provides that a petition for the
issuance of a writ of habeas corpus may be availed of in cases of illegal
confinement by which any person is deprived of his liberty, or by which
the rightful custody of any person is withheld from the person entitled
thereto. The writ may also be issued where, as a consequence of a judicial
proceeding, (a) there has been a deprivation of a constitutional
right resulting in the restraint of a person; (b) the court had no
jurisdiction to impose the sentence; or (c) an excessive penalty has been
imposed, as such sentence is void as to such excess. (In the Matter of the
Application for the Writ of Habeas Corpus Reclassifying Sentence to R.A. NO. 8353
in Behalf of Rogelio Ormilla, et al. vs, The Director, Bureau of Corrections, G.R. No.
170497, January 22, 2007)
Petitioner was detained pursuant to a final judgment of the Quezon City
RTC convicting him for the crimes of carnapping and illegal possession of
firearms. He is therefore not entitled to the writ of habeas corpus.
The rule is that if a person alleged to be restrained of his liberty is in
custody of an officer under process issued by a court or judge or by virtue
of a judgment or order of a court of record the writ of habeas corpus will
not be allowed. (Barredo vs. Vinarao,. G.R. No. 168728, August 2, 2007)
Once a person detained is duly charged in court, he may no longer question
his detention through a petition for issuance of a writ of habeas corpus.
His remedy would be to quash the information and/or the warrant of
arrest duly issued. The writ of habeas corpus should not be allowed after
the party sought to be released had been charged before any court. The
term courtincludes quasi-judicial bodies or governmental agencies
authorized to order the persons 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. (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)
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)
Notably, the record shows that Judge Perello granted the writs of habeas
corpus even without the pertinent copies of detention and judgment of
conviction. This is contrary to the provisions of Section 3(d) of Rule 102
of the Rules of Court. The Rules clearly require that a copy of the
commitment or cause of detention must accompany the application for
the writ of habeas corpus. (Office of the Court Administrator vs. Judge Perello,
A.M. No. RTJ-05-1952, December 24, 2008)
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)
The writ of habeas corpus should not be allowed after the party sought to
be released had been charged before any court. The term courtin this
context includes quasi-judicial bodies of governmental agencies authorized
to order the persons confinement, like the Deportation Board of the
Bureau of Immigration. Likewise, the cancellation of his bail cannot be
assailed via a petition for habeas corpus. When an alien is detained by the
Bureau of Immigration for deportation pursuant to an order of
deportation by the Deportation Board, the Regional Trial Courts have no
power to release such alien on bail even in habeas corpus proceedings
because there is no law authorizing it.(Go, Sr. vs. Ramos, G.R. No. 167569,
September 4, 2009)
A writ of habeas corpus extends to all cases of illegal confinement or
detention or by which the rightful custody of person is withheld from the
one entitled thereto. Respondent, as the judicial guardian of Lulu, was
duty-bound to care for and protect her ward. For her to perform her
obligation, respondent must have custody of Lulu. Thus, she was entitled
to a writ of habeas corpus after she was unduly deprived of the custody of
her ward. (Hernandez vs. San Juan-Santos, G.R. No. 166470, August 7, 2009)
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
Appealsjurisdiction 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.
(MadriHan vs. MadriHan, G.R. No. 159374, July 12, 2007)
N. Writ of Amparo (A.M. No. 07-9-12-SC)-October 24, 2007
1. Coverage (See Diagram under Definition)
· Extralegal killingskillings committed without due process of law,
i.e., without legal safeguards or judicial proceedings.
· Enforced disappearancesattended by the following characteristics:
an arrest, detention or abduction of a person by a government official or
organized groups or private individuals acting with the direct or indirect
acquiescence of the government; the refusal of the State to disclose the
fate or whereabouts of the person concerned or a refusal to acknowledge
the deprivation of liberty which places such persons outside the protection
of law.
1. Distinguish from habeas corpus and habeas data
(See Diagram)
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).
1. Who may file (See Diagram)
2. 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.
1. Effects of failure to file return (See Diagram)
2. Omnibus waiver rule
Defenses Not Pleaded Deemed Waived. --All defenses shall be raised in the
return, otherwise, they shall be deemed waived (Sec. 10).
