spec pro finals reviewer

Finals Reviewer | Prof. BattadAzis. Bayad. Dumayas. Lim. Mangawang. Valdepenas

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SPECIAL PROCEEDINGS1

I. JURISDICTION, DEFINITION, NATUREA. Definition and Nature of Special Proceedings and Rules

Applicable

Rule 1, Sec. 3. Cases governed.—These Rules shall govern the procedure to be observed in actions, civil or criminal, and special proceedings.(c) A special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact.

Rule 72, Sec. 1. Subject matter of special proceedings.—Rules of special proceedings are provided for in the following cases:(a) Settlement of estate of deceased persons;(b) Escheat;(c) Guardianship and custody of children;(d) Trustees;(e) Adoption;(f) Rescission and revocation of adoption;(g) Hospitalization of insane persons;(h) Habeas corpus;(i) Change of name;(j) Voluntary dissolution of corporations;(k) Judicial approval of voluntary recognition of minor natural children;(l) Constitution of family home;(m) Declaration of absence and death(n) Cancellation or correction of entries in the civil registry.

Rule 2, Sec. 1. Ordinary civil actions, basis of.—Every ordinary civil action must be based on a cause of action. (n)

Sec. 2. Cause of action, defined.—A cause of action is the act or omission by which a party violates a right of another. (n)

Distinguish Action and Special Proceeding – Action – a formal demand of one’s right in a court of justice in the manner prescribed by the court or by the law. It is the method of applying legal remedies according to definite established rules.

Special proceeding – an application or proceeding to establish the status or right of a party or a particular fact. Usually, no formal proceedings are required – remedy is granted generally upon applications or motions.

Special proceedings are not limited to the cases mentioned in Rule 72.1.

Liquidation proceeding is a special proceeding – what it seeks is merely a declaration by he trial court of the corporation’s insolvency so that its creditors may be able to file their claims in the settlement of the corporation’s debts and obligations.

Corporate Recovery – a petition for rehabilitation should be considered as a special proceeding. Status or fact sought to be established is the inability of the corporate debtor to pay its debts when they fall due so that a rehabilitation plan, containing the formula for the successful recovery of the corporation, may ne approved in the end.

Actions for Reconveyance is an ordinary civil action where matters relating to settlement of estate cannot be adjudicated – as opposed to matters relating to settlement of the estate of a deceased person such as advancement made by the decedent, that partake the nature of a special proceeding.e

1 Edited by Innah Lim

NB: The reviewer may tend to be repetitive because it is based on the annotations of Herrera, 2005 ed. and cases under Prof Battad’s syllabus.

Arbitration deemed a special proceeding – arbitration under a contract or submission shall be deemed a special proceeding

The Alternative Dispute Resolution Law – proceedings for recognition and enforcement of an arbitration agreement or for vacation, setting aside, correction or modification of an arbitral award, and any application with a court for arbitration for assistance and supervision shall be deemed as special proceedings. Natcher vs CAA special proceeding must be in the nature of a distinct and independent proceeding for particular relief (by motion or by petition), such as may be instituted independently of a pending action.An action is a formal demand of one’s rights in a court w/c had method of applying legal remedies according to established rules while in special proceedings, no formal pleadings are required (usually) and is instituted and prosecuted according to some special mode.

Vda de Manalo vs CAA petition of issuance of Letters of Admin, settlement and distribution of estate is in the nature of a special proceeding w/c does not require opposing family members to exert earnest efforts to settle amicably (unlike in “suits”).The determination of the nature of the proceeding shall be controlled by 1. Averments and 2. Relief/s sought in the complaint/petition.

B.Subject Matters of Special ProceedingsR73.1, infra (see Herrera annotations under II. A below)

C. Jurisdiction of Special Proceedings BP 129, as amended by RA 7691Sec. 19. Jurisdiction in civil cases. – Regional Trial Courts shall exercise exclusive original jurisdiction.(4) In all matters of probate, both testate and intestate, where the gross value of the estate exceeds One hundred thousand pesos (P100,000.00) or, in probate matters in Metro Manila, where such gross value exceeds Two Hundred thousand pesos (P200,000.00);

Sec. 33. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts in Civil Cases. – Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts shall exercise:(1) Exclusive original jurisdiction over civil actions and probate proceedings, testate and intestate, including the grant of provisional remedies in proper cases, where the value of the personal property, estate, or amount of the demand does not exceed One hundred thousand pesos (P100,000.00) or, in Metro Manila where such personal property, estate, or amount of the demand does not exceed Two hundred thousand pesos (P200,000.00), exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses, and costs, the amount of which must be specifically alleged: Provided, That interest, damages of whatever kind, attorney's fees, litigation expenses, and costs shall be included in the determination of the filing fees: Provided, further, That where there are several claims or causes of actions between the same or different parties, embodied in the same complaint, the amount of the demand shall be the totality of the claims in all the causes of action, irrespective of whether the causes of action arose out of the same or different transactions

D. Applicability of Rules of Civil Action Rule 72, Sec. 2. Applicability of rules of civil actions.—In the absence of special provisions, the rules provided for in ordinary actions shall be, as far as practicable, applicable in special proceedings.

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II. RULES CONFERRING POWER ON ONE OVER THE PROPERTY OF ANOTHER

A. Settlement of Estate of Deceased Persons1. Venue and Jurisdiction

Rule 73, Sec. 1. Where estate of deceased persons settled.—If the decedent is an inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of administration granted, and his estate settled, in the Regional Trial Court in the province in which he resides at the time of his death, and if he is an inhabitant of a foreign country, the Regional Trial Court of any province in which he had estate. The court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a court, so far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record.

Sec. 2. Where estate settled upon dissolution of marriage.— When the marriage is dissolved by the death of the husband or wife, the community property shall be inventoried, administered, and liquidated, and the debts thereof paid, in the testate or intestate proceedings of the deceased spouse. If both spouses have died, the conjugal partnership shall be liquidated in the testate or intestate proceedings of either.

Sec. 3. Process.—In the exercise of probate jurisdiction, Regional Trial 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 them by law. If a person does not perform an order or judgment rendered by a court in the exercise of its probate jurisdiction, it may issue a warrant for the apprehension and imprisonment of such person until he performs such order or judgment, or is released.

Definition – a SP for settlement of estate is intended to settle the entire estate of the deceased; it seeks to establish a status, a right, or particular fact, i.e. the fact of death, to be recognized as heirs of the deceased so that they could validly exercise their right to participate in the settlement and liquidation of the estate of the decedent consistent with the limited and special jurisdiction of the probate court

Testate proceeding – when the deceased left a will

Intestate proceeding – when the deceased left no will, or, if there is a will, such is declared null and void

Conversion of an Intestate into testate proceeding – The probate of a will is mandatory. If in the course of the IP, a will is found, probate proceedings shall replace it even if an administrator had already been appointed, without prejudice to circumstances which render the proceedings to continue as an intestacy. The IP shall be consolidated with the TP and the judge assigned to the latter should continue hearing the 2 proceedings.

Whether the IP already commenced should be discontinued and a new proc under a separate no. and title should be constituted is entirely a matter of form and lies w/in the sound discretion of the court. In no manner does it prejudice the substantial rights of any of the heirs or creditors.

Caveat: The mere discovery of a doc purporting to be a last will and testament of the decedent after appt of an admin and assumption that the decedent dies intestate does not, ipso facto,

nullify the LOA already issued or even authorize their revocation until the will has been proved and allowed.

Jurisdiction of MeTC, MTC, MCTC – value of estate does not exceed 100k, or in Metro Mla, does not exceed 200k (Sec. 3, RA 7691)

Where proceedings commenced, R73.1 relates to venue and not jurisdiction – The place of residence of the deceased in the settlement of his estate, the probate of his will, and issuance of LOA does not constitute an element of jurisdiction over the subj matter but only constitutive of venue. Hence, wrong venue is a waivable procedural defect, and such waiver may occur by laches.

Meaning of “resides” – the personal, actual, or physical habitation of a person; actual residence or place of abode. It signifies physical presence in a place and actual stay thereat. Residence(personal residence) require bodily presence as an inhabitant in a given place, as opposed to domicile (legal residence) which requires bodily presence in a particular place and an intention to make such place one’s domicile. There’s no particular length of time of residence required but it must more than temporary.

Primacy of First Court – the court first taking cognizance of the settlement of the estate of a decedent shall exercise jurisdiction to the exclusion of all other courts

Powers and Duties of Probate Court- Orders the probate of the decedent’s will- Grants letters of administration or letters testamentary- Supervises and controls all acts of administration- Hears and proves claims against the estate of the deceased- Orders payment of lawful debts- Authorized sale, mortgage, or any encumbrance of real state- Directs the delivery of the estate to those entitled thereto- Other incidental and collateral matters

The court acts as a trustee; hence, it is duty-bound to guard the estate and see to it that it is wisely and economically administered and not dissipated.

Jurisdiction of Probate Court : Limited, Special, and Exclusive – the jurisdiction of the PC does not extend to the determination of questions of ownership that arise during the SP. The PC may pass upon the title to a certain prop for purposes of determining WON it should be included in the inventory but such determination is not conclusive and is subject to the final decision in a separate action re: ownership which may be constituted by the parties.- cannot expand to collateral matters not arising out of or in

any way related to the settlement and adjudication of the properties of the deceased which should be threshed out in an ordinary civil action

- the approval of the PC of the conditional sale of a property is not conclusive determination of the intrinsic or extrinsic validity of such sale but a mere recognition of the right of an heir to dispose of her rights and interests over her inheritance even before partition. (Ramos vs CA).

- However, the purchaser of prop under admin is a forced intervenor in the IP. The PC, having authorized the sale, should resolve the issue as to its validity. (Plan vs IAC)

Determination of Ownership- The ques of ownership is as rule, an extraneous matter in a

PP – restricted to the extrinsic validity of the will, i.e., whether the testator, being of sound mind, freely executed the will in accordance with the formalities prescribed by law – hence, the PC cannot resolve it with finality.


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- Claims for title to, or right of possession of, personal or real property, made by the heirs themselves, by title adverse to that of the deceased, or made by third persons, cannot be entertained by the probate court (Cortes vs CA)

Same; EXC – The PC has jurisdiction to resolve the issue of ownership when:

(a) The parties interested are all heirs of the deceased;(b) They consent to the assumption of jurisdiction by the

PC;(c) They submitted the ques of title to the prop, w/o

prejudice to the rights of 3rd persons;(d) Or the question is one of collation or advancement

Same; Same; EXC – where the PC allowed the intro of evidence on ownership for the sole purpose of determination of its inclusion/exclusion in the inventory

Orders of Inclusion or Exclusion of Properties from Administrator’s Inventory are Provisional, not Final, and Interlocutory – if there is a dispute, the parties must resort to an ordinary action for a final determination of the conflicting claims of title

Same; Distinguished from Collation – an order of collation before an order of distribution is merely an order to include the props in the inventory and is merely interlocutory; WON collation exists is an issue to be determined later when an order for distribution of the estate after its net remainder has been arrived at

No execution may issue where there is adverse claimant – the determination of the ques of title being provisional, it is not binding on a person purporting an adverse title bec his possessory rights, if any, have not yet been ventilated Jurisdiction to determine Heirs – exclusively within the range of the administration proceedings and cannot properly be made an independent action

Jurisdiction to Distribute Estate – has power to determine the proportion or parts to w/c each distribute is entitled; to hold that a separate and independent action is necessary to that effect would be contrary to the general tendency of the jurisprudence re: avoiding multiplicity of suits, and is expensive, dilatory, and impractical Jurisdiction to Award Atty’s Fees – application may be made before and passed upon by the PC in the same proceedings where atty’s services were rendered

Settlement upon Dissolution of Marriage – governed by the laws of intestate succession in Spec Procs- When the marriage is dissolved by the death of the husband

or wife, the community property shall be inventoried, administered, and liquidated, and the debts thereof paid, in the TP or IP of the deceased spous

- The entire conjugal partnership property of the marriage and not just the ½ portion belonging to the deceased is under administration

- Cf. Arts. 103-104, 130-132, Family Code

Eusebio vs EusebioEssential req’s to prove that there has been a change in domicile:

1. Capacity to choose freedom,2. Physical presence, and3. Intention to stay.

Note: The term “residence” in 73.1 was interpreted by the SC to be a necessary corollary of “domicile”.

Cuenco vs CAThe court w/ whom a petition for settlement of estate is first filed must first take cognizance of the case in order to exercise jurisdiction to the exclusion of all other courts.Testate proceedings for settlement of estate take precedence over intestate proceedings for the same pupose.

Pereira vs CAThe issue of exclusion or inclusion of assets (as well as valuation, rights of transferees, etc.) in an estate would be better resolved by the intestate (or probate) court.However, assuming the estate does include the disputed property, the SC found the administration proceeding to be unnecessary since there are no children, no debts, and only two surviving heirs.

Malig vs Bush73.1 fixes the jurisdiction of a special proceeding for settlement of estate so far as it depends on the residence of the decedent. The rule really concerns venue, and merely provides for the preclusion of other courts from assuming jurisdiction. (i.e. the defendant cannot use this provision to support a motion for motion to dismiss)The action is not necessarily one to annul the partition already made and approved by the probate court, and to reopen the estate proceeding so that a new partition may be made, but for recovery by the plaintiffs of the portion of their alleged inheritance of which, through fraud, they have been deprived. Hence, the plaintiffs’ case should not be dismissed w/o a hearing on the merits.

Fule vs CAThe term "reside" should be viewed or understood in its popular sense, meaning, the personal, actual or physical habitation of a person, actual residence or place of abode. It signifies physical presence in a place and actual stay thereat. In this popular sense, the term means merely residence, that is, personal residence, not legal residence or domicile.

Rodriguez vs Borja76.3 wording: “When a will is delivered to, OR a petition for the allowance of a will is filed…”Thus, the court may act to fix the time and place of proving will even if no petition for probate of will was filed. If the petition only came after the deposit of the will, the petition relates back to the time of delivery.

2. Presumption of Death

Rule 73, Sec. 4. Presumption of death.—For purposes of settlement of his estate, a person shall be presumed dead if absent and unheard from for the periods fixed in the Civil Code. But if such person proves to be alive, he shall be entitled to the balance of his estate after payment of all his debts. The balance may be recovered by motion in the same proceeding.

CC, Art. 390. After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession.The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened. (n)

CC, Art. 391. The following shall be presumed dead for all


purposes, including the division of the estate among the heirs:(1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane;(2) A person in the armed forces who has taken part in war, and has been missing for four years;(3) A person who has been in danger of death under other circumstances and his existence has not been known for four years. (n)

FC, Art. 41. A marriage contracted by any person during subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present has a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse. (83a)

NO Independent action for Declaration of Presumption of Death – disputable presumptions of death in the RoC may be invoked either in an action or in a special proceeding w/c is tried or heard by and submitted for decision to a competent court

Presumption of Death under A391,CC must yield to preponderance of evidence – depending on the circumstance, a person may already be considered dead for all purposes w/o waiting for the pd to expire and be presumed dead

3. General Rule on Settlement of Estates

Rule 78, Sec. 6. When and to whom letters of administration granted.—If no executor is named in the will, or the executor or executors are incompetent, refuse the trust, or fail to give bond, or a person dies intestate, administration shall be granted:(a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion of the court, or to such person as such surviving husband or wife, or next of kin, requests to have appointed, if competent and willing to serve;(b) If such surviving husband or wife, as the case may be, or next of kin, or the person selected by them, be incompetent or unwilling, or if the husband or widow, or next of kin, neglects for thirty (30) days after the death of the person to apply for administration or to request that administration be granted to some other person, it may be granted to one or more of the principal creditors, if competent and willing to serve;(c) If there is no such creditor competent and willing to serve, it may be granted to such other person as the court may select.

GR – when a person dies leaving property, the same should be judicially administered and the competent court should appoint a qualified administrator in the order provided by R78.6, in case the deceased left no will, or in case he had left one, he failed to name and executor therein

Order of Preference – required to be observed; the Court will be committing GAD if it sets aside and ignores such order w/o any valid and sufficient reason therefor

Interest in Estate is the PRINCIPAL CONSIDERATION – the underlying assumption behind this rule is that those who will reap

the benefit of a wise, speedy, and economical administration of the estate, or on the other hand, suffer the consequences of waste, improvidence, or mismanagement, have the highest interest and most influential motive to administer the estate correctly

Preference for Widow – has the right of succession over a portion of the exclusive prop of the decedent, aside from her share in the conjugal partnership

Order of Preference may be waived – the rule is not absolute and may be disregarded for a valid cause despite the mandatory tenor of the rule

Mere failure to apply for Letter of Administration does not Remove Preference – there must be a very strong case to justify the exclusion of the widow from the administration of the estate

30-day Period may be waived – tone of the rule is permissive

Period to File Petition by Creditor – duty to present his claim w/in a reasonable time after the death of the decedent in the estate proceedings

Co-Administrators May be Appointed – for the benefit of the state and those interested therein, such is legally permissible and sanctioned in practice

Same; Reasons –(1) To have the benefit of their judgment and at all times to have

diff interests represented(2) Where justice and equity demand that opposing parties or

factions be represented in the mgt of the estate of the deceased

(3) Where the estate is large, or, from any cause, an intricate and perplexing one to settle

(4) To have all interested persons satisfied and the representatives to work in harmony for the best interests of the estate

(5) When a person entitled to the administration of an estate desires to have another competent person associated with him in the office

Joint Administration Preferred – when the appointment of just one will not be sufficient to ensure the protection of the rights of everyone concerned with the settlement of the estate of the decedent The Court may Reject the Order of Preference – in case the persons who have the preferential right to be appointed are not competent or are unwilling to serve

Effect of Appeal Appointing New Administrator – in the absence of any order for the immediate execution of the order of substitution, the old administrator has the right to continue as such until the appeal is finally disposed of (Relucio vs San Jose).

Limit or Extent of Administration – only to the assets of a decedent found within the state or country where it was granted

1. Exceptions to the General Rule on Settlement of EstatesDifferent Modes of Settlement of Estate of Deceased Persons – (a) Extrajudicial settlement of Estate(b) Partition(c) Summary Settlement of Estates of Small Value(d) Probate of Will(e) Petition for Letters of Administration in cases of intestacy

a. Extrajudicial Settlement by Agreement among/between Heirs


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Rule 74, Sec. 1. Extrajudicial settlement by agreement between heirs.—If the decedent left no will and no debts and the heirs are all of age, or the minors are represented by their judicial or legal representatives duly authorized for the purpose, the parties may, without securing letters of administration, divide the estate among themselves as they see fit by means of a public instrument filed in the office of the register of deeds, and should they disagree, they may do so in an ordinary action of partition. If there is only one heir, he may adjudicate to himself the entire estate by means of an affidavit filed in the office of the register of deeds. The parties to an extrajudicial settlement, whether by public instrument or by stipulation in a pending action for partition, or the sole heir who adjudicates the entire estate to himself by means of an affidavit shall file, simultaneously with and as a condition precedent to the filing of the public instrument, or stipulation in the action for partition, or of the affidavit in the office of the register of deeds, a bond with the said register of deeds, in an amount equivalent to the value of the personal property involved as certified to under oath by the parties concerned and conditioned upon the payment of any just claim that may be filed under section 4 of this rule. It shall be presumed that the decedent left no debts if no creditor files a petition for letters of administration within two (2) years after the death of the decedent.The fact of the extrajudicial settlement or administration shall be published in a newspaper of general circulation in the manner provided in the next succeeding section; but no extrajudicial settlement shall be binding upon any person who has not participated therein or had no notice thereof.

Judicial Administration Not Favored – there is nothing w/c prohibits the heirs from institution SP for the administration of the IE, if they cannot agree in the extrajudicial partition and apportionment of the same- When a person dies w/o leaving pending obligations to be

paid, his heirs, whether of age or not, are not bound to submit the property to a JA, or to apply for the appt of an administrator by the Court. If there are no debts, there is no reason why the estate should be burdened with the cost and expenses of an administrator

There Must be a Good reason to Warrant Judicial Administration – R74.1 does not preclude the heirs from instituting admin proc even if there are no debts or obligations, if they do not desire to resort for good reasons to an ordinary action for partition

Good Reason depends on the Circumstance of Each Case –(a) Dispute among heirs is not a good reason – questions as to

ownership of the property belonging to the deceased may be ventilated in the partition proceedings

(b) Multiplicity of suits not a good reason – same objective can be achieved in a R69 action

(c) To have legal capacity to appear is not a good reason

Validity of Oral Partition – there is no law that requires partition among heirs to be in writing for it to be valid- The object of putting the partition in a pub doc and

registration serve as constructive notice to others. The intrinsic validity of partition not executed with the prescribed formalities does not come into play when there are no creditors or the rights of creditors are not affected. Where no such rights are involved, it is competent for the heirs of an estate to enter into an agreement for distribution in a manner and upon a plan different from those provided by law

Validity of Compromise Agreement – such is binding upon the parties upon the perfection of the contract, even without previous Court authority

Heirs Cannot Divest the Court of Its Already Acquired Jurisdiction – filing of the app for probate of will and pub thereof by the mere fact of dividing and distributing extrajudicially the estate of the deceased among themselves; if the extrajudicial partition (EP) made by the heirs is submitted to the curt and approved after verification that it does not prejudice the rights of 3rd parties, the TP pending would have been legally terminated- An EP of the estate of a deceased by the heirs become a

judicial partition after its approval by the court w/c had previously acquired juris of the estate, but as the TP is terminated w/o the necessary pub of notice to creditors and other interested persons in the estate req in a reg JA, the effects of such partition would be the same as if it had been effected extrajudicially w/o the intervention of the court under R74.1, subject to the claims against the distributes by persons mention in R74.4 and .5

Utulo vs Vda. De GarciaWhen there are no debts existing against the estate, there is certainly no occasion for the intervention of an administrator in the settlement and partition of the estate among the heirs. When the heirs are all of lawful age and there are no debts, there is no reason why the estate should be burdened with the costs and expenses of an administrator.

Hernandez vs AndalA verbal partition of the estate of a decedent is valid. The SC, in promulgating the rules of court were merely under authority to deal with procedural matters and to interpret 74.1 as requiring a written instrument for a partition to be valid would be to prescribe the form of a valid agreement (hence, the SC would be exceeding its authority since It made a rule on substantive law).

Arcillas vs MontejoEven if the decedent left no debts, made no will, and all his/her children are of age, it’s entirely w/in the discretion of the heirs whether or not to divide the estate extrajudicially. The heirs may institute administration proceedings instead of resorting to less expensinve modes.[Prof. Battad: You still have to show good reason for instituting the proceeding.]

Gerona vs De GuzmanAs a general rule, an action for partition does NOT prescribe. But the exception is when the defendants hold the property under an adverse title (in this case, the defendants executed a deed of extrajudicial settlement and secured a title in their name).And inasmuch as the plaintiffs seek to annul the deed of EJ settlement on the ground of fraud in execution, the action may be filed only within 4 years after the discovery of fraud. (NB: No longer good law. See Herrera’s discussion on 10 year period or p. 9)

Pada-Kilario vs CAAn extrajudicial settlement of estate executed in a private and unregistered document is still valid among the heirs.74.1 only has for its purpose the protection of creditors and heirs against tardy claims. It serves as merely constructive notice and does not affect the intrinsic validity of the contract as long as no creditors are prejudiced.

b. Summary Settlement of Estates of Small Value Rule 74, Sec. 2. Summary settlement of estates of small value.—Whenever the gross value of the estate of a deceased person, whether he died testate or intestate, does not exceed ten thousand pesos, and that fact if made to appear to the Regional Trial Court having jurisdiction of the estate by the petition of an interested person and upon


hearing, which shall be held not less than one (1) month nor more than three (3) months from the date of the last publication of a notice which shall be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province, and after such other notice to interested persons as the court may direct, the court may proceed summarily, without the appointment of an executor or administrator, and without delay, to grant, if proper, allowance of the will, if any there be, to determine who are the persons legally entitled to participate in the estate and to apportion and divide it among them after the payment of such debts of the estate as the court shall then find to be due; and such persons, in their own right, if they are lawful age and legal capacity, or by their guardians or trustees legally appointed and qualified, if otherwise, shall thereupon be entitled to receive and enter into the possession of the portions of the estate so awarded to them respectively. The court shall make such order as may be just respecting the costs of the proceedings, and all orders and judgments made or rendered in the course thereof shall be recorded in the office of the clerk, and the order of partition or award, if it involves real estate, shall be recorded in the proper register’s office.

Proceeding is under the juris of the MeTC, MTC, MCTC – where value of the estate does not exceed 100k; or 200k if in Metro Mla

Sampilo vs CAThe 2 year limitation on distributes and heirs from objecting to the partition only applies to:

1. Persons who have taken part/had notice of the Extra Judicial Partition; and

2. When 74.1 has been complied with, i.e. all the heirs of the decedent have taken part in the Extra Judicial Settlement or are represented thereto.

To who did not take part or had no notice of death or settlement would have a 4 year prescriptive period if their action is based on fraud.

2) Remedies against Extrajudicial Settlement (or Partition)a) Contribution from Distribution, Execution against Bond or Sale of Realty of DecedentRule 74, Sec. 3. Bond to be filed by distributees.—The court, before allowing a partition in accordance with the provisions of the preceding section, may require the distributees, if property other than real is to be distributed, to file a bond in an amount to be fixed by court, conditioned for the payment of any just claim which may be filed under the next succeeding section.

Sec. 4 Liability of distributees and estate.—If it shall appear at any time within two (2) years after the settlement and distribution of an estate in accordance with the provisions of either of the first two sections of this rule, that an heir or other person has been unduly deprived of his lawful participation in the estate, such heir or such other person may compel the settlement of the estate in the courts in the manner hereinafter provided for the purpose of satisfying such lawful participation. And if within the same time of two (2) years, it shall appear that there are debts outstanding against the estate which have not been paid, or that an heir or other person has been unduly deprived of his lawful participation payable in money, the court having jurisdiction of the estate may, by order for that purpose, after hearing, settle the amount of such debts or lawful participation and order how much and in what manner each distributee shall contribute in the payment thereof, and may issue execution, if circumstances require, against the bond provided in the preceding section or against the real estate belonging to the deceased, or both. Such bond and such real estate shall remain charged with a liability to creditors, heirs, or other persons for the full period of two (2) years after such

distribution, notwithstanding any transfers of real estate that may have been made.

Rule on Limitations Not Applicable To Those Who Had No Knowledge of Settlement – R74.4 is only a bar against the parties who had taken part in the extrajudicial proceedings, but not against 3rd persons not parties thereto

Prescriptive Period to Annul Settlement –It was previously held in Gerona vs. De Guzman that the action to annul a deed of extrajudicial settlement upon the ground of fraud may be filed w/in 4 years from the discovery of the fraud. Such discovery is deemed to have taken place when said instrument was filed with Register of Deeds and new certificates of title were issued. Inaction and neglect of a party to assert a right can convert a valid claim into a stale a demand.

However, the SC in Amerol vs. Bagumbaran, clarified that before the effectivity of the NCC, the old Code of Civil Procedure governed prescription which provided that an action for relief on the ground of fraud shall be brought w/in 4 yrs upon discovery of the fraud. In the present CC, just as an implied or constructive trust is an offspring of the law (A1456), so is the corresponding obligation to reconvey the prop and the title thereto in favor of the true owner. In this context, A1144 is applicable. A1144 provides:The ff. actions must be brought w/in 10 yrs from the time the right of action accrues:

(1) upon a written contract;(2) upon an obligation created by law;(3) upon a judgment.Hence, an action for reconveyance based on an

implied/constructive trust prescribes in 10 yrs from accrual of the right of action. Gerona was decided that way bec of the law in force at that time.

The Almerol doctrine was reiterated in Marquez vs. CA, Caro vs. CA, and Alfredo vs. Borras

When 10-yr period reckoned – from the alleged fraudulent registration or date of issuance of the certificate of title over the property (GSIS vs Santiago)

Same; EXC – prescriptive pd for the filing of the axn for reconveyance based on an implied trust should be reckoned from the actual discovery of the fraud wrt the registration of the title when such was tainted with bad faith

Rescission as Remedy for Preterition – provided in A1104, CC: a partition made with preterition of any of the compulsory heirs shall not be rescinded, unless it be proved that there was bad faith or fraud on the part of the other persons interested

EXC to Prescription of Actions – when the plaintiff is in possession of the land to be reconveyed. Action for reconveyance may be filed despite the lapse of the 10-yr pd, when based on fraud, is imprescriptible as long as the land has not passed to an innocent purchaser for value.

Tan vs BenoliraoA lien on the real properties subject of 74.4, which have been annotated on the title, is an encumbrance on the property which would prevent a party from delivering a clean title.It is an encumbrance because the court may order an execution against it when an heir or creditor has been deprived of his/her lawful participation in the settlement of estate.

b) Petition for Relief Rule 38SECTION 1. Petition for relief from judgment, order, or other


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proceedings—When a judgment or final order is entered, or any other proceeding is thereafter taken against a party in any court through fraud, accident, mistake, or excusable negligence, he may file a petition in such court and in the same case praying that the judgment, order or proceeding be set aside. (2a)SEC. 2. Petition for relief from denial of appeal—When a judgment or final order is rendered by any court in a case, and a party thereto, by fraud, accident, mistake, or excusable negligence, has been prevented from taking an appeal, he may file a petition in such court and in the same case praying that the appeal be given due course. (1a)SEC. 3. Time for filing petition; contents and verification.— A petition provided for in either of the preceding sections of this Rule must be verified, filed within sixty (60) days after the petitioner learns of the judgment, final order, or other proceeding to be set aside, and not more than six (6) months after such judgment or final order was entered, or such proceeding was taken; and must be accompanied with affidavits showing the fraud, accident, mistake, or excusable negligence relied upon, and the facts constituting the petitioner’s good and substantial cause of action or defense, as the case may be. (3)SEC. 4. Order to file an answer —If the petition is sufficient in form and substance to justify relief, the court in which it is filed, shall issue an order requiring the adverse parties to answer the same within fifteen (15) days from the receipt thereof. The order shall be served in such manner as the court may direct, together with copies of the petition and the accompanying affidavits. (4a)SEC. 5. Preliminary injunction pending proceedings.—The court in which the petition is filed, may grant such preliminary injunction as may be necessary for the preservation of the rights of the parties, upon the filing by the petitioner of a bond in favor of the adverse party, conditioned that if the petition is dismissed or the petitioner fails on the trial of the case upon its merits, he will pay the adverse party all damages and costs that may be awarded to him by reason of the issuance of such injunction or the other proceedings following the petition; but such injunction shall not operate to discharge or extinguish any lien which the adverse party may have acquired upon the property of the petitioner. (5a)SEC. 6. Proceedings after answer is filed.—After the filing of the answer or the expiration of the period therefor, the court shall hear the petition and if after such hearing, it finds that the allegations thereof are not true, the petition shall be dismissed; but if it finds said allegations to be true, it shall set aside the judgment or final order or other proceeding complained of upon such terms as may be just. Thereafter the case shall stand as if such judgment, final order or other proceeding had never been rendered, issued or taken. The court shall then proceed to hear and determine the case as if a timely motion for a new trial or reconsideration had been granted by it. (6a)SEC. 7. Procedure where the denial of an appeal is set aside .—Where the denial of an appeal is set aside, the lower court shall be required to give due course to the appeal and to elevate the record of the appealed case as if a timely and proper appeal had been made. (7a)

c) Reopening by Intervention within Reglementary Period Rule 19SECTION 1. Who may intervene.—A person who has a legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof may, with leave of court, be allowed to intervene in the action. The court shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and whether or not the intervenor’s rights may be fully protected in a separate proceeding. (2[a], [b]a, R12)SEC. 2. Time to intervene.–The motion to intervene may be filed at any time before rendition of judgment by the trial court. A copy of the pleading-in-intervention shall be attached to the motion and

served on the original parties. (n)SEC. 3. Pleadings-in-intervention.–The intervenor shall file a complaint-in-intervention if he asserts a claim against either or all of the original parties, or an answer-in-intervention if he unites with the defending party in resisting a claim against the latter. (2[c]a, R12)SEC. 4. Answer to complaint-in-intervention.–The answer to the complaint-in-intervention shall be filed within fifteen (15) days from notice of the order admitting the same, unless a different period is fixed by the court. (2[d]a, R12)

Jerez vs NietesThe only instance where a party interested in a probate proceeding may have a final liquidation set aside is when he is left out by reason of circumstances out of his control or through mistake/inadvertence not imputable to negligence.But the better practice is to secure relief by reopening the same case by proper motion during the reglementary period, instead of an independent action to that effect w/c, if successful, would be for another court to throw out an already final decision/order and reshuffle properties long ago distributed and disposed of.

d) New Action to Annul Settlement within Reglementary Period

Ramos vs Ortuzar(This is the case where the alleged 3rd wife of the decedent filed a case to annul the order of partition made by the TC judge since they were left out from the partition)The conclusion of the estate proceedings are binding as civil status and rights to the estate since the intestate proceedings, like probate proceedings, are in rem proceedings. The court acquires jurisdiction over all interested persons via publication of notice and any order entered therein is binding.

Pedrosa vs CAThe 2 year bar in 74.4 does not apply if the extrajudicial partition sought to annulled on the ground of fraud. In which case, the prescriptive period is 4 years.74.4 has 2 requirements before it becomes binding on a litigant:

1. He/she has taken part/had notice of the Extra Judicial Partition; and

2. 74.1 has been complied with, i.e. all the heirs of the decedent have taken part in the Extra Judicial Settlement or are represented thereto.

4. Period for Claim of Minor or Incapacitated Persons

Rule 74, Sec. 5. Period for claim of minor or incapacitated person.—If on the date of the expiration of the period of two (2) years prescribed in the preceding section the person authorized to file a claim is a minor or mentally incapacitated, or is in prison or outside the Philippines, he may present his claim within one (1) year after such disability is removed.

5. Probate Proceedings1) Jurisdiction and VenueBP 129 S19 & 33, supra

Cuizon vs RamoleteA probate court (testate or intestate) cannot adjudicate or determine title to properties claimed to be a part of the estate which are equally claimed by 3rd parties.Opposing parties have no choice but to resort to an ordinary action for a final determination of conflicting claims of title since the probate court cannot.The probate court may pass upon title to property for the


purpose of determining whether or not it should be included in the inventory but such determination is NOT conclusive and only prima facie (i.e. subject to the decision in the action regarding ownership).

Heirs of Oscar Reyes v Reyes (2000)Jurisdiction of the probate court; matters which can be dealt with during probate proceedings; exceptions:The jurisdiction of the probate court merely relates to matters having to do with the settlement of the estate and the probate of wills of deceased persons, and the appointment and removal of administrators, executors, guardians and trustees. The question of ownership is as a rule, an extraneous matter which the Probate Court cannot resolve with finality. Thus, for the purpose of determining whether a certain property should or should not be included in the inventory of estate proceeding, the probate court may pass upon the title thereto, but such determination is provisional, not conclusive, and is subject to the final decision in a separate action to resolve title.

GR: no power to take cognizance of and determine the issue of title to property claimed by a third person adversely to the decedent;XPN: the claimant and all other parties having legal interest in the property consent, expressly or impliedly, to the submission of the question to the Probate Court for adjudgment, or the interests of third persons are not thereby prejudiced

Agtarap v Agtarap, et al (2011)Supra; other exceptions; matters collateral to probate proceedings:EXC:

First, the probate court may provisionally pass upon in an intestate or a testate proceeding the question of inclusion in, or exclusion from, the inventory of a piece of property without prejudice to the final determination of ownership in a separate action.

Second, if the interested parties are all heirs to the estate, or the question is one of collation or advancement, or the parties consent to the assumption of jurisdiction by the probate court and the rights of third parties are not impaired, then the probate court is competent to resolve issues on ownership.

Verily, its jurisdiction extends to matters incidental or collateral to the settlement and distribution of the estate, such as the determination of the status of each heir and whether the property in the inventory is conjugal or exclusive property of the deceased spouseSupra; primacy of testate over intestate proceedings:Court erred in settling the estate of Milagros in the settlement of the intestate estate of Joaquin since it was shown that Milagros left a will and a proceeding for probate of such will has been instituted.

2) Allowance/Disallowance of Will; ProcessRule 75, Sec. 1. Allowance necessary. Conclusive as to execution.—No will shall pass either real or personal estate unless it is proved and allowed in the proper court. Subject to the right of appeal, such allowance of the will shall be conclusive as to its due execution.

CC, Art. 783. A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of this estate, to take effect after his death.

Definition of a Will – a personal, solemn, revocable and free act by which a capacitated person disposes of his property and rights and declares or complies with duties to take effect after his death (Vitug vs CA).

Probate of Will is Mandatory – no property shall pass either real or personal property unless it is proved and allowed in accordance with the RoC

Same; Rationale – unless the will is probated and notice thereof is given to the whole world, the right of the person to dispose of his property by will may be rendered nugatory

Same; EXC – A1056, CC: If the testator should make a partition of his properties by an act inter vivos, or by will, such partition shall stand in so far as it does not prejudice the legitime of the forced heir.

Probate Does Not Look Into Intrinsic Validity –GR: the court’s authority in probate proc are limited only to passing upon the extrinsic validity of the will sought to be probated, the due execution thereof, the testator’s testamentary capacity, and the compliance with the requisites or solemnities prescribed by law. The question of the intrinsic validity of a will normally comes only after the court has declared that the will has been duly authenticated.

Extrinsic Validity of the Will – whether the testator, being of sound mind, freely executed the will in accordance with the formalities prescribed by law

Same; How Determined –(a) Substantial Compliance is sufficient – where the purpose of

the law has been satisfied, the reason being that the solemnities surrounding the execution of wills are intended to protect the testator from all kinds of fraud and trickery but never intended to be so rigid and inflexible as to destroy the testamentary privilege

(b) Formal Imperfections to be Brushed Aside – when they do not affect its purpose and which, when taken into account, may only defeat the testator’s will

EXC: When Probate Court May Pass Upon Intrinsic Validity – The Principle of “Practical Considerations” - when remand of the case will result waste of time, effort, expense, plus added anxiety (Nuguid vs. Nuguid).- Where circumstances demand that IV of testamentary provs

be passed upon before the EC of the will is resolved (Cayetano vs. Leonides).

Same; Remedy of Certiorari and Prohibition is Available – where the grounds for dismissal are indubitable, in order to correct a GADALEJ committed by the TC when it dismissed the case, even if remedy of appeal exists, where practical considerations demand it, e.g. the probate of a will becomes an idle ceremony bec the Will is intrinsically void

Same; Principle Not Applied – where meat of controversy is not intrinsic validity

Dismissal Improper Where Issues are Controversial – e.g. preterition and validity of disinheritance

Principle Applicable Only Where Intrinsic Invalidity is Apparent on the Face of the Will – as enunciated in Maninang vs. CA

Decree of Probate is Conclusive as to Its Due Execution – cannot be impugned on any of the grounds authorized by law,


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except that of fraud, in any separate or independent action or proceeding, for reasons of public policy, judicial orderliness, economy and judicial time, and the interests of litigants, as well as the peace and order of society which requires that stability be accorded the final judgments of the courts (applies even if the decision is incorrect)- Probate during the lifetime of the testator is ordinarily

terminated after the will is allowed to probate

Rule 76, Sec. 1. Who may petition for the allowance of will.—Any executor, devisee, or legatee named in a will, or any other person interested in the estate, may, at any time after the death of the testator, petition the court having jurisdiction to have the will allowed, whether the same be in his possession or not, or is lost or destroyed.The testator himself may, during his lifetime, petition the court for the allowance of his will.SEC. 2. Contents of petition.—A petition for the allowance of a will must show, so far as known to the petitioner:(a) The jurisdictional facts;(b) The names, ages, and residences of the heirs, legatees, and devisees of the testator or decedent;(c) The probable value and character of the property of the estate;(d) The name of the person for whom letters are prayed;(e) If the will has not been delivered to the court, the name of the person having custody of it.But no defect in the petition shall render void the allowance of the will, or the issuance of letters testamentary or of administration with the will annexed.SEC. 3. Court to appoint time for proving will. Notice thereof to be published.—When a will is delivered to, or a petition for the allowance of a will is filed in, the court having jurisdiction, such court shall fix a time and place for proving the will when all concerned may appear to contest the allowance thereof, and shall cause notice of such time and place to be published three (3) weeks successively, previous to the time appointed, in a newspaper of general circulation in the province.But no newspaper publication shall be made where the petition for probate has been filed by the testator himself.SEC. 4. Heirs, devisees, legatees, and executors to be notified by mail or personally.—The court shall also cause copies of the notice of the time and place fixed for proving the will to be addressed to the designated or other known heirs, legatees, and devisees of the testator resident in the Philippines at their places of residence, and deposited in the post office with the postage thereon prepaid at least twenty (20) days before the hearing, if such places of residence be known. A copy of the notice must in like manner be mailed to the person named as executor, if he be not the petitioner, also, to any person named as co-executor not petitioning, if their places of residence be known. Personal service of copies of the notice at least ten (10) days before the day of hearing shall be equivalent to mailing.If the testator asks for the allowance of his own will, notice shall be sent only to his compulsory heirs.SEC. 9. Grounds for disallowing will.—The will shall be disallowed in any of the following cases:(a) If not executed and attested as required by law;(b) If the testator was insane, or otherwise mentally incapable to make a will, at the time of its execution;(c) If it was executed under duress, or the influence of fear, or threats;(d) If it was procured by undue and improper pressure and influence, on the part of the beneficiary, or of some other person for his benefit;(e) If the signature of the testator was procured by fraud or trick, and he did not intend that the instrument should be his will at the time of fixing his signature thereto.

CC, Art. 838. No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court.The testator himself may, during his lifetime, petition the court having jurisdiction for the allowance of his will. In such case, the pertinent provisions of the Rules of Court for the allowance of wills after the testator's a death shall govern.The Supreme Court shall formulate such additional Rules of Court as may be necessary for the allowance of wills on petition of the testator.Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or after his death, shall be conclusive as to its due execution. (n)

Art. 839. The will shall be disallowed in any of the following cases:(1) If the formalities required by law have not been complied with;(2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution;(3) If it was executed through force or under duress, or the influence of fear, or threats;(4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person;(5) If the signature of the testator was procured by fraud;(6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto. (n)

Interested Party – one who would be benefited by the estate such as an heir, or one who has a claim against it like a creditor. Hence, one who is only indirectly interested in a will may not interfere in its probate

Jurisdiction; How Acquired –(1) Attaching of Mere Copy of Will is Sufficient – the original

need not be attached to the petition for probate, but this is without prejudice to its production at the hearing or when the court requires it; annexing of the original will is not a jurisdictional requirement

(2) Delivery of Will Sufficient even if No petition filed – jurisdiction is on the court upon delivery of the will even if the petition itself is filed later. Upon the deposit of the Will, the court could motu proprio, have taken steps to fix the time and place for proving the will, and issue the corresponding notices prescribed

(3) The court acquires juris upon the filing of the orig pet and compliance w/ R76.3 and .4

Jurisdictional facts must be established first – before the court acquire juris over the probate and admin procs, the app must allege the JF which are:(a) Fact of death of the decedent(b) His residence at the time of his death in the province of

where the probate court is sitting; or, if he is an inhabitant of a foreign country, his leaving his estate in such province

Probate of the Will is In Rem – the notice by publication as a prereq to the allowance of a will is constructive notice to the whole world, and when probate is granted, the judgment is binding upon everybody, even against the State. Thus, the PC must cause notice through pub of the pet after receiving it; otherwise, the proc for the settlement of the estate is void and should be annulled

Notice of Hearing to the designated heirs, legatees, devisees, executors Required – by mail or personally


Grounds for Disallowance – Cf. Arts. 787-788, 791, 795-798, 802, 804-819 of the Civil Code

Same; List in R76.9 and A839 of the CC is Exclusive – no other grounds can serve to disallow a will

Compliance With Formalities Required – While public policy favors the probate of a will, it does not follow that every will presented for probate should be allowed

Same; Notarial Wills – formal solemnities provided by Arts. 805 and 806, CC must be complied with

Same; Holographic Wills – what assures authenticity is the req that they be totally autographic or handwritten by the testator himself (A810, CC)- A813 affects the validity of the dispositions contained in the

HW but not its probate. Formal defects will render disposition ineffective but the whole will not be necessarily invalidated.

- The HW can still be admitted to probate even if A814 of CC has not been complied with

Same; The Substantial Compliance Rule – If the will has been executed in substantial compliance with the formalities of the law, and the possibility of bad faith and fraud is obviated, the Will should be admitted to probate

Separate Wills may be Probated Jointly – what the law prohibits is the making of joint wills, either for the testator’s reciprocal benefit or for the benefit of 3rd persons (see Sps. Cunanan case)

DIEZ V SERRA (1927)Process for allowance/disallowance of will; jurisdiction/foundation facts:(1) that the person on whose estate the letters are being granted is in fact dead, and(2) that at the time of death

(a) he was a resident of the county wherein letters are being granted, or

(b) if not a resident that he left assets in such county.BASA V MERCADO (1935)Supra; Publication of notice requirement; period; newspaper of general circulation:First publication of the notice need not be made twenty-one days before the day appointed for the hearing.(Facts of the case: First publication: June 6, 1931Third: June 20, 1931Hearing: June 27, 1931NOTE: only 21 days after the date of the FIRST publication instead of THREE FULL WEEKS BEFORE the day set for the hearingIn Re Warner’s Estate: notice if valid… even though the hearing on the administrator's final account was set for December 19, only fifteen days after the date of the first publication.

Ing Katipunan is a newspaper of general circulation as it is> published for the dissemination of local news

and general information> has a bona fide subscription list of paying

subscribes> published at regular intervals

No proof that it was a newspaper devoted to the interests or published for the entertainment of a particular class, profession, trade, calling, race or religious denomination. The fact that there is another paper published in Pampanga that has a few more subscribers is unimportant

MANAHAN V MANAHAN (1933)Supra; nature of the proceedings; conclusive effect of probate proceedings:Proceedings followed in a testamentary case are in rem, the trial court’s decree admitting the will to probate was effective and conclusive against her.Once a will has been authenticated and admitted to probate, questions relative to the validity thereof can no more be raised on appeal. The decree of probate is conclusive with respect to the due execution thereof and it cannot impugned on any of the grounds authorized by law,Except that of fraud, in any separate or independent action or proceedings. The probate of the will in question now constitutes res judicata.

RODRIGUEZ et al. v DE BORJASupra; when jurisdiction of probate court is vested:Jurisdiction of the CFI of Bulacan became vested upon delivery thereto of the will even if no petition was filed until later because upon deposit of will, court could motu propio have taken steps to fix the time and place for proving the will and issued the corresponding notices. When the petition for probate is made after the deposit of the will, the petition is deemed to relate back to the time when the will was delivered.

3) Duty of Custodian/Executor of WillRule 75, Sec. 2. Custodian of will to deliver.—The person who has custody of a will shall, within twenty (20) days after he knows of the death of the testator, deliver the will to the court having jurisdiction, or to the executor named In the will.

SEC. 3. Executor to present will and accept or refuse trust.—A person named as executor in a will shall, within twenty (20) days after he knows of the death of the testator, or within twenty (20) days after he knows that be is named executor if he obtained such knowledge after the death of the testator, present such will to the court having jurisdiction, unless the will has reached the court in any other manner, and shall, within such period, signify to the court in writing his acceptance of the trust or his refusal to accept it.SEC. 4. Custodian and executor subject to fine for neglect.—A person who neglects any of the duties required in the two last preceding sections without excuse satisfactory to the court shall be fined not exceeding two thousand pesos.SEC. 5. Person retaining will may be committed.—A person having custody of a will after the death of the testator who neglects without reasonable cause to deliver the same, when ordered so to do, to the court having jurisdiction, may be committed to prison and there kept until he delivers the will.

Failure to Attach Original Will to the Petition – not critical where will itself was adduced in evidence

4) Proof of WillRule 76. Sec. 5. Proof at hearing. What sufficient in absence of contest.—At the hearing compliance with the provisions of the last two preceding sections must be shown before the introduction of testimony in support of the will. All such testimony shall be taken under oath and reduced to writing. If no person appears to contest the allowance of the will, the court may grant allowance thereof on the testimony of one of the subscribing witnesses only, if such witness testify that the will was executed as is required by law.In the case of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. In the absence of any such competent


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witness, and if the court deem it necessary, expert testimony may be resorted to.SEC. 6. Proof of lost or destroyed will. Certificate thereupon.—No will shall be proved as a lost or destroyed will unless the execution and validity of the same be established and the will is proved to have been in existence at the time of the death of the testator, or is shown to have been fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge, nor unless its provisions are clearly and distinctly proved by at least two (2) credible witnesses. When a lost will is proved, the provisions thereof must be distinctly stated and certified by the judge, under the seal of the court, and the certificate must be filed and recorded as other wills are filed and recorded.SEC. 7. Proof when witnesses do not reside in province.—If it appears at the time fixed for the hearing that none of the subscribing witnesses resides in the province, but that the deposition of one or more of them can be taken elsewhere, the court may, on motion, direct It to be taken, and may authorize a photographic copy of the will to be made and to be presented to the witness on his examination, who may be asked the same questions with respect to it and to the handwriting of the testator and others, as would be pertinent and competent if the original will were present.SEC. 8. Proof when witnesses dead or insane or do not reside in the Philippines.—If it appears at the time fixed for the hearing that the subscribing witnesses are dead or insane, or that none of them resides in the Philippines, the court may admit the testimony of other witnesses to prove the sanity of the testator, and the due execution of the will; and as evidence of the execution of the will, it may admit proof of the handwriting of the testator and of the subscribing witnesses, or of any of them.

SEC. 12. Proof where testator petitions for allowance of holographic will.—Where the testator himself petitions for the probate of his holographic will and no contest is filed, the fact that he affirms that the holographic will and the signature are in his own handwriting, shall be sufficient evidence of the genuineness and due execution thereof. If the holographic will is contested, the burden of disproving the genuineness and due execution thereof shall be on the contestant The testator may, in his turn, present such additional proof as may be necessary to rebut the evidence for the contestant.SEC. 13. Certificate of allowance attached to proved will. To be recorded in the Office of Register of Deeds.—If the court is satisfied, upon proof taken and filed, that the will was duly executed, and that the testator at the time of its execution was of sound and disposing mind, and not acting under duress, menace, and undue influence, or fraud, a certificate of its allowance, signed by the judge, and attested by the seal of the court shall be attached to the will and the will and certificate filed and recorded by the clerk. Attested copies of the will devising real estate and of certificate of allowance thereof, shall be recorded in the register of deeds of the province in which the lands lie.

Facts which MUST be proved for allowance of lost/destroyed Will –(1) That the will has been duly executed by the testator;(2) That the will was in existence when the testator died, or if it

was not, that it has been fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge; and

(3) That the provisions of the will are clearly established by at least 2 credible witnesses.

The 1st and 3rd facts constitute secondary evidence in lieu of the original of the will. But before secondary evidence may be admitted, the loss of the will must be proved. The 2nd fact is required to be proved to preclude the inference that the testator destroyed his own will. In other words, if the will did not exist at time of the testator’s death, and there is no proof that it has been

destroyed by another without the testator himself destroying his own will, thus, revoking it.

Weight of Testimonial evidence – a will may be allowed even if some witnesses do not remember having attested to it, if other evidence satisfactorily show due execution

Same; Test WON a witness is deemed to have signed in the presence of each other – not whether he did see the signing of the will but whether he was in a position to see if he chose to do so

GAN V YAP (1958)Proof of will; testamentary will; rationale for requirements:The object of such reqs. is(1) to close the door against bad faith and fraud,(2) to prevent substitution of wills, (3) to guarantee their truth and authenticity, and(4) to avoid those who have no right to succeed the testator would succeed him and be benefited with the probate of same. Authenticity and due execution is the dominant reqs to be fulfilled when such will is submitted to the courts for allowance. For that purpose the testimony of one of the subscribing witnesses would be sufficient if there is no opposition. If there is, all 3 must testify, if availableSupra; holographic will; when will is lost:The law, it is reasonable to suppose, regards the document itself as material proof of authenticity, and as its own safeguard, since it could at any time, be demonstrated to be — or not to be — in the hands of the testator himself. The witnesses so presented do not need to have seen the execution of the holographic will. However, the oppositor may present other witnesses who also know the testator's handwriting, or some expert witnesses, who after comparing the will with other writings or letters of the deceased, have come to the conclusion that such will has not been written by the hand of the deceased. And the court, in view of such contradictory testimony may use its own visual sense, and decide in the face of the document, whether the will submitted to it has indeed been written by the testator.Hence, when the will itself is not submitted, these means of opposition, and of assessing the evidence are not available. And then the only guaranty of authenticity — the testator's handwriting — has disappeared. Hence the document itself must be presented and not secondary evidence to prove holographic will

Supra; rationale behind difference in proving testamentary and holographic wills:In HW, the only guarantee of authenticity is the handwriting itself; in OW (ordinary will), the testimony of the subscribing or instrumental witnesses (and of the notary, now). The loss of the HW entails the loss of the only medium of proof; if the OW is lost, the subscribing witnesses are available to authenticate. In the case of OW, it is quite hard to convince 3 witnesses and the notary deliberately to lie. bec. then their lies could be checked and exposed. Whereas in the case of holographic wills, if oral testimony were admissible, even just one person could engineer fraud in any way.

Further, in the case of a lost will, the 3 subscribing witnesses would be testifying to a fact which they saw, namely the act of the testator of subscribing the will; whereas in the case of a lost holographic will, the witnesses would testify as to their opinion of the handwriting which they allegedly saw, an opinion which cannot be tested in court, nor directly contradicted by the oppositors, because the handwriting itself is not at hand.


VDA DE RAMOS V CA (1978)Supra; testamentary will; effect of attestation clause:The presumption of regularity can be overcome by clear and convincing evidence to the contrary, but not easily by the mere expediency of the negative testimony of Sarmiento and Paz (witnesses) that they did not see the testatrix sign the will. A negative testimony does not enjoy equal standing with a positive assertion, and faced with the convincing appearance of the will, such negative statement must be examined with extra careIn the Attesting Clause, the attesting witnesses do not merely attest to the signature of the testatrix but also to the proper execution of the will, and their signature following that of the testatrix show that they have in fact at not only to the genuineness of the testatrix's signature but also to the due execution of the will as embodied in the attention clause. By signing the will, the AW impliedly to the truth of the facts which admit to probate, including the sufficiency of execution, the capacity of the testatrix, the absence of undue influence, and the like.

Supra; supra; when witnesses testify against probate of will;In this jurisdiction, all the AW to a will, if available, must be called to prove the will. Under this circumstance, they become "forced witnesses" and their declaration derogatory to the probate of the will need not bind the proponent; hence, the latter may present other proof of due exemption even if contrary to the testimony of or all of the AW.

Supra; supra; testimony of witnessing lawyer:In weighing the testimony of witnesses to a will, statements oif a competent attorney is entitled to greater weight than the testimony of a person casually called to anticipate in the act, supposing there is no motive is revealed that should induce the lawyer to prevaricate.

Supra; supra; when a witness is a absent in the photograph:Pictures are worthy only of what they show and prove and not of what they did not speak of including the events they failed to capture.

RODELAS V ARANZA (1982)Supra; Holographic will; when will is lost; general rule and exceptions:GR If the holographic will has been lost or destroyed and no other copy is available, the will can not be probated because the best and only evidence is the handwriting of the testator in said will.EXC If the authenticity of the handwriting of the deceased can be determined by the probate court using a photographic or carbon copy.Footnote 8 of Gan v Yap: "Perhaps it may be proved by a photographic or photostatic copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited and tested before the probate court."

5) Contest of WillRule 76, Sec. 10. Contestant to file grounds of contest.—Anyone appearing to contest the will must state in writing his grounds for opposing its allowance, and serve a copy thereof on the petitioner and other parties interested in the estate.SEC. 11. Subscribing witnesses produced or accounted for where will contested.—If the will is contested, all the subscribing witnesses, and the notary in the case of wills executed under the Civil Code of the Philippines, if present in the Philippines, and not insane, must be produced and examined, and the death, absence, or insanity of any of them must be satisfactorily shown to the court. If all or some of such witnesses are present in the Philip pines but outside the province where the will has been filed,

their deposition must be taken. If any or all of them testify against the due execution of the will, or do not remember having attested to it, or are otherwise of doubtful credibility, the will may, nevertheless, be allowed if the court is satisfied from the testimony of other witnesses and from all the evidence presented that the will was executed and attested in the manner required by law.If a holographic will is contested, the same shall be allowed if at least three (3) witnesses who know the handwriting of the testator explicitly declare that the will and the signature are in the handwriting of the testator; in the absence of any competent witness, and if the court deem it necessary, expert testimony may be resorted to.

When Authenticity of Will Not Questioned – not necessary to present the 3 witnesses required by A811 of the CC

6) Allowance of Will Proved Outside of the Philippines and Administration of State

Rule 77SECTION 1. Will proved outside Philippines may be allowed here.—Wills proved and allowed in a foreign country, according to the laws of such country, may be allowed, filed, and recorded by the proper Regional Trial Court in the Philippines.SEC 2. Notice of hearing for allowance.—When a copy of such will and of the order or decree of the allowance thereof, both duly authenticated, are filed with a petition for allowance in the Philippines, by the executor or other person interested in the court having jurisdiction, such court shall fix a time and place for the hearing, and cause notice thereof to be given as in case of an original will presented for allowance.SEC. 3. When will allowed, and effect thereof.—If it appears at the hearing that the will should be allowed in the Philippines, the court shall so allow it, and a certificate of its allowance, signed by the judge, and attested by the seal of the court, to which shall be attached a copy of the will, shall be filed and recorded by the clerk, and the will shall have the same effect as if originally proved and allowed in such court.SEC. 4. Estate, how administered.—When a will is thus allowed, the court shall grant letters testamentary, or letters of administration with the will annexed, and such letters testamentary or of administration, shall extend to all the estate of the testator in the Philippines. Such estate, after the payment of just debts and expenses of administration, shall be disposed of according to such will, so far as such will may operate upon it; and the residue, if any, shall be disposed of as is provided by law in cases of estates in the Philippines belonging to persons who are inhabitants of another state or country.

CC, Art. 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed.When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their execution.Prohibitive laws concerning persons, their acts or property, and those which have, for their object, public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. (11a)

GR – Art. 816 of the Civil Code must be complied with. It provides: The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this Code prescribes.


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Evidence necessary for the reprobate or allowance of wills which have been probated outside of the Philippines –(1) the due execution of the will in accordance with the foreign

laws;(2) the testator has his domicile in the foreign country and not in

the Philippines;(3) the will has been admitted to probate in such country(4) the fact that the foreign tribunal is a probate court; and(5) the laws of a foreign country on procedure and allowance of

will

Same; Rules of Evidence – R132 on presenting official records not kept in the PHL must be complied with:SEC. 24. Proof of official record.—The record of public documents referred to in paragraph (a) of Section 19, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in a foreign country, the certificate may be made by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office.(25a)SEC. 25. What attestation of copy must state.—Whenever a copy of a document or record is attested for the purpose of evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court.(26a)

Same; Rationale – Philippine courts cannot take JN of foreign laws

Notice of Hearing for Allowance Required – wrt notices, the will probated abroad should be treated as if it were an original will or a will that is presented for probate for the first time. R76.3 and .4 must be followed.

Territorial Limits of Administration – administration extends only to the assets of the decedent found within the state or country where it was granted; has no power over prop in another state/country

Ancillary Administration Necessary – for prop of a decedent who owns property situated in the country of his domicile as well as in a foreign country, administration shall be had in both country. That which is granted in the decedent’s domicile is the principal administration while any other admin is ancillary.

VDA DE PEREZ V TOLETE (1994)Allowance of will proved outside the Phils; requirements:The evidence necessary for the reprobate or allowance of wills which have been probated outside of the Philippines are as follows:(1) the due execution of the will in accordance with the foreign laws;(2) the testator has his domicile in the foreign country and not in the Philippines;(3) the will has been admitted to probate in such country;(4) the fact that the foreign tribunal is a probate court, and (5) the laws of a foreign country on procedure and allowance of wills.The necessity of presenting evidence on the foreign laws upon which the probate in the foreign country is based is impelled by the fact that our courts cannot take judicial notice of them.Supra; supra:

The rule that the court having jurisdiction over the reprobate of a will shall "cause notice thereof to be given as in case of an original will presented for allowance" (Revised Rules of Court, Rule 27, Section 2) means that with regard to notices, the will probated abroad should be treated as if it were an "original will" or a will that is presented for probate for the first time. Accordingly, compliance with Sections 3 and 4 of Rule 76, which require publication and notice by mail or personally to the "known heirs, legatees, and devisees of the testator resident in the Philippines" and to the executor, if he is not the petitioner, are required.Side issue: Joint probate of wills is allowed. What the law prohibits is the making of a joint will.

ANCHETA V GUERSEY-DALAYGON (2006)Supra; supra:Foreign laws do not prove themselves in our juris and courts are not authorized to take JN of them but Atty Quasha as ancilliary admin was duty-bound to introduce in evidence the pertinent law of the State of Maryland.Given that the pertinent law of the State of Maryland has been brought to record before the CA, and thetrial court in Special Proceeding No. M888 appropriately took note of the same in disapproving the proposed project of partition of Richard’s estate, not to mention that petitioner or any other interested person for that matter, does not dispute the existence or validity of said law

6. Letters Testamentary and Administration1) Executors and Administrators Rule 78, Sec. 1. Who are incompetent to serve as a executors or administrators.—No person is competent to serve as executor or administrator who:(a) Is a minor;(b) Is not a resident of the Philippines; and(c) Is in the opinion of the court unfit to execute the duties of the trust by reason of drunkenness, improvidence, or want of understanding or integrity, or by reason of conviction of an offense involving moral turpitude.SEC. 2. Executor of executor not to administer estate.—The executor of an executor shall not, as such, administer the estate of the first testator.SEC. 3. Married women may serve.—A married woman may serve as executrix or administratrix, and the marriage of a single woman shall not affect her authority so to serve under a previous appointmentSEC 4 Letters testamentary issued when will allowed.—When a will has been proved and allowed, the court shall issue letters testamentary thereon to the person named as executor therein, if he is competent, accepts the trust, and gives bond as required by these rulesSEC. 5. Where some co-executors disqualified others may act.—When all of the executors named in a will cannot act because of incompetency, refusal to accept the trust, or failure to give bond, on the part of one or more of them, letters testamentary may issue to such of them as are competent, accept and give bond, and they may perform the duties and discharge the trust required by the will.SEC. 6. When and to whom letters of administration granted.—If no executor is named in the will, or the executor or executors are incompetent, refuse the trust, or fail to give bond, or a person dies intestate, administration shall be granted:(a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion of the court, or to such person as such surviving husband or wife, or next of kin, requests to have appointed, if competent and willing to serve;(b) If such surviving husband or wife, as the case may be, or next of kin, or the person selected by them, be incompetent or unwilling, or if the husband or widow, or next of kin, neglects for


thirty (30) days after the death of the person to apply for administration or to request that administration be granted to some other person, it may be granted to one or more of the principal creditors, if competent and willing to serve;(c) If there is no such creditor competent and willing to serve, it may be granted to such other person as the court may select.

Rule 88, Sec. 15. Time for paying debts and legacies fixed, or extended after notice, within what periods. — On granting letters testamentary or administration the court shall allow to the executor or administrator a time for disposing of the estate and paying the debts and legacies of the deceased, which shall not, in the first instance, exceed one (1) year; but the court may, on application of the executor or administrator and after hearing on such notice of the time and place therefor given to all persons interested as it shall direct, extend the time as the circumstances of the estate require not exceeding six (6) months for a single extension nor so that the whole period allowed to the original executor or administrator shall exceed two (2) years.SEC. 16. Successor of dead executor or administrator may have time extended on notice within certain period. — When an executor or administrator dies, and a new administrator of the same estate is appointed, the court may extend the time allowed for the payment of the debts or legacies beyond the time allowed to the original executor or administrator, not exceeding six (6) months at a time and not exceeding six (6) months Beyond the time which the court might have allowed to such original executor or administrator; and notice shall be given of the time and place for hearing such application, as required in the last preceding section.

Grounds for Disqualification – Negative factors for selection of Administrator(1) Minors and non-residents – disqualified(2) Drunkenness – what the rule contemplates is that excessive,

inveterate, and continued use of intoxicants, to such an extent as to render the subject of the habit as unsafe to entrust with the care of property or the transaction of business

(3) Improvidence – that want of care and foresight in the mgt of property which would likely to render the estate and effects of the intestate unsafe, and liable to be lost or diminished in value, in case the administration should be committed to the improvident personSymptoms of Improvidence – carelessness, indifference, prodigality, wastefulness, or negligence in reference to the care, mgt, and preservation of property; e.g. gambling habits might establish improvidence

(4) Want of Understanding – where it amounts to lack of intelligence as to subject one to sinister influence or coercion against the general interest of the estate will constitute a sufficient objection; weakness of mind per se, however, is not an automatic ground for disqualification

(5) Want of Integrity – accusation must be certain and grave in nature, established by proof which would at least approach the certainty require for conviction of a crime in order for the ground to be sustained

(6) Moral turpitude – an act of baseness, vileness, or depravity in the private and social duties which a man owes his fellowmen, to society in general, contrary to the accepted and customary rule of right and duty between man and woman or conduct contrary to justice, honesty, modesty or good morals

Same; Court cannot add new causes of disqualification – no authority to disqualify if ground is not provided in the statute

Same; Antagonistic Interest – generally, the courts do not regard one whose personal interests are so adverse to the interests of a decedent’s estate and of those entitled to its

distribution that both cannot be fairly prevented by the same person as a proper person to administer the estate.

An administrator should be able to devote his time and mind to the burden of his trust; as such, he cannot be in one place while the estate administered is in another place for he cannot efficiently discharge his duties

Administrator May Be a Stranger to the Decedent – he doesn’t have to be an heir

SIOCA V GARCIA (1923)Administrators and executors; preferential rights in appointment; general rule and exception:GR: A probate court cannot arbitrarily and without sufficient reason disregard the preferential rights of the SS to the administration of the estate of the deceased spouse.EXC: If the person enjoying such preferential rights is unsuitable, the court may appoint another person. (Code of Civil Proc., Sec. 642)

The determination of a person's suitability for the office of administrator rests, to a great extent, in the sound judgment of the court exercising the power of appt. and such judgment will not be interfered with on appeal unless it appears affirmatively that the court below was in error.

LIM V DIAZ-MILLARES (1966)Supra; when not qualified:The claim which Basilisa has against Cirilo in the civil case is based on her declared right to one-half of the estate of the deceased. It cannot, therefore, be denied that Cirilo Lim, as a relative of the deceased has some interest adverse to that of Basilisa. In this jurisdiction, one is considered to be unsuitable for appointment as administrator when he has adverse interest of some kind or hostility to those immediately interested in the estate.

TORRES V JAVIER (1916)Supra; appointment of a disinterested person:Here two women are claiming to be lawful wife of decedent. Court had a right in view of the controversy between the women to name a disinterested third person as administrator and leave the controversy between them to be settled in the administration proceedings at the proper time.

2) Opposition to IssuanceRule 79SECTION 1. Opposition to issuance of letters testamentary. Simultaneous petition for administration.—Any person interested in a will may state in writing the grounds why letters testamentary should not issue to the persons named therein as executors, or any of them, and the court, after hearing upon notice, shall pass upon the sufficiency of such grounds. A petition may, at the same time, be filed for letters of administration with the will annexed.SEC. 2. Contents of petition for letters of administration.—A petition for letters of administration must be filed by an interested person and must show, so far as known to the petitioner.(a) The jurisdictional facts;(b) The names, ages, and residences of the heirs, and the names and residences of the creditors, of the decedent;(c) The probable value and character of the property of the estate;(d) The name of the person for whom letters of administration are prayed.But no defect in the petition shall render void the issuance of letters of administration.SEC. 3. Court to set time for hearing. Notice thereof.—When a petition for letters of administration is filed in the court having jurisdiction, such court shall fix a time and place for hearing the petition, and shall cause notice thereof to be given to the known heirs and creditors of the decedent, and to any other persons


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believed to have an interest in the estate, in the Manner provided in sections 3 and 4 of Rule 76.SEC. 4. Opposition to petition for administration.—Any Interested person may, by filing a written opposition, contest the petition on the ground of the incompetency of the person for whose letters are prayed therein, or on the ground of the contestant’s own right to the administration, and may pray that letter issue to himself, or to any competent person or persons named In the opposition.SEC. 5. Hearing and order for letters to issue.—At the hearing of the petition, it must first be shown that notice has been given as hereinabove required, and thereafter the court shall hear the proofs of the parties in support of their respective allegations, and if satisfied that the decedent left no will, or that there is no competent and willing executor, it shall order the issuance of letters of administration to the party best entitled thereto.SEC. 6. When letters of administration granted to any applicant.–Letters of administration may be granted to any qualified applicant, though it appears that there are other competent persons having better right to the administration, if such persons fail to appear when notified and claim the issuance of letters to themselves.

Jurisdictional facts Must be established – a party may not be allowed to defeat the purpose of an essentially valid petition for the settlement of the estate of a decedent by raising matters that are irrelevant and immaterial to the petition

Interest; NOT a jurisdictional element – it is considered, instead, a lack of legal capacity to institute proceedings for which a MTD may lie

Same; Requirement – must be material and direct, not merely contingent or indirect

Failure to allege lack of interest; consequences – may be barred by waiver or estoppels

Defects in Petition; Cure – by failure to make a timely objection

Notice and Hearing is Jurisdictional – The PC must cause notice through publication of the petition after it receives the same. The purpose of this notice is to bring all the interested persons within the court’s jurisdiction so that judgment therein becomes binding on all the world. The notice is essential to the proc’s validity in order that no person may be deprived of his right to property without due process of law. Failure to comply with this requirement will render the settlement proceeding void.

DURAN V DURAN (1967)Interested person; effect of assignment share in the estate without court approval:The situation in the Santos case involves an assignment between co-heirs pendente lite, during the course of settlement proceedings, properly and validly commenced. At the time of said assignment, therefore, the settlement court had already acquired jurisdiction over the properties of the estate. As a result, any assignment regarding the same had to be approved by said court. And since the approval of the court is not deemed final until the estate is closed, the assigning heir remains an interested person in the proceedings even after said approval, which can be vacated, is given.

In the present case, however, the assignment took place when no settlement proceedings was pending. The properties subject matter of the assignment were not under the jurisdiction of a settlement court. Allowing that the assignment must be deemed a partition as between the assignor and assignee, the same does not need court approval to be effective as between the parties.

TAYAG V TAYAG-GALLOR (2008)Interested person; when interest depends on a fact to be established:An interested party is one who would be benefited by the estate, such as an heir, or one who has a claim against the estate, such as a creditor. This interest must be material and direct, not merely indirect or contingent.

Hence, where the right of the person filing a pet. for the issuance of LOA 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.

The right of Felicidad to maintain such a suit is dependent on WON she is entitled to successional rights as an IC of the decedent which, in turn, may be established through voluntary or compulsory recognition.The allegation that Felicidad is an IC of the decedent suffices even w/o further stating that she has been so recognized or acknowledged. A MTD on the ground of failure to state a CoA in the complaint hypothetically admits the truth of the facts alleged therein. Assuming the fact alleged to be true, i.e., that Felicidad Ismael’s child, her interest in the estate as such would definitely be material and direct.

3) Special AdministratorsRule 80, Sec. 1. Appointment of special administrator.—When there is delay in granting letters testamentary or of administration by any cause including an appeal from the allowance or disallowance of a will, the court may appoint a special administrator to take possession and charge of the estate of the deceased until the questions causing the delay are decided and executors or administrators appointed.

SEC. 2. Powers and duties of special administrator.—Such special administrator shall take possession and charge of the goods, chattels, rights, credits, and estate of the deceased and preserve the same for the executor or administrator afterwards appointed, and for that purpose may commence and maintain suits as administrator. He may sell only such perishable and other property as the court orders sold. A special administrator shall not be liable to pay any debts of the deceased unless so ordered by the court.SEC. 3. When powers of special administrator cease. Transfer of effects. Pending suits.—When letters testamentary or of administration are granted on the estate of the deceased, the powers of the special administrator shall cease, and he shall forthwith deliver to the executor or administrator the goods, chattels, money, and estate of the deceased in his hands. The executor or administrator may prosecute to final judgment suits commenced by such special administrator.

Rule 86, Sec. 8. Claim of executor or administrator against an estate.—If the executor or administrator has a claim against the estate he represents, he shall give notice thereof, in writing, to the court, and the court shall appoint a special administrator, who 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 other claims. The court may order the executor or administrator to pay to the special administrator necessary funds to defend such claim.

Notice and Publication – must be complied with first before jurisdiction is acquire by the probate court

Special Administrator – the representative of the decedent appointed by the PC to care for and preserve his estate until an executor or general administrator is appointed


Same; Duties – while SAs may have respective interests to protect, they are officers of the court, subject to the supervision and control of the PC and are expected to work in the best interests of the entire estate, its smooth administration, and its earliest settlement; whatever difference there may be between them shall be ironed out fairly and objectively for the attainment of that end

Same; Same; Submission of Inventory – has to be performed within a reasonable period, if not as soon as practicable, in order to preserve the estate, and protect the heirs of the deceased

Same; When One May be Appointed – when there is delay in granting letters testamentary or of administration occasioned by an appeal from the allowance or disallowance of a will or some other cause, e.g. qualifications of the executor/administrator is questioned; appeal pending re: removal of an E/A; parties cannot agree among themselves

Same; Appointment – lies entirely in the sound discretion of the court. The priority of certain persons’ appt as administrator does not apply to the selection of a SA

Order of Appointment Discretionary – but the judge is not allowed to be parties, or to make his personal likes and dislikes prevail over, or his passion to rule his judgment

Same; Need to be Represented in the Mgt of the Estate – the executrix’s choice of SA, considering her own inability to serve and the wide latitude of discretion given her by the testatrix in her Will is entitled to the highest consideration

Same; Limits of Discretion – sound, not whimsical or contrary to reason, justice, equity, or legal principle

Nature of Order Appointing SA – interlocutory; hence, no appeal lies from the appt of a SA2

RELUCIO V SAN JOSE (1952)Special administrator; appointment of SA pending appeal of administrator of order removing him as such:Here, petitioner was removed by court as administratrix and was substituted. Petitioner appealed this order but pending appeal, TC appointed a special administrator.

Pending her appeal from the order of January 15, 1951, the petitioner had the right to act as administratrix. If the respondent Judge had decreed the immediate execution of the order of January 15, 1951, Rolando Relucio would then be the administrator pending petitioner's appeal. Consequently, the respondent Judge exceeded his jurisdiction in appointing the respondent Equitable Banking Corporation as special administrator.

MANUNGAS V LORETO (2011)Supra; nature order of appointment of a special administrator; proper remedy:Appointment of a SA is n interlocutory order to the main case for the grant of letters of administration in a testate or intestate proceeding. Proper remedy is petition for certiorari under Rule 65 not appeal under Rule 45.

The court has discretion in the selection of the person to be appointed SA – discretion must be sound, not whimsical or contrary to reason, justice, or equity.

Test: prudent and reasonable to appoint someone interested in preserving the estate for its eventual distribution to the heirs, person would not expose the estate to losses that would effectively diminish his or her share

2 NB: proper remedy: pet for cert under R65 not appeal under

R45

4) Duties/General Powers of Executors, Administrators and Special Administrators

Rule 84, Sec. 1. Executor or administrator to have access to partnership books and property. How right enforced.—The executor or administrator of the estate of a deceased partner shall at all times have access to, and may examine and take copies of, books and papers relating to the partnership business, and may examine and make invoices of the property belonging to such partnership; and the surviving partner or partners, on request, shall exhibit to him all such books, papers, and property in their hands or control. On the written application of such executor or administrator, the Court having jurisdiction of the estate may order any such surviving partner or partners to freely permit the exercise of the rights, and to exhibit the books, papers, and property, as in this section provided, and may punish any partner failing to do so for contempt.SEC. 2. Executor or administrator to keep buildings in repair.—An executor or administrator shall maintain in tenantable repair the houses and other structures and fences belonging to the estate, and deliver the same in such repair to the heirs or devisees when directed so to do by the court.SEC. 3. Executor or administrator to retain whole estate to pay debts, and to administer estate not willed.—An executor or administrator shall have the right to the possession and management of the real as well as the personal estate of the deceased so long as it is necessary for the payment of the debts and the expenses of administration.

Rule 81, Sec. 1. Bond to be given before issuance of letters. Amount. Conditions.—Before an executor or administrator enters upon the execution of his trust, and letters testamentary or of administration issue, he shall give a bond, in such sum as the court directs, conditioned as follows:(a) To make and return to the court, within three (3) months, a true and complete inventory of all goods, chattels, rights, credits, and estate of the deceased which shall come to his possession or knowledge or to the possession of any other person for him;(b) To administer according to these rules, and, if an executor, according to the will of the testator, all goods, chattels, rights, credits, and estate which shall at any time come to his possession or to the possession of any other person for him, and from the proceeds to pay and discharge all debts, legacies, and charges on the same, or such dividends thereon as shall be decreed by the court;(c) To render a true and just account of his administration to the court within one (1) year, and at any other time when required by the court;(d) To perform all orders of the court by him to be performed.SEC. 2. Bond of executor where directed in will. When further bond required.—If the testator in his will directs that the executor serve without bond, or with only his Individual bond, he may be allowed by the court to give bond in such sum and with such surety as the court approves conditioned only to pay the debts of the testator; but the court may require of the executor a further bond in case of a change in his circumstances, or for other sufficient cause, with the conditions named in the last preceding section.SEC. 3. Bonds of joint executors and administrators.—When two or more persons are appointed executors or administrators the court may take a separate bond from each, or a joint bond from all.SEC. 4. Bond of special administrator.—A special administrator before entering upon the duties of his trust shall give a bond, in such sum as the court directs, conditioned that he will make and return a true inventory of the goods, chattels, rights, credits, and estate of the deceased which come to his possession or knowledge, and that he will truly account for such as are received by him when required by the court, and will deliver the same to the person appointed executor or administrator, or to such other


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person as may be authorized to receive them.

Rule 83, Sec. 1. Inventory and appraisal to be returned within three months.—Within three (3) months after his appointment every executor or administrator shall return to the court a true inventory and appraisal of all the real and personal estate of the deceased which has come into his possession or knowledge. In the appraisement of such estate, the court may order one or more of the inheritance tax appraisers to give his or their assistance.

Limits of Powers –1) Cannot exercise the right of legal redemption over a portion of the property owned in common sold by one of the other co-owners since this is not within the powers of administration2) Where estate of a deceased person is already the subject of a testate or intestate proceeding, the administrator cannot enter into any transaction involving it without any prior approval of the Court3) The right of an E/A to the possession and mgt of the real and personal prop of the deceased is not absolute and can only be exercised so long as necessary for the payment of the debts and expenses of administration

Administrator’s Bond – Statutory; conditions prescribed by statute forms part of the bond agreement

Terms and effectivity of the Bond – does not depend on payment of premium and does not expire until the administration is closed. For as long as PC’s juris is retained, the bond contemplates a continuing liability

Administrator’s Liability – personal and exclusive of the sureties

WILSON v REAR (1930)Powers and duties of administrator; continuing the business of the decedent; degree of care:An administrator, without a specific showing or an order of the court, does not have any legal right to continue the operation of the business in which the deceased was engaged, or to eat up and absorb the assets of the estate in the payment of operating expenses. The law does not impose upon an administrator a high degree of care in the administration of an estate, but it does impose upon him ordinary and usual care, for want of which he is personally liable.

JOCSON DE HILADO v NAVA (1939)Supra; power to enter in a lease contract:Court cannot annul the lease contract in intestate proceedings wherein it had no jurisdiction over the person of the lessee. The lease was only an act of administration, which are within the powers of administration of the administratrix.

ANDERSON v PERKINSSec. 2, Rule 81 specifically provides that the special administrator “may sell such perishable and other property as the court orders sold”, which shows that the special administrator’s power to sell is not limited to “perishable” property only.It is true that the function of a special administrator is only to collect and preserve the property of the deceased until a regular administrator is appointed (Sec. 2, Rule 81). But it is not alone the specific property of the estate which is to be preserved, but its value as well, as shown by the legal provision for the sale by a special administrator of perishable property. It is in line with this general power of the special administrator to preserve not only the property of the estate but also its value, that Sec. 2, Rule 81, also empowers such administrator to sell “other property as the court ordered

sold.”

LIWANAG v CAThe theory that a mortgagee cannot bring an action for foreclosure against the special administrator has already been rejected.Sec. 7 of Rule 86 provides that a creditor holding a claim against the deceased, secured by a mortgage or other collateral security, may pursue any of these remedies: (1) abandon his security and prosecute his claim and share in the general distribution of the assets of the estate; (2) foreclose his mortgage or realize upon his security by an action in court, making the executor or administrator a party defendant, and if there is a deficiency after the sale of the mortgaged property, he may prove the same in the testate or intestate proceedings; (3) rely exclusively upon his mortgage and foreclose it any time within the ordinary period of limitations, and if he relies exclusively upon the mortgage, he shall not share in the distribution of the assets.As to whether or not petitioner can be sued as special administratrix, the Rules of Court do not expressly prohibit making the special administratrix a defendant in a suit against the estate. Otherwise, creditors would find the adverse effects of the statute of limitations running against them in cases where the appointment of a regular administrator is delayed.

HEIRS OF CASTILLO v LACUATA-GABRIELThe appointment of a special administrator lies in the sound discretion of the probate court. A special administrator is a representative of a decedent appointed by the probate court to care for and preserve his estate until an executor or general administrator is appointed. When appointed, a special administrator is regarded not as a representative of the agent of the parties suggesting the appointment, but as the administrator in charge of the estate, and, in fact, as an officer of the court. As such officer, he is subject to the supervision and control of the probate court and is expected to work for the best interests of the entire estate, especially its smooth administration and earliest settlement. The principal object of appointment of 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. In many instances, the appointment of administrators for the estates of decedents frequently become involved in protracted litigations, thereby exposing such estates to great waste and losses unless an authorized agent to collect the debts and preserve the assets in the interim is appointed. The occasion for such an appointment, likewise, arises where, for some cause, such as a pendency of a suit concerning the proof of the will, regular administration is delayed.The appointment of special administrators is not governed by the rules regarding the appointment of regular administrators. The statutory provisions as to the prior or preferred right of certain persons to the appointment of administrator under Sec. 1, Rule 81, as well as the statutory provisions as to causes for removal of an executor or administrator under Sec. 2, Rule 83 do not apply to the selection or removal of special administrator.

5) Accountability and Compensation of Executors and Administrators

Rule 85, Sec. 1. Executor or administrator chargeable with all estate and income.—Except as otherwise expressly provided in the following sections, every executor or administrator is chargeable in his account with the whole of the estate of the deceased which has come into his possession, at the value of the appraisement contained in the inventory; with all the interest,


profit, and income of such estate; and with the proceeds of so much of the estate as is sold by him, at the price at which it was sold.SEC. 2. Not to profit by increase or lose by decrease in value.—No executor or administrator shall profit by the increase, or suffer loss by the decrease or destruction, without his fault, of any part of the estate. He must account for the excess when he sells any part of the estate for more than the appraisement, and if any is sold for less than the appraisement, he is not responsible for the loss, if the sale has been justly made. If he settles any claim against the estate for less than its nominal value, he is entitled to charge in his account only the amount he actually paid on the settlement.SEC. 3. When not accountable for debts due estate.—No executor or administrator shall be accountable for debts due the deceased which remain uncollected without his fault.SEC. 4. Accountable for income from realty used by him.—If the executor or administrator uses or occupies any part of the real estate himself, he shall account for it as may be agreed upon between him and the parties interested, or adjusted by the court with their assent; and if the parties do not agree upon the sum to be allowed, the same may be ascertained by the court, whose determination in this respect shall be final.SEC. 5. Accountable if he neglects or delays to raise or pay money.—When an executor or administrator neglects or unreason ably delays to raise money, by collecting the debts or selling the real or personal estate of the deceased, or neglects to pay over the money he has in his hands, and the value of the estate is thereby lessened or unnecessary cost or interest accrues, or the persons interested suffer loss, the same shall be deemed waste and the damage sustained may be charged and allowed against him in his account, and he shall be liable therefor on his bond.SEC. 6. When allowed money paid as costs.—The amount paid by an executor or administrator for costs awarded against him shall be allowed in his administration account, unless it appears that the action or proceeding in which the costs are taxed was prosecuted or resisted without just cause, and not in good faith.SEC. 7. What expenses and fees allowed executor or administrator. Not to charge for services as attorney. Compensation provided by will controls unless renounced.—An executor or administrator shall be allowed the necessary expenses in the case, management, and settlement of the estate, and for his services, four pesos per day for the time actually and necessarily employed, or a commission upon the value of so much of the estate as comes into his possession and is finally disposed of by him in the payment of debts, expenses, legacies, or distributive shares, or by delivery to heirs or devisees, of two per centum of the first five thousand pesos of such value, one per centum of so much of such value as exceeds five thousand pesos and does not exceed thirty thousand pesos, one-half per centum of so much of such value as exceeds thirty thousand pesos and does not exceed one hundred thousand pesos, and one-quarter per centum of so much of such value as exceeds one hundred thousand pesos. But in any special case, where the estate is large, and the settlement has been attended with great difficulty, and has required a high degree of capacity on the part of the executor or administrator, a greater sum may be allowed. If objection to the fees allowed be taken, the allowance may be re-examined on appeal.If there are two or more executors or administrators, the compensation shall be apportioned among them by the court according to the services actually rendered by them respectively.When the executor or administrator is an attorney, he shall not charge against the estate any professional fees for legal services rendered by him.When the deceased by will makes some other provision for the compensation of his executor, that provision shall be a full satisfaction for his services unless by a written instrument filed in the court he renounces all claim to the compensation provided by the will.

SEC. 8. When executor or administrator to render account.—Every executor or administrator shall render an account of his administration within one (1) year from the time of receiving letters testamentary or of administration, unless the court otherwise directs because of extensions of time for presenting claims against, or paying the debts of, the estate, or for disposing of the estate; and he shall render such further accounts as the court may require until the estate is wholly settled.SEC. 9. Examinations on oath with respect to account .—The court may examine the executor or administrator upon oath with respect to every matter relating to any account rendered by him, and shall so examine him as to the correctness of his account before the same is allowed, except when no objection is made to the allowance of the account and its correctness is satisfactorily established by competent proof. The heirs, legatees, distributees, and creditors of the estate shall have the same privilege as the executor or administrator of being examined on oath on any matter relating to an administration account.SEC. 10. Account to be settled on notice.—Before the account of an executor or administrator is allowed, notice shall be given to persons interested of the time and place of examining and allowing the same; and such notice may be given personally to such persons interested or by advertisement in a newspaper or newspapers, or both, as the court directs.SEC. 11. Surety on bond may be party to accounting.—Upon the. settlement of the account of an executor or administrator, a person liable as surety in respect to such account may, upon application, be admitted as party to such accounting.

Rule 88, Sec. 16. Successor of dead executor or administrator may have time extended on notice within certain period. — When an executor or administrator dies, and a new administrator of the same estate is appointed, the court may extend the time allowed for the payment of the debts or legacies beyond the time allowed to the original executor or administrator, not exceeding six (6) months at a time and not exceeding six (6) months Beyond the time which the court might have allowed to such original executor or administrator; and notice shall be given of the time and place for hearing such application, as required in the last preceding section.

Account liability – for the whole of decedent’s estate which has come into his possession, with all the interest, profit, and income thereof, and with the proceeds of so much of such estate as is sold by him, at the price at which it was sold

Administrator’s liability for damages – (1) Negligence results in waste committed in the estate(2) Unlawful/illegal acts

Compensation – In special cases, the determination of whether the administration and liquidation of an estate is large, have been attended with greater difficulty, and have required a high degree of capacity on the part of the E/A lies on the sound discretion of the court

Necessary Expenses; Right Thereto – Administrator is entitled to possess and manage the decedent’s real and personal estate as long as it is necessary for the payment of the debts and expenses of administration.

Same; What are Included – such expenses as are entailed for the preservation and productivity of the estate and for its mgt for purpose of liquidation, payment of debts, and distribution of the residue among persons entitled thereto

Same; Example – Expenses for the renovation and improvement of the family residence, incurred to preserve the family home and to maintain the family’s social standing in to community – allowable bec expense redounded to benefit of all the co-owners


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Same; What are Disallowed –(1) Expenses on the anniv of the death of the deceased(2) Those incurred by a presumptive heir for her appearance

and that of her witnesses at the trial to oppose the probate of an alleged will

(3) Those spent for the settlement of the question as who are entitle to the estate left by the deceased

(4) Those incurred by the E/A to procure a bond(5) Personal expenses of the occupant of the heir of the family

residence, e.g. salary of household help, light and water bills, cost gas

(6) Expenses for stenographic notes and unexplained representation expenses

Administrator may not recover Atty’s Fees from the Estate – his compensation is in the nature of a commission and not of AF. - A lawyer of an E/A may not charge the estate for his fees,

but rather, his client. When he rendered services to the E/A to assist in the execution of his trust, his AF may be allowed as expenses of administration but the estate is not directly liable for his fees. Its payment therefor rests primarily on the E/A. If the E/A had paid the fees, he would be entitle to reimbursement from the estate.

Procedure for Collection of Atty’s Fees – request the E/A to make payment and file an action against him in his personal capacity and not as an E/A should he fail to pay. If judgment is unfavorable to the E/A and he pays, he may include the fees so paid in his acct to the court. The lawyer also may file a pet in the TP or IP asking that the court, after notice to all interested persons, allow his claim and direct the E/A to pay it as an expense of administration

Right of Heirs – inquire into the value of services of the lawyer and on the necessity of his employment

Mandatory Rendering of Accounting – within 1 yr from his appointment

Same; Nature – not a mere incident of an admin proceeding which can be waived or disregarded when the same is terminated, but that it is a duty that has to be performed and duly acted upon by the court before the administration is finally ordered closed and terminated

Same; EXC – when the court otherwise directs because of extension of the time for presenting claims against the estate or for paying the debts or disposing the assets of the estate

Same; Examinations on Oath – with respect to every matter relating to his accounting and shall so examine him as to the correctness of the acct before the same is allowed- The heirs, legatees, distributes, and creditors of the estate

shall have the same privilege as the E/A of being examined on oath on any matter relating to an admin acct

- EXC: when no objection has been made to the allowance of the account and its correctness is satisfactorily established by competent proof

De Borja v De Borja1) The keeping of receipts and retaining in his

custody records connected with the management of the properties under administration is a duty that properly belongs to the administrator, necessary to support the statement of accounts that he is obliged to submit to the court for approval. If ever the administrator’s wife took charge of the safekeeping of these receipts and for which she should be compensated, the same should be taken from

his fee.

2) Although it is true that Rule 85, Section 2 provides that “An executor or administrator shall maintain in tenantable repair the houses and other structures and fences belonging to the estate, and deliver the same in such repair to the heirs or devisees when directed to do so by the court,” yet considering that during his [administrator’s] occupancy of the said “casa solariega” he was not paying any rental at all, it is but reasonable that he should take care of the expenses for the ordinary repair of said house. The administrator asserted that had he and his family not occupied the same, they would have to pay someone to watch and take care of said house. But this will not excuse him from the responsibility for the disbursements he made in connection with the aforementioned repairs because even if he stayed in another house, he would have had to pay rentals or else take charge also of expenses for the repairs of his residence.

Intestate estate of Carmen de Luna v IAC“In any special case, where the estate is large and the settlement has been attended with great difficulty and has required a high degree of capacity on the part of the executor or administrator, a greater sum may be allowed.” A wide latitude, leeway or discretion is therefore given to the trial court to grant a greater sum. And the determination of whether the administration and liquidation of an estate have been attended with greater difficulty and have required a high degree of capacity on the part of the executor or administrator rests on the sound discretion of the court which took cognizance of the estate.There is no sound justification why the appellate court should interfere with the exercise of the trial court’s discretion, absent a showing that the trial court committed any abuse of discretion in granting greater remuneration to the petitioner.

6) Revocation of Administration; Death, Resignation and Removal of Administrators and Executors; Effects of Acts performed before Removal, Resignation or Death

Rule 82, Sec. 2. Court may remove or accept resignation of executor or administrator. Proceedings upon death, resignation, or removal.—If an executor or administrator neglects to render his account and settle the estate according to law, or to perform an order or judgment of the court, or a duty expressly provided by these rule., or absconds, or becomes insane, or otherwise incapable or unsuitable to discharge the trust, the court may remove him, or, in its discretion, may permit him to resign. When an executor or administrator dies, resigns, or is removed, the remaining executor. or administrator may administer the trust alone, unless the court grants letters to someone to act with him. If there is no remaining executor or administrator, administration may be granted to any suitable person.SEC. 3. Acts before revocation, resignation, or removal to be valid.—The lawful acts of an executor or administrator before the revocation of his letters testamentary or of administration, or before his resignation or removal, shall have the like validity if there has been no such revocation resignation, or removal.

SEC. 4. Powers of new executor or administrator. Renewal of license to sell real estate.–The person to whom letters testamentary or of administration are granted after the revocation of former letters, or the death, resignation, or removal of a former executor or administrator, shall have the like powers to collect and settle the estate not administered that the former executor or administrator had, and may prosecute of defend actions commenced by or against the former executor or administrator, and have execution on judgments recovered in the name of such


former executor or administrator. An authority granted by the court to the former executor administrator for the sale or mortgage of real estate may be renewed in favor of such person without further notice or hearing.

Purpose of Administration – the liquidation of the estate and distribution of the residue among the heirs and legatees.

Liquidation – determination of all the assets of the estate and payment of all debts and expenses. Approval of the project of partition does not necessarily terminate administration.

Degree of Care Expected of Administrator – Although his is not a guarantor or insurer of the safety of the estate nor is he expected to be infallible, yet the same degree of prudence, care, and judgment which a person of a fair capacity and ability exercises in similar transactions of his own, serves as the standard by which his conduct is to judged

Same; Test – WON E/A acted with utmost circumspection in order to preserve the estate and guard against its dissipation so as not to prejudice its creditors and the heirs of the decedent who are entitled to the net residue thereof

Grounds for Removal –a. Neglects to render an account and settle the estate

according to lawb. Neglects to perform an order or judgment of the courtc. Neglects to perform a duty expressly provided by the RoCd. Abscondse. Becomes insanef. Becomes otherwise incapable or unsuitable to discharge the

trust – catch-all ground

Same; Enumeration not exclusive – e.g. appt was obtained thru misrepresentations

Temporary Absence in the State/Temporary residence outside of the State – not a ground for removal

Removal is Subject to Discretion of the Court – sufficiency of the ground/s must be determined before removal; there must be evidence to justify removal, i.e., an act or omission on the part of the E/A not conformable to or in disregard of the rules or the order of the court which it deems sufficient to warrant his removal

Effect on Prior Lawful Acts – revocation does not affect the acts done in good faith by the E/A before his removal and similar protection will be extended to rights acquired under a previous grant of administration

Order of Removal - appealable

Santos v ManarangThe statute of nonclaims requires certain creditors of a deceased person to present their claims for examination and allowance within a specified period, the purpose thereof being to settle the affairs of the estate with dispatch, so that residue may be delivered to persons entitled thereto without their being afterwards called upon to respond in actions for claims, which, under the ordinary statute of limitations, have not yet prescribed.The claims presented by plaintiff were described in the will as debts. There is nothing in the will to indicate that any or all of them are contingent claims, claims for the possession of or title to real property, damages for injury to person or property, real or personal, or for the possession of specified articles of personal property. Hence, they were claims proper to be considered by the committee.

Bank of P.I. v Hijos, Inc.Until foreclosure sale is made, the demand for the payment of deficiency is a contingent claim within the meaning of Sections 746, 747, and 748 of the Code of Civil Procedure. These sections are in harmony with Sec. 708; the amount of the deficiency cannot be ascertained or proven until the foreclosure proceedings have terminated, but the claim for the deficiency must be presented to the committee within the period fixed by Sections 689 and 690 of the Code. The committee does not then pass upon the validity of the claim but reports it to the court. If the court “from the report of the committee” or from “the proofs exhibited to it” is satisfied that the contingent claim is valid, the executor or administrator may be required to retain in his possession sufficient assets to pay the claim when it becomes absolute, or enough to pay the creditor his proportionate share if the assets of the estate are insufficient to pay the debts. When the contingent claim has become absolute, its amount may be ascertained and established in the manner indicated by Sections 748 and 749.

Tan Sen Guan v Go Siu SsanUnder Sec. 690, a creditor who has failed to present his claim within the period fixed by the committee on claims may apply to the court, within six months after the period previously fixed, for the renewal of the commission for the purpose of examining his claim. Also a creditor may make such application even after six months from the expiration of the period formerly fixed and before the final settlement of the estate, if the committee shall have failed to give the notice required by Sec. 687. The record shows that the application of the plaintiff was presented fourteen months after the expiration of the period fixed for the filing of claims.