8. Procedure for hearing (See Diagram on Summary Hearing)
1. Institution of separate action (See Diagram)
2. Effect of filing of a criminal action (See Diagram)
3. Consolidation (See Diagram)
4. Interim reliefs available to petitioner and respondent
(See Diagram)
5. 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)
· 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; 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
· 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 threatened demolition of a dwelling by virtue of a final judgment of
the court is not included among the enumeration of rights for which the
remedy of a writ of amparo is made available. Their claim to their dwelling,
assuming they still have any despite the final and executory judgment
adverse to them, does not constitute right to life, liberty and security. There
is, therefore, no legal basis for the issuance of the writ of amparo. (Canlas
vs. Napico Homeowners Association I XIII, Inc.,. G.R. No. 182795, June 5,
2008)
Under these legal and factual situations, we are far from satisfied with the
prima facie existence of the ultimate facts that would justify the issuance
of a writ of amparo. Rather than acts of terrorism that pose a continuing
threat to the persons of the petitioners, the violent incidents alleged appear
to us to be purely property-related and focused on the disputed land. Thus,
if the petitioners wish to seek redress and hold the alleged perpetrators
criminally accountable, the remedy may lie more in the realm of ordinary
criminal prosecution rather than on the use of the extraordinary remedy of
the writ of amparo. (Tapuz vs. Judge del Rosario, G.R. No.182484, June 17,
2008)
While the right to life under Article III, Section 1 guarantees essentially the
right to be alive -upon which the enjoyment of all other rights is
preconditioned -the right to security of person is a guarantee of the secure
quality of this life.
First, the right to security of person is freedom from fear.(Universal
Declaration of Human Rights [UDHR] and International Covenant on
Civil and Political Rights [ICCPR]) The Philippines is a signatory to both
the UDHR and the ICCPR.
Second, the right to security of person is a guarantee of bodily and
psychological integrity or security. (Article III, Section 12 of the 1987
Constitution)
Third, the right to security of person is a guarantee of protection of ones
rights by the government. Protection includes conducting effective
investigations, organization of the government apparatus to extend
protection to victims of extralegal killings or enforced disappearances (or
threats thereof) and/or their families, and bringing offenders to the bar of
justice. (The Secretary of National Defense vs. Manalo, G.R. No. 180906,
October 7, 2008)
O. Writ of Habeas Data (A.M. No. 08-1-16-SC) February 2, 2008
1. Scope of writ (See Diagram under Definition)
2. Availability of writ (See Diagram under Availability)
1. Distinguish from Habeas Corpus and Amparo (SeeDiagram)
2. Who may file (See Diagram)
3. 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, thegovernment
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).
6. Contents of return
(a) Lawful defenses such as national security, state secrets, priviliged
communication, confidentiality of the source of information of media and
others;
(b) If respondent in charge, in possession or in control of the data or
information subject of the petition -
(i) a disclosure of the data or information about petitioner, nature of such
data or information, and purpose of its collection;
(ii) steps or actions taken by respondent to ensure the security and
confidentiality of the data or information;
(iii) currency and accuracy of the data and information held; and
(c) other allegations relevant to the resolution of the proceeding;
A general denial of the allegations in the petition shall not be allowed.
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
compromisenational security or state secrets, or when the data or
information cannot be divulged to the public due its nature or privileged
character(Sec.12).
1. Consolidation (See Diagram)
2. Effect of filing a criminal action (See Diagram)
3. Institution of separate action (See Diagram)
Jurisprudence
Section 6 of the Rule on the Writ of Habeas Data requires material
allegations of ultimate facts in a petition for the issuance of a writ of habeas
data:
Specifically, we see no concrete allegations of unjustified or unlawful
violation of the right to privacy related to the right to life, liberty or
security. The petition likewise has not alleged, much less demonstrated,
any need for information under the control of police authorities other than
those it has already set forth as integral annexes. The necessity or
justification for the issuance of the writ, based on the insufficiency of
previous efforts made to secure information, has not also been shown. In
sum, the prayer for the issuance of a writ of habeas data is nothing more
than the fishing expedition that this Court -in the course of drafting the
Rule on habeas data -had in mind in defining what the purpose of a writ
of habeas data is not. In these lights, the outright denial of the petition for
the issuance of the writ of habeas data is fully in order. (Tapuz vs. Judge
Rosario, G.R. No.182484, June 17, 2008)
P. Change of Name
Rule 103 Change of Name
Purpose of Rule Who may File A person Any person Any person
Under Art. 376, Civil Code no person can change his name or surname desiring to interested in having
without juridical authority change his any act, event, direct and
Involving substantial changes, objective is the prevention of fraud. name. order or personal
Nature of proceeding (Section 1) decree interest in the
To establish the status of a person involving his relation with others, that concerning the correction
is, his legal position in, or, with regard to the rest of the community civil status of of a clerical or