Quirino v GrospeThe term “claims” required to be presented against the decedent’s estate is generally construed to mean debts or demands of a pecuniary nature which could have been enforced against the deceased in his lifetime or liability contracted by the deceased before his death. The movants’ claims for attorney’s fees and transportation as well as representation expenses are for services rendered to the alleged substituted heirs of Don Juan Castellvi and such services did not inure to the benefit of Don Juan Castellvi or his estate. The court charged with the settlement of the estate of Don Juan Castellvi is bound to protect the estate from any disbursements based on claims not chargeable to the estate.With regard to the claim for payment for services rendered to the estate of Don Alfonso Castellvi, the rule is that where the monetary claim against the administrator has relation to his acts of administration in the ordinary course thereof, such claims can be presented for payment with the court where a special proceeding for the settlement of the estate is pending, although said claims were not incurred by the deceased during his lifetime and collectible after his death. This is so, because the administration is under the direct supervision of the court and the administrator is subject to its authority.

Calma v TanedoWhen the marriage is dissolved by the death of the wife, the legal power of management of the husband ceases, passing to the administrator appointed by the court in the testate or intestate proceedings instituted to that end if there be any debts to be paid. It follows that when Esperanza Tanedo brought suit against Eulalio Clama for the payment of sums which were chargeable against the conjugal property while Fausta Macasaquit was living, had ceased and passed to the adminsitratrix Maria Calma appointed in the testamentary


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proceedings of Macasaquit. The claim for this amount had to be filed in the testamentary proceedings of Fausta Macasaquit.

7. Claims Against the Estate1) Statute of Non-Claims

RULE 86. Section 2. Time within which claims shall be filed. — In the notice provided in the preceding section, the court shall estate the time for the filing of claims against the estate, which shall not be more than twelve (12) not less than six (6) months after the date of the first publication of the notice. However, at any time before an order of distribution is entered, on application of a creditor who has failed to file his claim within the previously limited, the court may, for cause shown and on such terms as are equitable, allow such claim to be filed within a time not exceeding one (1) month.

Statute of Non-Claims—It is the period fixed by the rule for the filing of claims against the estate. The rule requires creditors to present claims for examination and allowance within a specified period to settle the estate with dispatch so the residue ma be delivered to persons entitled thereto w/o being afterwards called upon to respond in action for claims, which have not yet prescribed under the ordinary statute of limitations.

Time Within Which Claim Must be Filed—Not less than 6 mos., not more than 12 mos. from the day of the 1st publication of the notice thereof. Once fixed, period is mandatory. [Note: if within 6 mos, it would be short of the min. limit of 6 mos provided for by law]

Discretion to Allow Contingent Claims—ROC 86.2 gives the probate court discretion to allow claims presented beyond the period previously fixed provided that they are filed w/in 1 mo. from expiration of such pd. but in no case beyond the date of entry of the order of distribution.

Extension of Period; Anytime before Entry of Order of Distribution—Period prescribed in the notice is not exclusive; money claims may be allowed any time before an order of distribution is entered, at the discretion of the court for cause and upon such terms as are equitable.

Presentation of Money Claim May be Waived—Though presentment of probate claims is imperative, it may be waived by estates representatives to be determined from their acts and conduct e.g. failure to plead the statute of non-claims, active participation and resistance to plaintiff’s claim in the civil suit.

Good Excuse for Late Filing—The pendency of the action before regular courts was cited as good excuse for tardiness of the claim

Period to File Petition by Creditor—within a reasonable time after the death of the decedent in the estate proceedings and if none were had, to file petition for letters administration under ROC 78 S6(b)

RULE 86. Section 5. Claims which must be filed under the notice. If not filed, barred; exceptions. — All claims for money against the decent, arising from contract, express or implied, whether the same be due, not due, or contingent, all claims for funeral expenses and expense for the last sickness of the decedent, and judgment for money against the decent, must be filed within the time limited in the notice; otherwise they are barred forever, except that they may be set forth as counterclaims in any action that the executor or administrator may bring against the claimants. Where an executor or administrator commences an action, or

prosecutes an action already commenced by the deceased in his lifetime, the debtor may set forth by answer the claims he has against the decedent, instead of presenting them independently to the court as herein provided, and mutual claims may be set off against each other in such action; and if final judgment is rendered in favor of the defendant, the amount so determined shall be considered the true balance against the estate, as though the claim had been presented directly before the court in the administration proceedings. Claims not yet due, or contingent, may be approved at their present value.

Types of Claims Required to be Filed—Money claims (any money, debt or interest thereon) contracted by decedent before his death. Money claims arising after his death cannot be presented, except funeral expenses and expenses for last sickness, but may be allowed as expenses of administration. Claims for taxes due and assessed after the death need not be presented because the court may direct E/A to pay; even heirs are liable for such taxes. [Note: money claims arising from contracts, thus those arising from delict do not for part of this exclusive enumeration]

Absolute claim—if contested between living persons would be proper subject of immediate legal action and would supply basis of a judgment for sum certain

Contingent claim—by its nature is dependent upon an uncertain event for its existence, validity and enforceability; happening is uncertain until event which fixes liability occurs (e.g. surety or guarantor for an insolvent or dead principal; endorser of NI)

Rationale—avoid duplicity of procedure. Hence, ordinary actions must be taken out from ordinary courts. [Note: LC 110, money claims of laborers enjoy preference over claims of other creditors in case of bankruptcy or liquidation of the employer’s business]

Period runs against all claimants—residents, non-residents, infant, adult, insane, estate of deceased creditor, and even the State

Suits Against Deceased Spouse Not Allowed—if the action is against CP and one of the spouses died, action should be dismissed (impleaded as representative of CP, not as independent debtor) and claim filed against the estate. If sued on the basis of joint or solidary liability, death of one would not necessarily result against the other.

Charges against CP—Upon dissolution of marriage by death of W, no ordinary action may be brought against the H for recovery of a debt contracted by him chargeable to the CP, the proper procedure being to file money claim in the estate or intestate proceedings of the deceased pursuant to ROC 73.2.

Claims for Support Should Not be Granted—although wife and children are entitled to rightful share of her husband to the decedent’s estate, claim must await all claims against the estate have been settled.

Execution of Final Judgment Not Proper Remedy But Filing of Claims—A writ of execution is not the proper procedure allowed by ROC for payment of debts and expenses of administration. The proper procedure is for the court to order the sale of personal estate OR sale or mortgage of real property of the deceased and all debts or expenses of administration should be paid out of the proceeds of the sale or mortgage. [Ratio: properties of estate are under jurisdiction of the Court (custodial legis), which continues until they are distributed among the heirs entitled thereto]


Mandamus Not Available—In the absence of showing that judge had already allowed administrator to dispose of the estate and to pay debts and legacies of the deceased, a writ of mandamus will not issue to compel him to order payment of petitioner’s claim.

Ordinary Action For Collection Not Allowed—GR: The filing of an ordinary action to recover money claim against E/A is not allowed in any court, whether commenced during the lifetime or after the death of the decedent. (ROC 87.1) EXC: E/A commences an action or prosecutes an action already commenced by the deceased in his lifetime, the debtor may set forth by answer the claims he has against the decedent, instead of presenting them independently to the court as provided for by the rule.

RULE 87. Section 1. , infra

2) Solidary Obligation of DecedentRULE 86. Section 6. Solidary obligation of decedent. — Where the obligation of the decedent is solidary with another debtor, the claim shall be filed against the decedent as if he were the only debtor, without prejudice to the right of the estate to recover contribution from the debtor. In a joint obligation of the decedent, the claim shall be confined to the portion belonging to him.NCC 1216: The creditor may proceed against any one of the solidary debtors or some or all of them simultaneously. xxx

In case of death of one of the solidary debtors, creditor may proceed against the surviving solidary debtors w/o filing a claim against the estate of the deceased debtors. It is not mandatory to have the case dismissed against the surviving debtors and file claim in the estate of the deceased debtor.

3) Mortgage Debt Due from Estate

RULE 86. Section 7. Mortgage debt due from estate. — A creditor holding a claim against the deceased secured by mortgage or other collateral security, may abandon the security and prosecute his claim in the manner provided in this rule, and share in the general distribution of the assets of the estate; or he may foreclose his mortgage or realize upon his security, by action in court, making the executor or administrator a party defendant, and if there is a judgment for a deficiency, after the sale of the mortgaged premises, or the property pledged, in the foreclosure or other proceeding to realize upon the security, he may claim his deficiency judgment in the manner provided in the preceding section or he may rely upon his mortgage or other security alone, and foreclosure the same at any time within the period of the statute of limitations, and in that event he shall not be admitted as a creditor, and shall receive no share in the distribution of the other assets of estate; but nothing herein contained shall prohibit the executor or administrator from redeeming the property mortgaged or pledged, by paying the debt for which it is held as security, under the direction of the court, if the court shall adjudge it to be for the best interest of the estate that such redemption shall be made.

3 Alternative Remedies—refer to rule above

3rd Option; No Right to Claim Deficiency Judgment—Mortgagee doesn’t lose right to EJ foreclose mortgage even after death of mortgagee as a 3rd alternative. Power to foreclose a mortgage is an authority conferred upon the mortgagee for the latter’s own protection. That power survives the death of the mortgagor.

Saving Clause—The saving clause does not confer jurisdiction upon PC to enforce a mortgage lien. Nor can it be relied upon as sufficient ground to delegate the execution of judgment of

foreclosure to PC. It merely reserves a right to E/A to redeem a mortgage or pledge property to the decedent which the mortgagee or pledgee has opted to foreclose, instead of filing a money claim with PC. While redemption is subject to the approval of PC, the exercise of which is discretionary and may not be ordered by PC on its own motion.

4) Executor’s/Administrator’s Claim Against Estate

RULE 86. Section 8. Claim of executor or administrator against an estate. — If the executor or administrator has a claim against the estate he represents, he shall give notice thereof, in writing, to the court, and the court shall appoint a special administrator, who 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 other claims. The court may order the executor or administrator to pay to the special administrator necessary funds to defend such claim.

5) Process for Claims

RULE 86. Section 9. How to file a claim. Contents thereof. Notice to executor or administrator. — A claim may be filed by delivering the same with the necessary vouchers to the clerk of court and by serving a copy thereof on the executor or administrator. If the claim be founded on a bond, bill, note, or any other instrument, the original need not be filed, but a copy thereof with all indorsements shall be attached to the claim and filed therewith. On demand, however, of the executor or administrator, or by order of the court or judge, the original shall be exhibited, unless it be list or destroyed, in which case the claimant must accompany his claim with affidavit or affidavits containing a copy or particular description of the instrument and stating its loss or destruction. When the claim is due, it must be supported by affidavit stating the amount justly due, that no payments have been made thereon which are not credited, and that there are no offsets to the same, to the knowledge of the affiant. If the claim is not due, or is contingent, when filed, it must also be supported by affidavits stating the particulars thereof. When the affidavit is made by a person other than the claimant, he must set forth therein the reason why it is not made by the claimant. The claim once filed shall be attached to the record of the case in which the letters testamentary or of administration were issued, although the court, in its discretion, and as a matter of convenience, may order all the claims to be collected in a separate folder.

RULE 86. Section 10. Answer of executor or administrator. Offsets —Within fifteen (15) days after service of a copy of the claim on the executor or administrator, he shall file his answer admitting or denying the claim specifically, and setting forth the admission or denial. If he has no knowledge sufficient to enable him to admit or deny specifically, he shall state such want of knowledge. The executor or administrator in his answer shall allege in offset any claim which the decedent before death had against the claimant, and his failure to do so shall bar the claim forever. A copy of the answer shall be served by the executor or administrator on the claimant. The court in its discretion may extend the time for filing such answer.

Need to Notify Administrator—to afford him opportunity to dispute the claim (DPL)

How To Claim Atty’s Fees—contract bet. administrator and lawyer does not bind the estate; creditor has 2 remedies: 1) prosecute an action against administrator as an individual. If judgment is rendered against the administrator and it is paid by


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him, he can include the amt as an expense of administration, if it can be shown that the service redounded to the benefit of the estate; or 2) present a pet. in the settlement proceeding asking that the court, after notice to all persons interested, allow his claim and direct the administrator. Whichever is chosen, heirs and other interested persons have right to inquire into necessity for making the contract and value of work performed. As claim for atty’s fees is not a claim against the estate, petitioner could have filed an ordinary civil action.

6) Appeal from Judgment on a Claim against Estate

RULE 86. Section 13. Judgment appealable. — The judgment of the court approving or disapproving a claim, shall be filed with the record of the administration proceedings with notice to both parties, and is appealable as in ordinary cases. A judgment against the executor or administrator shall be that he pay, in due course of administration, the amount ascertained to be due, and it shall not create any lien upon the property of the estate, or give to the judgment creditor any priority of payment.

BP 129. Section 39. Appeals—The period for appeal from final orders, resolutions, awards, judgments or decisions of any court in all cases shall be fifteen (15) days counted from the notice of final order, resolution, award, judgment or decision appealed from: Provided, however, that in habeas corpus cases, the period for appeal shall be forty-eight (48) hours from notice of the judgment appealed from.

No record on appeal shall be required to take an appeal. In lieu thereof, the entire record shall be transmitted with all the pages prominently numbered consecutively, together with an index of the contents thereof.

This section shall not apply in appeals in special proceedings and in other cases wherein multiple appeals are allowed under applicable provisions of the Rules of Court.

Interim Rules Implementing BP 129. No. 18 Elimination of record on appeal and appeal bond—The filing of a record on appeal shall be dispensed with, except in the cases referred to in 19 (b). No appeal bond shall be required for an appeal.

Interim Rules Implementing BP 129. No. 19(b). Period of appeal—In appeals in special proceedings in accordance with Rule 109 of the Rules of Court and other cases wherein multiple appeals are allowed, the period of appeal shall be thirty (30) days, a record of appeal being required.

Interim Rules Implementing BP 129. No. 23. Perfection of appeal—In case where appeal is taken, the perfection of appeal shall be upon the expiration of the last day to appeal by any party.

In cases where record on appeal is required, the appeal is perfected from approval thereof by the court, which should be done within ten (10) days.

8. Actions by or against Executors/Administrators1) Claims that Survive

RULE 87. Section 1, 2nd clause. Actions which may … be brought against executor or administrator. — but to recover real or personal property, or an interest therein, from the estate, or to enforce a lien thereon, and actions to recover damages for an injury to person or property, real or personal, may be commenced against him.

Rule 3. Section 16. Death of party; duty of counsel. — Whenever a party to a pending action dies, and the claim is not thereby extinguished, it shall be the duty of his counsel to

inform the court within thirty (30) days after such death of the fact thereof, and to give the name and address of his legal representative or representatives. Failure of counsel to comply with his duty shall be a ground for disciplinary action.The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor heirs.The court shall forthwith order said legal representative or representatives to appear and be substituted within a period of thirty (30) days from notice.If no legal representative is named by the counsel for the deceased party, or if the one so named shall fail to appear within the specified period, the court may order the opposing party, within a specified time to procure the appointment of an executor or administrator for the estate of the deceased and the latter shall immediately appear for and on behalf of the deceased. The court charges in procuring such appointment, if defrayed by the opposing party, may be recovered as costs. (16a, 17a)

Rule 3. Section 17. Death or separation of a party who is a public officer. — When a public officer is a party in an action in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action may be continued and maintained by or against his successor if, within thirty (30) days after the successor takes office or such time as may be granted by the court, it is satisfactorily shown to the court by any party that there is a substantial need for continuing or maintaining it and that the successor adopts or continues or threatens to adopt or continue the action of his predecessor. Before a substitution is made, the party or officer to be affected, unless expressly assenting thereto, shall be given reasonable notice of the application therefor and accorded an opportunity to be heard. (18a)

Rule 3. Section 20. Action and contractual money claims. — When the action is for recovery of money arising from contract, express or implied, and the defendant dies before entry of final judgment in the court in which the action was pending at the time of such death, it shall not be dismissed but shall instead be allowed to continue until entry of final judgment. A favorable judgment obtained by the plaintiff therein shall be enforced in the manner especially provided in these Rules for prosecuting claims against the estate of a deceased person. (21a)

Claim which is Extinguished Distinguished from Action which does not Survive—Claim is extinguished by reason of death if it is personal to either of the parties (e.g. action for compulsory recognition if commenced during the lifetaime of the putative parent, annulment, declaration of nullity, LS) [Note: if there’s already a final decree of LS, action continues wrt liquidation of CP] Claim may not have been extinguished by reason of death but action brought for enforcement of the claim may not survive (e.g. action to recover a contractual money claim)

Actions Which Survive and Do Not Survive; the wrong complained of principally affects— actions which survive: property:: actions which do not survive: person. But the distinction has been obliterated by the present Rule since even if action is based on contractual money claim, pendency is not affected by death and shall continue until entry of final judgment.

_____________If the debtor dies before an action could be filed against him, creditor has to file money claim with probate court, except if claim does not arise from contract, an ordinary action may be filed against E/A. [Note: probate court may be held in abeyance pending determination of ordinary action wherein E/A is made a party]


If a writ of attachment had been issued and levied, the death of the defendant at whatever stage of the action would not be ground for dismissal of the action and dissolution of the writ; and will entitle him to preference over the other creditors against the estate. If judgment is entered against the estate of the deceased defendant, a claim in the administration proceedings may be filed w/in the time limits.

Death occurred prior to levy—must file claim in PC; action for foreclosure of mortgage—do not need to file claim; may be enforced by writ of execution; action for ejectment/UD—possession of the property: main issue:: right to recover damages for withholding possession after right has terminated (e.g. rents accrued and unpaid): incidental—may continue until final judgment; action for partition of conjugal assets—survives

Claims against the Administrator May be Presented in the Administration Proceedings but not Against Third Persons—Demands against administrators (not by those against 3p) may be presented in the court where special proceeding of administration is pending if related to act of administration and in the ordinary course thereof because he is under the supervision of the court. However, demand in favor of the administrator, and party against whom it is enforced is a 3p not under the court’s jurisdiction, cannot be by mere motion by the administrator but an independent action against the third person. [Note: related to ROC 87.2. The administrator has only the right to institute actions that pertain to the estate he is administering and no action, dealing with obligations contracted in favor of 3p or others from whom he does not derive such right, can be brought by him as such administrator]

Notice to be Sent to Estate’s Administrator—since he is the representative of the estate, who has the legal obligation to pay and discharge all debts of the estate and to perform all orders of the court.

Action for Revival of Money Judgment to Preempt Prescription—As an exception to filing of claims in the settlement proceeding, judgment creditors can file an action for revival of judgment to prevent its extinguishment by prescription when the 10-yr period for enforcing the judgment was about to expire and there was yet no notice to them in the special proceedings and no regular administrator had been appointed.

Rule 86. Section 5, supra

Paredes v MoyaIn the case of a money claim, where the defendant dies during the pendency of his appeal from the judgment rendered against him, the appeal should not be dismissed; it should continue, but the deceased defendant should be substituted by his legal representative, namely, the executor or administrator of the estate. If the judgment of the lower court is affirmed, the plaintiff must afterwards go to the probate court for an order directing the executor or administrator to satisfy the judgment. The CFI that originally rendered the judgment has no power to order its execution and a levy on the properties of the deceased because the same are already in custodia legis in the probate court where administration proceedings for the settlement of the estate of the deceased are already pending.But it is error to have the money judgment executed against the properties of the deceased. The proper remedy for the plaintiff should have been to file his claim in the administration proceedings of the estate of the deceased. Judgment for money against the decedent, must be filed at the time limited in the notice to creditors before the court

where the administration proceeding involving the estate of the deceased are pending (Sec. 5, Rule 86). The judgment for money against the deceased stands in the same footing as all claims for money against the deceased, arising from contract, express or implied, whether the same be due, not due, or contingent, all claims for the funeral expenses and expenses for the last sickness of the decedent.Writ of execution is not the proper remedy for the payment of debts and expenses of administration. The proper procedure is for the court to order the administrator to make the payment; and if there is no sufficient cash on hand, to order the sale of the properties and out of the proceeds to pay the debts and expenses of the administration. Execution may only issue where the devisees, legatees, or heirs have entered into possession of their respective portions in the estate prior to settlement and payment of the debts and expenses of administration and it is later ascertained that there are such debts and expenses to be paid, in which case “the court having jurisdiction of the estate may, by order for purpose, after hearing, settle the amount of their several liabilities, and order how much and in what manner each person shall contribute, and may issue execution if circumstances require (Rule 39, Sec. 6; Rule 74, Sec. 4).

Sps Manalansan v CastañedaThe action filed herein is for the foreclosure of a mortgage, or an action to enforce a lien on property. Under Sec. 1, Rule 87, it is an action which survives. An action to enforce a lien on property may be prosecuted by the interested person against the executor or administrator independently of the testate or intestate proceedings “for the reason that such claims cannot in any just sense by considered claims against the estate, but the right to subject specific property to the claim arising from the contract of the debtor whereby he has during his life set aside certain property for its payment, and such property does not, except in so far as its value may exceed the debt, belong to the estate.

Marini-Gonzales v LoodUnder Section 2, Rule 87, it is the executor or administrator of the estate of the decedent who may bring or defend actions in the name of the deceased and it is settled that the choice of an executor is the sole prerogative of the testator and is not addressed to the discretion of the court.

Heirs of Gregoire v BakerWhere there is a deficiency of assets in the hands of an executor or administrator to pay debts and expenses, and when the deceased person made in his lifetime such fraudulent conveyance of such real or personal estate or of a right or interest therein, any creditor of the estate may , by license of the court, if the executor or administrator has not commenced such action, commence and prosecute to final judgment, in the name of the executor or administrator, an action for recovery of the same and may recover for the benefit of creditors, such real or personal estate, or interest therein so conveyed. But such action shall not be commenced until the creditor files in court a bond with sufficient surety, to be approved by the judge, conditioned to indemnify the executor or administrator against the costs of such action. Such creditor shall have a lien upon the judgment by him so recovered for the costs incurred and such other expenses as the court deems equitable.The remedy for the creditor, therefore, is to indemnify the administrator against costs and, by leave of court, to institute an action in the name of the administrator to set aside the assignment or other conveyance believed to have been made in fraud of creditors.

Aguas v Llemos


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Under Rule 87, Sec. 5, the actions abated by death are: (1) claims for funeral expenses and those for the last sickness of the decedent; (2) judgments for money; and (3) “all claims for money against the decedent , arising from contract express or implied. It is not enough that the claim against the deceased be for money, but it must arise from “contract express or implied,” and these words were construed to include all purely personal obligations other than those which have their source in delict or tort.Upon the other hand, actions that survive against a decedent’s executors or administrators are: (1) actions to recover real and personal property from the estate; (2) actions to enforce a lien thereon; and (3) actions to recover damages for an injury to person or property. The present suit is one for damages under the last class, it having been held that “injury to property” is not limited to injuries to specific property, but extends to other wrongs by which personal estate is injured or diminished.

2) Claims that Do Not Survive

RULE 87. Section 1, 1st clause. Actions which … may not be brought against executor or administrator.—No action upon a claim for the recovery of money or debt or interest thereon shall be commenced against the executor or administrator

3) Proceedings on Mortgage Due Estate

Rule 87. Section 5. Mortgage due estate may be foreclosed. — A mortgage belonging to the estate of a deceased person, as mortgagee or assignee of the right or a mortgage, may be foreclosed by the executor or administrator.

No need of special authority for E/A to bring action for foreclosure on behalf of the estate.

4) Proceedings where Property Concealed, Embezzled or Fraudulently Conveyed

Rule 87. Section 6. Proceedings when property concealed, embezzled, or fraudulently conveyed. — If an executor or administrator, heir, legatee, creditor or other individual interested in the estate of the deceased, complains to the court having jurisdiction of the estate that a person is suspected of having concealed, embezzled, or conveyed away any of the money, goods, or chattels of the deceased, or that such person has in his possession or has knowledge of any deed, conveyance, bond, contract, or other writing which contains evidence of or tends or discloses the right, title, interest, or claim of the deceased, the court may cite such suspected person to appear before it any may examine him on oath on the matter of such complaint; and if the person so cited refuses to appear, or to answer on such examination or such interrogatories as are put to him, the court may punish him for contempt, and may commit him to prison until he submits to the order of the court. The interrogatories put any such person, and his answers thereto, shall be in writing and shall be filed in the clerk's office.

Purpose of Examination—To investigate, elicit information or secure evidence. The court in such proceedings lacks power to adjudicate titles or determine controverted rights. If after examination there is good reason for believing that the person so examined has property in his possession belonging to the estate, it is the duty of the administrator to recover the same by ordinary action.

Rule 87. Section 8. Embezzlement before letters issued —

If a person, before the granting of letters testamentary or of administration on the estate of the deceased, embezzles or alienates any of the money, goods, chattels, or effects of such deceased, such person shall be liable to an action in favor of the executor or administrator of the estate for double the value of the property sold, embezzled, or alienated, to be recovered for the benefit of such estate.

Rule 87. Section 9. Property fraudulently conveyed by deceased may be recovered. When executor or administrator must bring action. — When there is a deficiency of assets in the hands of an executor or administrator for the payment of debts and expenses of administration, and the deceased in his lifetime had conveyed real or personal property, or a right or interest therein, or an debt or credit, with intent to defraud his creditors or to avoid any right, debt, or duty; or had so conveyed such property, right, interest, debt or credit that by law the conveyance would be void as against his creditors, and the subject of the attempted conveyance would be liable to attachment by any of them in his lifetime, the executor or administrator may commence and prosecute to final judgment an action for the recovery of such property, right, interest, debt, or credit for the benefit of the creditors; but he shall not be bound to commence the action, not unless the creditors making the application pay such part of the costs and expenses, or give security therefor to the executor or administrator, as the court deems equitable.

Rule 87. Section 10. When creditor may bring action. Lien for costs. — When there is such a deficiency of assets, and the deceased in his lifetime had made or attempted such a conveyance, as is stated in the last preceding section, and the executor or administrator has not commenced the action therein provided for, 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 conveyance for the benefit of the creditors. But the action shall not be commenced until the creditor has filed in a court 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. Such creditor shall have a lien upon any judgment recovered by him in the action for such costs and other expenses incurred therein as the court deems equitable. Where the conveyance or attempted conveyance had been made by the deceased in his lifetime in favor of the executor or administrator, the action which a credit may bring shall be in the name of all the creditors, and permission of the court and filing of bond as above prescribed, are not necessary.

Double Value Rule—does not apply to the manager of a company who carries on the business after the death of his principal and applies the proceeds of the sale to payment of debts contracted in running the business bec. Rule contemplates embezzlement or alienation w/c causes estate to lose property converted by the wrongdoer.

Requisites for Creditor to File Action—refer to rule for complete wording

1. Deficiency of assets 2. Deceased in his lifetime had made/ attempted to make a

fraudulent conveyance3. Subject of attempted conveyance would be liable to

attachment by any of them in his lifetime4. E/A has no desire to file an action or failed to institute the

same w/in a reasonable time


5. Leave is granted by court 6. Bond is filed by creditor7. Action by creditor is in the name of E/A[Note: 5-7 not required when grantee is E/A, in which event action should be in the name of all creditors]

Administrator Creditor Cannot Ask for Preliminary Attachment—his money claim should be ventilated in the estate case.

5) Proceedings where Property Entrusted by E/A to Third Person

Rule 87. Section 7. Person entrusted with estate compelled to render account. — The court, on complaint of an executor or administrator, may cite a person entrusted by an executor or administrator with any part of the estate of the deceased to appear before it, and may require such person to render a full account, on oath, of the money, goods, chattels, bonds, account, or other papers belonging to such estate as came to his possession in trust for such executor or administrator, and of his proceedings thereon; and if the person so cited refuses to appear to render such account, the court may punish him for contempt as having disobeyed a lawful order of the court.

All persons who come into possession of a property belonging to any decedent are liable for and accountable to the administrator when the estate is finally drawn into judicial administration.

9. Payment of Debts of the Estate, Sale, Mortgage or Encumbrance1) GR if Estate Sufficient

Rule 88. Section 1. Debts paid in full if estate sufficient. — If, after hearing all the money claims against the estate, and after ascertaining the amount of such claims, it appears that there are sufficient assets to pay the debts, the executor or administrator pay the same within the time limited for that purpose.Writ of Execution Improper—refer to note in ROC 86. 5, supra

Intestate Proceedings Held in Abeyance—PC may hold in abeyance intestate estate proceedings pending determination of a civil case against A/E. Otherwise, ROC 3.17 & ROC 88.1 would have no practical value

Rule 88. Section 3. Personalty first chargeable for debts, then realty. — The personal estate of the deceased not disposed of by will shall be first chargeable with the payment of debts and expenses; and if said personal estate is not sufficient for that purpose, or its sale would redound to the detriment of the participants for the estate, the whole of the real estate not dispose of by will, or so much thereof as is necessary, may be sold, mortgaged, or otherwise encumbered for that purpose by the executor or administrator, after obtaining the authority of the court therefor. Any deficiency shall be met by contributions in accordance with the provisions of section 6 of this rule.

Real Estate of Decedent Chargeable For Debts and Expenses—only in two instances: 1) when personal estate of decedent is not sufficient for that purpose; or 2) where sale of personality would be to the detriment of the participants of the estate [Note: extent—only so much of the realty as is necessary]

Rule 89. Section 1. Order of sale of personalty. — Upon the application of the executor or administrator, and on written notice to the heirs and other persons interested, the court may order the whole or a part of the personal estate to be sold, if it appears necessary for the purpose of paying debts,

expenses of administration, or legacies, or for the preservation of the property.

It is only the court that has the power to authorize sale. POA executed by heirs in favor of administrator has no legal effect w/o authority of the court.

NCC Article 939. If the testator orders the payment of what he believes he owes but does not in fact owe, the disposition shall be considered as not written. If as regards a specified debt more than the amount thereof is ordered paid, the excess is not due, unless a contrary intention appears.The foregoing provisions are without prejudice to the fulfillment of natural obligations. (n)

Salvador v Sta. MariaThe right of heirs to specific, distributive shares of inheritance does not become finally determinable until all the debts of the estate are paid. Until then, in the face of said claims, their rights cannot be enforced, are inchoate, and subject to the existence of a residue after payment of the debts.

Pavia v De la RosaIn accordance with the provisions of Act 190 it is understood that a testate or intestate succession of a deceased person is always accepted and received with the benefit of inventory, and his heirs, even after taking possession of the estate of the deceased, do not make themselves responsible for the debts of the deceased with their own property, but solely with that property coming from the estate or intestate succession of said deceased.

Benedicto v JavellanaUnder Art. 859 of the Civil Code: When the testator charges one of the heirs with a legacy the latter only shall be obliged to fulfil the same. Should he not charge any one in particular, all shall be liable in the same proportion in which they may be heirs.As to specific devices, Sec. 729 of the Code of Civil Procedure provides exemption from the payment of debts and expenses if there is sufficient other property and if it appears to the court necessary to carry into effect the intention of the testator

2) EXC; Sale, Mortgage or Encumbrance of Realty Even If Personalty Sufficient to Pay Debtsa) When Allowed

Rule 89. Section 2. When court may authorize sale, mortgage, or other encumbrance of realty to pay debts and legacies through personalty not exhausted. — When the personal estate of the deceased is not sufficient to pay the debts, expenses of administration, and legacies, or where the sale of such personal estate may injure the business or other interests of those interested in the estate, and where a testator has not otherwise made sufficient provision for the payment of such debts, expenses, and legacies, the court, on the application of the executor or administrator and on written notice of the heirs, devisees, and legatees residing in the Philippines, may authorize the executor or administrator to sell, mortgage, or otherwise encumber so much as may be necessary of the real estate, in lieu of personal estate, for the purpose of paying such debts, expenses, and legacies, if it clearly appears that such sale, mortgage, or encumbrance would be beneficial to the persons interested; and if a part cannot be sold, mortgaged, or otherwise encumbered without injury to those interested in the remainder, the authority may be for the sale, mortgage, or other


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encumbrance of the whole of such real estate, or so much thereof as is necessary or beneficial under the circumstances.

Rule 89. Section 4. When court may authorize sale of estate as beneficial to interested persons. Disposal of proceeds. — When it appears that the sale of the whole or a part of the real or personal estate, will be beneficial to the heirs, devisees, legatees, and other interested persons, the court may, upon application of the executor or administrator and on written notice to the heirs, devisees, and legatees who are interested in the estate to be sold, authorize the executor or administrator to sell the whole or a part of said estate, although not necessary to pay debts, legacies, or expenses of administration; but such authority shall not be granted if inconsistent with the provisions of a will. In case of such sale, the proceeds shall be assigned to the persons entitled to the estate in the proper proportions.

For Rule 89. Sections 2-4

Requisites of Written Notice of application as well as Time and Place of Hearing; Mandatory—because heirs are presumptive owners, persons directly affected and succeed to all rights and obligations of the deceased from the moment of the latter’s death, therefore, they cannot be deprived of property except in the manner provided by law.

Notice to Parents of Minor Insufficient—Rule explicitly states notice must be given to heirs, devisees and legatees, even if under CC 320, father or mother is the administrator of child’s property. However, notice to counsel or guardian ad litem is sufficient

Rule 89. Section 6. When court may authorize sale, mortgage, or other encumbrance of realty acquired onexecution or foreclosure. — The court may authorize an executor or administrator to sell mortgage, or otherwise encumber real estate acquired by him on execution or foreclosure sale, under the same circumstances and under the same regulations as prescribed in this rule for the sale, mortgage, or other encumbrance of other real estate.

For Rule 89. Sections 5-7

Duty of Administrator to Submit Transactions for Approval by Court—Although he is not a guarantor or insurer of the safety of the estate nor is he expected to be infallible, yet the same degree of prudence, care and judgment which a person of a fair ave. capacity and ability exercises in similar transactions of his own, serves as the standard by which is conduct is to be judged. To guarantee faithful compliance w/ the authority granted, it is the duty of administrator to submit transactions for court approval.

Regulations Mandatory—apply to both testate and intestate proceedings; otherwise, both order of sale and sale made are void. EXC: heir had actual knowledge of application for authority to sell a property of the estate, then objection is not sufficient legal cause to annul sale ordered by the court.

Estoppel to Question Regularity of Sale—when a party did not object to the order of sale and even participated by submitting her own sealed bidNeed for Approval of Sale by Court—Sale of land under judicial administration is not effective until approved by the court. Although leave of court to sell the property has been obtained, purported sale which has not been approved and varies materially from authority granted cannot be basis for action for SP

Mere increase in value of property after the sale is not a sufficient ground to annul it.

But no jurisdiction to make pronouncement re: existence or non-existence of encumbrance or to cancel a mortgage on real property in its order approving the sale.

Power of PC to Nullify Unauthorized Sale; Authority of PC to Execute Order Nullifying Invalid Sale—PC has power to authorize/approve the sale so it can declare it null and void as long as proceedings had not been closed; also, has power to execute its order wrt nullity of unauthorized sale otherwise, its power to annul would be meaningless.

Authority of PC to Approve Sale of Property by Prospective Heir Before Final Adjudication; Right of Heir to Dispose of Ideal Share—Although ROC does not specifically state that sale of immovable property belonging to estate of decedent in a special proceeding, should be made w/ approval of the court, this authority is necessarily included in its capacity as PC.

Reference to judicial approval cannot adversely affect substantive right of heirs to dispose of their ideal share in the co-ownership among the heirs. The sale is conditional, the condition being that the same should first be approved by PC. [basis: possession of hereditary property is deemed transmitted to heir w/o interruption and from the moment of death of the decedent, in case inheritance is accepted] However, alienation or mortgage wrt co-owners shall be limited to portion which may be allotted to him in the division upon termination of co-ownership.

Godoy v OrollanoUnder the law, the court has exclusive jurisdiction to authorize the sale of properties and the power of attorney executed by the heirs of Orellano in favor of the administratrix, without authority of the court, has no legal effect, and this is more so, since two of the said heirs are under age, and the others did not ratify the option contract, as provided in the aforesaid power of attorney.

Vda. De Cruz vs. IlaganSale by heir of property under administration. - The ordinary execution of property in custodia legis is prohibited to avoid interference with the possession by the court. But the sale made by an heir of his share in an inheritance, subject to the result of the pending administration, in no wise stands in the way of such administration.

Sale by administrator with assent of heirs binding. - By signing the deed of sale in token of approval bound themselves as completely and as effectively as if they had signed the document as vendors with the administrator. A sale which the representative makes, with the written assent of all legatees or distributes of the estate is in effect their sale as well as his, and, if made in good faith, ought to bind strongly, provided all persons assenting are sui juris.

Prime factor in approval or disapproval of sae by administrator. - The interest of innocent heirs, legatees, devisees, and above all, creditors.

Pahamotang vs. PNBEffect of lack of previous notice of authority to sell. - When an order authorizing the sale or encumbrance of real property was issued by the testate or intestate court without previous notice to the heirs, legatees and devisees as required by the Rules, it is not only the contract itself which is null and void but also the order of the court authorizing the same.


Lebin vs. MirasolJudgment or final orders in special proceedings is appealed by record on appeal. - This is due to the multi-part nature of nearly all special proceedings, with each part susceptible of being finally determined and terminated independently of the other parts. The record on appeal enables the trial court to continue with the rest of the case because the original records remain with the trial court even as it affords to the appellate court the full opportunity to review and decide the appealed matter.

Disposal of estate property required judicial approval before it could be executed. - Implicit in this requirement was that the probate court could rescind or nullify the disposition of property under administration that was effected without its authority; this included the authority to nullify or modify its approval of the sale of the property of the estate to conform to the law or to the standing policies set and fixed for the purpose, where the invalidation or modification derived from the falsity of the factual basis of the disposition, or from any other factual mistake, or from the concealment of a material fact by a party.

b) Regulations for Grant of Authority

Section 7. Regulation for granting authority to sell, mortgage, or otherwise encumber estate. — The court having jurisdiction of the estate of the deceased may authorize the executor or administrator to sell personal estate, or to sell, mortgage, or otherwise encumber real estate, in cases provided by these rules and when it appears necessary or beneficial under the following regulations.(a) The executor or administrator shall file a written petition setting forth the debts due from the deceased, the expenses of administration, the legacies, the value of the personal estate, the situation of the estate to be sold, mortgaged, or otherwise encumbered, and such other facts as show that the sale, mortgage, or other encumbrance is necessary or beneficial.(b) The court shall thereupon fix a time and place for hearing such petition, and cause notice stating the nature of the petition, the reasons for the same, and the time and place of hearing, to be given personally or by mail to the persons interested, and may cause such further notice to be given, by publication or otherwise, as it shall deem proper;(c) If the court requires it, the executor or administrator shall give an additional bond, in such sum as the court directs, conditioned that such executor or administrator will account for the proceeds of the sale, mortgage, or other encumbrance;(d) If the requirements in the preceding subdivisions of this section have been complied with, the court, by order stating such compliance, may authorize the executor or administrator to sell, mortgage, or otherwise encumber, in proper cases, such part of the estate as is deemed necessary, and in case of sale the court may authorize it to be public or private, as would be most beneficial to all parties concerned. The executor or administrator shall be furnished with a certified copy of such order;(e) If the estate is to be sold at auction, the mode of giving notice of the time and place of the sale shall be governed by the provisions concerning notice of execution sale;(f) There shall be recorded in the registry of deeds of the province in which the real estate thus sold, mortgage, or otherwise encumbered is situated, a certified copy of the order of the court, together with the deed of the executor or administrator for such real estate, which shall be as valid as if the deed had been executed by the deceased in his lifetime.

Refer to note above

Baun vs. Heirs of BaunSale of realty; consent of heirs. - The consent of all the heirs is necessary because each and every one of them is interested in the estate and because the law does not state that the consent of the majority of the heirs is sufficient.

Requirements of law for application for authority to sell applies to both testate and intestate succession. - In both cases, the heirs are entitled to be given an opportunity to be heard and to protect their rights and interest in the estate.

Ortaliz vs. Register of DeedsConditions for grant of authority to sell or mortgage realty even if there is still personalty. - (1) application is accompanied by the written consent and approval of the heirs, devisees and legatees residing in the Phils., (2) sale or mortgage is necessary in order to pay off debts and expenses of administration, (3) sale or mortgage is beneficial to the heirs and other persons interested in the estate.

Rationale for the conditions. - (1) Heirs, devisees and legatees, as presumptive owners, are the persons directly affected by the sale, and mortgage as well, of the decedent’s estate, since a mortgage implies a sale in case of default in paying the debt. (2) The creditors of the decedent are indisputably entitled to collect their credits even before the distribution of the estate. (3) In providing for the administration of the decedents’ estates, the law aims to protect the heirs as well as the creditors of the decedent.

Considerations for granting the authority to sell. - Not only the convenience or benefit to be derived; principal requirement is that the heirs give their written consent and approval for they are the owners of the property to be sold or mortgaged, and cannot be deprived thereof without due process of law.

c) Opposition

Section 3. Persons interested may prevent such sale, etc., by giving bond. — No such authority to sell, mortgage, or otherwise encumber real or personal estate shall be granted if any person interested in the estate gives a bond, in a sum to be fixed by the court, conditioned to pay the debts, expenses of administration, and legacies within such time as the court directs; and such bond shall be for the security of the creditors, as well as of the executor or administrator, and may be prosecuted for the benefit of either.

Refer to note aboved) Effect of Sale, Mortgage or

Encumbrance without Notice

Estate of Gamboa vs. FloranzaProbate jurisdiction. - Nothing in the (Old) Rules which indicates that the CFI, in the exercise of its probate jurisdiction, has any power to order the sale of a specific piece of real estate for the purpose of paying a mortgage debt which is a lien thereon. It may be that the court would have authority to sell the property, subject to the mortgage lien, for the purpose of paying other debts of the estate, but there is nothing giving the court authority to sell it for the purpose of paying that specific debt.

Requirements, effect of failure to comply therewith. - An order made by a CFI in probate proceedings, for the sale of real property belonging to the estate of a deceased person, is void when no notice of hearing upon the petition for such


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sale is given, as required by the Code of Civil Procedure.

Santos vs. Roman Catholic Bishop of Nueva CaceresEffect of order of distribution; vacating order for license to sell realty. - A final order of distribution of the estate of a deceased vests the title to the land of the estate in the distributees; a license to sell such land granted after the distribution, without notice to the distribute, is void for want of jurisdiction in the court and the order granting it may be vacated at any time before the sale has been made.

3) Payment of Debts if Provision Made in WillRule 88 . Section 2. Part of estate from which debt paid when provision made by will. — If the testator makes provision by his will, or designates the estate to be appropriated for the payment of his debts, the expenses of administration, or the family expenses, they shall be paid according to the provisions of the will; but if the provision made by the will or the estate appropriated, is not sufficient for that purpose, such part of the estate of the testator, real or personal, as is not disposed of by will, if any shall be appropriated for that purpose.

Although the testator has acknowledged a specific debt in his will, the creditor is not relieved thereby from the duty of filing his claim in the testate or intestate proceedings, otherwise that claim will be barred.

4) Payment of Contingent ClaimsRule 88. Section 4. Estate to be retained to meet contingent claims. — If the court is satisfied that a contingent claim duly filed is valid, it may order the executor or administrator to retain in his hands sufficient estate to pay such contingent claim when the same becomes absolute, or if the estate is insolvent, sufficient to pay a portion equal to the dividend of the other creditors.

Section 5. How contingent claim becoming absolute in two years allowed and paid. Action against distributees later. — If such contingent claim becomes absolute and is presented to the court, or to the executor or administrator, within two (2) years from the time limited for other creditors to present their claims, it may be allowed by the court if not disputed by the executor or administrator and, if disputed, it may be proved and allowed or disallowed by the court as the facts may warrant. If the contingent claim is allowed, the creditor shall receive payment to the same extent as the other creditors if the estate retained by the executor or administrator is sufficient. But if the claim is not so presented, after having become absolute, within said two (2) years, and allowed, the assets retained in the hands of the executor or administrator, not exhausted in the payment of claims, shall be distributed by the order of the court to the persons entitled to the same; but the assets so distributed may still be applied to the payment of the claim when established, and the creditor may maintain an action against the distributes to recover the debt, and such distributes and their estates shall be liable for the debt in proportion to the estate they have respectively received from the property of the deceased.

The residuary funds within the estate, although already in the possession of the universal heirs, are funds of the estate, thus liable for payment of any claim against the estate.

Contingent claims must first be established and allowed in PC. If contingent claim matures after expiration of 2 years, creditor may sue the distributes, who are liable in proportion to the shares in the estate respectively received by them.

Complaint filed after intestate proceedings had terminated and estate finally distributed to heirs should not be allowed.

5) Contributive Share of Devisees, Legates or Heirs in Possession of Portions of Estate for Debts

Rule 88. Section 6. Court to fix contributive shares where devisees, legalitees, or heirs have been possession. — Where devisees, legalitees, or heirs have entered into possession of portions of the estate before the debts and expenses have been settled and paid, and have become liable to contribute for the payment of such debts and expenses, the court having jurisdiction of the estate may, by order for that purpose, after hearing, settle the amount of their several liabilities, and order how much and in what manner each person shall contribute, and may issue execution as circumstances require.

Liability of Heirs and Distributees— for payment of all lawful outstanding claims against the estate: in proportion to amount or value received from the estate; not required to respond w/ their own property for debts of deceased ancestors. [note: even after partition]

Legacy is not a debt of the estate; legatees are among those against whom execution is authorized to be issued.

6) Payment if Estate Insolvent or Assets Insufficient

Rule 88. Section 7. Order of payment if estate insolvent — If the assets which can be appropriated for the payment of debts are not sufficient for that purpose, the executor or administrator shall pay the debts against the estate, observing the provisions of Articles 1059 and 2239 to 2251 of the Civil Code.Rule 88. Section 8. Dividends to be paid in proportion to claims. — If there are no assets sufficient to pay the credits of any once class of creditors after paying the credits entitled to preference over it, each creditor within such class shall be paid a dividend in proportion to his claim. No creditor of any one class shall receive any payment until those of the preceding class are paid.

For Rule 88. Sections 8-16.

Speedy Settlement of Estate as Ruling Spirit of Probate Law—for the benefit of creditors and heirs and those entitled to the residue by way of inheritance or legacy after debts and expenses of administration have been paid.

a) Estate of Insolvent Non-Resident

Rule 88. Section 9. Estate of insolvent nonresident, how disposed of. — In case administration is taken in the Philippine of the estate of a person who was at the time of his death an inhabitant of another country, and who died insolvent, hi estate found in the Philippines shall, as far as practicable, be so disposed of that his creditors here and elsewhere may receive each an equal share, in proportion to their respective credits.

b) Payment of Claim Proved Outside the PH against Insolvent Resident

Rule 88. Section 11. Order for payment of debts. — Before the expiration of the time limited for the payment of the debts, the court shall order the payment thereof, and the distribution of the assets received by the executor or administrator for that purpose among the creditors, as the circumstances of the estate require and in accordance with the provisions of this rule.


Rule 88. Section 12. Orders relating to payment of debts where appeal is taken. — If an appeal has been taken from a decision of the court concerning a claim, the court may suspend the order for the payment of the debts or may order the distributions among the creditors whose claims are definitely allowed, leaving in the hands of the executor or administrator sufficient assets to pay the claim disputed and appealed. When a disputed claim is finally settled the court having jurisdiction of the estate shall order the same to be paid out of the assets retained to the same extent and in the same proportion with the claims of other creditors.

7) Orders of Payment of DebtsRule 88. Sections 11-12, supra

8) Orders of Payment if Estate InsolventRule 88. Section 7, supraNCC 1059; 2239-2251

9) Time for Payment of Debts and Legacies; Period for Successor of Deceased A/E—R88. 25 & 16, supra

10. Sales and Conveyance of Personalty or Realty for Other Reasons1) When Beneficial to Interested Persons

Rule 89. Section 4. When court may authorize sale of estate as beneficial to interested persons. Disposal of proceeds. — When it appears that the sale of the whole or a part of the real or personal estate, will be beneficial to the heirs, devisees, legatees, and other interested persons, the court may, upon application of the executor or administrator and on written notice to the heirs, devisees, and legatees who are interested in the estate to be sold, authorize the executor or administrator to sell the whole or a part of said estate, although not necessary to pay debts, legacies, or expenses of administration; but such authority shall not be granted if inconsistent with the provisions of a will. In case of such sale, the proceeds shall be assigned to the persons entitled to the estate in the proper proportions.

2) Conveyance Realty which Deceased Contracted to Convey during Lifetime

Rule 89. Section 8. When court may authorize conveyance of realty which deceased contracted to convey. Notice. Effect of deed. — Where the deceased was in his lifetime under contract, binding in law, to deed real property, or an interest therein, the court having jurisdiction of the estate may, on application for that purpose, authorize the executor or administrator to convey such property according to such contract, or with such modifications as are agreed upon by the parties and approved by the court; and if the contract is to convey real property to the executor or administrator, the clerk of court shall execute the deed. The deed executed by such executor, administrator, or clerk of court shall be as effectual to convey the property as if executed by the deceased in his lifetime; but no such conveyance shall be authorized until notice of the application for that purpose has been given personally or by mail to all persons interested, and such further notice has been given, by publication or otherwise, as the court deems proper; nor if the assets in the hands of the executor or administrator will thereby be reduced so as to prevent a creditor from receiving his full debt or diminish his dividend.

3) Conveyance of Realty which Deceased Held in Trust

Rule 89. Section 9. When court may authorize conveyance of lands which deceased held in trust. — Where the deceased in his lifetime held real property in trust for another

person, the court may after notice given as required in the last preceding section, authorize the executor or administrator to deed such property to the person, or his executor or administrator, for whose use and benefit it was so held; and the court may order the execution of such trust, whether created by deed or by law.

For Rule 89. Sections 8-9.

Effect of Sales Executed by Heirs—A contract of sale is not invalidated by the fact that it is subject to probate court approval. The transaction remains binding on seller-heir but not on other heirs who had not given consent. Reference to judicial approval cannot adversely affect the substantive rights of heirs to dispose of their pro-indiviso shares in the co-ownership. It merely implies that the property may be taken out of custodial legis, but only with the court’s permission (suspensive condition; conditional sale) Refer to notes for Rule 89. Sections 5-7, supra

Lack of Authority of Special Administrator to Intervene in SEC—Not being a party in the proceedings below, SA doesn’t have legal personality to seek review by SC of SEC/CA decisions

Need for Notice of Conveyance—otherwise, order authorizing conveyance and conveyance itself is null and void.

De Jesus vs. De JesusProbate courts empowered to approve stipulations recognizing coownership of property held in trust by the deceased. - Not only as an incident to its power to exclude any property of the deceased, but under R89.9 which permits the probate court, whenever the deceased in his lifetime held real property in trust for another person, to authorize the executor or administrator to deed such property to the person/s for whose use and benefit it was so held.

Effect of lack of notice. - R89.8 makes it mandatory that notice be served on the heirs and other interested persons of the application for approval of any conveyance of property held in trust by the deceased, and where no such notice is given, the order authorizing the conveyance as well as the conveyance itself, is completely void.

11. Partition and Distribution of the EstateRule 90. Section 1. When order for distribution of reside made. — When the debts, funeral charges, and expenses of administration, the allowance to the widow, and inheritance tax, if any, chargeable to the estate in accordance with law, have been paid, the court, on the application of the executor or administrator, or of a person interested in the estate, and after hearing upon notice, shall assign the residue of the estate to the persons entitled to the same, naming them and the proportions, or parts, to which each is entitled, and such persons may demand and recover their respective shares from the executor or administrator, or any other person having the same in his possession. If there is a controversy before the court as to who are the lawful heirs of the deceased person or as the distributive shares to which each person is entitled under the law, the controversy shall be heard and decided as in ordinary cases.No distribution shall be allowed until the payment of the obligations above mentioned has been made or provided for, unless the distributees, or any of them, give a bond, in a sum to be fixed by the court, conditioned for the payment of said obligations within such time as the court directs.

Rule 90. Section 2. Questions as to advancement to be determined. — Questions as to advancement made, or alleged to have been made, by the deceased to any heir


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may be heard and determined by the court having jurisdiction of the estate proceedings; and the final order of the court thereon shall be binding on the person raising the questions and on the heir.

Rule 90. Section 3. By whom expenses of partition paid. — If at the time of distribution the executor or administrator has retained sufficient effects in his hands which may lawfully be applied for the expenses of partition of the properties distributed, such expenses of partition may be paid by such executor or administrator when it appears equitable to the court and not inconsistent with the intention of the testator; otherwise, they shall be paid by the parties in proportion to their respective shares or interest in the premises, and the apportionment shall be settled and allowed by the court, and, if any person interested in the partition does not pay his proportion or share, the court may issue an execution in the name of the executor or administrator against the party not paying the sum assessed.

For Rule 90, Sections 1-3

Purpose of Administration—liquidation of estate and distribution of residue among heirs and legatees.

Nature of Proceedings—not terminated upon approval of project of partition; it is the order of distribution directing the delivery of the residue to persons entitled thereto that closes the intestate proceedings.

ROC 90.2 “court having jurisdiction of the estate proceedings”—although it uses may, it contemplates PC. Thus, RTC is devoid of authority to render an adjudication and resolve the issue of advancement.

Stages Before Distribution of Estate(a) Payment of obligations (Liquidation of Estate)—1) inheritance tax is paid; 2) sufficient bond is given to meet payment of inheritance tax and other obligations enumerated; OR 3) payment of said tax and all other obligations mentionedThe right of ownership over properties of his father is merely inchoate as long as estate has not been fully settled and partitioned.Order issued in GAD correctible by certiorari(b) Declaration of Heirs(b.1) Broad Powers of PC—any challenge to the validity of a will, any objection to the authentication thereof and every demand or claim which any heir, legatee or party interested in a testate or intestate succession may make, must be acted upon and decided w/in the same special proceedings.(b.2) Power of PC to Determine Right of Natural Child—power to determine WON person is an acknowledged natural child; to take cognizance of an action for compulsory recognition of natural child; but NOT an adoption decree because it cannot be attacked collaterally.(b.3) When Declaration of Heirship Made—only after payment of obligations. [Note: court is enjoined from distributing residue of estate before obligations are paid but not from making declaration of heirs prior to satisfaction of obligations](b.4) Power of PC to Determine Proportion To Which Each Distributee is Entitled—does not become final until all debts are paid; rights are merely inchoate and cannot be enforced; order determining proportion is appealable and if not appealed w/in reglementary pd, become final.(b.5) Interest in Estate May be Attached—whether as heir, legatee or devisee, by serving E/A with a copy of the order and notice that said interest is attached. Copy of order of attachment and notice shall be filed in office of clerk of court in which said estate is being settled and served upon heir, legatee or devisee (Rule 57. Section 7(f))

(b.6) Project of Partition—court may require E/A to present project to better inform itself of the condition of the estate, however, E/A has no duty to present; project is merely a proposal which court may accept or reject.

Effect of Final Decree of Distribution—settlement of estate is a proceeding in rem which is binding against the whole world and which petitioner is deemed to have constructive notice of; may be set aside when: 1) party interested is left out by reason of circumstances beyond his control or through mistake or inadvertence not imputable to negligence (preterited heir) or 2) lack of jurisdiction or fraud.

Separate Action Not Allowed; When Estate Proceedings May Be Reopened—The better practice is to secure relief by proper motion in the same probate or administration proceedings OR motion to reopen the probate or administrative proceedings w/in 30-day reglementary period from date of order of closure instead of an independent action which if successful would make another court or judge throw out a decision or order already final and executed and shuffle properties already distributed and disposed of; also, cannot be done in the guise of a complaint for reconveyance.

The existing jurisprudence allows the spurious child to file separate action to establish filiation despite closure of the estate proceedings (Divinagracia v Rovira)

If E/A has possession of the share to be delivered, PC would have jurisdiction w/in same estate proceedings to transfer possession to person entitled thereto. If no motion for execution is filed within reglementary period, separate action for recovery of shares would be in order. (De Jesus v Daza)

The administration proceedings may not be closed if there’s an action by 3p against E/A and heirs for recovery of property involved in the proceedings; closure must be held in abeyance until ordinary civil action is finally terminated (refer to note for Rule 88 Section 1)

Separate Action to Annul Project Partition Allowed—SC allowed continuation of a separate action to annul the project partition since the estate proceedings have been closed and terminated for over 3 years (Guilas v Judge of CFI Pampanga) But not when proceedings were still pending but movant lost her right to be declared as co-heir by failing to pursue her motion in the same case and instead filing a separate action to set aside the probate proceedings on the ground of extrinsic fraud (Silivio v CA)

Authority of PC is Exclusive—while probate proceedings are still pending in the interest of orderly procedure and to avoid conflicting dispositions. When motion to set aside is denied, remedy is to elevate the denial for review by CA, instead of filing a separate action for the same purpose with RTC.

Writ of Execution—GR: PC’s orders usu. refer to adjudication of claims against estate which E/A may satisfy w/o necessity of resorting to writ; EXC (exclusive): 1) to satisfy contributive shares of devisees, legatees, and heirs in possession of decedent’s assets (ROC 88.6) 2) to enforce payment of expenses of partition (ROC 90.3) 3) to satisfy costs when a person is cited for examination in probate proceedings (ROC 142.13)

Writ of Possession—PC has authority to order issuance of a writ of possession for the recovery of share by the heir or other interested person from E/A or person having possession of the property, w/o need of prev. demand. ROC 90.1 confers a right, which is exercisable by direct resort to the court because E/A is completely under PC’s jurisdiction and the “other person” is also


under PC’s jurisdiction for being one of the heirs of the decedent, who has previously appeared and actively participated in the proceedings.When sale is approved, buyer steps into the shoes of seller and confers upon the buyer the right to demand and recover the share purchased from E/A or other person.

Rule 90. Section 4. Recording the order of partition of estate. — Certified copies of final orders and judgments of the court relating to the real estate or the partition thereof shall be recorded in the registry of deeds of the province where the property is situated.

Castillo vs. BolanosProject of partition; who may oppose. - The debts and expenses of administration should be paid by the executor or administrator and that an estate should not be distributed among the heirs until all such debts and expenses have been paid. (Here: There being no objection on the part of creditors, and the solvency of the coheir subrogated not having been questioned there is no reason to reverse the order appealed from for said cause alone). At any rate, even after the approval of the amended project and pending the delivery of the estate, the defect may be corrected if some of the acknowledged creditors appear and petition that said coheir file some security in case she is not ready to settle immediately the debts and other obligations of the estate.

Reyes vs. Baretto-DatuPartition not amounting to a compromise on civil status. - There can be no compromise on a matter that was not in issue. While the law outlaws a compromise over civil status, it does not forbid a settlement by the parties regarding the share that should correspond to the claimant to the hereditary estate.

When partition decreed by court is res judicata - Independently of the project of partition - which is merely a proposal for distribution of the estate that the court may accept or reject - it is the court alone that makes the distribution of the estate and determines the persons entitled thereto and the parts to which each is entitled, and it is that judicial decree of distribution, once final, that vests title in the distributees. If the decree becomes final, its binding effect is like that of any other judgment in rem, unless properly set aside for lack of jurisdiction or fraud. Once it becomes final, the validity or invalidity of the project of partition becomes irrelevant.

Dael vs. IACPartial distribution of decedent’s estate pending final termination of testate/intestate proceedings discouraged. - The reason is that courts should guard with utmost zeal and jealousy the estate of the decedent to the end that the creditors thereof be adequately protected and all the rightful heirs assured of their shares in the inheritance.

Ralla vs. UntalanNo valid partition among the heirs till after the will has been probated. - This rule presupposes that the properties to be partitioned are the same properties embraced in the will.

When heirs precluded from attacking validity of partition. - Where the partition had not only been approved and thus become a judgment of the court, but distribution of the estate in pursuance of such partition had fully been carried out, and the heirs had received the property assigned to them, they are precluded from subsequently attacking its validity or any part of it. Likewise, where a piece of land has been included in a partition, and there is no allegation that the inclusion was

effected through improper means or without the petitioners’ knowledge, the partition barred any further litigation on said title and operated to bring the property under the control and jurisdiction of the court for proper disposition according to the tenor of the partition.

Sanchez vs. CACompromise agreement essentially a deed of partition. - Every act which is intended to put an end to indivision among co-heirs and legatees or devisees is deemed to be a partition, although it should purport to be a sale, an exchange, a compromise, or any other transaction.

Requisites for validity of partition. - (1) Decedent left no will, (2) He left no debts or if there were debts left, all such debts were paid, (3) heirs and liquidators are all of age (if minor - represented by judicial guardian or legal representatives, (4) partition was made by means of a public instrument or affidavit duly filed with the Register of Deeds.

Necessity of order of distribution. - The order for the distribution of the estate’s residue must contain the names and shares of the persons entitled thereto. Here, the probate court had essentially finished said intestate proceedings which should be deemed closed and terminated.

B. Escheat1. Jurisdiction and Venue; Requirements

Rule 91. Section 1. When an by whom petition filed. — When a person dies intestate, seized of real property in the Philippines, leaving no heir or person by law entitled to the same, the Solicitor General or his representative in behalf of the Republic of the Philippines, may file a petition in the Court of First Instance of the province where the deceased last resided or in which he had estate, if he resided out of the Philippines, setting forth the facts, and praying that the estate of the deceased be declared escheated.

Escheat Defined—proceeding whereby real or personal property of a deceased person in the PH become the property of the State upon his death, w/o leaving a will or legal heirsNature of Escheat Proceedings—special proceeding, not an ordinary civil action; commenced by petition, not by complaintSubstantial right of the State; attribute of sovereignty; principle of ultimate ownership by State of all property within its jurisdiction.

When Petition of Escheat May Be Filed—1) person dies intestate 2) seized of real or personal property in PH 3) leaving no heir or person by law entitled to the same. It should set forth the facts and pray that estate of decedent be escheated

Parties in a Petition for Escheat—1) initiated by the Government thru SG 2) any person alleging to have a direct right or interest in the property sought to be escheated; an interest and necessary party may oppose the petitionAct No. 3936 Section 3 (Law on Forfeiture of Dormant Bank Deposits)—a depository bank should be joined as respondent since decree of escheat would deprive it of use of such deposits

Courts with Jurisdiction to Entertain a Petition—RTC of province where deceased last resided OR if non-resident, in which he had estate

Proceedings in Escheat Cannot be Converted into Settlement of the Estate—for distribution of estate of the decedents to be instituted, proper petitions must be presented and proceedings should comply with requirements of the Rule.

Municipal Council of San Pedro vs. Colegio de San JoseEscheat, defined. - It is a proceeding whereby the real and


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personal property of a deceased person becomes the property of the State upon his death without leaving any will or legal heirs. It is commenced by petition, not a complaint. The petitioner is not the sole and exclusive interested party; any person alleging to have a direct right or interest in the property sought to be escheated is likewise an interested party and may appear and oppose the petition.

Essential facts. - (1) The person died intestate, (2) he has left real/personal property, (3) he was the owner thereof, (4) he has not left any heir/person who is by law entitled to the property, (5) the one who applies for the escheat is the municipality where the deceased had his last residence, or where property is located (if no residence in the country)

City of Manila vs. Archbishop of ManilaNo escheat. - There was a will, and the deceased left an heir or persons entitled to administer her estate.

2. Procedure and PeriodRule 91. Section 2. Order for hearing. — If the petition is sufficient in form and substance, the court, by an order reciting the purpose of the petition, shall fix a date and place for the hearing thereof, which date shall be not more than six (6) months after the entry of the order, and shall direct that a copy of the order be published before the hearing at least once a week for six (6) successive weeks in some newspaper of general circulation published in the province, as the court shall be deem best.

Rule 91. Section 3. Hearing and judgment. — Upon satisfactory proof in open court on the date fixed in the order that such order has been published as directed and that the person died intestate, seized of real or personal property in the Philippines, leaving no heir or person entitled to the same, and no sufficient cause being shown to the contrary, the court shall adjudge that the estate of the estate of the deceased in the Philippines, after the payment of just debts and charges, shall escheat; and shall, pursuant to law, assign the personal estate to the municipality or city where he last resided in the Philippines, and the real estate to the municipalities or cities, respectively, in which the same is situated. If the deceased never resided in the Philippines, the whole estate may be assigned to the respective municipalities or cities where the same is located. Shall estate shall be for the benefit of public schools, and public charitable institutions and centers in said municipalities or cities.The court, at the instance of an interested party, or on its own motion, may order the establishment of a permanent trust, so that the only income from the property shall be used.Rule 91. Section 4. When and by whom claim to estate filed. — If a devisee, legatee, heir, widow, widower, or other person entitled to such estate appears and files a claim thereto with the court within five (5) years from the date of such judgment, such person shall have possession of and title to the same, or if sold, the municipality or city shall be accountable to him for the proceeds after deducting reasonable charges for the care of the estate; but a claim not made within the said time shall be forever barred.

Remedy of Respondent Against Petition for Escheat—No reason of a procedural nature which prevents the filing of MTD based upon any of the grounds provided for by law for MTD the complaint. In such case, MTD plays the role of demurrer and court should resolve the legal questions raised therein.

Conclusiveness of Judgment of Escheat—upon persons notified by advertisement to all persons interested.

Evidence Required—Burden of proof rests on the State to prove property is in all respects liable to escheat. It must recover on the strength of its own title and not on the weakness of the other claimants.

Waiver of Escheat—either express or implied

Period for Filing Claims—within 5 years from date property was delivered to the State. Otherwise, forever barred.

Effect of Lack of Jurisdiction of the Escheat Court—due to non-compliance with jurisdictional requirements, court has no jurisdiction to grant remedy enabling persons entitled to estate to appear w/in a specified period from the date of decree of escheat and file a claim to the estate.

3. Other Actions for EscheatRule 91. Section 5. Other actions for escheat. — Until otherwise provided by law, actions reversion or escheat of properties alienated in violation of the Constitution or of any statute shall be governed by this rule, except that the action shall be instituted in the province where the land lies in whole or in part.

Escheat and Reversion Distinguished—effects same; procedure different—Escheat: instituted as consequence of violation of C87A13S5 which prohibits transfers of private agricultural land to aliens:: Reversion: expressly authorized under Public Land ActProceedings to escheat or for reversion of lands held in violation of laws prohibiting alien ownership has been held to be a civil action rather than a criminal proceeding.

C. Trustees1. Jurisdiction and Venue, Appointment of Trustee,

in General; Powers of TrusteeRule 98. Section 1. Where trustee appointed. — A trustee necessary to carry into effect the provisions of a will on written instrument shall be appointed by the Court of First Instance in which the will was allowed, if it be a will allowed in the Philippines, otherwise by the Court of First Instance of the province in which the property, or some portion thereof, affected by the trust is situated.

Who May File Pet. for Appt of Trustee—E/A or person appointed as trustee under the will or written instrument.

Discretion of the Court in the Appt of Trustee—power to appoint and remove is discretionary with the court before whom application is made and appellate court will decline to interfere except in case of clear abuse.

Rule 98. Section 2. Appointment and powers of trustees under will. Executor of former trustee need not administer trust. — If a testator has omitted in his will to appoint a trustee in the Philippines, and if such appointment is necessary to carry into effect the provisions of the will, the proper Court of First Instance may, after notice to all persons interested, appoint a trustee who shall have the same rights, powers, and duties, and in whom the estate shall vest, as if he had been appointed by the testator. No person succeeding to a trust as executor or administrator of a former trustee shall be required to accept such trust.

Exercise of Sound Judgment by Court in the Appt of Trustee—to carry into effect the provisions of the will, where trust is created by the will (provision that certain property shall be kept together undisposed during a fixed pd and for a stated purpose)


Notice and Consent of Beneficiary Not Essential for Creation of Trust—acceptance by beneficiary is presumed

Creation of Trust through an Inoperative Will—due to want of compliance w/ statutory requirements, may operate as a declaration of trust but such writing must state: 1) fiduciary relation 2) terms and conditions of trust w/ sufficient certainty 3)be of such nature that party must have intended it as declaration of trust

Rule 98. Section 3. Appointment and powers of new trustee under written instrument. — When a trustee under a written instrument declines, resigns, dies or removed before the objects of the trust are accomplished, and no adequate provision is made in such instrument for supplying the vacancy, the proper Court of First Instance may, after due notice to all persons interested, appoint a new trustee to act alone or jointly with the others, as the case may be. Such new trustee shall have and exercise the same powers, right, and duties as if he had been originally appointed, and the trust estate shall vest in him in like manner as it had vested or would have vested, in the trustee in whose place he is substituted and the court may order such conveyance to be made by the former trustee or his representatives, or by the other remaining trustees, as may be necessary or proper to vest the trust estate in the new trustee, either or jointly with the others.

Non-Acceptance by Trustee Not Sufficient for Failure of Trust—GR: NCC Article 1445. No trust shall fail because the trustee appointed declines the designation, unless the contrary should appear in the instrument constituting the trust. XPN: 1) trust is purely personal—trustor has excluded its administration by any person other than designated trustee, court cannot appoint a trustee or itself 2) trust is legally inoperative

Discretion of the Court in Appointing a New Trustee—court is not bound to follow but should consider all circumstances bearing on the matter including the wishes of the beneficiaries of the acting trustees and the intention of the trustor as revealed in the instrument

Saltiga de Romero vs. CATrust, defined. - It is the legal relationship between a person having an equitable ownership in property and another person owning the legal title to such property, the equitable ownership of the former entitling him to performance of certain duties and the exercise of certain powers by the latter.Express trust, defined. - Those which are created by the direct and positive acts of the parties, by some writing or deed, or will, or by words evidencing an intention to create a trust.Implied trust, defined; forms - Those which without being express, are deducible from the nature of the transaction as matters of intent, or which are superinduced on the transaction by operation of law as a matter of equity, independently of the particular intention of the parties. (1) Resulting trusts - based on the equitable doctrine that valuable consideration and not legal title determines the equitable title or interest and are presumed always to have been contemplated by the parties. They arise from the nature or circumstances of the consideration involved in a transaction whereby one person thereby becomes invested with legal title but is obligated in equity to hold his legal title for the benefit of another. (2) Constructive trusts - created by the construction of equity in order to satisfy the demands of justice and prevent unjust enrichment. They arise contrary to intention against one who, by fraud, duress or abuse of confidence, obtains or hold the legal right to property, which

he ought not, in equity and good conscience, to hold.When trust not created. - When for the purpose of evading the law prohibiting one from taking or holding real property, he takes a conveyance thereof in the name of a third person.

Heirs of Lorenzo Yap vs. CAImplied trust, further defined. - (1) Resulting trust - Arises by implication of law and presumed always to have been contemplated by the parties, the intention as to which can be found in the nature of their transaction although not expressed in a deed or instrument of conveyance. It is based on the equitable doctrine that it is the more valuable consideration than the legal title that determines the equitable interest in property. (2) Constructive trust - Not created by any word or phrase, either expressly or impliedly, evincing a direct intention to create a trust, but one that arises in order to satisfy the demands of justice. It does not come about by agreement or intention but in main by operation of law construed against one who, by fraud, duress or abuse of confidence, obtains or holds the legal right to property which he ought not, in equity and good conscience, to hold.

Distinction between implied and express trusts. - While the former may be established by parol evidence, the latter cannot. Even then, in order to establish an implied trust in real property by parol evidence, the proof should be as fully convincing as if the acts giving rise to the trust obligation are proven by an authentic document. An implied trust, in fine, cannot be established upon vague and inconclusive proof.

When trust invalid. - A trust or a provision in the terms of a trust would be invalid if the enforcement of the trust or provision is against the law even though its performance does not involve the commission of a criminal or tortuous act. It likewise must follow that what the parties are not allowed to do expressly is one that they also may not do impliedly as, for instance, in the guise of a resulting trust.

2. Appointment of Trustees AbroadRule 98. Section 4. Proceedings where trustee appointed abroad. — When land in the Philippines is held in trust for persons resident here by a trustee who derives his authority from without the Philippines, such trustee shall, on petition filed in the Court of First Instance of the province where the land is situated, and after due notice to all persons interested, be ordered to apply to the court for appointment as trustee; and upon his neglect or refusal to comply with such order, the court shall declare such trust vacant, and shall appoint a new trustee in whom the trust estate shall vest in like manner as if he had been originally appointed by such court.

Territoriality of Authority of Trustee—authority cannot extend beyond jurisdiction of RP under whose courts he was appointed. (also, based on sovereign equality)

3. Bond Requirements

Rule 98. Section 5. Trustee must file bond. — Before entering on the duties of his trust, a trustee shall file with the clerk of the court having jurisdiction of the trust a bond in the amount fixed by the judge of said court, payable to the Government of the Philippines and sufficient and available for the protection of any party in interest, and a trustee who neglects to file such bond shall be considered to have declined or resigned the trust; but the court may until further order exempt a trustee under a will from giving a bond when the testator has directed or requested such exemption and may so exempt any trustee when all persons beneficially


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interested in the trust, being of full age, request the exemption. Such exemption may be cancelled by the court at any time and the trustee required to forthwith file a bond.

Filing of Bond as Requirement—terms of the trust or statute may provide trustee appointed by court shall be required to furnish a bond in order to qualify him to administer the trust

Effect of Failure to File Bond—failure to qualify as trustee but trust is not defeated

Rule 98. Section 6. Conditions included in bond. — The following conditions shall be deemed to be part of the bond whether written therein or not;(a) That the trustee will make and return to the court, at such time as it may order, a true inventory of all the real and personal estate belonging to him as trustee, which at the time of the making of such inventory shall have come to his possession or knowledge;(b) That he will manage and dispose of all such estate, and faithfully discharge his trust in relation thereto, according to law and the will of the testator or the provisions of the instrument or order under which he is appointed;(c) That he will render upon oath at least once a year until his trust is fulfilled, unless he is excused therefrom in any year by the court, a true account of the property in his hands and the management and disposition thereof, and will render such other accounts as the court may order;(d) That at the expiration of his trust he will settle his account in court and pay over and deliver all the estate remaining in his hands, or due from him on such settlement, to the person or persons entitled to thereto.But when the trustee is appointed as a successor to a prior trustee, the court may dispense with the making and return of an inventory, if one has already been filed, and in such case the condition of the bond shall be deemed to be altered accordingly.

Manner of Executing the Trust—bound to strictly comply with directions contained in the trust instrument; carry into effect trust insofar as valid unless exempted from literal performance by consent of all persons interested and by sanction of the court

Duties of Trustee vis-à-vis E/A—trustee, like E/A, holds an office of trust and is under judicial authority; duties of E/A: fixed and/or limited by law:: duties of trustee: governed by intention of trustor OR parties if established by contract, thus may cover a wider range than those of E/A

Faithful Discharge of Trust—trustee must act with reasonable diligence; unnecessary and unreasonable delay in securing possession of trust property is at his personal risk. The duty to take, collect, hold and manage the trust estate in accordance with terms of trust extends to income and increment of the estate.

Accounting by Trustee—trustee is bound to put his cestui que trust in possession of the full and true estate of his affairs before any settlement will bind

Liability of Trustee for Trust Funds—one who, having in his possession trust funds, deposits them in his personal account in a bank and mixes the with his own, is not liable to repay at all hazards; where funds are taken by furze mayor (force major), he is relieved from responsibility in relation thereto.

Nature of Possession by Trustee—in the name and in behalf of the owner; not an adverse possession, unless there is an open, clear and unequivocal repudiation of the trust known to the cestui que trust.

Breach of Trust by Trustee—every violation by a trustee of a duty which equity imposes on him, whether willful and fraudulent, through negligence, through mere oversight or forgetfulness

4. Appraisal; Compensation of TrusteeRule 98. Section 7. Appraisal. Compensation of trustee. — When an inventory is required to be returned by a trustee, the estate and effects belonging to the trust shall be appraised and the court may order one or more inheritance tax appraisers to assist in the appraisement. The compensation of the trustee shall be fixed by the court, if it be not determined in the instrument creating the trust.

Factors Affecting Compensation—1) character and powers of trusteeship 2) risk and responsibility 3)time; and 4)labor and skill required in the administration of trust as well as care and mgt of the estate; time to determine reasonableness of the fees: when trustee files a claim for the same; court may not set in advance trustee’s fees should not exceed that charged by trust companies, unless equity of circumstances was proved. Also, difficult to see how trust companies can be equated w/ individuals who are only occasionally charged with trusteeships.

Reimbursement of Trustee for Expenses—necessary and reasonable expenses for payments made by virtue of express authority of the trust instrument; incurred in protecting and preserving the property, in rendering and proving his accounts and for costs and counsel fees in connection therewith.

5. Removal or Resignation of Trustee; Sale of Encumbrance of Trust Estate

Rule 98. Section 8. Removal or resignation of trustee. — The proper Court of First Instance may, upon petition of the parties beneficially interested and after due notice to the trustee and hearing, remove a trustee if such removal appears essential in the interest of the petitioner. The court may also, after due notice to all persons interested, remove a trustee who is insane or otherwise incapable of discharging his trust or evidently unsuitable therefor. A trustee, whether appointed by the court or under a written instrument, may resign his trust if it appears to the court proper to allow such resignation.

Removal of a Trustee; How Effected—want of reasonable fidelity; petition for removal, not an action to recover the property by the beneficiary

Ground for Removal of Trustee—holding property in his own right or misapplies it

Resignation by Trustee— acceptance of resignation is not a matter of course; there must ordinarily be some ground for discharge other than the mere wish of the trustee to be relieved.

Rule 98. Section 9. Proceedings for sale or encumbrance of trust estate. — When the sale or encumbrance of any real or personal estate held in trust is necessary or expedient, the court having jurisdiction of the trust may, on petition and after due notice and hearing, order such sale or encumbrance to be made, and the re investment and application of the proceeds thereof in such manner as will best effect the objects of the trust. The petition, notice, hearing, order of sale or encumbrance, and record of proceedings, shall conform as nearly as may be to the provisions concerning the sale or encumbrance by guardians of the property of minors or other wards.

Requirements od Judicial Order for Sale or Encumbrance of Trust Estate—no power to change the character of the trust property, unless perishable or transitory in nature and only to


covert it to enduring and revenue-producing investment; if change is deemed necessary or for the interest of the beneficiary, permission of court should be obtained for the preservation of the fund.

Exercise by Court of its Power—when trust be endangered; thus, mere fact that the contemplated sale will be a profitable financial transaction is not a sufficient ground.

Duty of Trustee During the Sale of Trust Property—duty of GF and loyalty to the trust; he should consider all competent bids and disregard bids which he is w/o authority to accept (e.g. bid offering to purchase the property outright when authority of trustee is limited to sale of the property). Thus, unsuccessful bidders cannot complain of refusal of trustee to furnish a statement of the earnings of the trust property sold, where such info might discourage bidding and tend to reduce amount of the bids.

D. Declaration of Absence and Death1. Jurisdiction and Venue, Conditions for

DeclarationRule 107, Section 1. Appointment of representative. - When a person disappears from his domicile, his whereabouts being unknown, and without having left an agent to administer his property, or the power conferred upon the agent has expired, any interested party, relative or friend, may petition the Court of First Instance of the place where the absentee resided before his disappearance for the appointment of a person to represent him provisionally in all that may be necessary. In the City of Manila, the petition shall be filed in the Juvenile and Domestic Relations Court.

In Re Roberto ReyesReason and purpose of CC provisions on absence . - (1) The interest of the person himself who has disappeared; (2) the rights of third parties against the absentee (especially those who have rights which would depend upon the death of the absentee), (3) The general interest of society which may require that property does not remain abandoned without someone representing it and without an owner. They are concerned with absence only with respect to the effects on property.Stages. - (1) Art. 381: Provisional measures when a mere presumption of his absence arises (appointment of representative for the protection of the interest of the absentee), (2) Art. 384: Absence may be declared (provide for an administrator of the property of the absentee).When there is need for judicial declaration of absence. - (1) When he has properties which have to be taken care of or administered by a representative appointed by the Court (A.384, CC), (2) The spouse of the absentee is asking for separation of property (A.191, CC), (3) The wife is asking the Court that the administration of all classes of property in the marriage be transferred to her (A.196, CC).Separate proceedings not necessary. - The petition to declare the husband an absentee and the petition to place the management of the conjugal properties in the hands of the wife may be combined and adjudicated in the same proceedings.

2. Jurisdictional Requirements

Rule 107, Section 2. Declaration of absence; who may petition. - After the lapse of two (2) years from his disappearance and without any news about the absentee or since the receipt of the last news, or of five (5) years in case the absentee has left a person in charge of the administration of his property, the declaration of his absence and appointment of a trustee or administrator may be applied

for by any of the following:(a) The spouse present;(b) The heirs instituted in a will, who may present an authentic copy of the same;(c) The relatives who would succeed by the law of intestacy; and(d) Those who have over the property of the absentee some right subordinated to the condition of his death.

Declaration of Absence may be made in administration proceedings – not necessary that a declaration of absence be made in a proceeding separate from and prior to a petition for administration. In Peyer v Martinez, SC said that the petition to declare the husband an absentee and the petition to place the management of the conjugal properties in the hands of the wife could be combined and adjudicated in the same proceeding.

Rule 107, Section 3. Contents of petition. - The petition for the appointment of a representative, or for the declaration of absence and the appointment of a trustee or an administrator, must show the following:

(a) The jurisdictional facts;(b) The names, ages, and residences of the heirs instituted in the will, copy of which shall be presented, and of the relatives who would succeed by the law of intestacy;(c) The names and residences of creditors and others who may have any adverse interest over the property of the absentee;(d) The probable value, location and character of the property belonging to the absentee.

Tol-Noquera vs. VillamorSeparate proceedings not necessary. - It is not necessary that a declaration of absence be made in a proceeding separate from and prior to a petition for administration.Purpose of the rules oce. - The protection of the interests and property of the absentee, not of the administrator.

3. Procedure and Publication

Rule 107, Section 4. Time of hearing; notice and publication thereof. - When a petition for the appointment of a representative, or for the declaration of absence and the appointment of a trustee or administrator, is filed, the court shall fix a date and place for the hearing thereof where all concerned may appear to contest the petition. Copies of the notice of the time and place fixed for the hearing shall be served upon the known heirs, legatees, devisees, creditors and other interested persons, at least ten (10) days before the day of the hearing, and shall be published once a week for three (3) consecutive weeks prior to the time designated for the hearing, in a newspaper of general circulation in the province or city where the absentee resides, as the court shall deem best.

Rule 107, Section 5. Opposition. - Anyone appearing to contest the petition shall state in writing his grounds therefor, and served a copy thereof on the petitioner and other interested parties on or before the date designated for the hearing.

Rule 107, Section 6. Proof at hearing; order. - At the hearing, compliance with the provisions of section 4 of this rule must first be shown. Upon satisfactory proof of the allegations in the petition, the court shall issue an order granting the same and appointing the representative, trustee or administrator for the absentee. The judge shall take the necessary measures to safeguard the rights and interests of the absentee and shall specify the powers, obligations and


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remuneration of his representative, trustee or administrator, regulating them by the rules concerning guardians.In case of declaration of absence, the same shall not take effect until six (6) months after its publication in a newspaper of general circulation designated by the court and in the Official Gazette.

4. Appointment of Representative; Termination of Appointment

Rule 107, Section 7. Who may be appointed. - In the appointment of a representative, the spouse present shall be preferred when there is no legal separation. If the absentee left no spouse, or if the spouse present is a minor or otherwise incompetent, any competent person may be appointed by the court. In case of declaration of absence, the trustee or administrator of the absentee's property shall be appointed in accordance with the preceding paragraph.

Rule 107, Section 8. Termination of administration. - The trusteeship or administration of the property of the absentee shall cease upon order of the court in any of the following cases:

(a) When the absentee appears personally or by means of an agent;(b) When the death of the absentee is proved and his testate or intestate heirs appear;(c) When a third person appears, showing by a proper document that he has acquired the absentee's property by purchase or other title.

In these cases the trustee or administrator shall cease in the performance of his office, and the property shall be placed at the disposal of those who may have a right thereto.

Declaration of absence is unnecessary where there are no properties – the need to have a person judicially declared an absentee is when he has properties which have to be taken care of or administered by a representative appointed by the court; the spouse of the absentee is asking for separation of property or his wife is asking the court that the administration of all classes of property in the marriage be transferred to her. Hence there is no need for such declaration if there are no properties.

No independent action for declaration of presumption of death – The disputable presumption that a person not heard from in 7 years is dead, may arise and be invoked either in an action or in a special proceeding. Independently of such an action or special proceeding, the presumption of death cannot be invoked nor can it be made the subject of an action or special proceeding.

Exception: the need for declaration of presumptive death for purposes of marriage – Under the Old Civil Code there is no need for the missing spouse to be judicially declared an absentee before the present spouse can marry again. Such rule however conflict with Art. 349 of the RPC providing that the present spouse must first ask for a declaration of presumptive death of the absent spouse in order not to be guilty of bigamy in case he or she marries again.

FC now clearly provides that for the purpose of contracting a subsequent marriage, the present spouse must first ask for a declaration of presumptive death of the absentee, without prejudice to the latter’s appearance. The provision is intended to protect the present spouse from a criminal prosecution for bigamy because with the judicial declaration that the missing spouse us presumptively dead, the good faith of the present spouse in contracting the second marriage us already established.

Meaning of “absent spouse” – means that the other spouse has been missing for at least four years, it beung unknown whether or not he or she is still alive, and the present spouse having a well-founded belief that the missing person is already dead. The period of 4 years is reduced to 2 if in the disappearance of the missing spouse, there was danger of death.

Presumption of death under Article 391 of the Civil Code must yield to preponderance of evidence - Supreme court cited several cases where due to circumstances a person was already considered dead without waiting for the period to expire and be presumed dead.

III. RULES ON PROTECTION OF LIFE, LIBERTY AND SECURITYA. Habeas Corpus

1. Nature, Scope and Function; Limitation on the Restraint of Writ

C87 ART 3 Section 15. The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion, when the public safety requires it.

ART 7 Section 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ. The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.

Rule 102 Section 1. To what habeas corpus extends. — Except as otherwise expressly provided by law, the writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto.


Purpose— Prime specification of the application for a writ of HC is restraint of liberty. The essential object and purpose is to inquire into all manner of involuntary restraint as distinguished from voluntary (writ of inquiry) and to relieve a person therefrom if such restraint is illegal (determine WON person under detention is held under lawful authority)

Cannot be used for any other purpose: enforce a right of service, determine WON person has committed a crime, determine a disputed interstate boundary line, punish R or to afford injured person redress for illegal detention, to recover damages or other money award.

Nature—while the issuance of the writ is to all intents and purposes the commencement of a civil action, yet technically the proceedings is in no sense a suit bet private parties. It is an inquisition by the govt at the instance of an individual solely for the benefit of the person restrained but still in the name and capacity of the sovereign. It is analogized to a proceeding in rem to fix the status of a person. It is not designed to obtain redress against anybody and no judgment may be rendered against anybody, no real P & D, there can be no suit in the technical sense.

It is separate and distinct from the main case from which it springs. They rarely, if ever touch the merits of the case & deal simply w/ the detention of the prisoner and stop w/ the authority by virtue of w/c he is detained.

Who may Avail of the Writ—Every person unlawfully imprisoned or restrained of his liberty. It is only where the court doesn’t have juris of the subj matter of the offense that WHC should be granted. Persons restrained of their liberty by virtue of final judgment of any competent tribunal or by virtue of any execution thereon are excluded bec such persons are not illegally restrained but deprived of liberty by DPL; it is in the nature of a collateral attack and the writ cannot have the effect of an appeal, writ of error or certiorari.

Grounds for Issuance (Applies to All Forms of Involuntary Restraints)—release, whether permanent or temporary, that renders a pet for WHC moot and academic must be one free from involuntary restraints and not when there are restraints attached to his release which precludes freedom of action, in which case the court can still inquire into the nature of his involuntary restraint. (e.g. prohibition to travel, to change his abode & to grant interviews to members of the mass media without official permission and ordered to report regularly to military authorities; reservation to re-arrest a person for an offense after a court has absolved him of that offense) (Moncupa v Enrile)

It is not physical restraint alone which is inquired into. “Freedom may be lost due to external moral compulsion, to founded or groundless fear, to erroneous belief in the existence of the will. If the actual effect of such psychological spell is to place a person at the mercy of another, the victim is entitled to the protection of courts of justice as much as the individual who is illegally deprived of liberty by deprived or physical coercion.” (Caunca v Salazar)

Denial of Constitutional Right—(eg. no fair hearing, arbitrary disregard of undisputed facts, no proof to sustain the order, failure to provide counsel for accused): court may lose its jurisdiction to conduct further proceedings & HC would lie to obtain release of accused. The void judgment of conviction may be collaterally attacked, w/c is the function of the writ. It may issue even if another remedy, w/c is less effective, is available to D.

Failure by accused to perfect his appeal before doesn’t preclude recourse to writ bec it may be granted even upon judgment already final for WHC as an extraordinary remedy must be liberally given effect.

WHC was granted where accused was compelled to testify for prosec in a case against the accused despite finality of his judgment by dismissal of his appeal (Chavez v CA)

Excessive Sentence/Penalty may be Corrected by Writ—case involved penalties that couldn’t be imposed under any circ for crime for w/c prisoner was convicted: subsidiary imprisonment for violation of special acts

Writ applied to Person Sentenced to Life for Violation of Dangerous Drugs Law but Penalty Reduced by New Law—after service of max of applicable penalties newly prescribed, WHC may be entertained, even if deficient in form as long as sufficient in substance

Writ is Proper Legal Remedy to Enable Parents to Regain Custody of Minor Children— (1) even though child be in custody of 3p of her own will (2) does not appear that compelling child against her will to marry has continued nor refusal to consent to her marr to a man by whom she is pregnant is a legal ground for deprive parents of PA and custody of daughter.

Question of Custody of Minor can be Resolved—in pet for WHC under R102 w/o necessity of filing a separate action under R99 for that purpose.

Purpose of WHC: to determine the right of custody of a child, where Q of identity is relevant subj to usual presumption including those as to identity of person.

Minor’s Welfare as Paramount Consideration—doesn’t involve question of personal freedom bec infant is presumed to be in custody of someone until he attains majority age, rather the welfare of child is the supreme consideration in determining right of custody over him

Requisites for Issuance of Writ—(1) P has right to custody over minor (2) rightful custody is being withheld from P by R and (3) it is to the best interest of minor concerned to be in custody of P and not that of R

Judicial Discretion in Issuance of Writ—even if HC is a writ of right, it will not issue as a matter of course on the filing of the petition; refuse: insufficient in form and substance:: grant: complies w/ legal reqs and its averments make prima facie case for relief.

Technicality Shouldn’t Stand in the Way—While it may be requisite that matters pertaining to guardianship be determined by proceedings in courts established expressly to exercise jurisdiction in such matters, this doesn’t preclude rendition of order awarding temporary custody of child in HC proceeding & such order continues until court w/ juris appoints guardian of his person (Macazo v Nuñez)

WHC may be used with Writ of Cert for Purpose of Review— they may be ancillary to each other where necessary to give effect to the supervisory powers of higher courts. GR: WHC will not be granted when there is adequate remedy by writ of error or appeal or by writ of cert EXC: exceptional cases for writ cannot be subservient to procedural limitations. WHC reaches the body and jurisdictional matters but not the record (collateral attack on judgment):: Writ of cert: reaches the record but not the body (direct attack) [Note: if pet for HC and cert were filed and later pet for cert was withdrawn, such withdrawal cannot affect juris of the court which was already acquired. WHC: WON proceeding or judgment is a nullity:: cert: errors committed by court w/in its jurisdiction]

WHC Cannot Function as a Writ of Error— GR: Writ will not lie to correct mere mistakes of fact or of law w/c if cour has juris over


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the crime & over the person of D; EXC: error affects court’s juris or is one that would make the judgment void

Writ Does Not Lie Where there is Remedy of Appeal—not permitted to perform functions of writ of error/ appeal for the purpose of reviewing mere errors or irregularities in proceedings of a court having juris over person and subj matter.

Exceptional Circ.—GR: Orderly course of trial should be pursued and usual remedies exhausted before writ may be invoked EXC: exceptional circ. w/c makes writ available to an accused before trial.

When WHC not Proper— (1) For asserting or vindicating denial of right to bail—bec criminal case before the judge is the normal venue and correct course for accused is to file pet. to be admitted to bail, claiming right to bail per se by reason of weakness of evidence against him. Only after such pet is denied by TC should review juris of CA be invoked then SC. (2) For correcting errors in appreciation of facts/ appreciation of law—where TC had juris over the cause, over the person and to impose the penalty provided by law. HC is only an inquiry of cause of detention and if held under lawful authority; doesn’t extend to inquiry of juris of court by w/c it was issued and validity of process upon its face. A commitment in due form, based on final judgment, convicting and sentencing D in a criminal case is conclusive evidence of legality of detention unless court was w/o juris or exceeded its juris in imposing the penalty

When WHC Proper—(1) Deportation Proceedings—WHC not prohibition, for

reviewing proceedings for deportation of aliens. Bureau of Immigration is w/o authority to issue warrant of arrest of person prior to an order of deportation. Illegality, may however be cured by subseq filing of deportation proceedings. When alien is detained by BI for deportation pursuant to an order of deportation by Deportation Board, TC has no power to release such alien on bail even in HC proceedings bec there is no law authorizing it.

Villavicencio vs. Lukban (1919)Remedies of unhappy victims of official oppression

(1) Civil action - optional but rather slow process by which the aggrieved party may recoup money damages; never intended effectively and promptly to meet any such situation as that before the court in this case.

(2) Criminal action - ‘It would be a monstrous anomaly in the law if to an application by one unlawfully confined, to be restored to his liberty, it could be a sufficient answer that the confinement was a crime and therefore might be continued indefinitely until the guilty party was tried and punished therefor by the slow process of criminal procedure.’

(3) Habeas corpus - Devised and exists as a speedy and effectual remedy to relieve persons from unlawful restraint, and as the best and only sufficient defense of personal freedom. Any further rights of the parties are left untouched by decision on the writ, whose principal purpose is to set the individual at liberty.

Parties. Where it is impossible for a party to sign an application for the writ of habeas corpus was consequently proper for the writ to be submitted by persons in their behalf. The law, in its zealous regard for personal liberty, even makes it the duty of a court or judge to grant a writ of habeas corpus if there is evidence that within the court’s jurisdiction a person is unjustly imprisoned or restrained of his liberty, though no application be made therefor.Jurisdiction. GR: To avoid unnecessary expense and inconvenience, petitions for habeas corpus should be presented to the nearest judge of the CFI. However, the writ may be

granted by the SC or any judge therefor enforceable anywhere in the Phils. Whether the writ shall be made returnable before the SC or before an inferior court rests in the discretion of the SC and is dependent on the particular circumstances.Restraint of liberty. A prime specification of an application for a writ of habeas corpus is restraint of liberty. The essential object and purpose of the writ is to inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint which will preclude freedom of action is sufficient.If the respondent is within the jurisdiction of the court and has it

in his power to obey the order of the court and thus to undo the wrong that he has inflicted, he should be compelled to do so. Even if the party to whom the writ is addressed has illegally parted with the custody of a person before the application of the writ is no reason why the writ should not issue. The respondents, within the reach of process, may not be permitted to restrain a fellow citizen of her liberty by forcing her to change her domicile and to avow the act with impunity in the courts, while the person who has lost her birthright of liberty has no effective recourse.

The whole force of the writ is spent upon the respondent, and if he fails to obey it, the means to be resorted to for the purposes of compulsion are fine and imprisonment. The place of confinement is therefore not important to the relief, if the guilty party is within reach of process, so that by the power of the court he can be compelled to release his grasp.

Compliance with writ. For the respondents to have fulfilled the court’s order, three optional courses were open:

(1) Produce the bodies of the persons according to the command of the writ.

(2) Show by affidavit that on account of sickness or infirmity those persons could not be safely brought before the court.

(3) Present affidavits to show that the parties in question or their attorney waived the right to be present.

Contempt of court. An officer’s failure to produce the body of a person in obedience to a writ of habeas corpus when he has the power to do so, is a contempt committed in the face of the court.

Velasco vs. CA (1995)

Nature of the writ of habeas corpus. This high-prerogative writ was devised and exists as a speedy and effective remedy to relieve persons from unlawful restraint and as the best and only sufficient defense of personal freedom. Its vital purposes are to: (1) obtain immediate relief from illegal confinement, (2) liberate those who may be imprisoned without sufficient cause, (3) deliver them from unlawful custody. It is a writ of inquiry, and is granted to test the right under which a person is detained.Scope of the writ. GR: The privilege of the writ cannot be suspended. EXC: In cases of invasion or rebellion when the public safety requires it (Art. III, §15). Under R102.1, it extends to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto. It is not available under the instances enumerated in R102.4.‘Some person’ (R102.3) - Any person who has a legally justified interest in the freedom of the person whose liberty is restrained or who shows some authorization to make the application.Propriety of writ when there is adequate remedy. While the writ will ordinarily not be granted when there is an adequate remedy by writ of error or appeal or by writ of certiorari, it may nevertheless be available in exceptional cases, for the writ should not be considered subservient to procedural limitations which glorify form over substance. Although the question considered in both habeas corpus and certiorari proceedings is whether an inferior court has exceeded its jurisdiction, the former involves a collateral attack on the judgment and reaches the body but not the record while the latter assails directly the


judgment and reaches the record but not the body.Point of time. What is to be inquired into is the legality of his detention as of, at the earliest, the filing of the application of the writ of habeas corpus, for even if the detention is at its inception is illegal, it may - by reason of some supervening events - be no longer illegal at the time of the filing of the application, such as:

(1) Issuance of judicial process preventing the discharge of the detained person.