Who may file petition persons typographical
Personall natural persons regardless of status which has been error in an
1. Adopted child (Rep. v. Wong, 209 SCRA 189) recorded in the entry and/or
2. Alien --domiciled in the Philippines, not one temporarily staying civil change of
Jurisdictional requirements register. first name or
1. Publication of petition for 3 consecutive weeks in newspaper, etc. (Section 1) nickname.
2. Both title or caption and body shall recite (Section 3)
a. name or names or alias of applicant Venue RTC of the RTC of city or 1. Local civil
b. cause for which change of name is sought province in province registry
c. new name asked for which where the office of the city
Reason: change of name a matter of public interest -petitioner might be in petitioner corresponding or municipality
rogues gallery or hiding to avoid service of sentence or escaped from resided for 3 civil where the
prison -if alien might have given case for deportation, or subject of years prior to registry is record being
deportation order filing. located. sought to
1. Differences under Rule 103, RA 9048 and Rule 108 be corrected or
Rule 103 Rule 108 R.A. 9048 changed is kept;
Rule or Law Change of Cancellation/ Clerical Error 2. Local civil
Name Correction Act registrar of
of Entries in the the place where
Civil the
Registry interested party
Subject Matter Change of full Cancellation or Change of first is
name or correction of name or presently
family name civil nickname and residing or
(substantial registry entries corrrection of domiciled;
corrections) (substantial civil 3. Philippine
corrections) registry entries Consulate
(only Contents of (a) That (a) Facts
typographical or petition petitioner has necessary to
clerical been a bona establish the
errors) fide merits of
petition;
resident of the (b) Particular shall be based;
province erroneous and
where the entry or entries, (3) Other
petition is which documents
filed for at least are sought to be which petitioner
three corrected or the
(3) years prior and/or the city or municipal
to the change sought civil
date of such to be registrar or the
filing; made. consul
(b) The cause Petition shall be general may
for which supported by the consider
the change of following relevant and
petitioner's documents: necessary
name is (1) A certified for the approval
sought; true of
(c) The name machine copy of petition.
asked for. the (Section 5)
(Section 2) certificate or of Grounds 1. Name is Upon good and 1. Petitioner
the page ridiculous, valid finds the
of the registry tainted with grounds. first name or
book dishonor nickname
containing the and extremely to be ridiculous,
entry or difficult to tainted
entries sought to write of with dishonor or
be pronounce; extremely
corrected or 2. Consequence difficult to
changed; of write or
(2) At least two change of pronounce;
(2) status; 2. The new first
public or private 3. Necessity to name or
documents avoid nickname has
showing the confusion; been
correct entry or 4. Having habitually and
entries continuously continuously
upon which the used and been used by
correction or known petitioner and he
change since childhood has
by a
 Filipino name, been publicly circulation of general affidavit) in
unaware known by (notice of circulation change of
of her alien that first name hearing) (notice of first name or
parentage; or hearing) nickname
5. A sincere nickname in the Posting No posting No posting Duty of the civil
desire to community; or registrar
adopt a Filipino 3. The change or Consul to
name to will avoid post
erase signs of confusion. petition in a
former (Section 4) conspicuous
alienage all in place for
good faith 10 consecutive
and without days
prejudicing Who The Solicitor The Civil The
anybody. participates on General or Registrar. CivilRegistrar or
Kind of Judicial Judicial Administrative the the proper Consul.
proceeding Proceeding Proceeding Proceeding part of the provincial or
Adversarial in Government city fiscal shall
nature appear
because on behalf of the
involves Government of
substantial the
changes and Republic.
affects the status Where to Appeal Appeal decision Appeal decision
of an appeal: decision to the to the to the
individual Court of Court of Civil Registrar
What to file File a signed File a verified File an affidavit. Appeals. Appeals. General
and petition (head of
verified for the NCSO).
petition. cancellation or 2. Grounds for change of name
correction of The State has an interest in the names borne by individuals and entities for
any entry. purposes of identification. A change of name is a privilege and not a right,
Notice and At least once a At least once a At least once a so that before a person can be authorized to change his name, he must
Publication week for week for week for show proper or reasonable cause, or any compelling reason which may
three three two consecutive justify such change.
consecutive consecutive weeks Grounds for change of name which have been held valid:
weeks in a weeks in a (publish the 1) Name is ridiculous, dishonorable, or extremely difficult to write or
newspaper newspaper whole 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.