(2) Filing of complaint or information for the offense for which the accused is detained. - The restraint of liberty is already by virtue of the complaint or information; the writ is no longer thus available. (R102.4 - Nor shall anything in this rule be held to authorize the discharge of a person charged with an offense in the Phils. * * *) *see Umil vs. Ramos

Effect of posting bail. The filing of a petition or motion for bail in cases where no bail is recommended has the same legal import and effect as the posting of bail in cases where bail is recommended. It is settled that the giving or posting of bail by the accused is tantamount to submission of his person to the jurisdiction of the court. (*This no longer holds true. See R114.26.)‘Judicial process.’ Here, the trial court’s order denying the urgent motion for bail was an unequivocal assertion of its authority to keep in custody the person of Larkins. This falls under the term order under R102.4 (If it appears that the person alleged to be restrained of his liberty is in the custody of an officer by virtue of an order of a court of record, and that the court or judge had jurisdiction to make the order, the writ shall not be allowed.) A commitment order and a warrant of arrest are but species of judicial process. (Context: The applicant for the writ here argued that these are the only recognized processes which justify deprivation of liberty).A writ, warrant, subpoena, or other formal writing issued by

authority of law; the means of accomplishing an end, including judicial proceedings, or all writs, warrants, summonses and orders of courts of justice or judicial officers; includes a writ, summons or order issued in a judicial proceeding to acquire jurisdiction of a person or his property, to expedite the cause or enforce the judgment, or a writ, warrant, mandate or other process issuing from a court of justice. (Malaloan vs. CA)

It is equivalent to or synonymous with proceedings or procedure and embraces all the steps and proceedings in a cause from its commencement to its conclusion; the means whereby a court compels a compliance with its demands. (Macondray vs. Bernabe)

Ilusorio vs. Bildner (2000)Nature, scope, object and purpose of the writ of habeas corpus. A writ of habeas corpus extends to all cases of illegal confinement or detention, or by which the rightful custody of a person is withheld from the one entitled thereto. It is directed to the person detaining another, commanding him to produce the body of the prisoner at a designated time and place, with the day and cause of his capture and detention, to do, submit to, and receive whatsoever the court or judge awarding the writ shall consider in that behalf. It is a high prerogative, common-law writ of ancient origin, the great object of which is the liberation of those who may be imprisoned without sufficient cause. The object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint, and to relieve a person therefrom if such restraint is illegal.It is available where:

(1) A person continues to be unlawfully denied of one or more of his constitutional freedoms.

(2) There is denial of due process.(3) The restraints are not merely involuntary but are

unnecessary.(4) A deprivation of freedom originally valid has later become

arbitrary.

To justify the grant of the petition, the restraint of liberty must be an illegal and involuntary deprivation of freedom of action. The illegal restraint of liberty must be actual and effective, not merely nominal or moral.Marital affairs. Marital rights including coverture and living in conjugal dwelling may not be enforced by the extraordinary writ of habeas corpus. No court is empowered as a judicial authority to compel a H to live with his W. This is a matter beyond judicial authority and is best left to the man and woman’s free choice. In case the H refuses to see his W for private reasons, he is at liberty to do so without threat of any penalty attached to the exercise of his right.

Tijing vs. CA (2001)Scope of the writ of habeas corpus. The writ extends to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto.Custody of minors. The writ is the proper legal remedy to enable parents to regain the custody of a minor child even if the latter be in the custody of a third person of his own free will. In custody cases involving minors, the question of illegal and involuntary restraint of liberty is not the underlying rationale for the availability of the writ as a remedy. Rather, it is prosecuted for the purpose of determining the right of custody over a child. In habeas corpus proceedings, the question of identity is relevant and material, subject to the usual presumptions including those as to identity of persons.

2. Jurisdiction, Rule

C87 ART 8 Section 5. The Supreme Court shall have the following powers: (1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.

BP 129Section 9. Jurisdiction. – The Court of Appeals shall Exercise:(1) Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus, and quo warranto, and auxiliary writs or processes, whether or not in aid of its appellate jurisdiction;Section 21. Original jurisdiction in other cases. – Regional Trial Courts shall exercise original jurisdiction:(1) In the issuance of writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction which may be enforced in any part of their respective regions;Section 35. Special jurisdiction in certain cases. – In the absence of all the Regional Trial Judges in a province or city, any Metropolitan Trial Judge, Municipal Trial Judge, Municipal Circuit Trial Judge may hear and decide petitions for a writ of habeas corpus or applications for bail in criminal cases in the province or city where the absent Regional Trial Judges sit.


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RA 8369Section 5. Jurisdiction of Family Courts. The Family Courts shall have exclusive original jurisdiction to hear and decide the following cases: (b) Petitions for guardianship, custody of children, habeas corpus in relation to the latter;

Section 2. Who may grant the writ. — The writ of habeas corpus may be granted by the Supreme Court, or any member thereof in the instances authorized by law, and if so granted it shall be enforceable anywhere in the Philippines, and may be made returnable before the court or any member thereof, or before a Court of First Instance, or any judge thereof for the hearing and decision on the merits. It may also be granted by a Court of First Instance, or a judge thereof, on any day and at any time, and returnable before himself, enforceable only within his judicial district.

Concurrent Juris—SC &CA: enforceable anywhere in PH:: TC or FC: w/in its region

Jurisdiction of FC—EOJ over pet. for custody of minors and issuance of WHC in relation to custody of minors but doesn’t mean CA or other regular courts have been deprive of juris bec pet may be filed w/ regular court: 1) in the absence of presiding judge of FC, provided regular court shall refer the case to FC as soon as its presiding judge returns to duty or 2) where there are no FCs (S20, Rule on Custody of Minors and WHC in Relation to Custody of Minors3)

Section 3. Requisites of application therefor. — Application for the writ shall be by petition signed and verified either by the party for whose relief it is intended, or by some person on his behalf, and shall set forth:(a) That the person in whose behalf the application is made is imprisoned or restrained on his liberty;(b) The officer or name of the person by whom he is so imprisoned or restrained; or, if both are unknown or uncertain, such officer or person may be described by an assumed appellation, and the person who is served with the writ shall be deemed the person intended;(c) The place where he is so imprisoned or restrained, if known;(d) A copy of the commitment or cause of detention of such person, if it can be procured without impairing the efficiency of the remedy; or, if the imprisonment or restraint is without any legal authority, such fact shall appear.[Note: this provision was not assigned in Ma’am’s syllabus]

3 SEC. 20. Petition for writ of habeas corpus. A verified petition for a writ of habeas corpus involving custody of minors shall be filed with the Family Court. The writ shall be enforceable within its judicial region to which the Family Court belongs.However, the petition may be filed with the regular court in the absence of the presiding judge of the Family Court, provided, however, that the regular court shall refer the case to the Family Court as soon as its presiding judge returns to duty.The petition may also be filed with the appropriate regular courts in places where there are no Family Courts.The writ issued by the Family Court or the regular court shall be enforceable in the judicial region where they belong.The petition may likewise be filed with the Supreme Court, Court of Appeals, or with any of its members and, if so granted, the writ shall be enforceable anywhere in the Philippines. The writ may be made returnable to a Family Court or to any regular court within the region where the petitioner resides or where the minor may be found for hearing and decision on the merits.Upon return of the writ, the court shall decide the issue on custody of minors. The appellate court, or the member thereof, issuing the writ shall be furnished a copy of the decision.

Common Law Spouse—has personality to institute action on behalf of common-law H; she falls under “some person”, which means any person who has a legally justified interest in the freedom of the person whose liberty is restrained or shows some authorization to make the application (Velasco v CA)

Authorized person—where application is made in the prisoner’s behalf by 3p and prisoner repudiates the action taken, writ will be denied.

Ilagan vs. Enrile (1985)

Function of habeas corpus; proper remedy against improper arrest. The function of the special proceeding of habeas corpus is to inquire into the legality of one’s detention. Here, when the incarceration is by virtue of a judicial order in relation to criminal cases subsequently filed against the detainees, the remedy of habeas corpus no longer lies. If the detainees question their detention because of improper arrest or lack of preliminary investigation, the remedy is a motion to quash. Habeas corpus would not lie after the warrant of commitment was issued by the Court on the basis of the Information filed against the accused.Propriety of preliminary investigation. GR: No Information for an offense cognizable by the RTC shall be filed without a preliminary investigation having been first conducted. EXC: Valid warrantless arrests. When the question of absence of a proper preliminary investigation is raised, the TC is called upon not to dismiss the information but hold the case in abeyance and conduct its own investigation or require the fiscal to hold a reinvestigation. This is the proper procedure since the absence of such investigation did not impair the validity of the Information or otherwise render it defective. The right to preliminary investigation, being waivable, does not argue against the validity of the proceedings, the most that could have been done being to remand the case so that the investigation could be conducted.

Umil vs. Ramos (1990)

When the writ will not issue. The rule is, that if a person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge, and that the court or judge had jurisdiction to issue the process or make the order, or if such person is charged before any court, the writ of habeas corpus will not be allowed. (see R104.2)Ilagan vs. Enrile doctrine. Reexamination, with a view to its abandonment, of the Ilagan doctrine (that a writ of habeas corpus is no longer available after an Information is filed against the person detained and a warrant of arrest or order of commitment is issued by court where said Information has been filed) is not the answer. The better practice would be to inquire into every phase and aspect of the petitioner’s detention - from the moment petitioner was taken into custody up to the moment the court passes upon the merits of the petition; and only after such a scrutiny can the court satisfy itself that the due process clause of our Const. has in fact been satisfied.

3. When Not Proper or Discharge Not Authorized

Section 4. When writ not allowed or discharge authorized. — If it appears that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed, the person shall


not be discharged by reason of any informality or defect in the process, judgment, or order. Nor shall anything in this rule be held to authorize the discharge of a person charged with or convicted of an offense in the Philippines, or of a person suffering imprisonment under lawful judgment.

Supervening Events may Bar Release—legality of detention as of the filing of application of WHC (1) Issuance of Process—Judicial process: writ, warrant, subpoena, or other formal writing issued by authority of law; includes judicial proceedings and orders of courts; Process: equivalent to proceedings or procedure and embraces all steps and proceedings in a cause from its commencement to its conclusion; or means whereby court compels compliance w/ its demands (eg. order denying accused’s MTD or grant of bail and granting prosec’s motion for issuance of hold departure order (Velasco v CA)) (2) Filing of Information—last sentence of R102.4.

Improper Arrest or Lack of PI Not Valid Ground—bec GR that HC shouldn’t be resorted to when there is another remedy available: quash warrant of arrest and/or Information or ask for PI, respectively; doesn’t affect court’s juris over the case nor impair the validity of Information or render it ineffective. EXC: other remedy is not as effective as HC

If judge believes PI was conduct hurriedly, it can hold case in abeyance and conduct its own investigation or require fiscal to hold reinvestigation, but not to dismiss the Information.

The fact that D has a good and sufficient defense to a criminal charge on which he is held will not entitle him to his discharge on HC.

Posting of Bail Not a Waiver—application for bail is not a bar to challenge validity of arrest and accused is not deemed to have admitted that he was under the custody of the court and voluntarily submitted to its juris (R114.26)

Person Discharged on Bail Not Entitled to Writ—not imprisoned or restrained of liberty

Section 14. When person lawfully imprisoned recommitted, and when let to bail. — If it appears that the prisoner was lawfully committed, and is plainly and specifically charged in the warrant of commitment with an offense punishable by death, he shall not be released, discharged, or bailed. If he is lawfully imprisoned or restrained on a charge of having committed an offense not so punishable, he may be recommitted to imprisonment or admitted to bail in the discretion of the court or judge. If he be admitted to bail, he shall forthwith file a bond in such sum as the court or judge deems reasonable, considering the circumstances of the prisoner and the nature of the offense charged, conditioned for his appearance before the court where the offense is properly cognizable to abide its order of judgment; and the court or judge shall certify the proceedings, together with the bond, forthwith to the proper court. If such bond is not so filed, the prisoner shall be recommitted to confinement.

Moncupa vs. Enrile (1986)Restrictions attached to temporary release. Here, the reservation of the military in the form of restrictions attached to the temporary release of the petitioner constitutes a restraint on the liberty of such petitioner. Such restrictions limit his freedom of movement. It is not physical restraint alone which is inquired into by the writ of habeas corpus. Ordinarily, a petition for habeas corpus becomes moot and academic when the restraint on the liberty of the petitioners is lifted either temporarily or permanently. However, a reservation by the State of the power to re-arrest a person for an offense after a court of competent jurisdiction has absolved him of the offense is repugnant to the government of laws and not of men principle. Under this

principle, the moment a person is acquitted on a criminal charge he can no longer be detained or re-arrested for the same offense. Thus, a release that renders a petition for a writ of habeas corpus moot and academic must be one which is free from involuntary restraints. Where…

(1) A person continues to be unlawfully denied one or more of his constitutional freedoms.

(2) There is present a denial of due process.(3) The restraints are not merely involuntary but appear to be

unnecessary.(4) A deprivation of freedom originally valid has, in light of

subsequent developments, become arbitrary.…the person concerned or those applying in his behalf may still avail themselves of the privilege of the writ.

Chavez vs. CA (1968)Nature of the writ of habeas corpus. Habeas corpus is a high prerogative writ. It is traditionally considered as an exceptional remedy to release a person whose liberty is illegally restrained such as when the accused’s rights (Here: Right against self-incrimination) are disregarded (see R102.1).Effect of violation of constitutional rights. Such defect results in the absence or loss of jurisdiction and therefore invalidates the trial and the consequent conviction of the accused whose fundamental right was violated. That void judgment of conviction may be challenged by collateral attack which precisely is the function of habeas corpus.Propriety of the writ. The writ may issue even if another remedy which is less effective may be availed of by the defendant. Thus, failure by the accused to perfect his appeal before the CA does not preclude a recourse to the writ. The writ may be granted upon a judgment already final. The writ, as an extraordinary remedy, must be liberally given effect so as to protect well a person whose liberty is at stake.*Accused as prosecution witness vs. ordinary witness: Whereas an ordinary witness may be compelled to take the witness stand and claim the privilege as each question requiring an incriminating answer is shot at him, an accused may altogether refuse to take the witness stand and refuse to answer any and all questions. For, in reality, the purpose of calling an accused as a witness for the People would be to incriminate him.

Gumabon vs. Director of Prisons (1971)

Nature of the writ of habeas corpus. The writ of habeas corpus is the most important human rights provision in the fundamental law; it is one of principal safeguards to personal liberty, erected by the civil law against arbitrary and illegal imprisonment by whomsoever detention may be exercised or ordered.Propriety of the writ. Once a deprivation of a constitutional right is shown to exist (Here: The right to equal protection of the law), the court that rendered the judgment is deemed ousted of jurisdiction and habeas corpus is the appropriate remedy to assail the legality of detention.Equal protection. Equal protection and security shall be given to every person under circumstances, which if not identical are analogous. What is required is the uniform operation of legal norms so that all persons under similar circumstances would be accorded the same treatment both in the privileges conferred and the liabilities imposed. Here, the continued incarceration after the 12y period when such is the maximum length of imprisonment in accordance with out controlling doctrine, when others similarly convicted have been freed, is fraught with implications at war with equal protection.Retroactivity. Where a sentence imposes a punishment in excess of the power of the court to impose, such sentence is void only as to the excess imposed in case the parts are separable, the rule being that the petitioner is not entitled to his discharge on a writ of habeas corpus unless he has had served out so much of the sentence as was valid. The only means of giving retroactive effect to a penal provision favorable to the accused is the writ of habeas corpus.


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Dizon vs. Eduardo (1988)GR: The release of a detained person renders the petition for habeas corpus moot and academic. This postulates that the release of detainees is an established fact and not in dispute, and that they do not continue to be missing persons or desaparecidos.EXC: Where there are grounds for grave doubts about the alleged release of the detainees, particularly where the standard and prescribed procedure in effecting the release has not been followed, then the burden of proving by clear and convincing evidence the alleged release is shifted to respondents. Release is an affirmative defense and each party must prove his own affirmative allegations. Moreover, evidence of release lies particularly within respondents’ power.*Investigation was referred to the CHR, which is mandated to investigate cases of unexplained or forced disappearances and other violations of human rights, past or present, committed by officers or agents of the national government or persons acting in their place or stead.

4. When Proper

Section 5. When the writ must be granted and issued. — A court or judge authorized to grant the writ must, when a petition therefor is presented and it appears that the writ ought to issue, grant the same forthwith, and immediately thereupon the clerk of the court shall issue the writ under the seal of the court; or in case of emergency, the judge may issue the writ under his own hand, and may depute any officer or person to serve it.

Requisites—inquire whether P is restrained of his liberty; if restraint obtains then inquire into cause of detention; if unlawful then writ should be granted and P discharged.

Even R could be held liable for conduct condemnable in law, HC is not the proper remedy absent detention and appropriate civil, criminal or admin action can be filed instead.

Release—GR: release, whether temporary or permanent, renders pet for HC moot and academic EXC: restraints attached to his release which precludes freedom of action

Section 15. When prisoner discharged if no appeal. — When the court or judge has examined into the cause of caption and restraint of the prisoner, and is satisfied that he is unlawfully imprisoned or restrained, he shall forthwith order his discharge from confinement, but such discharge shall not be effective until a copy of the order has been served on the officer or person detaining the prisoner. If the officer or person detaining the prisoner does not desire to appeal, the prisoner shall be forthwith released.

R41.34—in conformity w/ BP 129 S39, which provides that appeals in HC cases shall be 48h from notice of judgment appealed from while R102.15 provides that order for discharge of a prisoner shall be effective only if the office detaining the prisoner doesn’t appeal

Saulo v Brig Gen Cruz—period for appeal is not only a mandatory but also a jurisdictional requirement; Medina v Yan—

4 Section 3. Period of ordinary appeal. — The appeal shall be taken within fifteen (15) days from notice of the judgment or final order appealed from. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within thirty (30) days from notice of the judgment or final order. However, an appeal in habeas corpus shall be taken within forty-eight hours from notice of the judgment or final order appealed from.

The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No motion for extension of time to file a motion for new trial or reconsideration shall be allowed.

appeal in HC cases from TC decision shall be taken to CA: involves Q of fact:: SC: pure Q of law. Decision of judged to whom the writ is made is returnable either for release of detainee or for sustaining his detention. If not appealed on time, can be final just like an ordinary case.

Computation of 48h—date on w/c decision was promulgated and/or served is not counted and pd starts to run the ff day [exc Sunday or legal holiday, in which case pd of appeal is to be considered from the succeeding day]. To perfect an appeal, a notice of appeal is required to be filed w/ Clerk of Court or Judge who rendered the judgment.

5. Service and Return

Section 6. To whom writ directed, and what to require. — In case of imprisonment or restraint by an officer, the writ shall be directed to him, and shall command him to have the body of the person restrained of his liberty before the court or judge designated in the writ at the time and place therein specified. In case of imprisonment or restraint by a person not an officer, the writ shall be directed to an officer, and shall command him to take and have the body of the person restrained of his liberty before the court or judge designated in the writ at the time and place therein specified, and to summon the person by whom he is restrained then and there to appear before said court or judge to show the cause of the imprisonment or restraint.

Section 7. How prisoner designated and writ served. — The person to be produced should be designated in the writ by his name, if known, but if his name is not known he may be otherwise described or identified. The writ may be served in any province by the sheriff or other proper officer, or by a person deputed by the court or judge. Service of the writ shall be made by leaving the original with the person to whom it is directed and preserving a copy on which to make return or service. If that person cannot be found, or has not the prisoner in his custody, then the service shall be made on any other person having or exercising such custody.Section 8. How writ executed and returned. — The officer to whom the writ is directed shall convey the person so imprisoned or restrained, and named in the writ, before the judge allowing the writ, or in case of his absence or disability, before some other judge of the same court, on the day specified in the writ, unless, from sickness or infirmity of the person directed to be produced, such person cannot, without danger, be bought before the court or judge; and the officer shall make due return of the writ, together with the day and the cause of the caption and restraint of such person according to the command thereof.For S6-9Writ and Citation Distinguished—WHC: unconditionally commanding R to have body of detained person before the court at a time and place specified:: Citation: requiring R to appear and show cause why peremptory writ should not be granted; in cases where necessity for immediate issuance of writ is not manifest

Section 10. Contents of return. — When the person to be produced is imprisoned or restrained by an officer, the person who makes the return shall state therein, and in other cases the person in whose custody the prisoner is found shall state, in writing to the court or judge before whom the writ is returnable, plainly and unequivocably:(a) Whether he has or has not the party in his custody or power, or under restraint;(b) If he has the party in his custody or power, or under restraint, the authority and the true and whole cause thereof, set forth at large, with a copy of the writ, order execution, or other process, if any, upon which the party is held;(c) If the party is in his custody or power or is restrained by him, and is not produced, particularly the nature and gravity of the


sickness or infirmity of such party by reason of which he cannot, without danger, be bought before the court or judge;(d) If he has had the party in his custody or power, or under restraint, and has transferred such custody or restraint to another, particularly to whom, at what time, for what cause, and by what authority such transfer was made.

Section 13. When the return evidence, and when only a plea. — If it appears that the prisoner is in custody under a warrant of commitment in pursuance of law, the return shall be considered prima facie evidence of the cause of restraint, but if he is restrained of his liberty by any alleged private authority, the return shall be considered only as a plea of the facts therein set forth, and the party claiming the custody must prove such facts.For S10-13Failure to File Reply to Return—warrants dismissal of petition bec unless allegations in return are controverted, they are deemed to be true or admitted that the return shall be prima facie evidence of the cause of the restraint, if it appears that prisoner in custody under a warrant of commitment in pursuance of law.

Burden of Proving Release is on R—GR: release renders pet moot and academic EXC: where there are grounds for grave doubts about alleged release, where standard and prescribed procedure in affecting release has not been followed, burden of proving by clear and convincing evidence the release shifted to R. Release is an affirmative defense and each party must prove his own affirmative allegations; moreover, evidence of release lies particularly w/in R’s power.

6. Defect of Form; Liberal Construction and Interpretation

Section 9. Defect of form. — No writ of habeas corpus can be disobeyed for defect of form, if it sufficiently appears therefrom in whose custody or under whose restraint the party imprisoned or restrained is held and the court or judge before whom he is to be bought.

Section 12. Hearing on return. Adjournments. — When the writ is returned before one judge, at a time when the court is in session, he may forthwith adjourn the case into the court, there to be heard and determined. The court or judge before whom the writ is returned or adjourned must immediately proceed to hear and examine the return, and such other matters as are properly submitted for consideration, unless for good cause shown the hearing is adjourned, in which event the court or judge shall make such order for the safekeeping of the person imprisoned or restrained as the nature of the case requires. If the person imprisoned or restrained is not produced because of his alleged sickness or infirmity, the court or judge must be satisfied that it is so grave that such person cannot be produced without danger, before proceeding to hear and dispose of the matter. On the hearing the court or judge shall disregard matters of form and technicalities in respect to any warrant or order of commitment of a court or officer authorized to commit by law.

7. Penalty for Refusal to Issue or Comply with Writ

Section 16. Penalty for refusing to issue writ, or for disobeying the same. — A clerk of a court who refuses to issue the writ after allowance thereof and demand therefor, or a person to whom a writ is directed, who neglects or refuses to obey or make return of the same according to the command thereof, or makes false return thereof, or who, upon demand made by or on behalf of the prisoner, refuses to deliver to the person demanding, within six (6) hours after the demand therefor, a true copy of the warrant or order of commitment, shall forfeit to the party aggrieved the sum of one thousand pesos, to be recorded in a proper action, and may also be punished by the court or judge as for contempt.

8. Effect of Release

Section 17. Person discharged not to be again imprisoned. — A person who is set at liberty upon a writ of habeas corpus shall not be again imprisoned for the same offense unless by the lawful order or process of a court having jurisdiction of the cause or offense; and a person who knowingly, contrary to the provisions of this rule, recommits or imprisons, or causes to be committed or imprisoned, for the same offense, or pretended offense, any person so set at liberty, or knowingly aids or assists therein, shall forfeit to the party aggrieved the sum of one thousand pesos, to be recovered in a proper action, notwithstanding any colorable pretense or variation in the warrant of commitment, and may also be punished by the court or judge granting the writ as for contempt.

State Without Power to Reserve Re-Arrest—To rule otherwise would be repugnant to govt of laws and not of men principle (See Moncupa v Enrile, supra)

B. Amaparo1. Nature and Scope; Source of Origin

Nature—effective and inexpensive instrument for the protection of constitutional rights

Scope—“to protect”; started as protection against acts or omission of public authorities in violation of constitutional rights and later evolved for several purposes: (1) amparo libertad—for protection of personal freedom, equivalent to the habeas corpus (2) amparo contra leyes—for judicial review of the constitutionality of statutes (3) amapro casacion—for judicial review of the constitutionality and legality of a judicial decision (4) amparo administrativo—for judicial review of administrative actions; and (5) amparo agrario—for the protection of peasants’ rights derived from the agrarian reform process.

Source of origin—Mexico; constitutionally adopted by Latin American countries, exc Cuba, to protect against HR abuses esp during the time they were governed by military juntas and to protect a whole range of const. rights, including socio-economic rights

In PH context—C87 doesn’t explicitly provide for writ of amparo but several amparo protections are already available: (1) Grave Abuse Clause (A8 S1) accords same protection as amparo contra leyes, amparo casacion and amparo administrativo. (2) A8 S5 (2) review powers akin to amparo casacion [review, revise, reverse, modify or affirm on appeal or certiorari, as the law or ROC may provide, final judgments and orders of lower courts] ; A8 S5(2) par. a like amparo contra leyes [all cases in which the constitutionality or validity of any treaty, international or executive agreement, law, PD, proclamation, order, instruction, ordinance or regulation is in question]

Amparo libertad—comparable to HC recognized in C87 A3 S13 and 15, A7 S18 and A8 S5 par. 1

ROC—provides for procedure to protect const. rights (1) R65—Grave abuse clause (2) R102—HC (3) injunction, prohibition etc.—to enforce various socio-economic rights C87 enhanced protection of HR thru A8S5(5) by giving SC power to promulgate rules concerning the protection and enforcement of const. rights (rule-making power) that was exercised for the first time by Comm. on Revision of ROC, which decided that in our jurisdiction, amparo should be allowed to evolve through time and jurisprudence and through substantive laws as they may be promulgated by Congress.


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History. Originated in Mexico (amparo - Spanish for protection); Manuel Rejon drafted a constitutional provision for his native state (Yucatan) which granted judges the power to protect all persons in the enjoyment of their constitutional and legal rights.

Amparo combines the principles of judicial review derived from US with the limitations on judicial power characteristic of the civil law tradition which prevails in Mexico.

What began as a protection against acts or omissions of public authorities in violation of constitutional rights later evolved for several purposes:

(1) Amparo libertad (protection of personal freedom)(2) Amparo contra leyes (judicial review of constitutionality of

statutes)(3) Amparo casacion (judicial review of constitutionality and

legality of judicial decision)(4) Amparo administrative (judicial review of administrative

actions)(5) Amparo agrario (protection of peasant’s rights derived from

agrarian reform)

In the Phils.: Several of the above protections are guaranteed by our charter. (ex. Grave Abuse Clause)The remedies of injunction or prohibition (R65) or habeas corpus

(R102) may not be adequate to address the pestering problem of extralegal killings and enforced disappearances.

The writ of amparo provides rapid judicial relief as it partakes of a summary proceeding that requires only substantial evidence to make the appropriate reliefs (including interim and permanent reliefs) available to petitioner. It is not an axn 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.

The writ serves both preventive and curative roles. In the long run, the goal of both roles is to deter the further commission of extralegal killings and enforced disappearances.o Preventive: It breaks the expectation of impunity in the

commission of these offenses.o Curative: It facilitates the subsequent punishment of

perpetrators as it will inevitably yield leads to subsequent investigation and action.

Features of the Rule. Sec. 1 - COAs; Sec. 17-18 - Degree of proof (substantial evidence - such relevant evidence as a reasonable mind might accept as adequate to support a conclusion)

Secret nature of enforced disappearance. Because of its nature, much of the information and evidence of the ordeal will come from the victims themselves, and the veracity of their account will depend on their credibility and candidness in their written and/or oral statements.Their statements can be corroborated by other evidence such as

physical evidence left by the torture they suffered or landmarks they can identify in the places where they were detained. Where powerful military officers are implicated, the hesitation of witnesses to surface and testify against them comes as no surprise.

Right to security of person, permutations of the right. Art. III, §2not only limits the state’s power over a person’s home and possessions, but also protects the privacy and sanctity of the person himself. This right to security of person is a guarantee of the secure quality of life.

(1) Freedom from fear. Under the UDHR, freedom from fear is the highest aspiration of the common people. It is the

right to security of person as ‘security’ itself means freedom from fear.

Freedom from fear : right :: any threat to the rights to life, liberty or security : actionable wrong. Fear : a state of mind, a reaction :: threat : stimulus, a cause of action. In the amparo context, it is more correct to say that the right to security is actually the freedom from threat. Viewed in this light, ‘threatened with violation’ in Sec. 1 of the Rule is a form of violation of the right to security mentioned in the earlier part of the provision.(2) Guarantee of bodily and psychological integrity or

security. Physical injuries inflicted in the context of extralegal killings and enforced disappearances constitute more than a search or invasion of the body. As the degree of physical injury increases, the danger to life itself escalates. In criminal law, physical injuries constitute a crime against persons because they are an affront to the bodily integrity or security of a person.

Physical torture, force, and violence are a severe invasion of bodily integrity. When employed to vitiate the free will such as to force the victim to admit, reveal or fabricate incriminating information, it constitutes an invasion of both bodily and psychological integrity as the dignity of the human person includes the exercise of free will.

Under Art. III, §12, threat and intimidation that vitiate the free will - although not involving invasion of bodily integrity - nevertheless constitute a violation of the right to security in the sense of freedom from threat as afore-discussed.(3) Guarantee of protection of one’s rights by the

government. This is a corollary of the policy that the State guarantees full respect for human rights (Art. II, §11)

As the government is the chief guarantor of order and security, the constitutional guarantee of the rights to life, liberty and security of person is rendered ineffective if government does not afford protection to these rights especially when they are under threat.

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 right to security of person can exist independently of the right to liberty. Thus, there need not be a deprivation of liberty for the right to security of person to be invoked.

European Court of Human Rights (ECHR) has interpreted the right to security not only as prohibiting the State from arbitrarily depriving liberty, but imposing a positive duty on the State to afford protection of the right to liberty.

Production order under Amparo Rule. Amparo production order not a search warrant for law enforcement under Art. III, §2, but may be likened to production of documents or things under R27.1

Section 5. The Supreme Court shall have the following powers: (5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the under-privileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.


SECTION 1. Petition. – The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity.The writ shall cover extralegal killings and enforced disappearances or threats thereof.

Limited coverage—not all const. rights, only right to life, liberty and security (LLS) of persons bec other const. rights are already enforced thru diff remedies

Broader coverage—covers both actual and threatened violation of rights; and both public officials or EEs and private individuals or entities5

Extralegal killings—killings committed w/o DPL (w/o legal safeguards or J proceedings), include illegal taking of life regardless of motive, summary and arbitrary executions, salvagings even of suspected criminals and threats to take the life of persons who are openly critical of erring govt offiials and the like

Enforced disappearances—an arrest, detention or abduction of a person by a gov’t or organized grps or private individuals acting w/ direct or indirect acquiescence of the govt; 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 laws

Secretary of National Defense vs. Manalo (2008)Scope of the Amparo Rule.

(1) Extralegal killings: Killings committed without due process of law (without legal safeguards or judicial proceedings)

(2) Enforced disappearances: Attended by the following - (1) 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, (2) 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 the law.

2. Standing to FileSEC. 2. Who May File. – The petition may be filed by the aggrieved party or by any qualified person or entity in the following order:(a) Any member of the immediate family, namely: the spouse, children and parents of the aggrieved party;(b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph; or(c) Any concerned citizen, organization, association or institution, if there is no known member of the immediate family or relative of the aggrieved party.The filing of a petition by the aggrieved party suspends the right of all other authorized parties to file similar petitions. Likewise, the filing of the petition by an authorized party on behalf of the aggrieved party suspends the right of all others, observing the order established herein.

Order of Priority—1) aggrieved party 2) authorized party in cases where whereabouts of aggrieved party is unknown

Ratio—1) to prevent indiscriminate and groundless filing of pet. w/c may prejudice the right to LLS of the aggrieved party (eg.

5 Refer to artificial persons

filing when nearing the pt of successful negotiation) 2) qualified members of immediate family or relatives might be threatened from filing

3. Jurisdiction and VenueSEC. 3. Where to File. – The petition may be filed on any day and at any time with the Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred, or with the Sandiganbayan, the Court of Appeals, the Supreme Court, or any justice of such courts. The writ shall be enforceable anywhere in the Philippines.When issued by a Regional Trial Court or any judge thereof, the writ shall be returnable before such court or judge.When issued by the Sandiganbayan or the Court of Appeals or any of their justices, it may be returnable before such court or any justice thereof, or to any Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred.When issued by the Supreme Court or any of its justices, it may be returnable before such Court or any justice thereof, or before the Sandiganbayan or the Court of Appeals or any of their justices, or to any Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred.

Day—any day including Sat, Sun & holidays

Time—any time from morning til evening

Courts—includes SB for Rs include public officials and EEs; RTC where act or omission was committed or where any of its elements occurred: 1) to prevent filing in far-flung area to harass R 2) witnesses and evidence are located there

The word “jurisdiction” was not used for the Rule merely establishes a procedure to enforce the right to LSS of a person and the Court has power to promulgate procedural rules to govern proceedings in courts w/o disturbing their jurisdiction.

4. Essential Allegations

SEC. 5. Contents of Petition. – The petition shall be signed and verified and shall allege the following:(a) The personal circumstances of the petitioner;(b) The name and personal circumstances of the respondentresponsible for the threat, act or omission, or, if the name is unknown or uncertain, the respondent may be described by an assumed appellation;(c) The right to life, liberty and security of the aggrieved party violated or threatened with violation by an unlawful act or omission of the respondent, and how such threat or violation is committed with the attendant circumstances detailed in supporting affidavits;(d) The investigation conducted, if any, specifying the names, personal circumstances, and addresses of the investigating authority or individuals, as well as the manner and conduct of the investigation, together with any report;(e) The actions and recourses taken by the petitioner to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible for the threat, act or omission; and(f) The relief prayed for.The petition may include a general prayer for other just and equitable reliefs.

Contents of Petition—should be verified to enhance truthfulness of its allegations and to prevent groundless suitsPar (a) & (b): necessary to identify parties; R may be given assumed appellation (e.g. John Doe) as long as he is particularly describedPar (c): allege COA as complete a manner as possible; affidavit—can be used as direct testimony and can facilitate resolution of petitionPar (d): WON act or omission satisfies the standard of conduct set by the rule


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Par (e): to prevent premature use, or misues of the writ for fishing expedition.

SEC. 9. Return; Contents. – Within seventy-two (72) hours after service of the writ, the respondent shall file a verified written return together with supporting affidavits which shall, among other things, contain the following:a) The lawful defenses to show that the respondent did not violate or threaten with violation the right to life, liberty and security of the aggrieved party, through any act or omission;(b) The steps or actions taken by the respondent to determine the fate or whereabouts of the aggrieved party and the person or persons responsible for the threat, act or omission;(c) All relevant information in the possession of the respondent pertaining to the threat, act or omission against the aggrieved party; and(d)6 If the respondent is a public official or employee, the return shall further state the actions that have been or will still be taken:(i) to verify the identity of the aggrieved party;(ii) to recover and preserve evidence related tothe 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.The return shall also state other matters relevant to the investigation, its resolution and the prosecution of the case.A general denial of the allegations in the petition shall not be allowed.

Detailed Return—to help determine whether R fulfilled standard of conduct required by the Rule and to avoid ineffectiveness of WHC, where R often makes a simple denial in the return that he doesn’t have custody over the missing person

No General Denial—policy to require revelation of all evidence relevant to the resolution of the petition.

5. Procedure

SEC. 6. Issuance of the Writ. – Upon the filing of the petition, the court, justice or judge shall immediately order the issuance of the writ if on its face it ought to issue. The clerk of court shall issue the writ under the seal of the court; or in case of urgent necessity, the justice or the judge may issue the writ under his or her own hand, and may deputize any officer or person to serve it.The writ shall also set the date and time for summary hearing of the petition which shall not be later than seven (7) days from the date of its issuance.

Issuance—writ is issued as a matter of course when on the face of the petition it ought to issue. Writ 1) will set a date of hearing to expedite its resolution (amparo proceeding enjoy priority and cannot be unreasonably delayed) and 2) will require R to file his return, w/c is the comment/answer to the petition. If P is able to prove COA after hearing, privilege of writ of amparo shall be granted (i.e. grant appropriate reliefs)

6 Based on A3 UN Manual on the Effective Prevention and

Investigation of Extra-legal, Arbitrary and Summary Executions

SEC. 7. Penalty for Refusing to Issue or Serve the Writ. – A clerk of court who refuses to issue the writ after its allowance, or a deputized person who refuses to serve the same, shall be punished by the court, justice or judge for contempt without prejudice to other disciplinary actions.[Note: modified version of R102 on WHC]

SEC. 8. How the Writ is Served. – The writ shall be served upon the respondent by a judicial officer or by a person deputized by the court, justice or judge who shall retain a copy on which to make a return of service. In case the writ cannot be served personally on the respondent, the rules on substituted service shall apply.

Substituted service—if personal service cannot be made to avoid situation where R would be assigned on a secret mission to frustrate personal service.

SEC. 13. Summary Hearing. — The hearing on the petition shall be summary. However, the court, justice or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties.The hearing shall be from day to day until completed and given the same priority as petitions for habeas corpus.SEC. 18. Judgment. — The court shall render judgment within ten (10) days from the time the petition is submitted for decision. If the allegations in the petition are proven by substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the privilege shall be denied.SEC. 19. Appeal. – Any party may appeal from the final judgment or order to the Supreme Court under Rule 45. The appeal may raise questions of fact or law or both.The period of appeal shall be five (5) working days from the date of notice of the adverse judgment.The appeal shall be given the same priority as in habeas corpus cases.

Appeal—allows Qs of law and facts bec essentially involves determination of facts considering that its subj is extralegal killing or enforced disappearances, hence review of errors of fact should be allowed. Disposition of appeals shall be prioritized like HC cases.

6. Prohibited Pleadings

SEC. 11. Prohibited Pleadings and Motions. – The following pleadings and motions are prohibited:(a) Motion to dismiss;(b) Motion for extension of time to file return, opposition, affidavit, position paper and other pleadings;(c) Dilatory motion for postponement;(d) Motion for a bill of particulars;(e) Counterclaim or cross-claim;(f) Third-party complaint;(g) Reply;(h) Motion to declare respondent in default;(i) Intervention;(j)Memorandum;(k) Motion for reconsideration of interlocutory orders or interim relief orders; and(l) Petition for certiorari, mandamus or prohibition against any interlocutory order.

Prohibited pleadings—so proceedings shall be expedited since right to LLS of a person is at stake. This is similar to VAWC but unlike in VAWC, Rule allows filing of MNT and petitions for relief from judgment


No MTD—even on ground of lack of juris over subj matter and parties; grounds of MTD should be included in the return

7. Reliefs and Consequences

SEC. 4. No Docket Fees. – The petitioner shall be exempted from the payment of the docket and other lawful fees when filing the petition. The court, justice or judge shall docket the petition and act upon it immediately.

Liberalized docket fees—enforcement of these rights should not be frustrated by lack of finances.

SEC. 10. Defenses not Pleaded Deemed Waived. — All defenses shall be raised in the return, otherwise, they shall be deemed waived.Waiver—due to summary nature of proceedings and to prevent its delay

SEC. 12. Effect of Failure to File Return. — In case the respondent fails to file a return, the court, justice or judge shall proceed to hear the petition ex parte.

Ex Parte Hearing—proceedings should not be delayed by failure of R to file a return or else rights to LSS will be easily frustrated.

SEC. 14. Interim Reliefs. — Upon filing of the petition or at anytime before final judgment, the court, justice or judge may grant any of the following reliefs:(a) Temporary Protection Order. – The court, justice or judge, upon motion or motu proprio, may order that the petitioner or the aggrieved party and any member of the immediate family be protected in a government agency or by an accredited person or private institution capable of keeping and securing their safety. If the petitioner is an organization, association or institution referred to in Section 3(c) of this Rule, the protection may be extended to the officers involved.The Supreme Court shall accredit the persons and private institutions that shall extend temporary protection to the petitioner or the aggrieved party and any member of the immediate family, in accordance with guidelines which it shall issue.The accredited persons and private institutions shall comply with the rules and conditions that may be imposed by the court, justice or judge.(b) Inspection Order. — The court, justice or judge, upon verified motion and after due hearing, may order any person in possession or control of a designated land or other property, to permit entry for the purpose of inspecting, measuring, surveying, orphotographing the property or any relevant object or operation thereon.The motion shall state in detail the place or places to be inspected. It shall be supported by affidavits or testimonies of witnesses having personal knowledge of the enforced disappearance or whereabouts of the aggrieved party.If the motion is opposed on the ground of national security or of the privileged nature of the information, the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition.The movant must show that the inspection order is necessary to establish the right of the aggrieved party alleged to be threatened or violated.The inspection order shall specify the person or persons authorized to make the inspection and the date, time, place and manner of making the inspection and may prescribe other conditions to protect the constitutional rights of all parties. The order shall expire five (5) days after the date of its issuance, unless extended for justifiable reasons.(c) Production Order. – The court, justice or judge, upon verified

motion and after due hearing, may order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, orobjects in digitized or electronic form, which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant.The motion may be opposed on the ground of national security or of the privileged nature of the information, in which case the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition.The court, justice or judge shall prescribe other conditions to protect the constitutional rights of all the parties.(d) Witness Protection Order. – The court, justice or judge, upon motion or motu proprio, may refer the witnesses to the Department of Justice for admission to the Witness Protection, Security and Benefit Program, pursuant to Republic Act No. 6981.The court, justice or judge may also refer the witnesses to other government agencies, or to accredited persons or private institutions capable of keeping and securing their safety.

Interim Reliefs—distinct features of writ of amparo which can be given immediately after filing motu proprio or at any time before final judgment

TPO—bec lives and safety of petitioner or aggrieved party may be at higher risk once petition is filed; to be as broad and as effective as possible: includes not only govt agencies but also accredited persons and private institutions bec some aggrieved persons refuse to be protected by govt agencies, however, SC shall accredit to ensure their capability.

TPO and WPO are distinguishable from IO & PO: 1) no need for verification 2)may be issued motu proprio or ex parte, w/o need of hearing in view of urgent necessity

Inspection Order—subj of motion and shall be duly heard due to its sensitive nature; available to both P & R. To prevent misuse: 1) state in sufficient detail place/s to be inspected 2) under oath & have supporting affidavits 3) specify persons authorized to make inspection as well as date, time, place and manner of making it 4) other conditions as may be imposed to protect rights of parties 5) limited lifetime of 5d but can be extended under justifiable circ.

If court commits GAD, as when it will compromise national security, aggrieved party may file pet for cert w/ SC

Production Order— only granted upon motion & after hearing due to its sensitive nature available to both P & R; “objects in digitized or electronic form”: added to cover electronic evidence since documents may be stored in digital files

Witness Protection Order—upon motion or motu proprio; may be referred to: 1) DOJ (RA 6981); or if witness cannot be accomated by DOJ or witness refuses protection of DOJ, court may refer to another govt agency or accredited person/ private institution

SEC. 15. Availability of Interim Reliefs to Respondent. – Upon verified motion of the respondent and after due hearing, the court, justice or judge may issue an inspection order or production order under paragraphs (b) and (c) of the preceding section.A motion for inspection order under this section shall be supported by affidavits or testimonies of witnesses having personal knowledge of the defenses of the respondent.

SEC. 16. Contempt. – The court, justice or judge may order the respondent who refuses to make a return, or who makes a false return, or any person who otherwise disobeys or resists a lawful


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process or order of the court to be punished for contempt. The contemnor may be imprisoned or imposed a fine.

Power to cite for contempt—inherent power of court to compel obedience of its orders and to preserve the integrity of the judiciary

SEC. 20. Archiving and Revival of Cases. – The court shall not dismiss the petition, but shall archive it, if upon its determination it cannot proceed for a valid cause such as the failure of petitioner or witnesses to appear due to threats on their lives.A periodic review of the archived cases shall be made by the amparo court that shall, motu proprio or upon motion by any party, order their revival when ready for further proceedings. The petition shall be dismissed with prejudice upon failure to prosecute the case after the lapse of two (2) years from notice to the petitioner of the order archiving the case.The clerks of court shall submit to the Office of the Court Administrator a consolidated list of archived cases under this Rule not later than the first week of January of every year.

Liberalized Rule on Dismissal—Parties will be notified before a case is archived as the order has to be justified by a good reason to be determined after hearing. [Note: 2y prescriptive pd is reckoned from date of notice to P of order of archiving] 2y is deemed reasonable time for aggrieved party to prosecute the petition. Archiving can be ordered only during pendency of the case.

Burgos vs. Macapagal-Arroyo (2011)Contempt. Sec 16 of the Amparo Rule provides that any person who otherwise disobeys or resists a lawful process or order of the court may be punished for contempt. Contempt of court involves the doing of an act or failure to do an act, in such a manner as to create an affront to the court and the sovereign dignity with which it is clothed; it is the disobedience to the court by acting in opposition to its authority, justice and dignity.Whether direct or indirect, may be:o Criminal (to punish): Conduct directed against the authority

and dignity of the court or a judge acting judicially; an act obstructing the administration of justice which tends to bring the court into disrepute or disrespect.

o Civil (to compensate): Failure to do something ordered to be done by a court or judge for the benefit of the opposing party; an offense against the party in whose behalf the violated order was made.

Criminal contempt is sui generis (elements of a criminal and civil proceeding without completely falling under either)

o It is also not presumed. The defendant is presumed innocent and the burden is on the prosecution to prove the charges beyond reasonable doubt.

Razon Jr. vs. Tagitis (2009)Nature and scope of the writ of amparo. It is a protective remedy against violations or threats of violation against the rights to life, liberty and security. It embodies the court’s directive to police agencies to undertake specified courses of action to address the disappearance of an individual. It does not determine guilt nor pinpoint criminal culpability for the disappearance; rather, it determines responsibility, or at least accountability, for the enforced disappearance for purposes of imposing the appropriate remedies to address the disappearance.Responsibility: Extent the actors have been established by

substantial evidence to have participated in whatever way, by action or omission, in an enforced disappearance, as a measure of the remedies this Court shall craft, among them, the directive to file the appropriate criminal and civil cases against the responsible parties in the proper courts.

Accountability: Measure of remedies that should be addressed to

those who exhibited involvement in the enforced disappearance without bringing the level of their complicity to the level of responsibility defined above; or who are imputed with knowledge relating to the enforced disappearance and who carry the burden of disclosure; or those who carry, but have failed to discharge, the burden of extraordinary diligence in the investigation of the enforced disappearance.

Sufficiency in form and substance. A petition for the writ shall be signed and verified and allege certain matters (see Sec. 5). The framers of the Rule never intended Sec. 5(c) to be complete in every detail in stating the threatened or actual violation of a victim’s rights. As in any other initiatory pleading, the pleader must state the ultimate facts constituting the COA, omitting the evidentiary details.This requirement must be read in light of the nature and purpose of

an amparo proceeding, which addresses a situation of uncertainty. To require the level of specificity, detail and precision that petitioners here want to read into the Rule is to make the Rule a token gesture of judicial concern for violations of the constitutional rights of life, liberty and security.

Test: Whether the petition contains the details available to the petitioner under the circumstances, while presenting a COA showing a violation of the victim’s rights to life, liberty and security thru State or private party action.o The pet. should also be read in its totality, rather than in

terms of isolated component parts, to determine if the required elements (disappearance, State or private party action, actual or threatened violations of the rights to life, liberty or security) are present.

Sec. 5(d) seeks to establish at the earliest opportunity the level of diligence the public authorities undertook in relation with the reported disappearance.

Sec. 5(e) is in the Rule to prevent the use of a petition that otherwise is not supported by sufficient allegations to constitute a proper COA as a means to fish for evidence.