Middle names serve to identify the maternal lineage or filiation of a person
as well as further distinguish him from others who may have the same
given name and surname as he has. In the case at bar, the only reason
advanced by petitioner for dropping his middle name is convenience (In
Re Petition for Change of Name and/or Correction/Cancellation of Entry of Civil
Registry of Julian Lin Carulasan Wang, G.R. No. 159966, March 30, 2005)
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 mothers intended petition to have him join her in the
United States. The Court will not stand in the way of the reunification of
mother and son. (Republic of the Philippines vs. Capote,G.R. No. 157043,
February 2, 2007)
The court shall grant the petition under Rule 103 only when satisfactory
proof has been presented in open court that the order had been published
as directed, the allegations in the petition are true, and proper and
reasonable causes appear for changing the name of the petitioner. (RE:
FINAL REPORT ON THE JUDICIAL AUDIT CONDUCTED AT
THE RTC, BR. 67, PANIQUI, TARLAC, A.M. No. 06-7-414-RTC,
October 19, 2007)
As for respondents 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 courts grant of respondents change of name from
Jennifer to Jeff implies a change of a feminine name to a masculine name.
Considering the consequence that respondents change of name merely
recognizes his preferred gender, we find merit in respondents 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 disappearanceo appoint provisionally arepresentative for
him (Sec. 1).
Trustee or administrator
After 2 years without any news or after 5 years if an agent was left to
administer the absentees 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 tne 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
No independent action for declaration of presumption of death
presumption may arise and be invoked in an action or special proceeding
Exception:
Under Art. 41 of Family Code, for purpose of present spouse contracting
a second marriage, he must file summary proceeding for declaration of
presumptive death of the absentee, without prejudice to the latters
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
R. Cancellation or Correction of Entries in the Civil Registry
Rule 108 Cancellation or correction of entries in the civil registry
Who may file petition
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 Rosilyns 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).
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)
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)
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 intersexualityapplies to human beings who
cannot be classified as either male or female. We respect respondents
congenital condition and his mature decision to be a male.
As for respondents 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 courts grant of respondents change of name from
Jennifer to Jeff implies a change of a feminine name to a masculine name.
Considering the consequence that respondents change of name merely
recognizes his preferred gender, we find merit in respondents change of
name. Such a change will conform with the change of the entry in his birth
certificate from female to male (Republic vs. Jennifer Cagandahan, G.R. No.
166676, September 12, 2008).
A persons 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.Petitioners 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 ones 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 petitioners 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.
(Silverio vs Republic, G.R. No. 174689, October 22, 2007)
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)
Registered name of illegitimate child
An illegitimate child whose filiation is not recognized by the father bears
only a given name and his mothers 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
mothers surname as his middle name and his fathers 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).
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:
· where all relevant facts have been fully weighed and considered
· where opposing counsel have been given opportunity to demolish the
opposing partys case
· 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 illegitimatestatus 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)
Recent Jurisprudence
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)
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 change of name does not alter ones 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 petitioners first
name for his declared purpose may only create grave complications in the
civil registry and the public interest. Also, there is no such special law
in the Philippines governing sex reassignment and its effects.
In our system of government, it is for the legislature, should it choose to
do so, to determine what guidelines should govern the recognition of the
effects of sex reassignment.
The need for legislative guidelines becomes particularly important in this
case where the claims asserted are statute-based. (Silverio vs. Republic, G.R.
No. 174689, October 22, 2007)
Where the person is biologically or naturally intersex the determining
factor in his gender classification would be what the individual, like
respondent, having reached the age of majority, with good reason thinks
of his/her sex. Respondent here thinks of himself as a male and
considering that his body produces high levels of male hormones
(androgen) there is preponderant biological support for considering him
as being male. Sexual development in cases of intersex persons makes the
gender classification at birth inconclusive. It is at maturity that the gender
of such persons, like respondent, is fixed. (Republic vs. Cagandahan, G.R. No.
166676, September 12, 2008)
S. Appeal in Special Proceedings
Rule 109 Appeals in special proceeding
1. Judgments and orders for which appeal may be taken
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
1. Allows or disallows a WILL
2. Determines who are the lawful heirs of a deceased or the
DISTRIBUTIVE SHARE of the estate to which he is entitled
3. Allows or disallows, in whole and any part, any CLAIM against the
estate, or any CLAIM presented in behalf of the estate IN OFFSET to any
claim against it
4. Settles the ACCOUNT of an executor, administrator, trustee or
guardian
5. Constitutes, in proceedings relating to the SETTLEMENT of the
estate of the deceased, or the ADMINISTRATION of a trustee or
guardian, a FINAL DETERMINATION in the lower court of the rights
of the party appealing. Exception: no appeal from appointment of special
administrator.
6. Is the FINAL ORDER or JUDGMENT rendered in the case, and
affects the SUBSTANTIAL RIGHTS of the person appealing. Unless it
be an order granting or denying a motion for new trial or reconsideration
Sec. 1 (a), Rule 41: no appeal may be taken from an order denying a motion
for new trial or reconsideration.
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.
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)
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
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. Change of name (Rule 103):
RTC of province of residence of petitioner.
9. 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
petitioners residence.