Substantial compliance. GR: Owing to the summary nature of the proceedings and to facilitate the resolution of the petition, the Rule incorporated the requirement for supporting affidavits, with the annotation that these can be used as the affiant’s direct testimony. EXC: If there was substantial compliance with the requirement by submitting a verified petition sufficiently detailing the facts relied upon, the strict need for the sworn statement that an affidavit represents is essentially fulfilled.

The desaparecidos. The disappeared ones; the three kinds of disappearance cases are:

(1) Those of people arrested w/o witnesses or w/o positive identification of the arresting agents and are never found again.

(2) Those of prisoners arrested w/o an appropriate warrant and held in complete isolation for weeks or months while their families are unable to discover their whereabouts and the military authorities deny having them in custody until they eventually reappear in one detention center or another.

(3) Those of victims of salvaging who have disappeared until their lifeless bodies are later discovered.

Enforced disappearances under Phil. law. As the law now stands, extrajudicial killings and enforced disappearances are not crimes penalized separately from the component criminal acts undertaken to carry out these killings and enforced disappearances and are now penalized under the RPC and special laws. Even without the benefit of directly applicable substantive laws, the Court is not powerless to act under its own constitutional mandate to promulgate rules concerning the protection and enforcement of constitutional rights, since extrajudicial killings and enforced disappearances, by their very nature and purpose, constitute State or private party violation of the constitutional rights of individuals to life, liberty and property.


(*no longer holds true - the Anti-Enforced or Involuntary Disappearance Act of 2012 was already signed into law)

The Court does not rule on any issue of criminal culpability. Its intervention is in determining whether an enforced disappearance has taken place and who is responsible for or accountable for this disappearance, and to define and impose the appropriate remedies to address it. The burden for the public authorities to discharge in these situations is two-fold: (1) ensure that all efforts at disclosure and investigation are undertaken under pain of indirect contempt when governmental efforts are less than what the individual situations require, (2) address the disappearance, so that the life of the victim is preserved and his or her liberty and security restored.

Enforced disappearance under international law. It is considered a flagrant violation of human rights: (1) right to life, liberty and security of the desaparecido, (2) right to information of his family regarding the circumstances of the disappeared.

UN Convention for Protection of All Persons from Enforced Disappearances: Enforced disappearance is considered to be (1) the arrest, detention, abduction or any other form of deprivation of liberty (2) by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, (3) followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, (4) which place such a person outside the protection of law.

Salient features:Non-derogable right not to be subject to enforced disappearance.Obligation of state-parties to codify enforced disappearance as a

penal offense.Recognition of right of relatives and the society to know the truth on

the fate and whereabouts of the disappeared and the progress of the investigation.

Classification of enforced disappearance as a continuing offense (statute of limitations shall not apply until the fate and whereabouts of the victim are established).

Binding effect of UN Action on the Phils. The Phils. has neither signed nor ratified the Convention. However, the Phils. is a member of the UN, bound by its Charter and the various conventions it signed and ratified. It is the UN itself that issued the Declaration on enforced disappearance (it is an offense to dignity; denial of the purpose of the Charter and a grave and flagrant violation of human rights and fundamental freedoms under the UDHR). Enforced disappearance as a State practice has been repudiated by the international community, so that the ban on it is now a GAPIL, which we should consider a part of the law of the land, and which we should act upon to the extent already allowed under our laws and the international conventions that bind us.

Evidentiary difficulties. These difficulties arise because the State itself - the party whose involvement is alleged - investigates enforced disappearances. These evidentiary difficulties compel the Court to adopt standards appropriate and responsive to the circumstances without transgressing the due process requirements that underlie every proceeding. Past experiences in other jurisdictions show that evidentiary difficulties are three-fold:(1) Deliberate concealment of identities of direct perpetrators.

Abductors are well-organized, armed, and usually members of the police or military forces.

These specialized, highly-secret bodies within the armed or security forces are generally directed through a separate, clandestine chain of command, but they have the necessary credentials to avoid or prevent any interference by the ‘legal’ police forces.

There are usually no witnesses. If there are, they are usually afraid to speak out or to testify out of fear for their own lives.

(2) Deliberate concealment of pertinent evidence of the disappearance. The central piece of evidence (corpus delicti

or the victim’s body) is usually concealed to effectively thwart the start of any investigation or progress of one that may have begun.

State has virtual monopoly of access to pertinent evidence. Inherent to the practice of enforced disappearance is the deliberate use of the State’s power to destroy the pertinent evidence.

(3) Element of denial. Deniability is central to the policy of enforced disappearances, as the absence of any proven disappearance makes it easier to escape the application of legal standards ensuring the victim’s human rights.

Government officials typically respond to requests for information about desaparecidos by saying that they are not aware of any disappearance, that the missing people may have fled the country, or that their names have merely been invented.

Evidence and burden of proof in enforced disappearance cases . (*See Secs. 13, 17, 18) These characteristics [being summary, use of substantial evidence (such relevant evidence as a reasonable mind might accept as adequate to support a conclusion) - vs. preponderance of evidence or proof beyond reasonable doubt] reveal the clear intent of the framers to have the equivalent of an administrative proceeding albeit judicially conducted, in addressing amparo situations. The standard of diligence required (duty of public officials and employees to observe extraordinary diligence) point to the extraordinary measures expected in the protection of constitutional rights and in the consequent handling and investigation of extrajudicial killings and enforced disappearance cases. Once a rebuttable case has been proven, the respondents must then respond and prove their defenses based on the standard of diligence required. The rebuttable case must show that an enforced disappearance took place under circumstances showing a violation of the victim’s constitutional rights to life, liberty or security, and the failure on the part of investigating authorities to appropriately respond. Enforced disappearances could be proven only through circumstantial or indirect evidence or by logical inference; otherwise it was impossible to prove that an individual has been made to disappear. Circumstantial evidence may be considered so long as they lead to conclusions consistent with the facts. Such evidence is esp. impt. in allegations of disappearances bec. this type of repression is characterized by an attempt to suppress all information about the kidnapping or the whereabouts and fate of the victim. (Velasquez Rodriguez case)Flexibility is necessary under the unique circumstances that

enforced disappearance cases pose to the courts; the standard of evidence must be responsive to such evidentiary difficulties. Thus, while we must follow the substantial evidence rule, we must observe flexibility in considering the evidence we shall take into account.

Rule: Most basic test of reason - i.e. to the relevance of the evidence to the issue at hand and its consistency with all other pieces of adduced evidence (consider all pieces of evidence adduced in their totality; consider any evidence otherwise inadmissible under our usual rules to be admissible if consistent with the admissible evidence adduced.). Thus, even hearsay evidence can be admitted if it satisfies this basic minimum test.

Yano vs. Sanchez (2010)Standard of proof in amparo cases. Secs. 17-18 of the Rule lay down the requisite standard of proof necessary to prove either party’s claim.Substantial evidence speaks of the clear intent of the Rule to have

the equivalent of an administrative proceeding, albeit judicially conducted, in resolving amparo petitions.

The requirement for a govt official or employee to observe extraordinary diligence in the performance of duty stresses the extraordinary measures expected to be taken in safeguarding every citizen’s constitutional rights as well as in the investigation of cases of extrajudicial killings and enforced disappearances.o Failure to establish that the public official observed


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extraordinary diligence does not result in the automatic grant of the privilege of the amparo writ. It does not relieve the petitioner from establishing his or her claim by substantial evidence, but the omission or inaction on the part of the public official provides some basis for the petitioner to move and for the court to grant certain interim or provisional reliefs (see Sec. 14).

o These reliefs are intended to assist the court before it arrives at a judicious determination of the amparo petition.

Rubrico vs. Macapagal-Arroyo (2010)Nature and scope of the writ of amparo. The privilege of the writ of amparo is envisioned basically to protect and guarantee the rights to life, liberty, and security of persons, free from fears and threats that vitiate the quality of this life. It is an extraordinary writ conceptualized and adopted in light of and in response to the prevalence of extra-legal killings and enforced disappearances. Accordingly, the remedy ought to be resorted to and granted judiciously, lest the ideal sought by the Rule be diluted and undermined by the indiscriminate filing of amparo petitions for purposes less than the desire to secure amparo reliefs and protection and/or on the basis of unsubstantiated allegations.Command responsibility has little bearing in amparo proceedings. The evolution of the command responsibility doctrine finds its context in the development of laws of war and armed combats.Command responsibility: Responsibility of commanders for crimes committed by subordinate members of the armed forces or other persons subject to their control in international wars or domestic conflict. It is an omission mode of individual criminal liability, whereby the superior is made responsible for crimes committed by his subordinates for failing to prevent or punish the perpetrators (as opposed to crimes he ordered). There is still no law providing for criminal liability under this doctrine.While it is plausible that command responsibility may be made applicable to this jurisdiction on the theory that this doctrine now constitutes a GAPIL, it would be inappropriate to apply the doctrine as a form of criminal complicity through omission, for individual respondent’s criminal liability (if any) is beyond the reach of amparo. The Court does not rule in such proceedings on any issue of criminal culpability, even if incidentally a crime or an infraction of an administrative rule may have been committed. At most, command responsibility may be applied to determine the author who, at the first instance, is accountable for and has the duty to address the disappearance and harassments complained of, so as to enable the Court to devise appropriate remedial procedures.Substantial evidence. It is more than a mere imputation of wrongdoing or violation that would warrant a finding of liability against the person charged; it is more than a scintilla of evidence. It is such amount of relevant evidence which a reasonable mind might accept as adequate to support a conclusion, even if other equally reasonable minds might opine otherwise.The duty to investigate. Reluctance on the part of the petitioners or their witnesses to cooperate ought not to pose a hindrance to the police in pursuing, on its own initiative, the investigation in question to its natural end. The right to security of persons is a guarantee of the protection of one’s right by the government (see Sec. of Defense vs. Manalo). Such duty must be undertaken in a serious manner and not as a mere formality preordained to be ineffective. An investigation must have an objective and be assumed by the State as its own legal duty, not a step taken by private interests that depends upon the initiative of the victim or his family or upon offer of proof, without an effective search for the truth by the government.Criminal proceeding and petition for writ of amparo. Sec. 22 proscribes the filing of an amparo petition should a criminal action have, in the meanwhile, been commenced. Sec. 23 provides that when the criminal suit is filed subsequent to a petition for amparo, the petition shall be consolidated with the criminal action where the Amparo Rule shall nonetheless govern the disposition of the relief under the Rule. As things stand, the outright dismissal of this petition by force of that section is no longer technically feasible in light of the following

factual mix: (1) the Court has already issued ex parte the writ of amparo (see Sec. 6), (2) the CA, after a summary hearing, has dismissed the petition, but not on the basis of Sec. 22, (3) the complaint named as respondents only those believed to be the actual abductors of Lourdes, while this petition impleaded, in addition, those tasked to investigate the kidnapping and detention incidents and their superiors. Yet, the acts and/or omissions subject of the criminal complaint and the amparo petition are so linked as to call for the consolidation of both proceedings to obviate the mischief inherent in a multiplicity-of-suits situation. Here, by adjusting the application of Secs. 22-23, the Court ordered (1) the consolidation of the probe and fact-finding aspects of the instant petition with the investigation of the criminal complaint before the OMB; and (2) the incorporation in the same criminal complaint of the allegations in this petition bearing on the threats to the right to security.

Roxas v Macapagal-Arroyo1. The doctrine of command responsibility is a rule of substantive law that establishes liability and, by this account, cannot be a proper legal basis to implead a party-respondent in an amparo petition. Since the application of command responsibility presupposes an imputation of individual liability, it is more aptly invoked in a full-blown criminal or administrative case rather than in a summary amparo proceeding. The obvious reason lies in the nature of the writ itself: The writ of amparo is a protective remedy aimed at providing judicial relief consisting of the appropriate remedial measures and directives that may be crafted by the court, in order to address specific violations and threats of violation of the constitutional rights to life, liberty, or security. While the principal objective of its proceedings is the initial determination of whether an enforced disappearance, extralegal killing or threats thereof had transpired—the writ does not, by so doing, fix liability for such disappearance, killing or threats, whether that may be criminal, civil or administrative under the applicable substantive law.HOWEVER, the inapplicability of the doctrine of command responsibility in an amparo proceeding does not, by any measure, preclude impleading military or police commanders on the ground that the complained acts in the petition were committed with their direct or indirect acquiescence. In which case, commanders may be impleaded—not actually on the basis of command responsibility—but rather on the ground of their responsibility, or at least accountability. (Difference bet. Responsibility and accountability, refer to Razon v Tagitis)2. Prayer for return of personal belongings denied—already subsumed under the general rubric of property rights—which are no longer protected by the writ of amparo. Sec. 1 of the Amparo Rule, which defines the scope and extent of the writ, clearly excludes the protection of property rights

8. Burden of Proof

SEC. 17. Burden of Proof and Standard of Diligence Required. – The parties shall establish their claims by substantial evidence.The respondent who is a private individual or entity must prove that ordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty.The respondent who is a public official or employee must prove that extraordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty.The respondent public official or employee cannot invoke the presumption that official duty has been regularly performed to evade responsibility or liability.Diligence Standard—Public officials: higher standard bec of their legal duty to obey Const., esp. provision protecting right to LLS. Denial of presumption of regularity is in accord w/ jurisprudence on custodial inv. and SW cases.

Boac v Cadapan and Empeño


The court took judicial notice of its decision in Sec. of National Defense v Manalo which assessed the account of Manalo to be candid and forthright narrative of his and his brother Reynaldo’s abduction by the military in 2006; and of the corroborative testimonies, in the same case, of Manalo’s brother Reynaldo and a forensic specialist, as well as Manalo’s graphic description of the detention area.Standing of the parents of Sherlyn and Karen to file petition on behalf of Merino:Indeed, the parents of Sherlyn and Karen failed to allege that there were no known members of the immediate family or relatives of Merino. The exclusive and successive order mandated by Sec. 2 of the Amparo Rule must be followed. The order of priority is not without reason--to prevent the indiscriminate filing of groundless petitions for amparo which may even prejudice the right to life, liberty, or security of the aggrieved party.The court notes that the parents also filed the petition for HC on Merino’s behalf. No objection was raised therein for, in a HC proceeding, any person may apply for the writ on behalf of the aggrieved party.

9. Effects of Separate Actions

SEC. 21. Institution of Separate Actions. — This Rule shall not preclude the filing of separate criminal, civil or administrative actions.Prerogative writ—not criminal (doesn’t determine guilt however may refer case to DOJ for criminal prosecution), civil (to allow claims for damages would cause delay, considering the possibility of counterclaims and cross-claims), or admin suit so doesn’t suspend filing of criminal, civil or admin actions

SEC. 22. Effect of Filing of a Criminal Action. – When a criminal action has been commenced, no separate petition for the writ shall be filed. The reliefs under the writ shall be available by motion in the criminal case.The procedure under this Rule shall govern the disposition of the reliefs available under the writ of amparo.

Ratio—To avoid situation where 2 courts trying the same subject may issue conflicting orders

However, amparo reliefs are made available to aggrieve party thru motion in court where criminal case is pending. Disposition of such reliefs are to be governed by this Rule.

SEC. 23. Consolidation. – When a criminal action is filed subsequent to the filing of a petition for the writ, the latter shall be consolidated with the criminal action.When a criminal action and a separate civil action are filed subsequent to a petition for a writ of amparo, the latter shall be consolidated with the criminal action.After consolidation, the procedure under this Rule shall continue to apply to the disposition of the reliefs in the petition.[Note: this Rule shall continue to govern the disposition of the reliefs for amparo after consolidation]

10. Suppletory and Retroactive ApplicationSEC. 24. Substantive Rights. — This Rule shall not diminish, increase or modify substantive rights recognized and protected by the Constitution.

C87 A8 S5(5); procedural rules: judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for disregard or infraction of them; means of implementing an existing right. If rule takes away a vested right or creates a right then it may be classified as substantive.

SEC. 25. Suppletory Application of the Rules of Court. – The Rules of Court shall apply suppletorily insofar as it is not inconsistent with this Rule.Suppletory Application of ROC—This new Rule prevails and will not be affected by prior inconsistent rules, resolutions or circulars of SC

SEC. 26. Applicability to Pending Cases. – This Rule shall govern cases involving extralegal killings and enforced disappearances or threats thereof pending in the trial and appellate courts.Due to remedial nature of the writ; Effectivity—24 Oct 2007 ff its publication in 3 newspapers of gen. circ.=coincides w/ UN Day to manifest a strong affirmation of our commitment towards the internationalization of HR.

C. Habeas Data1. Nature and Scope; Source and Origin

C87 A8 S5. The Supreme Court shall have the ff powers: (5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the under-privileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.

SECTION 1. Habeas Data.—The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party.

Castillo v CruzThe coverage of the writ is limited to the protection of rights to life, liberty, and security. And the writs cover not only actual but also threats of unlawful acts or omissions. To thus be covered by the privilege of the writs, respondents must meet the threshold requirement that their right to life, liberty, and security is violated or threatened with an unlawful act or omission.The controversy arose out of a property dispute between the Provincial Government and respondents. Absent any considerable nexus between the acts complained of and its effect on respondent’s right to life, liberty, and security, the Court will not delve on the propriety of petitioner’s entry into the property.Petitions for writs of amparo and habeas data are extraordinary remedies which cannot be used as tools to stall the execution of a final and executor decision in a property dispute.

Roxas v Macapagal-Arroyo (supra)The writ of habeas data was conceptualized as a judicial remedy enforcing the right to privacy, most especially the right to informational privacy of individuals. The writ operates to protect a person’s right to control information regarding himself, particularly in the instances where such information is being collected through unlawful means in order to achieve unlawful ends.An indispensable requirement before the privilege of the writ may be extended is the showing, at least by substantial evidence, of an actual or threatened violation of the right to privacy in life, liberty, or security of the victim.


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Meralco v LimThe habeas data rule, in general, is designed to protect by means of judicial complaint the image, privacy, honor, information, and freedom of information of an individual. It is meant to provide a forum to enforce one’s right to the truth and to informational privacy, thus safeguarding the constitutional guarantees of a person’s right to life, liberty, and security against abuse in this age of information technology.Life the writ of amparo, habeas data was conceived as a response, given the lack of effective and available remedies, to address the extraordinary rise in the number of killings and enforced disappearance. Its intent is to address violations of or threats to the rights to life, liberty, or security as a remedy independently from those provided under the prevailing rules.

2. Standing to FileSEC. 2. Who May File.—Any aggrieved party may file a petition for the writ of habeas data. However, in cases of extralegal killings and enforced disappearances, the petition may be filed by:(a) Any member of the immediate family of the aggrieved party, namely: the spouse, children and parents; or(b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph.

3. Jurisdiction and VenueSEC. 3. Where to File.—The petition may be filed with the Regional Trial Court where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected or stored, at the option of the petitioner.The petition may also be filed with the Supreme Court or the Court of Appeals or the Sandiganbayan when the action concerns public data files of government offices.

SEC. 4. Where Returnable; Enforceable.—When the writ is issued by a Regional Trial Court or any judge thereof, it shall be returnable before such court or judge.When issued by the Court of Appeals or the Sandiganbayan or any of its justices, it may be returnable before such court or any justice thereof, or to any Regional Trial Court of the place where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected or stored.When issued by the Supreme Court or any of its justices, it may be returnable before such Court or any justice thereof, or before the Court of Appeals or the Sandiganbayan or any of its justices, or to any Regional Trial Court of the place where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected or stored.The writ of habeas data shall be enforceable anywhere in the Philippines.

4. Essential AllegationsSEC. 6. Petition.—A verified written petition for a writ of habeas data should contain:(a) The personal circumstances of the petitioner and the respondent;(b) The manner the right to privacy is violated or threatened and how it affects the right to life, liberty or security of the aggrieved party;(c) The actions and recourses taken by the petitioner to secure the data or information;(d) The location of the files, registers or databases, the government office, and the person in charge, in possession or in control of the data or information, if known;

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

SEC. 10. Return; Contents.—The respondent shall file a verified written return together with supporting affidavits within five (5) work days from service of the writ, which period may be reasonably extended by the Court for justifiable reasons. The return shall, among other things, contain the following:(a) The lawful defenses such as national security, state secrets, privileged communication, confidentiality of the source of information of media and others;(b) In case of 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 the petitioner, the nature of such data or information, and the purpose for its collection;(ii) the steps or actions taken by the respondent to ensure the security and confidentiality of the data or information; and(iii) the currency and accuracy of the data or information held; and(c) Other allegations relevant to the resolution of the proceeding.A general denial of the allegations in the petition shall not be allowed.

5. ProcedureSEC. 7. Issuance of the Writ.—Upon the filing of the petition, the court, justice or judge shall immediately order the issuance of the writ if on its face it ought to issue. The clerk of court shall issue the writ under the seal of the court and cause it to be served within three (3) days from its issuance; or, in case of urgent necessity, the justice or judge may issue the writ under his or her own hand, and may deputize any officer or person to serve it.The writ shall also set the date and time for summary hearing of the petition which shall not be later than ten (10) work days from the date of its issuance.SEC. 8. Penalty for Refusing to Issue or Serve the Writ.—A clerk of court who refuses to issue the writ after its allowance, or a deputized person who refuses to serve the same, shall be punished by the court, justice or judge for contempt without prejudice to other disciplinary actions.SEC. 12. When Defenses May Be Heard in Chambers.—A hearing in chambers may be conducted where the respondent invokes the defense that the release of the data or information in question shall compromise national security or state secrets, or when the data or information cannot be divulged to the public due to its nature or privileged character.SEC. 15. Summary Hearing.—The hearing on the petition shall be summary. However, the court, justice or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties.SEC. 16. Judgment.—The court shall render judgment within ten (10) days from the time the petition is submitted for decision. If the allegations in the petition are proven by substantial evidence, the court shall enjoin the act complained of, or order the deletion, destruction, or rectification of the erroneous data or information and grant other relevant reliefs as may be just and equitable; otherwise, the privilege of the writ shall be denied.Upon its finality, the judgment shall be enforced by the sheriff or


any lawful officer as may be designated by the court, justice or judge within five (5) work days.SEC. 17. Return of Service.—The officer who executed the final judgment shall, within three (3) days from its enforcement, make a verified return to the court. The return shall contain a full statement of the proceedings under the writ and a complete inventory of the database or information, or documents and articles inspected, updated, rectified, or deleted, with copies served on the petitioner and the respondent.The officer shall state in the return how the judgment was enforced and complied with by the respondent, as well as all objections of the parties regarding the manner and regularity of the service of the writ.SEC. 18. Hearing on Officer’s Return.—The court shall set the return for hearingwith due notice to the parties and act accordingly.SEC. 19. Appeal.—Any party may appeal from the judgment or final order to the Supreme Court under Rule 45. The appeal may raise questions of fact or law or both.The period of appeal shall be five (5) work days from the date of notice of the judgment or final order.The appeal shall be given the same priority as habeas corpus and amparo cases

6. Prohibited Pleadings SEC. 13. Prohibited Pleadings and Motions.—The following pleadings and motions are prohibited:(a) Motion to dismiss;(b) Motion for extension of time to file opposition, affidavit, position paper and other pleadings;(c) Dilatory motion for postponement;(d) Motion for a bill of particulars;(e) Counterclaim or cross-claim;(f) Third-party complaint;(g) Reply;(h) Motion to declare respondent in default;(i) Intervention;(j) Memorandum;(k) Motion for reconsideration of interlocutory orders or interim relief orders; and(l) Petition for certiorari, mandamus or prohibition against any interlocutory order.

7. Reliefs and ConsequencesSEC. 5. Docket Fees.—No docket and other lawful fees shall be required from an indigent petitioner. The petition of the indigent shall be docketed and acted upon immediately, without prejudice to subsequent submission of proof of indigency not later than fifteen (15) days from the filing of the petition.SEC. 11. Contempt.—The court, justice or judge may punish with imprisonment or fine a respondent who commits contempt by making a false return, or refusing to make a return; or any person who otherwise disobeys or resists a lawful process or order of the court.SEC. 14. Return; Filing.—In case the respondent fails to file a return, the court, justice or judge shall proceed to hear the petition ex parte, granting the petitioner such relief as the petition may warrant unless the court in its discretion requires the petitioner to submit evidence.

8. Effects of Separate ActionsSEC. 20. Institution of Separate Actions.—The filing of a petition for the writ of habeas data shall not preclude the filing of separate criminal, civil or administrative actions.SEC. 21. Consolidation.—When a criminal action is filed subsequent to the filing of a petition for the writ, the latter shall be consolidated with the criminal action.When a criminal action and a separate civil action are filed subsequent to a petition for a writ of habeas data, the petition shall be consolidated with the criminal action.

After consolidation, the procedure under this Rule shall continue to govern the disposition of the reliefs in the petition.SEC. 22. Effect of Filing of a Criminal Action.—When a criminal action has been commenced, no separate petition for the writ shall be filed. The reliefs under the writ shall be available to an aggrieved party by motion in the criminal case.The procedure under this Rule shall govern the disposition of the reliefs available under the writ of habeas data.

9. Suppletory and Retroactive ApplicationSEC. 23. Substantive Rights.—This Rule shall not diminish, increase or modify substantive rights.SEC. 24. Suppletory Application of the Rules of Court.—The Rules of Court shall apply suppletorily insofar as it is not inconsistent with this Rule.

D. Kalikasan1. Nature and Scope; Source and Origin

Section 1. Nature of the writ. - The writ is a remedy available to a natural or juridical person, entity authorized by law, people’s organization, non-governmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces.

2. Standing to File—Sec 1, supraHernandez v Placer HomePursuant to Sec. 3, Rule VII of the Rules of Procedure for Environmental Cases, petitions for the Writ of Kalikasan shall be filed with the SC or with any of the stations of the CA. It was in consonance with this provision that the Court issued a Resolution, which, after granting the writ of kalikasan sought by petitioners, referred the case to the CA for hearing, reception of evidence, and rendition of judgment.

3. Jurisdiction and VenueSection 3. Where to file. - The petition shall be filed with the Supreme Court or with any of the stations of the Court of Appeals.

4. Essential AllegationsSection 2. Contents of the petition. - The verified petition shall contain the following:(a) The personal circumstances of the petitioner;(b) The name and personal circumstances of the respondent or if the name and personal circumstances are unknown and uncertain, the respondent may be described by an assumed appellation;(c) The environmental law, rule or regulation violated or threatened to be violated, the act or omission complained of, and the environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces.(d) All relevant and material evidence consisting of the affidavits of witnesses, documentary evidence, scientific or other expert studies, and if possible, object evidence;(e) The certification of petitioner under oath that: (1) petitioner has not commenced any action or filed any claim involving the same issues in any court, tribunal or quasi- judicial agency, and no such other action or claim is pending therein; (2) if there is such other pending action or claim, a complete statement of its present status; (3) if petitioner should learn that the same or similar action or claim has been filed or is pending, petitioner shall report to the court that fact within five (5) days therefrom; and


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(f) The reliefs prayed for which may include a prayer for the issuance of a TEPO.

Section 8. Return of respondent; contents. - Within a non-extendible period of ten (10) days after service of the writ, the respondent shall file a verified return which shall contain all defenses to show that respondent did not violate or threaten to violate, or allow the violation of any environmental law, rule or regulation or commit any act resulting to environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces.All defenses not raised in the return shall be deemed waived.The return shall include affidavits of witnesses, documentary evidence, scientific or other expert studies, and if possible, object evidence, in support of the defense of the respondent.A general denial of allegations in the petition shall be considered as an admission thereof.

5. ProcedureSection 2, supraSection 5. Issuance of the writ. - Within three (3) days from the date of filing of the petition, if the petition is sufficient in form and substance, the court shall give an order: (a) issuing the writ; and (b) requiring the respondent to file a verified return as provided in Section 8 of this Rule. The clerk of court shall forthwith issue the writ under the seal of the court including the issuance of a cease and desist order and other temporary reliefs effective until further order.Section 6. How the writ is served. - The writ shall be served upon the respondent by a court officer or any person deputized by the court, who shall retain a copy on which to make a return of service. In case the writ cannot be served personally, the rule on substituted service shall apply.Section 8, supra

Section 11. Hearing. - Upon receipt of the return of the respondent, the court may call a preliminary conference to simplify the issues, determine the possibility of obtaining stipulations or admissions from the parties, and set the petition for hearing.The hearing including the preliminary conference shall not extend beyond sixty (60) days and shall be given the same priority as petitions for the writs of habeas corpus, amparo and habeas data.Section 14. Submission of case for decision; filing of memoranda. - After hearing, the court shall issue an order submitting the case for decision. The court may require the filing of memoranda and if possible, in its electronic form, within a non-extendible period of thirty (30) days from the date the petition is submitted for decision.Section 15. Judgment. - Within sixty (60) days from the time the petition is submitted for decision, the court shall render judgment granting or denying the privilege of the writ of kalikasan.The reliefs that may be granted under the writ are the following:(a) Directing respondent to permanently cease and desist from committing acts or neglecting the performance of a duty in violation of environmental laws resulting in environmental destruction or damage;(b) Directing the respondent public official, government agency, private person or entity to protect, preserve, rehabilitate or restore the environment;(c) Directing the respondent public official, government agency, private person or entity to monitor strict compliance with the decision and orders of the court;(d) Directing the respondent public official, government agency, or private person or entity to make periodic reports on the execution of the final judgment; and(e) Such other reliefs which relate to the right of the people to a balanced and healthful ecology or to the protection,

preservation, rehabilitation or restoration of theenvironment, except the award of damages to individual petitioners.Section 16. Appeal. - Within fifteen (15) days from the date of notice of the adverse judgment or denial of motion for reconsideration, any party may appeal to the Supreme Court under Rule 45 of the Rules of Court. The appeal may raise questions of fact.

6. Prohibited PleadingsSection 9. Prohibited pleadings and motions. - The following pleadings and motions are prohibited:(a) Motion to dismiss;(b) Motion for extension of time to file return;(c) Motion for postponement;(d) Motion for a bill of particulars;(e) Counterclaim or cross-claim;(f) Third-party complaint;(g) Reply; and(h) Motion to declare respondent in default.

7. Reliefs and ConsequencesSection 7. Penalty for refusing to issue or serve the writ. - A clerk of court who unduly delays or refuses to issue the writ after its allowance or a court officer or deputized person who unduly delays or refuses to serve the same shall be punished by the court for contempt without prejudice to other civil, criminal or administrative actions.

Section 10. Effect of failure to file return—In case the respondent fails to file a return, the court shall proceed to hear the petition ex parte.Section 12. Discovery Measures. - A party may file a verified motion for the following reliefs:(a) Ocular Inspection; order — The motion must show that an ocular inspection order is necessary to establish the magnitude of the violation or the threat as to prejudice the life, health or property of inhabitants in two or more cities or provinces. It shall state in detail the place or places to be inspected. It shall be supported by affidavits of witnesses having personal knowledge of the violation or threatened violation of environmental law.After hearing, the court may order any person in possession or control of a designated land or other property to permit entry for the purpose of inspecting orphotographing the property or any relevant object or operation thereon.The order shall specify the person or persons authorized to make the inspection and the date, time, place and manner of making the inspection and may prescribe other conditions to protect the constitutional rights of all parties.(b) Production or inspection of documents or things; order – The motion must show that a production order is necessary to establish the magnitude of the violation or the threat as to prejudice the life, health or property of inhabitants in two or more cities or provinces.After hearing, the court may order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form, which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant.The production order shall specify the person or persons authorized to make the production and the date, time, place and manner of making the inspection or production and may prescribe other conditions to protect the constitutional rights of all parties.Section 13. Contempt. - The court may after hearing punish the respondent who refuses or unduly delays the filing of a return, or who makes a false return, or any person who disobeys or resists


a lawful process or order of the court for indirect contempt under Rule 71 of the Rules of Court.Section 14. Submission of case for decision; filing of memoranda. - After hearing, the court shall issue an order submitting the case for decision. The court may require the filing of memoranda and if possible, in its electronic form, within a non-extendible period of thirty (30) days from the date the petition is submitted for decision.

8. Effects of Separate ActionsSection 17. Institution of separate actions. - The filing of a petition for the issuance of the writ of kalikasan shall not preclude the filing of separate civil, criminal or administrative actions

9. Suppletory and Retroactive ApplicationRule 22. Section 22. Application of the Rules of Court—The Rules of Court shall apply in a suppletory manner, except as otherwise provided herein.

IV. Rules on Family WelfareA. GuardianshipGuardianship; definition – the power of protective authority given by law and imposed on an individual who is free and in the enjoyment of his rights, over one whose weakness on account of his age or other infirmity renders him unable to protect himself

- the relation subsisting between the guardian (the person exercising the power) and the ward (the person under guardianship)

- involves the taking of possession and management of the estate of another unable to act for himself

Guardian; definition – 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

-a person lawfully invested with power and charged with the duty of taking care of a person who for some peculiarity or status or defect of age, understanding or self-control is considered incapable of administering his own affairs

Nature of Guardianship-a trust relation of the most sacred character-designed to further the ward’s well-being- intended to preserve the ward’s property, as well as to render any

assistance that the ward may personally require-while custody involved immediate care and control, guardianship

indicated not only those responsibilities but those of one in loco parentis as well

Basis of Guardianship-when minors are involved, the State acts as parens patriae

duty of protecting the rights of persons or individuals who, because of age or incapacity, are in an unfavourable position vis-a-vis other parties; inherent in the supreme power of the State

-unable as they are to take due care of what concerns them, they have the political community to look after their welfare this obligation the State must live up to

Necessity of Guardianship Proceedings – Jurisdiction to enter judgment against an adjudged physically and mentally incompetent to manage his affairs does not exist where no guardian was appointed upon whom summons and notice of the proceedings might be served

Purpose – safeguard the rights and interests of minors and incompetent persons; vigilantly see that the rights of such persons are properly protected

- wrt minor: care for the person or the property same person may be appointed as guardian both of the person and of the estate; separate guardians may also be appointed

Kinds of GuardianshipA. According to Scope or Extent

1) Guardian of the Person – lawfully invested with the care of the person of the minor whose father is dead; authority is derived out of the parent

2) Guardian of the Property – for the management of the estate

3) General Guardian – care and custody of the person and of all the property

B. According to Constitution1) Legal – without need of court appointment2) Guardian ad litem – appointed by courts of justice to

prosecute or defend minor/incompetent in an action in court

3) Judicial – appointed by the court in pursuance to law

1. Guardianship of Incompetents1) Jurisdiction and Venue

BP 129. §19(7) In all civil actions and special proceedings falling within the exclusive original jurisdiction of a Juvenile and Domestic Relations Court and of the Court of Agrarian Relations as now provided by law;

RA 8369. §5. Jurisdiction of family Courts. - The Family Courts shall have exclusive original jurisdiction to hear and decide the following cases:(b) Petitions for guardianship, custody of children, habeas corpus in relation to the latter;

R92. SEC. 1. Where to institute proceedings.—Guardianship of the person or estate of a minor or incompetent may be instituted in the Regional Trial Court of the province, or in the justice of the peace court of the municipality, or in the municipal court of the chartered city where the minor or incompetent person resides, and if he resides in a foreign country, in the Regional Trial Court of the province wherein his property or part thereof is situated; provided, however, that where the value of the property of such minor or incompetent exceeds the jurisdiction of the justice of the peace or municipal court, the proceedings shall be instituted in the Regional Trial Court.

In the City of Manila the proceedings shall be instituted in the Juvenile and Domestic Relations Court.

SEC. 2. Meaning of word "incompetent."—Under this rule, the word "incompetent" includes persons suffering the penalty of civil interdiction or who are hospitalized lepers, prodigals, deaf and dumb who are unable to read and write, those who are of unsound mind, even though they have lucid intervals, and persons not being of unsound mind, but by reason of age, disease, weak mind, and other similar causes, cannot, without outside aid, take care of themselves and manage their property, becoming thereby an easy prey for deceit and exploitation.

SEC. 3. Transfer of venue.—The court taking cognizance of a guardianship proceeding, may transfer the same to the court of another province or municipality wherein the ward has acquired real property, if he has transferred thereto his bona fide residence, and the latter court shall have full jurisdiction to continue the proceedings, without requiring payment of additional court fees.

Petitions for guardianship over incompetents who are NOT minors – shall continue to be heard and tried by regular RTCsNote: Residence = domicile – for purposes of this rule


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“Incompetent” – includes 1) persons suffering under the penalty of civil interdiction 2) hospitalized lepers 3) prodigals 4) deaf and dumb who are unable to read and write 5) those of unsound mind though they may have lucid intervals 6) persons not being of unsound mind but by reason of age, disease, weak mind, and other similar causes, cannot w/o outside aid, take care of themselves, and manage their property thereby an easy prey for deceit and exploitation

Civil interdiction – deprives the offender during the time of his sentence of his rights of parental authority, or guardianship, either as to the person or property of any ward, of marital authority, or the right to manage his property and of any right to dispose of such property by any act or by any conveyance inter vivos

Prodigality – a prodigal is a person who though of full age, is incapable of managing his affairs and the obligation which attend them, in consequence of his bad conduct and for whom a curator is therefore appointed

-State of being a spendthrift-Acts of prodigality must show a morbid mind and a disposition to

spend or waste the estate so as to expose his family to want or to deprive his forced heirs of their inheritance

-Competent evidence must be presented

Insanity – a manifestation in language or conduct of disease or defect of the brain, or a more or less permanently diseased or disordered condition or the mental, functional, or organic, and characterized by perversion, inhibition or disordered function of the sensory or of the intellectual faculties or by impaired or disordered volition- Every person is presumed sane.- Where the question of insanity is put in issue in guardianship proceedings and a guardian is named for the person alleged to be incapacitated, a presumption of the metal infirmity of the ward is created

Purpose of §3 – afford convenience to the ward

Limitations – settlement court may refuse if settlement is insufficient to show the condition of the estate, the properties of the ward, and the guardian’s just chargesA branch of the same court cannot be permitted to assert its jurisdiction in disregard of the orders of another branch When a case is filed in one branch of the RTC, jurisdiction over the case does not attach to the branch or judge alone to the exclusion of all other branches. However, where one branch of the same court had already assumed its jurisdiction by issuing 2 Orders, the other branch should relinquish its jurisdiction over the guardianship proceedings.

2) Appointment; Opposition to AppointmentR93. SEC. 1. Who may petition for appointment of guardian for resident.—Any relative, friend, or other person on behalf of a resident minor or incompetent who has no parent or lawful guardian, or the minor himself if fourteen years of age or over, may petition the court having jurisdiction for the appointment of a general guardian for the person or estate, or both, of such minor or incompetent. An officer of the Federal Administration of the United States in the Philippines may also file a "petition in favor of a ward thereof, and the Director of Health, in favor of an insane person who should be hospitalized, or in favor of an isolated leper.

SEC. 2. Contents of petition.—A petition for the appointment of a general guardian must show, so far as known to the petitioner:(a) The jurisdictional facts;(b) The minority or incompetency rendering the appointment

necessary or convenient;(c) The names, ages, and residences of the relatives of the minor or incompetent, and of the persons having him in their care;(d) The probable value and character of his estate;(e) The name of the person for whom letters of guardianship are prayed.The petition shall be verified; but no defect in the petition or verification shall render void the issuance of letters of guardianship.

SEC. 3. Court to set time for hearing. Notice thereof.—When a petition for the appointment of a general guardian is filed, the court shall fix a time and place for hearing the same, and shall cause reasonable notice thereof to be given to the persons mentioned in the petition residing in the province, including the minor if above 14 years of age or the incompetent himself, and may direct other general or special notice thereof to be given.

SEC. 4. Opposition to petition.—Any interested person may, by filing a written opposition, contest the petition on the ground of majority of the alleged minor, competency, of the alleged incompetent, or the unsuitability of the person for whom letters are prayed, and may pray that the petition be dismissed, or that letters of guardianship issue to himself, or to any suitable person named in the opposition.

SEC. 5. Hearing and order for letters to issue.—At the hearing of the petition the alleged incompetent must be present if able to attend, and it must be shown that the required notice has been given. Thereupon the court shall hear the evidence of the parties in support of their respective allegations, and, if the person in question is a minor or incompetent it shall appoint a suitable guardian of his person or estate, or both, with the powers and duties hereinafter specified.

SEC. 6. When and how guardian for nonresident appointed. Notice.—When a person liable to be put under guardianship resides without the Philippines but has estate therein, any relative or friend of such person, or any one interested in his estate, in expectancy or otherwise, may petition a court having jurisdiction for the appointment of a guardian for the estate, and if, after notice given to such person and in such manner as the court deems proper, by publication or otherwise, and hearing the court is satisfied that such nonresident is a minor or incompetent rendering a guardian necessary or convenient, it may appoint a guardian for such estate.

The facts w/c must appear in the pet. for guardianship and which give the court authority to act over it - (a) the minority or incompetency of the person for whom guardianship is sought; and (b) domicile

When certain JF may be dispensed with – based on circumstances

Sufficiency of verification – if dated, signed, sworn to, and duly certified in a manner similar to the practice formerly prevailing in the case of sworn bills and answers

Notice as a jurisdictional requirement – normally essential to confer jurisdiction on the court where a pet. for guardianship is filed- A statutory requirement as to the giving of notice ordinarily

is deemed to be mandatory and should be strictly complied with

- As to the effect of failure to notify a person for whom a notice is required, it has sometimes been held that the appointment of a guardian w/o notice to him/her is a jurisdictional defect w/c renders the appointment void and subj to collateral attack


Opposition - In writing; need not be verified

Grounds for Opposing: (1) majority of the alleged minor, (2) competency of the alleged incompetent, (3) incompetency of the person for whom letter are prayed- Person interested may pray that the petition be dismissed

or that letters of guardianship be instead issued to him or any suitable person named therein

- Opposition to appt should be first addressed to and resolved by the lower court and not for the first time on appeal

Issuance – Discretionary on the Court: the judge should be exceptionally qualified to form a correct opinion as to the special needs of the minors, the character and the qualifications of persons whose names are proposed for appt as guardians, and the wise and prudent course to be adopted under all the varying circumstances to be found in each particular case- Upon urgent and compelling reasons, execution pending

appeal is a matter of sound discretion on the TC and the AC will not interfere, control, or inquire into the exercise of this discretion unless there has been an abuse thereof

Quantum of evidence required – competent evidence w/c are clear and definite

Contents of the Order – should be sufficient in form and substance to invest the appointee w/ due authority; statutory reqs wrt what shall be contained or specified in the Order must be complied with

Incompetency (of guardian)(a) Disqualification by: (1) mental incapacity; (2) conviction of a

crime(b) Moral delinquency(c) Physical disability

Removal(a) Insanity(b) Otherwise incapable of discharging the trust(c) Unsuitability(d) Mismanagement(e) Failure to make an account/return

-Best interests of the ward can override proc rules and even the rights of parents to the custody of their children

-No order of preference in appointment of guardian-Execution of the final judgment or order shall issue as a matter of

right only upon the expiration of the pd to appeal therefrom if no appeal has been duly perfected

Ancillary guardianship – a guardianship in a State other than that in w/c guardianship is originally granted and w/c is subservient and subsidiary to the latter

Jurisdiction of the Court over Non-residents – a court of a state in w/c an incompetent has property has jurisdiction to appt a guardian to his estate. In such case, jurisdiction may be acquired by constructive service of notice by publication

A proceeding to inquire into the insanity of an alleged incompetent for the purpose of appointing a guardian of his person is in personam – personal notice to an alleged incompetent who is a resident of the PHL but is temporarily outside the country is jurisdictional and service of notice by publication will not suffice

Preference in appointment – on the principles of comity, it will ordinarily be given to a person already clothed with the authority of guardian in the ward’s own country or state

Yangco v CFI-Manila1. In guardianship proceedings, notice as required by the statute

is jurisdictional and the lack of it deprives the court of power to make a valid decree in the premises. Sec. 559 requires personal notice to the alleged spendthrift when he is a resident of the Philippine Islands.

2. Section 560 provides that the court shall appoint a guardian of his person and estate only “after a full hearing and examination upon such petition” and where “it appears to the court or Judge” from such full hearing and examination “that the person in question is incapable of taking care of himself and managing the property.”

It is not a full examination to have A allege that B is an incompetent and to have C come in and admit the allegation. The court, before it can make the decree as provided for in the law, must have before it competent evidence demonstrating the facts necessary to sustain the decree, and that evidence must be clear and definite.

Santos v LopezThe issue in this case involves the power of a court, in guardianship proceedings, to appoint a Special or Temporary Guardian. Respondent guardian was appointed after the judge came to know in the hearings and investigations conducted by her the cause of the conflicts and controversies in the guardianship proceedings over the person and properties of the ward; that there are 57 contending parties, all claiming to be relatives of the ward; that having found that the ward has no will of her own, the respondent decided on the necessity of having a neutral person as her guardian. However, on the same date that the petition was filed, a regular guardian was appointed. Hence, the petition was mooted.

3) Bonds of Guardians

R94. SEC. 1. Bond to be given before issuance of letters. Amount. Conditions.—Before a guardian appointed enters upon the execution of his trust, or letters of guardianship issue, he shall give a bond, in such sum as the court directs, conditioned as follows:

(a) To make and return to the court, within three (3) months, a true and complete inventory of all the estate, real and personal, of his ward which shall come to his possession or knowledge or to the possession or knowledge of any other person for him;

(b) To faithfully execute the duties of his trust, to manage and dispose of the estate according to these rules for the best interests of the ward, and to provide for the proper care, custody, and education of the ward;

(c) To render a true and just account of all the estate of the ward in his hands, and of all proceeds or interest derived therefrom, and of the management and disposition of the same, at the time designated by these rules and such other times as the court directs, and at the expiration of his trust to settle his accounts with the court and deliver and pay over all the estate, effects, and moneys remaining in his hands, or due from him on such settlement, to the person lawfully entitled thereto;

(d) To perform all orders of the court by him to be performed.

SEC. 2. When new bond may be required and old sureties discharged.—Whenever it is deemed necessary, the court may require a new bond to be given by the guardian, and may discharge the sureties on the old bond from further liability, after due notice to interested persons, when no injury can result therefrom to those interested in the estate.


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SEC. 3. Bonds to be filed. Actions thereon.—Every bond given by a guardian shall be filed in the office of the clerk of the court, and, in case of the breach of a condition thereof, may be prosecuted in the same proceeding or in a separate action for the use and benefit of the ward or of any other person legally interested in the estate.

Purpose – (a) protection of the ward’s property; (b) security for creditorsNecessity – part of guardian’s qualification

Requisite – faithful discharge of duties

Amount – fixed by the court w/ reference to the estate; court is not bound by the petition’s allegations as to its value

Time when bond takes effect – as of the day of the bond’s date and of the guardian’s appt notwithstanding the bond may have been filed later

Duty at termination of guardianship – settle his acct w/ the court and deliver and pay over the estate, effects, and moneys remaining in his hands or due from him on such settlement to the person lawfully entitled thereto

Order to give addl security – While the power to require new or addl security is sometimes given by statute, it has been held to exist independently of any statutory provision

Where the bond given is insufficient – it is not only the right but the duty of the court to req addl security

Construction and Enforcement – in accordance with the intention and scope of the guardian and his surety in giving the bond, to secure the wards in their indiv rights

Liability of sureties – dependent on the extent of the obli created by the terms of the bond and the statutes w/c can be read into it

Duration of liability – a continuing one against the obligors and their estates until all of its conditions are fulfilled

Right of surety – may demand the benefit of a levy of the principal’s property even when judgment is rendered against both of them. But to do so, they must point out prop subj to seizure in an amt sufficient to satisfy the debt

Duty of surety – see that the conditions of the bond are fulfilled by the guardian; but it is not expected that a surety on a guardian’s bond will actively concern himself with the interest of the ward

4) Selling and Encumbering Property of WardR95. SEC. 1. Petition of guardian for leave to sell or encumber estate.—When the income of an estate under guardian ship is insufficient to maintain the ward and his family, or to maintain and educate the ward when a minor, or when it appears that it is for the benefit of the ward that is real estate or some part thereof be sold, or mortgaged or otherwise encumbered, and the proceeds thereof put out at interest, or invested in some productive security, or in the improvement or security of other real estate of the ward, the guardian may present a verified petition to the court by which he was appointed setting forth such facts, and praying that an order issue authorizing the sale or encumbrance.

SEC. 2. Order to show cause thereupon.—If it seems probable that such sale or encumbrance is necessary, or would be beneficial to the ward, the court shall make an order directing the next of kin of the ward, and all persons interested in the estate, to

appear at a reasonable time and place therein specified to show cause why the prayer of the petition should not be granted.

SEC. 3. Hearing on return of order. Costs.—At the time and place designated in the order to show cause, the court shall hear the proofs and allegations of the petitioner and next of kin, and other persons interested, together with their witnesses, and grant or refuse the prayer of the petition as the best interests of the ward require. The court shall make such order as to costs of the hearing as may be just.

SEC. 4. Contents of order for sale or encumbrance, and how long effective. Bond.—If, after full examination, it appears that it is necessary, or would be beneficial to the ward, to sell or encumber the estate, or some portion of it, the court shall order such sale or encumbrance and that the proceeds thereof be expended for the maintenance of the ward and his family, or the education of the ward, if a minor, or for the putting of the same out at interest, or the investment of the same as the circumstances may require. The order shall specify the causes why the sale. or encumbrance is necessary or beneficial, and may direct that estate ordered sold be disposed of at either public or private sale, subject to such conditions as to the time and manner of payment, and security where a part of the payment is deferred, as in the discretion of the court are deemed most beneficial to the ward. The original bond of the guardian shall stand as security for the proper appropriation of the proceeds of the sale, but the judge may, if deemed expedient, require an additional bond as a condition for the granting of the order of sale. No order of sale granted in pursuance of this section shall continue in force more than one (1) year after granting the same, without a sale being had.

SEC. 5. Court may order investment of proceeds and direct management of estate.—The court may authorize and require the guardian to invest the proceeds of sales or encumbrances, and any other of his ward's money in his hands, in real estate or otherwise, as shall be for the best interest of all concerned, and may make such other orders for the management, investment, and disposition of the estate and effects, as circumstances may require.

When guardian may sell/encumber the estate of the ward:(a) The income of the estate of the minor/incompetent under

guardianship is insufficient to maintain the ward and his family; or

(b) The income is insufficient to maintain and educate the ward (when a minor); or

(c) It appears that it is for the benefit of the ward that his real estate or some part thereof be sold or mortgaged or otherwise encumbered, and the proceeds thereof put out at interest or invested in some productive security, or in the improvement or security of other real estate of the ward

Order authorizing the sale/encumbrance is NECESSARY – A petition must be filed before the court for such sale/encumbrance- A guardian has no authority to sell real estate of his ward

merely by reason of his general powers; and in the absence of any special authority to sell conferred by will, statute, or order of the court, a sale of the ward’s realty by the guardian without authority from the court is void

“Next of Kin” – those relations whose share in the estate accdg to the statute of distribution, including those claiming per stirpes or by representation- Notice to next of kin is a jurisdictional req w/c may not be

dispensed with- Notice is not necessary where the next of kin to the ward

and all persons interested in the estate are her mother and guardian, uncles and aunts who agreed to make the


transfer of their respective shares in the prop to the corp to be organized

Contents of Notice – sufficient when it recites substantially that notice is thereby given, that a petition to sell the ward’s real estate will be presented to a named court, at a named place, on a named date, and when and where all persons interested may appear and show cause, if they have any, why such petition should not be granted

Opposition to sale/encumbrance, by whom filed – persons who stand to be benefited or prejudiced by such sale/encumbrance

Period to sell – w/in 1 yr; if not sold w/in 1 yr, apply for authority to sell again

Sole Object of §3 – whether it is to the interest of the ward that the sale shall be made

Need for Confirmation – while the ward’s title passes only on the execution of the deed by the guardian and not on the confirmation of the sale by the court, in order that a sale may be of such validity that, upon the execution of a deed, title may pass to the purchaser, it is essential that the sale be first confirmed by the court, and that until such confirmation, not even equitable title passes

Same; Exception – when the confirmation will just be pro forma where the sale was already fait accompli and w/in the authority given by court

Prohibition on sale of ward’s estate to guardian – CC, A1491: the guardian cannot acquire by purchase even at a public or judicial auction, either in person or through the mediation of another, the property of the person/s who may be under his guardianship basis: nature of guardianship is that of a trust of the highest order

Cancellation of the authority of the guardian to sell the property of the ward; effect on rights - did not and could not affect the rights of the buyer where at the time that the order cancelling the authority to sell was entered, the guardian has already acted in accordance w/ the authority and sold the property

Action for rescission of the sale – since there is a presumption that the sale of the ward’s estate is valid, the same cannot be attacked collaterally in the registration proceedings- A separate action to avoid or rescind the sale on the

grounds specified by law should have been filed

Period of Effectivity – 1 yr from grant

Remedy against order of the court authorizing the guardian to sell the ward’s property – Appeal, not certiorari or mandamus

§5 – does not provide that the authority must always be either prior to or expressed

Application of proceeds according to purpose of sale – It is the guardian’s duty to apply the proceeds to the purposes for which the property was sold. If the sale was ordered for reinvestment, the guardian has no right to apply the proceeds for the support of the ward, unless the necessity therefor, arising after the order of sale, is clearly establishedEffect of ratification – susbseq approval of guardian’s accts had the effect of impliedly validating the guardian’s acts and making them binding upon its ward

Status of Lease – ward’s property may be leased

- If recorded, should be by proper authority of the court-Same rule applies if the term of the lease is longer than 1 yr

deemed an act of dominion

5) General Powers and Duties of Guardians

R96. SEC. 1. To what guardianship shall extend.—A guardian appointed shall have the care and custody of the person of his ward, and the management of his estate, or the management of his estate only as the case may be. The guardian of the estate of a nonresident shall have the management of all the estate of the ward within the Philippines, and no court other than that in which such guardian was appointed shall have jurisdiction over the guardianship.

SEC. 2. Guardian to pay debts of ward.—Every guardian must pay the ward's just debts out of his personal estate and the income of his real estate, if sufficient; if not, then out of his real estate upon obtaining an order for the sale or encumbrance thereof.

SEC. 3. Guardian to settle accounts, collect debts, and appear in actions for ward.—A guardian must settle all accounts of his ward, and demand, sue for, the receive all debts due him, or may, with the approval of the court, compound for the same and give discharges to the debtor, on receiving a fair and just dividend of the estate and effects; and he shall appear for and represent his ward in all actions and special proceedings, unless another person be appointed for that purpose.

SEC. 4. Estate to be managed frugally, and proceeds applied to maintenance of ward.—A guardian must manage the estate of his ward frugally and without waste, and apply the income and profits thereof, so far as may be necessary, to the comfortable and suitable maintenance of the ward and his family, if there be any; and if such income and profits be insufficient for that purpose, the guardian may sell or encumber the real estate, upon being authorized by order so to do, and apply so much of the proceeds as may be necessary to such maintenance.

SEC. 5. Guardian may be authorized to join in partition proceedings after hearing.—The court may authorize the guardian to join in an assent to a partition of real or personal estate held by the ward jointly or in common with others, but such authority shall only be granted after hearing, upon such notice to relatives of the ward as the court may direct, and a careful investigation as to the necessity and propriety of the proposed action.

SEC. 6, Proceedings when person suspected of embezzling or concealing property of ward.—Upon complaint of the guardian or ward, or of any person having actual or prospective interest in the estate of the ward as creditor, heir, or otherwise, that anyone is suspected of having embezzled, concealed, or conveyed away any money, goods, or interest, or a written instrument, belonging to the ward or his estate, the court may cite the suspected person to appear for examination touching such money, goods, interest, or instrument, and make such orders as will secure the estate against such embezzlement, concealment or conveyance.

SEC. 7. Inventories and accounts of guardians, and appraisement of estates.—A guardian must render to the court an inventory of the estate of his ward within three (3) months after his appointment, and annually after such appointment an inventory and account, the rendition of any of which may be compelled upon the application of an interested person. Such inventories and accounts shall be sworn to by the guardian. All the estate of the ward described in the first inventory shall be appraised. In the appraisement the court may request the assistance of one or more of the inheritance tax appraisers. And whenever any property of the ward not included in an inventory already rendered


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is discovered, or succeeded to, or acquired by the ward, like proceedings shall be had for securing an inventory and appraisement thereof within three (3) months after such discovery, succession, or acquisition.

SEC. 8. When guardian's accounts presented for settlement. Expenses and compensation allowed.—Upon the expiration of a year from the time of his appointment, and as often thereafter as may be required, a guardian must present his account to the court for settlement and allowance. In the settlement of the account, the guardian, other than a parent, shall be allowed the amount of his reasonable expenses incurred in the execution of his trust and also such compensation for his services as the court deems just, not exceeding fifteen per centum of the net income of the ward.

For custody: authority superior to any rights of relatives-Right not absolute; subj to control of the court-Controlling consideration – best interests of the ward

The guardian is under no obli to support the ward out of his own means – His duty extends only to proper and suitable application of the means of the ward

Conflicts re: ownership or title of property in guardian’s hands – should be litigated in a separate proceeding

Guardian ad litem – any competent person appointed by the court for purposes of a particular action or proceeding involving a minor

Act PROHIBITED - the taking and expending ward’s property w/o court approval

Collection of debts and assets a ministerial act – guardian may employ or authorize an agent or atty to perform the duty for him; but he must select such agent or atty w/ reasonable care and supervise his acts w/ the same care.

Failure of the guardian to collect the personal estate of the ward due to negligence – the guardian will be liable for the amount of the assets lost thereby, which might have been collected had he been diligent. But if he acts in GF and in the exercise of reasonable prudence and diligence, he is not liable.

Prior approval of the court for a compromise by the guardian – should first be secured

Payment of Atty’s fees – (a) Exact payment from the guardian; not chargeable against

ward’s estate (guardian may ask for reimbursement as reasonable expenses)

(b) File an axn in court to direct the guardian to pay AF (ask for reimbursement of expenses for legal services)

Ordinarily, a guardian ad litem has no authority to act or bind a minor in any transaction wrt his estate – but he can do so w/ the approval of the court, e.g. amicable settlement every axn must be prosecuted in the name of the real party-in-interest

Personal management – must give his personal care and attention to the maintenance of the ward’s estate and to keep the funds and property of the ward under own control

- If he attempts to delegate his duties to another, he is responsible for the other’s axns in the premises and for any resulting loss

-May employ other people to assist him w/o liability for their acts provided he has used reasonable care and discretion in the manner of selecting those whom he employs

Degree of care – faithful, vigilant, competent-Such diligence and prudence as a reasonable man ordinarily

employs in the conduct of his own affairs and will be held

liable for any loss which results from his failure to exercise such prudence and diligence

Parents may represent ward in partition – so long as there is no conflict of interest

§6 is for institution of appropriate action – The court cannot order the delivery of the ward’s property right/title to de determined in a separate ordinary axn and not in guardianship proceedings

Inventory – basis of subseq acctg and settlement

Failure of the guardian to include a particular prop of the ward in the inventory – an interested person may file a petition before the court compelling the guardian to include such addl prop into the inventory

Ward’s property remains in the guardian’s possession unaccounted for – guardian is not entitled to a credit for expenditures until he filed an account showing its terms

Sufficiency of account and settlement – must be complete and accurate; rendered under oath

Penalty for failure to render accounts – (a) imprisonment may be imposed; (b) forfeiture of compensation; (c) allowance of an amt less than would otherwise have been considered reasonable

Lichauco v Tan PhoA1548 of CC: No lease for a term more than six years shall be made by the x x x guardian with respect to [the property] of his ward. Hence, guardians need a special power to execute leases for more than six years. (Now, special power needed for leases more than 1 year)

6) Termination of Guardianship

R97. SEC. 1. Petition that competency of ward be adjudged, and proceedings thereupon.—A person who has been declared incompetent for any reason, or his guardian, relative, or friend, may petition the court to have his present competency judicially determined. The petition shall be verified by oath, and shall state that such person is then competent. Upon receiving the petition, the court shall fix a time for hearing the questions raised thereby, and cause reasonable notice thereof to be given to the guardian of the person so declared incompetent, and to the ward. On the trial, the guardian or relatives of the ward, and, in the discretion of the court, any other person, may contest the right to the relief demanded, and witnesses may be called and examined by the parties or by the court on its own motion. If it be found that the person is no longer incompetent, his competency shall be adjudged and the guardianship shall cease.

SEC. 2. When guardian removed or allowed to resign. New appointment.—When a guardian becomes insane or otherwise incapable of discharging his trust or unsuitable therefor, or has wasted or mismanaged the estate, or failed for thirty (30) days after it is due to render an account or make a return, the court may, upon reasonable notice to the guardian, remove him, and compel him to surrender the estate of the ward to the person found to be lawfully entitled thereto. A guardian may resign when it appears proper to allow the same; and upon his resignation or removal the court may appoint another in his place.

SEC. 3. Other termination of guardianship.—The marriage or voluntary emancipation of a minor ward terminates the guardianship of the person of the ward, and shall enable the minor to administer his property as though he were of age, but he cannot borrow money or alienate or encumber real property without the consent of his father or mother, or guardian. He can sue and be


sued in court only with the assistance of his father, mother or guardian. The guardian of any person may be discharged by the court when it appears, upon the application of the ward or otherwise, that the guardianship is no longer necessary.

SEC. 4. Record to be kept by the justice of the peace or municipal or city judge.—When a justice of the peace or municipal court takes cognizance of the proceedings in pursuance of the provisions of these rules, the record of the proceedings shall be kept as in the Regional Trial Court.

SEC. 5. Service of judgment.—Final orders or judgments under this rule shall be served upon the civil registrar of the municipality or city where the minor or incompetent person resides or where his property or part thereof is situated.

Nature of guardianship is temporary – may be terminated any time

Grounds for termination – (1) death of the guardian or the ward; (2) marriage; (3) judgment of competency

No new proceeding required – The proceeding followed by virtue of a petition for restoration to capacity is not new or independent; it is a continuation of the orig guardianship proceeding

Notice of hearing upon the ward and the guardian – not intended as a personal service process in the sense necessary to give the court jurisdiction over the ward. Nor is the manner in which the court procured service of the notice of any importance. It is sufficient that the notice was given.

Opposition – any other person or the guardian/relative of the ward may contest the right to relief demanded on or before the hearing of the petition at the discretion of the court

Grounds for removal – w/in the discretion of the guardianship court; may not be disturbed on appeal e.g. mismanagement – 1) extravagant expenditures 2) conversion of the ward’s property to his own use 3) use of the ward’s funds for the benefit of the guardian 4) commingling of funds of the ward w/ his own 5) speculating with or improperly investing funds of the ward although the guardian has acted in GF and from the best of motives 6) ignorance or imprudence of the guardian whereby the ward’s interest suffers 7) converting real estate into personalty w/o Order of the courtRemedy of guardian from Order of Removal – Appeal

Voluntary emancipation – no longer recognized as a ground for termination of parental authority

Judicial Guardianship – The rules on summary judicial proceedings under the FC govern the proceedings under A124. This contemplates a situation where the spouse is absent, or separated in fact or has abandoned the other or consent is withheld or cannot be obtained. Such rules do not apply to cases where the non-consenting spouse is incapacitated or incompetent to give consent. Even assuming that the rules of summary judicial proceedings under the FC may apply to the wife’s admin of the CP, the law provides that the wife who assumes sole powers of admin has the same powers and duties as a guardian under the RoC. Hence, R95 must be followed for the sale of the ward’s estate.

In re Guardianship of the Incompetent Jose de InchaustiThe notification of the ward required in Sec. 562 (for termination of guardianship) is not intended as a personal service of process in the sense necessary to give the court jurisdiction over the ward. It is, therefore, of no moment that the person to be notified was

living in a foreign country and thus beyond the territorial jurisdiction of the Manila court. Nor is the manner in which the court procured service of the notice of any importance. It is sufficient that the notice was given. The court in which the guardianship was pending already had jurisdiction of the cause and the parties; and notification to the ward—where the petition to rehabilitate him is presented by a friend—is required merely as an assurance that the individual chiefly concerned shall have cognizance of what is being done. It at least gives him the opportunity to advise the court in case action taken by the mover of the petition was officious or unauthorized.

2. Guardianship of MinorsSubstantial basis of GM RuleUnder PD 603 – Parental Authority of Father and Mother

Joint PA – the father and mother shall exercise jointly just and reasonable PA and responsibility over their legit or adopted children. In case of disagreement, the father’s decision shall prevail unless there is a judicial order to the contrary.

- In case of absence or death of either parent, the present or surviving parent shall continue to exercise PA over such children, unless in case of the surviving parent’s remarriage, the court, for justifiable reasons, appoints another person as guardian

- In case of separation of his parents, no child under 7 shall be separated from his mother unless the court finds compelling reasons to do so.

Grandparents – shall be consulted on impt family ques but shall not interfere in the exercise of PA by the parents

Absence or Death of Parents – grandparents and in their default, the oldest bro or sis who is at least 21, or the relative who has actual custody of the child shall exercise PA unless a guardian has been appointed

Guardian – the court may, upon the death of the parents and in the case mentioned in A328-332 of the CC, appoint a guardian for the person and property of the child on petition

Dependent, abandoned, or neglected child – shall be under the PA of a suitable or accredited person or institution that is caring for him, after the child has been declared abandoned by either the court or the DSWD

Transfer to the DSWD – DAN children may be transferred to either DSWD or a duly licensed child-caring institution or indiv in accordance w/ A142 and 154 of PD603, or upon the request of the person or institution exercising PA over him. From the time of such transfer, the DSWD or the duly licensed child-caring institution or indiv shall be considered the guardian of the child for all intents and purposes.

Case study – duty of the DSWD

Intervention – if after the case study, the DSWD finds that the petition for guardianship or custody should be denied

Hearing confidential – at the discretion of the court, may hold the hearings and proceedings closed to the public and the records thereof shall not be released w/o its approval

Rationale for GM Rule: C87, A15, §5: The State shall defend the right of children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their development. This duty of the State in promoting and protecting the welfare of children has its historical basis in the role of the State as parens patriae.


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1) Jurisdiction and VenueBP 129. §19(7) In all civil actions and special proceedings falling within the exclusive original jurisdiction of a Juvenile and Domestic Relations Court and of the Court of Agrarian Relations as now provided by law;

RA 8369. §5. Jurisdiction of family Courts. - The Family Courts shall have exclusive original jurisdiction to hear and decide the following cases:(b) Petitions for guardianship, custody of children, habeas corpus in relation to the latter

GM Rule. Sec. 3. Where to file petition. – A petition for guardianship over the person or property, or both, of a minor may be filed in the Family Court of the province or city where the minor actually resides. If he resides in a foreign country, the petition shall be filed with the Family Court of the province or city where his property or any part thereof is situated.

Sec. 27. Effect of the rule. – This Rule amends Rules 92 to 97 inclusive of the Rules of Court on guardianship of minors. Guardianship of incompetents who are not minors shall continue to be under the jurisdiction of the regular courts and governed by the Rules of Court.

Notes: The Family Courts shall have exclusive jurisdiction over petitions for guardianship over minors

2) Appointment; Qualifications; Opposition to Appointment

GM Rule. Sec. 1. Applicability of the Rule. – This Rule shall apply to petitions for guardianship over the person or property, or both, of a minor.The father and the mother shall jointly exercise legal guardianship over the person and property of their unemancipated common child without the necessity of a court appointment. In such case, this Rule shall be suppletory to the provisions of the Family Code on guardianship.Sec. 2. Who may petition for appointment of guardian. – On grounds authorized by law, any relative or other person on behalf of a minor, or the minor himself if fourteen years of age or over, may petition the Family Court 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 by the Secretary of Health in the case of an insane minor who needs to be hospitalized.Sec. 4. Grounds of petition.-The grounds for the appointment of a guardian over the person or property, or both, of a minor are the following:(a) death, continued absence, or incapacity of his parents;(b) suspension, deprivation or termination of parental authority;(c) remarriage of his surviving parent, if the latter is found unsuitable to exercise parental authority; or(d) when the best interests of the minor so require.Sec. 5. Qualifications of guardians. – In appointing a guardian, the court shall consider the guardian’s:(a) moral character;(b) physical, mental and psychological condition;(c) financial status;(d) relationship of trust with the minor;(e) availability to exercise the powers and duties of a guardian for the full period of the guardianship;(f) lack of conflict of interest with the minor; and(g) ability to manage the property of the minor.Sec. 6. Who may be appointed guardian of the person or property, or both, of a minor. – In default of parents or a court-appointed guardian, the court may appoint a guardian of the person or property, or both, of a minor, observing as far as practicable, the following order of preference:(a) the surviving grandparent and In case several grandparents survive, the court shall select any of them taking

Into account all relevant considerations;(b) the oldest brother or sister of the minor over twenty-one years of age, unless unfit or disqualified;(c) the actual custodian of the minor over twenty-one years of age, unless unfit or disqualified; and(d) any other person, who in the sound discretion of the court, would serve the best interests of the minor.Sec. 7. Contents of petition. – A petition for the appointment of a general guardian must allege the following:(a) The jurisdictional facts;(b) The name, age and residence of the prospective ward;(c) The ground rendering the appointment necessary or convenient;(d) The death of the parents of the minor or the termination, deprivation or suspension of their parental authority;(e) The remarriage of the minor’s surviving parent;(f) The names, ages, and residences of relatives within the 4th civil degree of the minor, and of persons having him in their care and custody;(g) The probable value, character and location of the property of the minor; and(h) The name, age and residence of the person for whom letters of guardianship are prayed.The petition shall be verified and accompanied by a certification against forum shopping. However, no defect in the petition or verification shall render void the issuance of letters of guardianship.Sec. 8. Time and notice of hearing. – When a petition for the appointment of a general guardian is filed, the court shall fix a time and place for its hearing, and shall cause reasonable notice to be given to the persons mentioned in the petition, including the minor if he is fourteen years of age or over, and may direct other general or special notice to be given.Sec. 9. Case study report. – The court shall order a social worker to conduct a case study of the minor and all the prospective guardians and submit his report and recommendation to the court for its guidance before the scheduled hearing. The social worker may intervene on behalf of the minor if he finds that the petition for guardianship should be denied.Sec. 10. Opposition to petition. – Any interested person may contest the petition by filing a written opposition based on such grounds as the majority of the minor or the unsuitability of the person for whom letters are prayed, and pray that the petition be denied, or that letters of guardianship issue to himself, or to any suitable person named in the opposition.Sec. 11. Hearing and order for letters to issue. – At the hearing of the petition, it must be shown that the requirement of notice has been complied with. The prospective ward shall be presented to the court. The court shall hear the evidence of the parties in support of their respective allegations. If warranted, the court shall appoint a suitable guardian of the person or property, or both, of the minor.At the discretion of the court, the hearing on guardianship may be closed to the public and the records of the case shall not be released without its approval.Sec. 12. When and how a guardian of the property for non-resident minor is appointed; notice. – When the minor resides outside the Philippines but has property in the Philippines, any relative or friend of such minor, or anyone interested in his property, in expectancy or otherwise, may petition the Family Court for the appointment of a guardian over the property.Notice of hearing of the petition shall be given to the minor by publication or any other means as the court may deem proper. The court may dispense with the presence of the non-resident minor.If after hearing the court is satisfied that such non-resident is a minor and a guardian is necessary or convenient, it may appoint a guardian over his property.Sec. 13. Service of final and executory judgment or order. – The final and executory judgment or order shall be served upon


the Local Civil Registrar of the municipality or city where the minor resides and the Register of Deeds of the place where his property or part thereof is situated shall annotate the same in the corresponding title, and report to the court his compliance within fifteen days from receipt of the order.

§2, grounds authorized by law – (1) child is under substitute PA; (2) guardian is a stranger; (3) surviving parent remarries

Arts. 206, 211, 216, 220, 222, and 225 of the FC have to be considered – for resolution of the question of who may petition for appoint of a guardian, viz.:A209. Pursuant to the natural right and duty of parents over the person and property of their unemancipated children, parental authority and responsibility shall include the caring for and rearing them for civic consciousness and efficiency and the development of their moral, mental and physical character and well-being.A211. The father and the mother shall jointly exercise parental authority over the persons of their common children. In case of disagreement, the father's decision shall prevail, unless there is a judicial order to the contrary.

Children shall always observe respect and reverence towards their parents and are obliged to obey them as long as the children are under parental authority.

A220. The parents and those exercising parental authority shall have with the respect to their unemancipated children on wards the following rights and duties: (1) To keep them in their company, to support, educate and instruct them by right precept and good example, and to provide for their upbringing in keeping with their means; (2) To give them love and affection, advice and counsel, companionship and understanding; (3) To provide them with moral and spiritual guidance, inculcate in them honesty, integrity, self-discipline, self-reliance, industry and thrift, stimulate their interest in civic affairs, and inspire in them compliance with the duties of citizenship; (4) To furnish them with good and wholesome educational materials, supervise their activities, recreation and association with others, protect them from bad company, and prevent them from acquiring habits detrimental to their health, studies and morals; (5) To represent them in all matters affecting their interests; (6) To demand from them respect and obedience; (7) To impose discipline on them as may be required under the circumstances; and (8) To perform such other duties as are imposed by law upon parents and guardians.A222. The courts may appoint a guardian of the child's property or a guardian ad litem when the best interests of the child so requires.

§7, JF – (1) the fact that there is a minor who needs guardianship, and (2) fact that notice requirements have been complied with

§10 grounds not exclusive – usual grounds: 1) majority of the minor 2) unsuitability of the prospective guardian; the grounds are not exhaustive as a pet for guardianship may also be opposed on the ground of non-termination of PA of the parents of the minor; “among others” was added to expand the grounds w/c may be invoked

§13 – The annotation of the judgment or order on the title will serve as notice to 3rd parties dealing with the property of the existences of the guardianship and the limited authority of the guardian. To ensure that the Register of Deeds will comply with the directive of the court, he is reqd to report to the court his compliance w/in 15 days from receipt of the order

3) Parents as Guardians

FC. A225. The father and the mother shall jointly exercise legal guardianship over the property of the unemancipated common child without the necessity of a court appointment. In case of disagreement, the father's decision shall prevail, unless there is a judicial order to the contrary. Where the market value of the property or the annual income of the child exceeds P50,000, the parent concerned shall be required to furnish a bond in such amount as the court may determine, but not less than ten per centum (10%) of the value of the property or annual income, to guarantee the performance of the obligations prescribed for general guardians. A verified petition for approval of the bond shall be filed in the proper court of the place where the child resides, or, if the child resides in a foreign country, in the proper court of the place where the property or any part thereof is situated. The petition shall be docketed as a summary special proceeding in which all incidents and issues regarding the performance of the obligations referred to in the second paragraph of this Article shall be heard and resolved. The ordinary rules on guardianship shall be merely suppletory except when the child is under substitute parental authority, or the guardian is a stranger, or a parent has remarried, in which case the ordinary rules on guardianship shall apply.

FC. A216. In default of parents or a judicially appointed guardian, the following person shall exercise substitute parental authority over the child in the order indicated:(1) The surviving grandparent, as provided in Art. 214;(2) The oldest brother or sister, over twenty-one years of age, unless unfit or disqualified; and(3) The child's actual custodian, over twenty-one years of age, unless unfit or disqualified. Whenever the appointment or a judicial guardian over the property of the child becomes necessary, the same order of preference shall be observed. (349a, 351a, 354a)

GM Rule. §1. Applicability of the Rule. – This Rule shall apply to petitions for guardianship over the person or property, or both, of a minor. The father and the mother shall jointly exercise legal guardianship over the person and property of their unemancipated common child without the necessity of a court appointment. In such case, this Rule shall be suppletory to the provisions of the Family Code on guardianship.

4) Bonds of GuardiansFC. A225. supraGM Rule. Sec. 14. Bond of guardian; amount; conditions.-Before he enters upon the execution of his trust, or letters of guardianship issue, an appointed guardian may be required to post a bond in such sum as the court shall determine and conditioned as follows:(a) To make and return to the court, within three months after the issuance of his letters of guardianship, a true and complete Inventory of all the property, real and personal, of his ward which shall come to his possession or knowledge or to the possession or knowledge of any other person in his behalf;(b) To faithfully execute the duties of his trust, to manage and dispose of the property according to this rule for the best interests of the ward, and to provide for his proper care, custody and education;(c) To render a true and Just account of all the property of the ward in his hands, and of all proceeds or interest derived therefrom, and of the management and disposition of the same, at the time designated by this rule and such other times as the court directs; and at the expiration of his trust, to settle his accounts with the court and deliver and pay over all the property, effects, and monies remaining in his hands, or due from him on such settlement, to the person lawfully entitled thereto; and(d) To perform all orders of the court and such other duties as


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may be required by law.

Sec. 15. Where to file the bond; action thereon. – The bond posted by a guardian shall be filed in the Family Court and, In case of breach of any of its conditions, the guardian may be prosecuted in the same proceeding for the benefit of the ward or of any other person legally interested in the property.Whenever necessary, the court may require the guardian to post a new bond and may discharge from further liability the sureties on the old bond after due notice to interested persons, if no injury may result therefrom to those interested in the property.

Sec. 16. Bond of parents as guardians of property of minor. – lf 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 ten per centum of the value of such property or annual income, to guarantee the performance of the obligations prescribed for general guardians.A verified petition for approval of the bond shall be flied in the Family Court of the place where the child resides or, if the child resides in a foreign country, in the Family Court of the place where the property or any part thereof is situated.The petition shall be docketed as a summary special proceeding In which all incidents and issues regarding the performance of the obligations of a general guardian shall be heard and resolved.

Other duties – guardian is required to perform such other duties as may be required by law

Rule on filing of an action on the bond – should be filed in the same guardianship proceeding to achieve speedy disposition of the proceeding and to prevent multiplicity of suits

5) Selling or Encumbering Property of Ward

GM Rule. Sec. 19. Petition to sell or encumber property.-When the income of a property under guardianship is insufficient to maintain and educate the ward, or when it is for his benefit that his personal or real property or any part thereof be sold, mortgaged or otherwise encumbered, and the proceeds invested in safe and productive security, or in the improvement or security of other real property, the guardian may file a verified petition setting forth such facts, and praying that an order issue authorizing the sale or encumbrance of the property.

Sec. 20. Order to show cause. – If the sale or encumbrance is necessary or would be beneficial to the ward, the court shall order his next of kin and all person/s interested in the property to appear at a reasonable time and place therein specified and show cause why the petition should not be granted.

Sec. 21. Hearing on return of order; costs. – At the time and place designated in the order to show cause, the court shall hear the allegations and evidence of the petitioner and next of kin, and other persons interested, together with their witnesses, and grant or deny the petition as the best interests of the ward may require.

Sec. 22. Contents of order for sale or encumbrance and its duration; bond. – If, after full examination, it is necessary, or would be beneficial to the ward, to sell or encumber the property, or some portion of it, the court shall order such sale or encumbrance the proceeds of which shall be expended for the maintenance or the education of the ward, or invested as the circumstances may require. The order shall specify the grounds for the sale or encumbrance and may direct that the property ordered sold be disposed of at public sale, subject to such conditions as to the time and manner of payment, and security

where a part of the payment is deferred. The original bond of the guardian shall stand as security for the proper appropriation of the proceeds of the sale or encumbrance, but the court may, if deemed expedient, require an additional bond as a condition for the sale or encumbrance. The authority to sell or encumber shall not extend beyond one year, unless renewed by the court.

Sec. 23. Court may order investment of proceeds and direct management of property. – The court may authorize and require the guardian to invest the proceeds of sales or encumbrances, and any other money of his ward in his hands, in real or personal property, for the best interests of the ward, and may make such other orders for the management, investment, and disposition of the property and effects, as circumstances may warrant.

FC promulgation; effects – with the enactment of the FC, the property of a minor is no longer liable for the maintenance of his family. A226 provides that the property of a child shall belong to him in ownership and shall be devoted exclusively for his support and education, unless the title or transfer provides otherwise. The right of parents over fruits and income of the child’s property shall be limited primarily to the child’s support and secondarily to the collective daily needs of the family.

The FC has abolished the parental usufruct over the child’s property and income – with such change, mention of the maintenance of the ward’s family in §18 and 21 was removed.

Sinco v LongaIn the petition it was clearly set forth that the income of the children’s property was insufficient to maintain and educate them and that it was for their benefit that their share should be sold. It was also therein stated that the property was encumbered. Admitting that these statements of the petition were untrue the jurisdiction of the court rests on the averments of the petition and not upon the truth of those averments.

Margate v RabacalThe cancellation of the authority to sell did not, and could not, affect, the rights of the buyer, because “at the time that the order cancelling the authority to sell was entered, the guardian had already acted in accordance with authority.Moreover, the cancellation of the order to sell was entered by the Court due to the deception of the guardian, who informed the court that she could not find any buyer of parcel 4 of the inventory. If the court had been informed of the sale, the court would certainly not have revoked the authority.

6) General Rules and Duties of Guardians; Power and Duty of the Court

GM Rule. Sec. 17. General duties of guardian. – A guardian shall have the care and custody of the person of his ward and the management of his property, or only the management of his property. The guardian of the property of a nonresident minor shall have the management of all his property within the Philippines.A guardian shall perform the following duties:(a) To pay the just debts of the ward out of the personal property and the income of the real property of the ward, If the same is sufficient; otherwise, out of the real property of the ward upon obtaining an order for its sale or encumbrance;(b) To settle all accounts of his ward, and demand, sue for, receive all debts due him, or may, with the approval of the court, compound for the same and give discharges to the debtor on receiving a fair and just dividend of the property and effects; and to appear for and represent the ward in all actions and special proceedings, unless another person is appointed for that purpose;(c) To manage the property of the ward frugally and without


waste, and apply the income and profits thereon, insofar as may be necessary, to the comfortable and suitable maintenance of the ward; and if such income and profits be insufficient for that purpose, to sell or encumber the real or personal property, upon being authorized by the court to do so;(d) To consent to a partition of real or personal property owned by the ward jointly or in common with others upon authority granted by the court after hearing, notice to relatives of the ward, and a careful investigation as to the necessity and propriety of the proposed action;(e) To submit to the court a verified inventory of the property of his ward within three months after his appointment, and annually thereafter, the rendition of which may be required upon the application of an interested person;(f) To report to the court any property of the ward not included in the inventory which is discovered, or succeeded to, or acquired by the ward within three months after such discovery, succession, or acquisition; and(g) To render to the court for its approval an accounting of the property one year from his appointment, and every year thereafter or as often as may be required.Sec. 18. Power and duty of the court – The court may:(a) Request the assistance of one or more commissioners in the appraisal of the property of the ward reported in the initial and subsequent inventories;(b) Authorize reimbursement to the guardian, other than a parent, of reasonable expenses incurred in the execution of his trust, and allow payment of compensation for his services as the court may deem just, not exceeding ten per centum of the net income of the ward, if any; otherwise, in such amount the court determines to be a reasonable compensation for his services; and(c) Upon complaint of the guardian or ward, or of any person having actual or prospective interest in the property at the ward, require any person suspected of having embezzled, concealed, or disposed of any money, goods or interest, or a written instrument belonging to the ward or his property to appear for examination concerning any thereof and issue such orders as would secure the property against such embezzlement, concealment or conveyance.

§17(f) – file motion for inclusion of discovered property

Guerrero v TeranDoña Maria Muñoz y Gomez was removed upon the theory that her appointment was void because she did not reside in the Philippine Islands. There is nothing in the law which requires the courts to appoint residents only as administrators or guardians. However, notwithstanding the fact that there are no statutory requirements upon this question, the courts, charged with the responsibilities of protecting the estates of deceased persons, wards of the estate, etc., will find much difficulty in complying with this duty by appointing administrators and guardians who are not personally subject to their jurisdiction. Notwithstanding that there is no statutory requirement, the courts should not consent to the appointment of persons as administrators and guardians who are not personally subject to the jurisdiction of our courts here.The mere fact, however, that she had been removed as said guardian did not relieve her, nor her bondsmen from liability to the minors during the time that she was duly acting as said guardians. It must be clear, therefore, that the said Maria Muñoz y Gomez is responsible to the said minors for administration of their interests in the estate of the said Antonio Sanchez Muñoz from the time of her acceptance of said appointment up to the time of her removal.

7) Termination of Guardianship

GM Rule. Sec. 24. Grounds for removal or resignation of guardian. – When a guardian becomes insane or otherwise incapable of discharging his trust or is found thereafter to be unsuitable, or has wasted or mismanaged the property of the

ward, or has failed to render an account or make a return for thirty days after it is due, the court may, upon reasonable notice to the guardian, remove him as such and require him to surrender the property of the ward to the person found to be lawfully entitled thereto.The court may allow the guardian to resign for justifiable causes.Upon the removal or resignation of the guardian, the court shall appoint a new one.No motion for removal or resignation shall be granted unless the guardian has submitted the proper accounting of the property of the ward and the court has approved the same.

Sec. 25. Ground for termination of guardianship. – The court motu proprio or upon verified motion of any person allowed to file a petition for guardianship may terminate the guardianship on the ground that the ward has come of age or has died. The guardian shall notify the court of such fact within ten days of its occurrence.

Sec. 26. Service of final and executory judgment or order. – The final and executory judgment or order shall be served upon the Local Civil Registrar of the municipality or city where the minor resides and the Register of Deeds of the province or city where his property or any part thereof is situated. Both the Local Civil Registrar and’ the Register of Deeds shall enter the final and executory judgment or order in the appropriate books in their offices.

Duty of guardian upon termination of the trust – submit a final acct of his guardianship and make a settlement w/ the judge or his ward. The guardian is not entitled to a credit for expenditures until he has filed an acct showing the items and he is not discharged from liability until his acct is submitted and the balance is paid.

Rationale – the court with jurisdiction over a guardianship matter is the superior guardian, while the guardian is deemed to be an officer of the court.Registration of judgment – enable the Register of Deeds to take the proper axn: whether to cancel the earlier annotation (in case of termination) or to amend it (in case of removal or resignation).

B. Adoption1. Domestic AdoptionAdoption defined – a juridical act w/c creates bet 2 persons a relationship similar to that w/c results from legitimate paternity

Historical background – A21(a) of the Convention of the Rights of the Child provides: States parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:

(a) Ensure that the adoption of a child is authorizes only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child’s status concerning parents, relatives, and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary.

In the PHL, adoption is now recognized as the act of extending, among other, “to the orphan, or to the child of the indigent, the incapacitated or the sick, the protection of society over the person of the adopted.” The welfare of the child has become the primary consideration in all matters concerning his adoption.

As a State Party to the Convention on the Rights of the Child, our country recognizes that the process of adoption is impressed with


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social and moral responsibility and can only be done through the courts.

Nature and Concept – Adoption is a juridical act, a proceeding in rem which creates between 2 persons a relationship similar to that which results from legitimate paternity and filiation. Only an adoption made through the court or in pursuance with the procedure laid down in AM 02-06-02-SC is valid in this jurisdiction. It is not of natural law at all but is wholly and entirely artificial. To establish the relation, the statutory requirements must be strictly carried out; otherwise, the adoption is an absolute nullity. The fact of adoption is never presumed, but must be affirmatively proved by the person claiming its existence.

Nature of Adoption Proceedings – Adoption is properly not an adversarial proceeding. There is no particular defendant to speak of since the proceeding involves the status of a person it being an action in rem.

While adoption has often been referred to in the context of a “right”, the privilege to adopt itself is not naturally innate or fundamental but rather a right merely created by statute.

- It is a privilege that is governed by the State’s determination on what it may deem to be for the best welfare of the child.

-Matters relating to adoption including the withdrawal of the right of an adopter to nullify the adoption decree are subject to regulation by the State.

-Concomitantly, a right of action given by statute may be taken away at any time before it has been exercised.

Adoption is also a proceeding in rem which no court may entertain unless it has jurisdiction not only over the subj matter of the case and over the parties but also over the res, which is the personal status of the parties. Personal status, in general, is determined by and/or subj to the jurisdiction of the domiciliary law.

In adoption, as a proceeding in rem, constructive notice, such as publication duly made is enough where the residence of the parents is unknown. Notice is not required in adoption cases wrt the abandoning parent.

Purpose of Adoption – the promotion of the welfare of the child and the enhancement of his opportunities for a useful and happy life, and every intendment is sustained to promote that objective.

Construction of Adoption Statutes – The rule of “dura lex sed lex” should not be applied but softened in matters relative to adoption of children or to acts designed to provide homes, love, care, and education for unfortunate children (Dunan vs CFI of Rizal).- The technical rules of pleading should not be stringently

applied to adoption proceedings, and it is deemed more important that the petition should contain facts relating to the child and its parents, which may give information to those interested, than that it should be formally correct as a pleading.

- It is generally held that a petition will confer jurisdiction if it substantially complies with the adoption statute.

- Lahom vs Sibulo: It remains the bounden duty of the Court to apply the law dura lex sed lex would be the hackneyed truism that those caught in the law have to live with.

Effect of Non-Observance of Adoption Proceedings – null and void- Does not confer upon the child the status of an adopted

child and legal rights of such child- May amount to a simulation or falsification of the child’s

birth certificate

Adoption How Proved – the absence of proof of such order of adoption by the court as provided by statute cannot be substituted by parol evidence that a child has lived with a person, not his parent, and has been treated as a child to establish such adoption.

Pedigree testimony not allowed – while declarations wrt pedigree, although hearsay, are admitted on the principle that they are natural expressions of persons who must know the truth, in proving an adoption, there is a better proof – the adoption order – available and it should be produced.

-Since the point in favour of receiving hearsay evidence upon matters of family history or pedigree is its reliability, it has been set forth as a condition upon which such evidence is received that it emanate from a source within the family

-Before a declaration of a deceased person can be admitted to prove pedigree or ancestry, the relationship of the declarant by either of blood or affinity to the family in question, or a branch thereof, must ordinarily be established by competent evidence.

Secondary Evidence – admissible where the records of the adoption proceedings were actually lost or destroyed

-Prior to the introduction of such secondary evidence, the proponent must establish the former existence of the instrument

-The correct order of proof is as follows: EXISTENCE; EXECUTION; LOSS; CONTENTS this order may be changed if necessary in the discretion of the court

-Secondary proof may only be introduced if it has been first established that such adoption paper really existed and has been lost/destroyed INDISPENSABLE REQUIREMENT

- If adoption was really made, the records thereof should have existed and the same presented at the hearing or subseq thereto or a reasonable explanation of loss or destruction thereof, if that be the case, adduced.

1) Jurisdiction and VenueBP 129. §19(7) In all civil actions and special proceedings falling within the exclusive original jurisdiction of a Juvenile and Domestic Relations Court and of the Court of Agrarian Relations as now provided by law;

RA 8369. §5. Jurisdiction of family Courts. - The Family Courts shall have exclusive original jurisdiction to hear and decide the following cases:(c) Petitions for adoption of children and the revocation thereof

Adoption Rule (AR). Sec. 6. Venue. – The petition for adoption shall be filed with the Family Court of the province or city where the prospective adoptive parents reside.

SEC. 25. Repeal. - This supersedes Rule 99 on Adoption and Rule 100 of the Rules of Court.

2) Definition, Nature of Proceedings; Who May Adopt/be Adopted

RA 8552. S7 & 87

AR. SEC. 4. Who may adopt. – The following may adopt:(1) Any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of good moral character, has not been convicted of any crime involving moral turpitude; who is emotionally and psychologically capable of caring for children, at least sixteen (16) years older than the adoptee, and who is in a position to support and care for his children in keeping with the means of the family. The requirement of a 16-year difference

7 NB: AR is more updated.


between the age of the adopter and adoptee may be waived when the adopter is the biological parent of the adoptee or is the spouse of the adoptee’s parent;(2) Any alien possessing the same qualifications as above- stated for Filipino nationals: Provided, That his country has diplomatic relations with the Republic of the Philippines, that he has been living in the Philippines for at least three (3) continuous years prior to the filing of the petition for adoption and maintains such residence until the adoption decree is entered, that he has been certified by his diplomatic or consular office or any appropriate government agency to have the legal capacity to adopt in his country, and that his government allows the adoptee to enter his country as his adopted child. Provided, further, That the requirements on residency and certification of the alien’s qualification to adopt in his country may be waived for the following:(i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity; or(ii) one who seeks to adopt the legitimate child of his Filipino spouse; or(iii) one who is married to a Filipino citizen and seeks to adopt jointly with his spouse a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouse.(3) The guardian with respect to the ward after the termination of the guardianship and clearance of his financial accountabilities.Husband and wife shall jointly adopt, except in the following cases:(i) if one spouse seeks to adopt the legitimate child of one spouse by the other spouse; or(ii) if one spouse seeks to adopt his own illegitimate child: Provided, however, That the other spouse has signified his consent thereto; or(iii) if the spouses are legally separated from each other.In case husband and wife jointly adopt or one spouse adopts the illegitimate child of the other, joint parental authority shall be exercised by the spouses.

SEC. 5. Who may be adopted. – The following may be adopted:

(1) Any person below eighteen (18) years of age who has been voluntarily committed to the Department under Articles 154, 155 and 156 of P.D. No. 603 or judicially declared available for adoption;(2) The legitimate child of one spouse, by the other spouse;(3) An illegitimate child, by a qualified adopter to raise the status of the former to that of legitimacy;(4) A person of legal age regardless of civil status, if, prior to the adoption, said person has been consistently considered and treated by the adopters as their own child since minority;(5) A child whose adoption has been previously rescinded; or(6) A child whose biological or adoptive parents have died: Provided, That no proceedings shall be initiated within six (6) months from the time of death of said parents.(7) A child not otherwise disqualified by law or these rules.

RA 9523. Sec. 2. Definition of Terms. – As used in this Act, the following terms shall mean:(2) Child refers to a person below eighteen (18) years of age or a person over eighteen (18) years of age but is unable to fully take care of him/herself or protect himself/herself from abuse, neglect, cruelty, exploitation, or discrimination because of physical or mental disability or condition.(3) Abandoned Child refers to a child who has no proper parental care or guardianship, or whose parent(s) have deserted him/her for a period of at least three (3) continuous months, which includes a founding.(4) Neglected Child refers to a child whose basic needs have been deliberately unattended or inadequately attended within a period of three (3) continuous months. Neglect may occur in two (2) ways:(a) There is physical neglect when the child is malnourished, ill-clad, and without proper shelter. A child is unattended when left by

himself/herself without proper provisions and/or without proper supervision.(b) There is emotional neglect when the child is maltreated, raped, seduced, exploited, overworked, or made to work under conditions not conducive to good health; or is made to beg in the streets or public places; or when children are in moral danger, or exposed to gambling, prostitution, and other vices.(5) Child Legally Available for Adoption refers to a child in whose favor a certification was issued by the DSWD that he/she is legally available for adoption after the fact of abandonment or neglect has been proven through the submission of pertinent documents, or one who was voluntarily committed by his/her parent(s) or legal guardian.Section 3. Petition. – The petition shall be in the form of an affidavit, subscribed and sworn to before any person authorized by law to administer oaths. It shall contain facts necessary to establish the merits of the petition and shall state the circumstances surrounding the abandonment or neglect of the child.The petition shall be supported by the following documents:(1) Social Case Study Report made by the DSWD, local government unit, licensed or accredited child-caring or child-placing agency or institution charged with the custody of the child;(2) Proof that efforts were made to locate the parent(s) or any known relatives of the child. The following shall be considered sufficient:(a) Written certification from a local or national radio or television station that the case was aired on three (3) different occasions;(b) Publication in one (1) newspaper of general circulation;(c) Police report or barangay certification from the locality where the child was found or a certified copy of a tracing report issued by the Philippine National Red Cross (PNRC), National Headquarters (NHQ), Social Service Division, which states that despite due diligence, the child's parents could not be found; and(d) Returned registered mail to the last known address of the parent(s) or known relatives, if any.(3) Birth certificate, if available; and(4) Recent photograph of the child and photograph of the child upon abandonment or admission to the agency or institution.Section 4. Procedure for the Filing of the Petition. – The petition shall be filed in the regional office of the DSWD where the child was found or abandoned.The Regional Director shall examine the petition and its supporting documents, if sufficient in form and substance and shall authorize the posting of the notice of the petition conspicuous place for five (5) consecutive days in the locality where the child was found.The Regional Director shall act on the same and shall render a recommendation not later than five (5) working days after the completion of its posting. He/she shall transmit a copy of his/her recommendation and records to the Office of the Secretary within forty-eight (48) hours from the date of the recommendation.Section 5. Declaration of Availability for Adoption. – Upon finding merit in the petition, the Secretary shall issue a certification declaring the child legally available for adoption within seven (7) working days from receipt of the recommendation.Said certification, by itself shall be the sole basis for the immediate issuance by the local civil registrar of a foundling certificate. Within seven (7) working days, the local civil registrar shall transmit the founding certificate to the National Statistic Office (NSO).Section 6. Appeal. – The decision of the Secretary shall be appealable to the Court of Appeals within five (5) days from receipt of the decision by the petitioner, otherwise the same shall be final and executory.Section 7. Declaration of Availability for Adoption of Involuntarily Committed Child and Voluntarily Committed Child. – The certificate declaring a child legally available for adoption in case of an involuntarily committed child under Article 141, paragraph 4(a) and Article 142 of Presidential Decree No. 603 shall be issued by the DSWD within three (3) months following such involuntary commitment.


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In case of voluntary commitment as contemplated in Article 154 of Presidential Decree No. 603, the certification declaring the child legally available for adoption shall be issued by the Secretary within three (3) months following the filing of the Deed of Voluntary Commitment, as signed by the parent(s) with the DSWD.Upon petition filed with the DSWD, the parent(s) or legal guardian who voluntarily committed a child may recover legal custody and parental authority over him/her from the agency or institution to which such child was voluntarily committed when it is shown to the satisfaction of the DSWD that the parent(s) or legal guardian is in a position to adequately provide for the needs of the child: Provided, That, the petition for restoration is filed within (3) months after the signing of the Deed of Voluntary Commitment.Section 8. Certification. – The certification that a child is legally available for adoption shall be issued by the DSWD in lieu of a judicial order, thus making the entire process administrative in nature.The certification, shall be, for all intents and purposes, the primary evidence that the child is legally available in a domestic adoption proceeding, as provided in Republic Act No. 8552 and in an inter-country adoption proceeding, as provided in Republic Act No. 8043.

Lazatin v Campos1. Adoption is a juridical act, a proceeding in rem which creates

between two persons a relationship similar to that which results from legitimate paternity and filiation. Only an adoption made through the court, or in pursuance with the procedure laid down under Rule 99 of the Rules of Court is valid in this jurisdiction. It is not of natural law at all, but is wholly and entirely artificial. To establish the relation, the statutory requirements must be strictly carried out, otherwise, the adoption is an absolute nullity. The fact of adoption is never presumed, but must be affirmatively proved by the person claiming its existence. The destruction by fire of a public building in which the adoption papers would have been filed if existent does not give rise to a presumption of adoption nor is the destruction of the records of an adoption proceeding to be presumed. On the contrary, the absence of a record of adoption has been said to evolve a presumption of its non-existence. Where, under the provisions of the statute, an adoption is effected by a court order, the records of such court constitute the evidence by which such adoption may be established.

2. The absence of proof of such order of adoption by the court, as provided by the statute, cannot be substituted by parol evidence that a child has lived with a person, not his parent, and has been treated as a child to establish such adoption. Even evidence of declaration of the deceased, made in his lifetime, that he intended to adopt a child as his heir, and that he had adopted him, and of the fact that the child resided with the deceased, as a member of his family, from infancy until he attained his majority, is not sufficient to establish the fact of adoption. Nor does the fact that the deceased spouses fed, clothed, educated, recognized and referred to one like petitioner as an adopted child, recognized and referred to one like petitioner as an adopted child, necessarily establish adoption of the child. Withal, the attempts of petitioner to prove his adoption by acts and declarations of the deceased do not discharge the mandatory presentation of the judicial decree of adoption. The thrust of petitioner's evidence is rather to establish his status as an admitted illegitimate child, not an adopted child which status of an admitted illegitimate child was — the very basis of his petitioner for intervention in the estate proceedings of the late Dr. Lazatin, as above stated.

3. Secondary evidence is nonetheless admissible where the records of adoption proceedings were actually lost or destroyed. But, prior to the introduction of such secondary evidence, the proponent must establish the former existence of the instrument. The correct order of proof is as follows: Existence; execution; loss; contents; although this order may be changed if necessary

in the discretion of the court. The sufficiency of the proof offered as a predicate for the admission of an alleged lost deed lies within the judicial discretion of the trial court under all the circumstances of the particular case.

Republic v CA and BobilesQuick facts: Petition for adoption filed at the time when applicable law was Child and Youth Welfare Code under which a person may adopt without joining his/her spouse. After the TC rendered decision and during appeal, the Family Code was enacted, which makes joint adoption mandatory. Q: Should FC be applied retroactively?Under the Child and Youth Welfare Code, private respondent had the right to file a petition for adoption by herself, without joining her husband therein. When Mrs. Bobiles filed her petition, she was exercising her explicit and unconditional right under said law. Upon her filing thereof, her right to file such petition alone and to have the same proceed to final adjudication, in accordance with the law in force at the time, was already vested and cannot be prejudiced or impaired by the enactment of a new law.When private respondent filed her petition in Special Proceeding No. 1386, the trial court acquired jurisdiction thereover in accordance with the governing law. Jurisdiction being a matter of substantive law, the established rule is that the jurisdiction of the court is determined by the statute in force at the time of the commencement of the action. We do not find in the present case such facts as would constitute it as an exception to the rule.

Republic vs Toledano (pre-8552 and 8043 case)

The alien husband may not adopt, except under the cases mentioned in Article 184 FC: A former Filipino citizen who seeks to adopt a relative by consanguinity; One who seeks to adopt the legitimate child of his or her Filipino spouse; and One who is married to a Filipino citizen and seeks to adopt jointly with his or her spouse a relative by consanguinity of the latter.The alien husband does not qualify under any of the three because 1. He is not a former Filipino, 2. His wife is not a Filipino spouse @ the time of the petition (already naturalized), and 3. He is not married to a Filipino spouse @ the time of the Petition.The naturalized wife would have qualified under the first exception. However, Art 185 FC mandates that the spouses must adopt jointly. There are only two exceptions to this requirement of joint adoption: 1. One spouse seeks to adopt his/her illegitimate child, and 2. One spouse seeks to adopt the legitimate child of the other. The naturalized wife does not fall under any of these two.

Santos vs AranzansoThe Court of Appeals erred in reviewing an adoption decree under collateral attack (the proceeding was already one of an intestate proceeding). A judicial determination of fact may be contrary to conclusive evidence, or legal evidence, or w/o any evidence, but it cannot be impeached for want of jurisdiction.

3) Consent to AdoptionRA 8552. Sec. 9. Whose Consent is Necessary to the Adoption. — After being properly counseled and informed of his/her right to give or withhold his/her approval of the adoption, the written consent of the following to the adoption is hereby required:(a) The adoptee, if ten (10) years of age or over;(b) The biological parent(s) of the child, if known, or the legal guardian, or the proper government instrumentality which has legal custody of the child;(c) The legitimate and adopted sons/daughters, ten (10) years of age or over, of the adopter(s) and adoptee, if any;(d) The illegitimate sons/daughters, ten (10) years of age or over, of the adopter if living with said adopter and the latter's spouse, if any; and(e) The spouse, if any, of the person adopting or to be adopted.

Cang vs Clavano


Allegations of abandonment would sufficiently vest jurisdiction to the court and dispense with the requirement of written consent. However, if the father opposes the adoption because his consent was not sought, the matter of WoN there was abandonment becomes a preliminary issue w/c must be determined before the merits of the petition.Abandon means to forsaken entirely; to forgo all parental duties and relinquish all parental claims. Physical estrangement (w/o financial and moral desertion) is not abandonment.Being a womanizer is not a ground for divesting parental authority to a parent. A bad husband is not necessarily a bad father. In sum, the father’s consent is required because he did not abandon his child.

4) Content and ProcedureRA 8552. S10-15.8

AR. Sec. 7. Contents of the Petition. – The petition shall be verified and specifically state at the heading of the initiatory pleading whether the petition contains an application for change of name, rectification of simulated birth, voluntary or involuntary commitment of children, or declaration of child as abandoned, dependent or neglected.(1) If the adopter is a Filipino citizen, the petition shall allege the following:(a) The jurisdictional facts;(b) That the petitioner is of legal age, in possession of full civil capacity and legal rights; is of good moral character; has not been convicted of any crime involving moral turpitude; is emotionally and psychologically capable of caring for children; is at least sixteen (16) years older than the adoptee, unless the adopter is the biological parent of the adoptee or is the spouse of the adoptee’s parent; and is in a position to support and care for his children in keeping with the means of the family and has undergone pre-adoption services as required by Section 4 of Republic Act No. 8552.(2) If the adopter is an alien, the petition shall allege the following:(a) The jurisdictional facts;(b) Sub-paragraph 1(b) above;(c) That his country has diplomatic relations with the Republic of the Philippines;(d) That he has been certified by his diplomatic or consular office or any appropriate government agency to have the legal capacity to adopt in his country and his government allows the adoptee to enter his country as his adopted child and reside there permanently as an adopted child; and(e) That he has been living in the Philippines for at least three (3) continuous years prior to the filing of the petition and he maintains such residence until the adoption decree is entered.The requirements of certification of the alien’s qualification to adopt in his country and of residency may be waived if the alien:(i) is a former Filipino citizen who seeks to adopt a relative within the fourth degree of consanguinity or affinity; or(ii) seeks to adopt the legitimate child of his Filipino spouse; or(iii) is married to a Filipino citizen and seeks to adopt jointly with his spouse a relative within the fourth degree of consanguinity or affinity of the Filipino spouse.(3) If the adopter is the legal guardian of the adoptee, the petition shall allege that guardianship had been terminated and the guardian had cleared his financial accountabilities.(4) If the adopter is married, the spouse shall be a co- petitioner for joint adoption except if:(a) one spouse seeks to adopt the legitimate child of the other, or(b) if one spouse seeks to adopt his own illegitimate child and the other spouse signified written consent thereto, or

8 NB: AR is more updated

(c) if the spouses are legally separated from each other.(5) If the adoptee is a foundling, the petition shall allege the entries which should appear in his birth certificate, such as name of child, date of birth, place of birth, if known; sex, name and citizenship of adoptive mother and father, and the date and place of their marriage.(6) If the petition prays for a change of name, it shall also state the cause or reason for the change of name.In all petitions, it shall be alleged:(a) The first name, surname or names, age and residence of the adoptee as shown by his record of birth, baptismal or foundling certificate and school records.(b) That the adoptee is not disqualified by law to be adopted.(c) The probable value and character of the estate of the adoptee.(d) The first name, surname or names by which the adoptee is to be known and registered in the Civil Registry.

A certification of non-forum shopping shall be included pursuant to Section 5, Rule 7 of the 1997 Rules of Civil Procedure.

Sec. 8. Rectification of Simulated Birth. – In case the petition also seeks rectification of a simulated of birth, it shall allege that:(a) Petitioner is applying for rectification of a simulated birth;(b) The simulation of birth was made prior to the date of effectivity of Republic Act No. 8552 and the application for rectification of the birth registration and the petition for adoption were filed within five years from said date; (c) The petitioner made the simulation of birth for the best interests of the adoptee; and(d) The adoptee has been consistently considered and treated by petitioner as his own child.

Sec. 9. Adoption of a foundling, an abandoned, dependent or neglected child. – In case the adoptee is a foundling, an abandoned, dependent or neglected child, the petition shall allege:(a) The facts showing that the child is a foundling, abandoned, dependent or neglected;(b) The names of the parents, if known, and their residence. If the child has no known or living parents, then the name and residence of the guardian, if any;(c) The name of the duly licensed child-placement agency or individual under whose care the child is in custody; and(d) That the Department, child-placement or child- caring agency is authorized to give its consent.

Sec. 10. Change of name. – In case the petition also prays for change of name, the title or caption must contain:(a) The registered name of the child;(b) Aliases or other names by which the child has been known; and(c) The full name by which the child is to be known.

Sec. 11. Annexes to the Petition. – The following documents shall be attached to the petition:A. Birth, baptismal or foundling certificate, as the case may be, and school records showing the name, age and residence of the adoptee;B. Affidavit of consent of the following:1. The adoptee, if ten (10) years of age or over;2. The biological parents of the child, if known, or the legal guardian, or the child-placement agency, child- caring agency, or the proper government instrumentality which has legal custody of the child;3. The legitimate and adopted children of the adopter and of the adoptee, if any, who are ten (10) years of age or over;4. The illegitimate children of the adopter living with him who are


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ten (10) years of age or over; and5. The spouse, if any, of the adopter or adoptee.C. Child study report on the adoptee and his biological parents;D. If the petitioner is an alien, certification by his diplomatic or consular office or any appropriate government agency that he has the legal capacity to adopt in his country and that his government allows the adoptee to enter his country as his own adopted child unless exempted under Section 4(2);E. Home study report on the adopters. If the adopter is an alien or residing abroad but qualified to adopt, the home study report by a foreign adoption agency duly accredited by the Inter-Country Adoption Board; andF. Decree of annulment, nullity or legal separation of the adopter as well as that of the biological parents of the adoptee, if any.

Sec. 12. Order of Hearing. – If the petition and attachments are sufficient in form and substance, the court shall issue an order which shall contain the following:(1) the registered name of the adoptee in the birth certificate and the names by which the adoptee has been known which shall be stated in the caption;(2) the purpose of the petition;(3) the complete name which the adoptee will use if the petition is granted;(4) the date and place of hearing which shall be set within six (6) months from the date of the issuance of the order and shall direct that a copy thereof be published before the date of hearing at least once a week for three successive weeks in a newspaper of general circulation in the province or city where the court is situated; Provided, that in case of application for change of name, the date set for hearing shall not be within four (4) months after the last publication of the notice nor within thirty (30) days prior to an election.The newspaper shall be selected by raffle under the supervision of the Executive Judge.(5) a directive to the social worker of the court, the social service office of the local government unit or any child- placing or child-caring agency, or the Department to prepare and submit child and home study reports before the hearing if such reports had not been attached to the petition due to unavailability at the time of the filing of the latter; and(6) a directive to the social worker of the court to conduct counseling sessions with the biological parents on the matter of adoption of the adoptee and submit her report before the date of hearing. At the discretion of the court, copies of the order of hearing shall also be furnished the Office of the Solicitor General through the provincial or city prosecutor, the Department and the biological parents of the adoptee, if known. If a change in the name of the adoptee is prayed for in the petition, notice to the Solicitor General shall be mandatory.

Sec. 13. Child and Home Study Reports. – In preparing the child study report on the adoptee, the concerned social worker shall verify with the Civil Registry the real identity and registered name of the adoptee. If the birth of the adoptee was not registered with the Civil Registry, it shall be the responsibility of the social worker to register the adoptee and secure a certificate of foundling or late registration, as the case may be. The social worker shall establish that the child is legally available for adoption and the documents in support thereof are valid and authentic, that the adopter has sincere intentions and that the adoption shall inure to the best interests of the child. In case the adopter is an alien, the home study report must show the legal capacity to adopt and that his government allows the adoptee to enter his country as his adopted child in the absence of the certification required under Section 7(b) of Republic Act No. 8552. If after the conduct of the case studies, the social worker

finds that there are grounds to deny the petition, he shall make the proper recommendation to the court, furnishing a copy thereof to the petitioner.

Sec. 14. Hearing. – Upon satisfactory proof that the order of hearing has been published and jurisdictional requirements have been complied with, the court shall proceed to hear the petition. The petitioner and the adoptee must personally appear and the former must testify before the presiding judge of the court on the date set for hearing. The court shall verify from the social worker and determine whether the biological parent has been properly counselled against making hasty decisions caused by strain or anxiety to give up the child; ensure that all measures to strengthen the family have been exhausted; and ascertain if any prolonged stay of the child in his own home will be inimical to his welfare and interest.

Sec. 15. Supervised Trial Custody. – Before issuance of the decree of adoption, the court shall give the adopter trial custody of the adoptee for a period of at least six (6) months within which the parties are expected to adjust psychologically and emotionally to each other and establish a bonding relationship. The trial custody shall be monitored by the social worker of the court, the Department, or the social service of the local government unit, or the child-placement or child-caring agency which submitted and prepared the case studies. During said period, temporary parental authority shall be vested in the adopter. The court may, motu proprio or upon motion of any party, reduce the period or exempt the parties if it finds that the same shall be for the best interests of the adoptee, stating the reasons therefor. An alien adopter however must complete the 6-month trial custody except the following:a) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity; orb) one who seeks to adopt the legitimate child of hisFilipino spouse; orc) one who is married to a Filipino citizen and seeks to adopt jointly with his or her spouse the latter’s relative within the fourth (4th) degree of consanguinity or affinity. If the child is below seven (7) years of age and is placed with the prospective adopter through a pre-adoption placement authority issued by the Department, the court shall order that the prospective adopter shall enjoy all the benefits to which the biological parent is entitled from the date the adoptee is placed with him. The social worker shall submit to the court a report on the result of the trial custody within two weeks after its termination.

Sec. 16. Decree of Adoption. – If the supervised trial custody is satisfactory to the parties and the court is convinced from the trial custody report and the evidence adduced that the adoption shall redound to the best interests of the adoptee, a decree of adoption shall be issued which shall take effect as of the date the original petition was filed even if the petitioners die before its issuance.

The decree shall:A. State the name by which the child is to be known and registered;B. Order:1) the Clerk of Court to issue to the adopter a certificate of finality upon expiration of the 15-day reglementary period within which to appeal;2) the adopter to submit a certified true copy of the decree of adoption and the certificate of finality to the Civil Registrar where the child was originally registered within thirty (30) days from receipt of the certificate of finality. In case of change of name,


the decree shall be submitted to the Civil Registrar where the court issuing the same is situated.3) the Civil Registrar of the place where the adoptee was registered:a. to annotate on the adoptee’s original certificate of birth the decree of adoption within thirty (30) days from receipt of the certificate of finality;b. to issue a certificate of birth which shall not bear any notation that it is a new or amended certificate and which shall show, among others, the following: registry number, date of registration, name of child, sex, date of birth, place of birth, name and citizenship of adoptive mother and father, and the date and place of their marriage, when applicable;c. to seal the original certificate of birth in the civil registry records which can be opened only upon order of the court which issued the decree of adoption; andd. to submit to the court issuing the decree of adoption proof of compliance with all the foregoing within thirty days from receipt of the decree. If the adoptee is a foundling, the court shall order the Civil Registrar where the foundling was registered, to annotate the decree of adoption on the foundling certificate and a new birth certificate shall be ordered prepared by the Civil Registrar in accordance with the decree.

Sec. 17. Book of Adoptions. – The Clerk of Court shall keep a book of adoptions showing the date of issuance of the decree in each case, compliance by the Civil Registrar with Section 16(B)(3) and all incidents arising after the issuance of the decree.

Sec. 18. Confidential Nature of Proceedings and Records.– All hearings in adoption cases, after compliance with the jurisdictional requirements shall be confidential and shall not be open to the public. All records, books and papers relating to the adoption cases in the files of the court, the Department, or any other agency or institution participating in the adoption proceedings shall be kept strictly confidential. If the court finds that the disclosure of the information to a third person is necessary for security reasons or for purposes connected with or arising out of the adoption and will be for the best interests of the adoptee, the court may, upon proper motion, order the necessary information to be released, restricting the purposes for which it may be used.

5) Effects of AdoptionRA 8552. Sec. 16. Parental Authority. — Except in cases where the biological parent is the spouse of the adopter, all legal ties between the biological parent(s) and the adoptee shall be severed and the same shall then be vested on the adopter(s).

Sec. 17. Legitimacy. — The adoptee shall be considered the legitimate son/daughter of the adopter(s) for all intents and purposes and as such is entitled to all the rights and obligations provided by law to legitimate sons/daughters born to them without discrimination of any kind. To this end, the adoptee is entitled to love, guidance, and support in keeping with the means of the family.

Sec. 18. Succession. — In legal and intestate succession, the adopter(s) and the adoptee shall have reciprocal rights of succession without distinction from legitimate filiation. However, if the adoptee and his/her biological parent(s) had left a will, the law on testamentary succession shall govern.

AR. Sec. 10. Change of name. – In case the petition also prays for change of name, the title or caption must contain:(a) The registered name of the child;(b) Aliases or other names by which the child has been known; and(c) The full name by which the child is to be known.

Republic vs HernandezThe law clearly allows the adoptee to bear to the surname of the adopter. However, the given name must remain as originally registered.The creation of an adoptive relationship does not confer upon the adopter a license to change the adoptee’s first name. A petition for adoption and a petition for change of name are governed by two different sets of laws and are guided by two different objectives. In adoption, the issue is the adopter’s fitness and the child’s welfare. In change of name, no family relations are created of affected.

6) Rescission and RevocationRA 8552. S19- 20 9

CC. A919. The following shall be sufficient causes for the disinheritance of children and descendants, legitimate as well as illegitimate:(1) When a child or descendant has been found guilty of an attempt against the life of the testator, his or her spouse, descendants, or ascendants;(2) When a child or descendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless;(3) When a child or descendant has been convicted of adultery or concubinage with the spouse of the testator;(4) When a child or descendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made;(5) A refusal without justifiable cause to support the parent or ascendant who disinherits such child or descendant;(6) Maltreatment of the testator by word or deed, by the child or descendant;(7) When a child or descendant leads a dishonorable or disgraceful life;(8) Conviction of a crime which carries with it the penalty of civil interdiction. (756, 853, 674a)

AR. Sec. 19. Rescission of Adoption of the Adoptee. – The petition shall be verified and filed by the adoptee who is over eighteen (18) years of age, or with the assistance of the Department, if he is a minor, or if he is over eighteen (18) years of age but is incapacitated, by his guardian or counsel.The adoption may be rescinded based on any of the following grounds committed by the adopter:1) repeated physical and verbal maltreatment by the adopter despite having undergone counseling;2) attempt on the life of the adoptee;3) sexual assault or violence; or4) abandonment or failure to comply with parental obligations.Adoption, being in the best interests of the child, shall not be subject to rescission by the adopter. However, the adopter may disinherit the adoptee for causes provided in Article 919 of the Civil Code.

Sec. 20. Venue. – The petition shall be filed with the Family Court of the city or province where the adoptee resides.

Sec. 21. Time within which to file petition. – The adoptee, if incapacitated, must file the petition for rescission or revocation of adoption within five (5) years after he reaches the age of majority, or if he was incompetent at the time of the adoption, within five (5) years after recovery from such incompetency.

Sec. 22. Order to Answer. – The court shall issue an order requiring the adverse party to answer the petition within fifteen (15) days from receipt of a copy thereof. The order and copy of the petition shall be served on the adverse party in such manner as the court may direct.

9 NB: AR is more updated


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Sec. 23. Judgment. – If the court finds that the allegations of the petition are true, it shall render judgment ordering the rescission of adoption, with or without costs, as justice requires. The court shall order that the parental authority of the biological parent of the adoptee, if known, or the legal custody of the Department shall be restored if the adoptee is still a minor or incapacitated and declare that the reciprocal rights and obligations of the adopter and the adoptee to each other shall be extinguished. The court shall further declare that successional rights shall revert to its status prior to adoption, as of the date of judgment of judicial rescission. Vested rights acquired prior to judicial rescission shall be respected. It shall also order the adoptee to use the name stated in his original birth or foundling certificate. The court shall further order the Civil Registrar where the adoption decree was registered to cancel the new birth certificate of the adoptee and reinstate his original birth or foundling certificate.

Sec. 24. Service of Judgment. – A certified true copy of the judgment together with a certificate of finality issued by the Branch Clerk of the Court which rendered the decision in accordance with the preceding Section shall be served by the petitioner upon the Civil Registrar concerned within thirty (30) days from receipt of the certificate of finality. The Civil Registrar shall forthwith enter the rescission decree in the register and submit proof of compliance to the court issuing the decree and the Clerk of Court within thirty (30) days from receipt of the decree.

The Clerk of Court shall enter the compliance in accordance with Section 17 hereof.

RA 7160 prevails over §19: a single act done by the adopted may sufficient to warrant revocation of the adoption

General Annotations:Best Interests of the Child – paramount consideration for granting the petition

Speedy and inexpensive proceedings – objective of the rules on adoption

-The issue of the simulated birth of the adoptee and the declaration that the child is abandoned, dependent, and neglected must first be taken up in separated proceedings, and a favourable decision is required before the adoption process can be pursued

-Problems re: publication of notice, registration, have been addressed by consolidating the proceeding in a single case

-CLARITY and SIMPLIFICATION: overriding concern of the Committee

-Necessary documents are required to be attached to the petition to ensure speedy and inexpensive hearing

Role of OSG; Why it must be sent NOTICE – mandatory to protect the interest of the State when the petition includes a prayer for change of name

-Courts have discretion as to WON notice should be given

Role of Social Worker – reports and case studies-Determining WON the child can be adopted and WON adopter is

qualified

Supervised Trial Custody – grants authority to the courts to reduce the period or exempt the parties as called for by the best interests of the adoptee

Requirement of Joint Adoption by Husband and Wife: MANDATORY – in consonance with the concept of joint PA over the child which is the ideal situation

-As the child to be adopted is elevated to the level of legitimate child, it is but natural to require both the spouses to adopt jointly

-Also insures harmony between the spouses

Meaning of “Abandonment” – any conduct of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child

-Neglect or refusal to perform the natural and legal obligations of care and support which parents owe their children

-Physical estrangement alone, without financial and moral desertion, is not tantamount to abandonment.

JF must be alleged – The necessary jurisdictional requirements should be indicated in the petition for adoption. But a mere clerical error is not sufficient to oust the court of jurisdiction

When Notice Sufficient – if reasonably adopted to convey information of the pendency of the proceedings and to afford opportunity to be heard

Change of Name – may be included in the petition for adoption

Provisional Custody – Under A35 of PD603, PA is provisionally vested in the adopting parents during the pd of trial custody, i.e. before the issuance of the adoption decree, precisely because the adopting parents are given actual custody during such trial pd. Hence, the AP are not liable for QD committed by the adoptee before and after the trial pd.

Effects of AdoptionA189, FC provides: (1) For civil purposes, the adopted shall be deemed to be a legitimate child of the adopters and both shall acquire the reciprocal rights and obligations arising from the relationship of parent and child, including the right of the adopted to use the surname of the adopters; (2) The parental authority of the parents by nature over the adopted shall terminate and be vested in the adopters, except that if the adopter is the spouse of the parent by nature of the adopted, parental authority over the adopted shall be exercised jointly by both spouses; and (3) The adopted shall remain an intestate heir of his parents and other blood relatives. (39(1)a, (3)a, PD 603)

Adoption Strictly Personal Between Adopter and Adopted – does not extend to the relatives of the adopting parents or of the adopted child exc only as expressly provided by law. Hence, no relationship is created between the adopted and the collaterals of the adopting parents. Accordingly, if the AP should die before the AC, the latter cannot represent the former in the inheritance from the parents and ascendants of the AP. By adoption, the adoption can make themselves an heir but they cannot thus make one for their kindred.

Citizenship of adopted not acquired by adopted – because (a) such acquisition of citizenship partakes of the character of naturalization which is regulated not by the CC but by special laws or the naturalization law. Not being one of the means specified in the latter for the acquisition of PHL citizenship, adoption must be deemed expressly excluded from the operation of said law; 9b) the framers of the CC has no intention whatsoever to regulate therein poli ques

Transfer of Parental Authority over the AC – the adopted child shall be deemed to be a legitimate child of the adopters

An AC becomes an Intestate Heir of the Adopter - As provided by A189 of the FC and of A174: Legitimate children shall have the right: (1) To bear the surnames of the father and the


mother, in conformity with the provisions of the Civil Code on Surnames; (2) To receive support from their parents, their ascendants, and in proper cases, their brothers and sisters, in conformity with the provisions of this Code on Support; and (3) To be entitled to the legitimate and other successional rights granted to them by the Civil Code.

Name of the AC – shall bear the surname of the adopter. The change of surname of the adopted child however is more of an incident rather than the object of adoption proc. The act of adoption fixes a status, i.e. that of parent and child. Nonetheless, the AC may petition the court for the use of his former name where his adoptive parents have consented to the same.

Heirs of the Adopted Child – Under A190 of the FC, the following legal/intestate successional rules shall be observed wrt an AC:(1) Legitimate and illegitimate children and descendants and the surviving spouse of the adopted shall inherit from the adopted, in accordance with the ordinary rules of legal or intestate succession; (2) When the parents, legitimate or illegitimate, or the legitimate ascendants of the adopted concur with the adopter, they shall divide the entire estate, one-half to be inherited by the parents or ascendants and the other half, by the adopters; (3) When the surviving spouse or the illegitimate children of the adopted concur with the adopters, they shall divide the entire estate in equal shares, one-half to be inherited by the spouse or the illegitimate children of the adopted and the other half, by the adopters. (4) When the adopters concur with the illegitimate children and the surviving spouse of the adopted, they shall divide the entire estate in equal shares, one-third to be inherited by the illegitimate children, one-third by the surviving spouse, and one-third by the adopters; (5) When only the adopters survive, they shall inherit the entire estate; and (6) When only collateral blood relatives of the adopted survive, then the ordinary rules of legal or intestate succession shall apply.

Adoption to recorded in Civil Registry – A407 of the CC provides: “acts, events and judicial decrees concerning the civil status of persons shall be recorded in the civil register.” Any change or correction in a civil registry record is not allowed w/o a judicial order

Adoption Under a Foreign Law – an adoption created under the law of a foreign country is entitled to registration in the corresponding civil register of the PHL. It is understood, however, that the effects of such adoption be governed by PHL laws.

2. Inter-country AdoptionRationale for the Rule – Conformably with the declared policy of the State to provide every neglected and abandoned child w/ a family that will provide such child with love and care as well as opportunities for growth and development, efforts have been exerted to place the child with an adoptive family in the PHL. However, recognizing that inter-country adoption may be considered as allowing aliens, not presently allowed by law to adopt Filipino children if such children cannot be adopted by qualified Filipino citizens or aliens, measures have to be adopted to ensure that ICA are allowed only when the same shall (1) prove beneficial to the child’s best interests, and shall (2) serve and protect his/her fundamental rights.

Applicability of the ICA Rules – only to ICA of Filipino children by foreign nationals and Filipino citizens permanently residing abroad

Best interests of the adoptee – objective of the Rules

Limitations as to who can be the subject of ICA – a “legally free to be adopted” child: one who was voluntarily or involuntarily committed to the DSWD

Contents of the Petition – must specifically allege the qualifications of the adopter. All documents written and officially translated in English in support of the claim are required to be attached to the petition. The Committee is aware of the dangers of taking the child from its country of origin. Child trafficking, sale of children, lack and difficulty of monitoring are problems which the committee seeks to prevent.

Inexpensive and speedy administrative process – the court, after finding that the petition is sufficient in form and substance and is a proper case for ICA, shall immediately transmit the petition to the ICAB for appropriate action.

Adoptee does not automatically acquire the citizenship of the AP – dependent on the law of the receiving State; a separate action for acquisition of citizenship must be filed

RA 8043Article I - General ProvisionsSEC. 1. Short Title.- This Act shall be known as the "Inter-Country Adoption Act of 1995."SEC. 2. Declaration of Policy.- It is hereby declared the policy of the State to provide every neglected and abandoned child with opportunities for growth and development. Towards this end, efforts shall be exerted to place the child with an adoptive family in the Philippines. However, recognizing that inter-country adoption may be considered as allowing aliens, not presently allowed by law to adopt Filipino children if such children cannot be adopted by qualified Filipino citizens or aliens, the State shall take measures to ensure that inter-country adoptions are allowed when the same shall prove beneficial to the child's best interests, and shall serve and protect his/her fundamental rights.SEC. 3. Definition of Terms.- As used in this Act, the term:a) Inter-country adoption refers to the socio-legal process of adopting a Filipino child by a foreigner or a Filipino citizen permanently residing abroad where the petition is field, the supervised trial custody is undertaken, and the decree of adoption is issued outside the Philippines.b) Child means a person below fifteen (15) years of age unless sooner emancipated by law.c) Department refers to the Department of Social Welfare and Development of the Republic of the Philippines.d) Secretary refers to the Secretary of the Department of Social Welfare and Development.e) Authorized and accredited agency refers to the State welfare agency or a licensed adoption agency in the country of the adopting parents which provide comprehensive social services and which is duly recognized by the Department.f) Legally-free child means a child who has been voluntarily or involuntarily committed to the Department, in accordance with the Child and Youth Welfare Code.g) Matching refers to the judicious pairing of the adoptive child and the applicant to promote a mutually satisfying parent-child relationship.h) Board refers to the Inter-country Adoption Board.Article II - The Inter-Country Adoption BoardSEC. 4. The Inter-Country Adoption Board.- There is hereby created the Inter-Country Adoption Board, hereinafter referred to as the Board, to act as the central authority in matters relating to inter-country adoption. It shall act as the policy-making body for purposes of carrying out the provisions of this Act, in consultation and coordination with the Department, the different child-care and placement agencies, adoptive agencies, as well as non-governmental organizations engaged in child-care and placement activities. As such, it shall:


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a) Protect the Filipino child from abuse, exploitation, trafficking and/or sale or any other practice in connection with adoption which is harmful, detrimental, or prejudicial to the child;b) Collect, maintain, and preserve confidential information about the child and the adoptive parents;c) Monitor, follow-up, and facilitate completion of adoption of the child through authorized and accredited agency;d) Prevent improper financial or other gain in connection with an adoption and deter improper practices contrary to this Act;e) Promote the development of adoption services including post-legal adoption;f) License and accredit child-caring/placement agencies and collaborate with them in the placement of Filipino children;g) Accredit and authorize foreign adoption agency in the placement of Filipino children in their own country; andh) Cancel the license to operate and blacklist the child-caring and placement agency or adoptive agency involved from the accreditation list of the Board upon a finding of violation of any provision under this Act.SEC. 5. Composition of the Board. - The Board shall be composed of the Secretary of the Department as ex-officio Chairman, and six (6) other members to be appointed by the President for a nonrenewable term of six (6) years: Provided, That there shall be appointed one (1) psychiatrist or psychologist, two (2) lawyers who shall have at least the qualifications of a regional trial court judge, one (1) registered social worker and two (2) representatives from non-governmental organizations engaged in child-caring and placement activities. The members of the Board shall receive a per diem allowance of One thousand five hundred pesos (P1,500.00) for each meeting attended by them: Provided, further, That no compensation shall be paid for more than four (4) meetings a month,SEC. 6. Powers and Functions of the Board.- The Board shall have the following powers and functions:a) to prescribe rules and regulations as it may deem reasonably necessary to carry out the provisions of this Act, after consultation and upon favorable recommendation of the different agencies concerned with child-caring, placement, and adoption;b) to set the guidelines for the convening of an Inter-country Adoption Placement Committee which shall be under the direct supervision of the Board;c) to set the guidelines for the manner by which selection/matching or prospective adoptive parents and adoptive child can be made;d) to determine a reasonable schedule of fees and charges to be exacted in connection with the application for adoption;e) to determine the form and contents of the application for inter-country adoption;f) to formulate and develop policies, programs and services that will protect the Filipino child from abuse, exploitation, trafficking and other adoption practice that is harmful, detrimental and prejudicial to the best interest of the child;g) to institute systems and procedures to prevent improper financial gain in connection with adoption and deter improper practices which are contrary to this Act;h) to promote the development of adoption services, including post-legal adoption services;i) to accredit and authorize foreign private adoption agencies which have demonstrated professionalism, competence and have consistently pursued non-profit objectives to engage in the placement of Filipino children in their own country: Provided, That such foreign private agencies are duly authorized and accredited by their own government to conduct inter-country adoption: Provided, however, That the total number of authorized and accredited foreign private adoption agencies shall not exceed one hundred (100) a year;j) to take appropriate measures to ensure confidentiality of the records of the child, the natural parents and adoptive parents at all times;k) to prepare, review or modify; and thereafter, recommend

to the Department of Foreign Affairs, Memoranda of Agreement respecting inter-country adoption consistent with the implementation of this Act and its stated goals, entered into, between and among foreign governments, international organizations and recognized international non-governmental organizations;l) to assist other concerned agencies and courts in the implementation of this Act, particularly as regards coordination with foreign persons, agencies and other entities involved in the process of adoption and the physical transfer of the child; andm) to perform such other functions on matters relating to inter-country adoption as may be determined by the President.Article III - ProcedureSEC. 7. Inter-Country Adoption as the Last Resort.- The Board shall ensure that all possibilities for adoption of the child under the Family Code have been exhausted and that inter-country adoption is in the best interest of the child. Towards this end, the Board shall set up the guidelines to ensure that steps will be taken to place the child in the Philippines before the child is placed for inter-country adoption: Provided, however, That the maximum number that may be allowed for foreign adoption shall not exceed six hundred (600) a year for the first five (5) years.SEC. 8. Who May be Adopted.- Only a legally free child may be the subject of inter-country adoption. In order that such child may be considered for placement, the following documents must be submitted to the Board:a) Child study;b) Birth certificate/founding certificate;c) Deed of voluntary commitment/decree of abandonment/death certificate of parents;d) Medical evaluation/history;e) Psychological evaluation, as necessary; andf) Recent photo of the child.SEC. 9. Who May Adopt.- Any alien or a Filipino citizen permanently residing abroad may file an application for inter-country adoption of a Filipino child if he/she;a) is at least twenty-seven (27) years of age and at least sixteen (16) years older than the child to be adopted, at the time of application unless the adaptor is the parent by nature of the child to be adopted or the spouse of such parent;b) if married, his/her spouse must jointly file for the adoption;c) has the capacity to act and assume all rights and responsibilities of parental authority under his national laws, and has undergone the appropriate counselling from an accredited counsellor in his/her country;d) has not been convicted of a crime involving moral turpitude;e) is eligible to adopt under his/her nation law;f) is in a position to provide the proper care and support and to give the necessary moral values and example to all his children, including the child to be adopted;g) agrees to uphold the basic rights of the child as embodied under Philippine laws, the U.N. Convention on the Rights of the Child, and to abide by the rules and regulations issued to implement the provisions of this Act;h) comes from a country with whom the Philippines has diplomatic relations and whose government maintains a similarly authorized and accredited agency and that adoption is allowed under his/her national laws; andi) possesses all the qualifications and none of the disqualifications provided herein and in other applicable Philippine laws.SEC. 10. Where to File Application.- An application to adopt a Filipino child shall be field either with the Philippine Regional Trial Court having jurisdiction over the child, or with the Board, through an intermediate agency, whether governmental or an authorized and accredited agency, in the country of the prospective adoptive parents, which application shall be in accordance with the requirements as set forth in the implementing rules and regulations


to be promulgated by the Board.The application shall be supported by the following documents written and officially translated in English:a) Birth certificate of applicant(s);b) Marriage contract, if married, and divorce decree, if applicable;c) Written consent of their biological or adopted children above ten (10) years of age, in the form of sworn statement;d) Physical, medical and psychological evaluation by a duly licensed physician and psychologist;e) Income tax returns or any document showing the financial capability of the applicant(s);f) Police clearance of applicant(s);g) Character reference from the local church/minister, the applicant's employer and a member of the immediate community who have known the applicant(s) for at least five (5) years; andh) Recent postcard-size pictures of the applicant(s) and his immediate family;The Rules of Court shall apply in case of adoption by judicial proceedings.SEC. 11. Family Selection/Matching.- No child shall be matched to a foreign adoptive family unless it is satisfactorily shown that the child cannot be adopted locally. The clearance, as issued by the Board, with the copy of the minutes of the meetings, shall form part of the records of the child to be adopted. When the Board is ready to transmit the Placement Authority to the authorized and accredited inter-country adoption agency and all the travel documents of the child are ready, the adoptive parents, or any one of them, shall personally fetch the child in the Philippines.SEC. 12. Pre-adoptive Placement Costs.- The applicant(s) shall bear the following costs incidental to the placement of the child;a) The cost of bringing the child from the Philippines to the residence of the applicant(s) abroad, including all travel expenses within the Philippines and abroad: andb) The cost of passport, visa, medical examination and psychological evaluation required, and other related expenses.SEC. 13. Fees, Charges and Assessments.- Fees, charges, and assessments collected by the Board in the exercise of its functions shall be used solely to process applications for inter-country adoption and to support the activities of the Board.SEC. 14. Supervision of Trial Custody.- The governmental agency or the authorized and accredited agency in the country of the adoptive parents which filed the application for inter-country adoption shall be responsible for the trial custody and the care of the child. It shall also provide family counseling and other related services. The trial custody shall be for a period of six (6) months from the time of placement. Only after the lapse of the period of trial custody shall a decree of adoption be issued in the said country, a copy of which shall be sent to the Board to form part of the records of the child.During the trial custody, the adopting parent(s) shall submit to the governmental agency or the authorized and accredited agency, which shall in turn transmit a copy to the Board, a progress report of the child's adjustment. The progress report shall be taken into consideration in deciding whether or not to issue the decree of adoption.The department of Foreign Affairs shall set-up a system by which Filipino children sent abroad for trial custody are monitored and checked as reported by the authorized and accredited inter-country adoption agency as well as the repatriation to the Philippines of a Filipino child whose adoption has not been approved.SEC. 15. Executive Agreements.- The Department of Foreign Affairs, upon representation of the Board, shall cause the preparation of Executive Agreements with countries of the foreign adoption agencies to ensure the legitimate concurrence of said countries in upholding the safeguards provided by this Act.Article IV - PenaltiesSEC. 16. Penalties.-a) Any person who shall knowingly participate in the

conduct or carrying out of an illegal adoption, in violation of the provisions of this Act, shall be punished with a penalty of imprisonment ranging from six (6) years and one (1) day to twelve (12) years and/or a fine of not less than Fifty thousand pesos (P50,000), but not more than Two hundred thousand pesos (P200,000), at the discretion of the court. For purposes of this Act, an adoption is illegal if it is effected in any manner contrary to the provisions of this Act or established State policies, its implementing rules and regulations, executive agreements, and other laws pertaining to adoption. Illegality may be presumed from the following acts:1) consent for an adoption was acquired through, or attended by coercion, fraud, improper material inducement;2) there is no authority from the Board to effect adoption;3) the procedures and safeguards placed under the law for adoption were not complied with; and4) the child to be adopted is subjected to, or exposed to danger, abuse and exploitation.b) Any person who shall violate established regulations relating to the confidentiality and integrity of records, documents and communications of adoption applications, cases and processes shall suffer the penalty of imprisonment ranging from one (1) year and one (1) day to two (2) years, and/or a fine of not less than Five thousand pesos (P5,000), but not more than Ten thousand pesos (P10,000), at the discretion of the court.A penalty lower by two (2) degrees than that prescribed for the consummated felony under this Article shall be imposed upon the principals of the attempt to commit any of the acts herein enumerated.Acts punishable under this Article, when committed by a syndicate or where it involves two or more children shall be considered as an offense constituting child trafficking and shall merit the penalty of reclusion perpetua.Acts punishable under this Article are deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring and/or confederating with one another in carrying out any of the unlawful acts defined under this Article. Penalties as are herein provided shall be in addition to any other penalties which may be imposed for the same acts punishable under other laws, ordinances, executive orders, and proclamations.SEC. 17. Public Officers as Offenders.- Any government official, employee or functionary, who shall be found guilty of violating any of the provisions of this Act, or who shall conspire with private individuals shall, in addition to the above-prescribed penalties, be penalized in accordance with existing civil service laws, rules and regulations: Provided, That upon the filing of a case, either administrative or criminal, said government official, employee or functionary concerned shall automatically suffer suspension until the resolution of the case.Article V - Final ProvisionsSEC. 18. Implementing Rules and Regulations.- The Inter-country Adoption Board, in coordination with the Council for the Welfare of Children, the Department of Foreign Affairs, and the Department of Justice, after due consultation with agencies involved in child-care and placement, shall promulgate the necessary rules and regulations to implement the provisions of this Act within six (6) months after its effectivity.SEC. 19. Appropriations.- the amount of Five million pesos (P5,000,000) is hereby appropriated from the proceeds of the Lotto for the initial operations of the Board and subsequently the appropriations of the same shall be included in the General Appropriations Act for the year following its enactment.SEC. 20. Separability Clause.- If any provision, or part hereof, is held invalid or unconstitutional, the remainder of the law or the provision not otherwise affected, shall remain valid and subsisting.SEC. 21. Repealing Clause.- Any law, decree, executive order, administrative order or rules and regulations contrary to, or inconsistent with the provisions of this Act are hereby repealed, modified or amended accordingly.SEC. 22. Effectivity Clause.- This Act shall take effect fifteen (15) days after its publication in two (2) newspapers of general


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circulation.

RA 8043, IRR.ARTICLE VIII - INTER-COUNTRY ADOPTION PROCESSSECTION 26. WHO MAY BE ADOPTED.- Any child who has been voluntarily or involuntarily committed to the Department as dependent, abandoned or neglected pursuant to the provisions of the Child and Youth Welfare Code may be the subject of Inter-Country Adoption; Provided that in the case of a child who is voluntarily committed, the physical transfer of said child shall be made not earlier than six (6) months from the date of execution of the Deed of Voluntary Commitment by the child’s biological parent/s or guardian. Provided further, however, that this prohibition against physical transfer shall not apply to children being adopted by a relative or to children with special medical conditions.

SECTION 27. WHO MAY ADOPT. - Any foreign national or Filipino citizen permanently residing abroad who has the qualifications and none of the disqualifications under the Act may file an Application if he/she:a. Is at least twenty-seven (27) years of age and is at least sixteen (16) years older than the child to be adopted at the time of the filing of the application, unless the applicant is the parent by nature of the child to be adopted or is the spouse of such parent by nature;b. Has the capacity to act and assume all the rights and responsibilities incidental to parental authority under his/her national law;c. Has undergone appropriate counseling from an accredited counselor in his/her country;d. Has not been convicted of a crime involving moral turpitude;e. Is eligible to adopt under his/her national law;f. Can provide the proper care and support and give the necessary moral values and example to the child and, in the proper case, to all his/her other children;g. Comes from a country(i) With whom the Philippines has diplomatic relations;(ii) Whose government maintains a foreign adoption agency; and(iii) Whose laws allow adoption; andh. Files jointly with his/her spouse, if any, who shall have the same qualifications and none of the disqualifications to adopt as prescribed above.

SECTION 28. REQUIRED DOCUMENTS OF APPLICANTS. – The following documents shall be required of the applicants for inter-country adoption.a) Application Form. An application form prescribed by the Board which includes the following shall be accomplished by the husband and wife:1. Undertaking under oath signed by the applicants2. Information and Personal Data of the Applicantsb) Home Study Report to be prepared by the Central Authority or an ICABaccredited Foreign Adoption Agency.c) Supporting Documents. The supporting documents to be attached to theApplication shall consist of the following:1) Birth Certificates of the Applicants and, in cases of relative adoption, such relevant documents that establish the relationship between the applicant claiming relationship to the child to be adopted;2) Marriage Contract of the applicants, and in the proper case, Decree ofDivorce of all the previous marriages of both spouses;3) Written consent to the adoption in the form of a sworn statement by the biological and/or adopted children of the applicants who are ten (10) years of age or over;

4) Physical and medical evaluation by a duly licensed physician;5) Psychological evaluation by a psychologist;6) Latest income tax return or other documents showing the financial capability of the applicant;7) Clearances issued by the Police Department or other proper government agency of the place where the applicants reside;8) Character reference from the local church/minister, the applicant’s employer and a member of the immediate community who have known the applicant(s) for at least five (5) years; and9) A Certification from the appropriate government agency that the applicant is qualified to adopt under his/her national law and that the child to be adopted is allowed to enter the country for trial custody and reside permanently in the said place once adopted;10) Recent postcard size pictures of the applicant, their immediate family members and their home; and11) Self-Report Questionnaire (required when the Psychological Evaluation is inadequate).

SECTION 29. FEES, CHARGES AND ASSESSMENTS. - There shall be a fee to be determined by the Board upon filing of the application for adoption. Upon acceptance of the matching proposal, a corresponding fee shall be charged based on the schedule of fees fixed by the Board and communicated to all Central Authorities and Foreign Adoption Agencies. These and other fees shall be charged to support the operational expenses of the inter-country adoption program. Such fees, charges and assessments shall be indicated in the application form and communicated to all Central Authorities and foreign adoption agencies.

SECTION 30. WHERE TO FILE APPLICATION. - The application shall be filed with the Board through the Central Authority or an accredited Foreign Adoption Agency (FAA) in the country where the applicant resides. Foreigners who file a petition for adoption in the Philippines under the Domestic Adoption Act of 1998 otherwise known as RA 8552, the Court, after finding the petition to be sufficient in form and substance and a proper case for inter-country adoption, shall immediately transmit the petition to the Board for appropriate action. The Board shall then act on the application following the procedures described in these Rules.

SECTION 31. ROSTER OF APPROVED APPLICANTS. - The Board shall establish a Roster of Approved Applicants to be updated at least quarterly. The Board shall act on each application within one (1) month from receipt thereof, provided the application and documentary requirements are complete.

SECTION 32. ENDORSEMENT OF CHILD FOR INTER-COUNTRY ADOPTION. - A child who has been committed to the Department and who may be available for inter-country adoption shall be endorsed by the Department to the Board. The endorsement shall contain a certification by the Department that all possibilities for adoption of the child in the Philippines have been exhausted and that inter-country adoption is in the best interests of the child.

In cases of relative adoption, a Certification issued by the DSWD Field Office Director together with the Child Study Report (CSR) and other supporting documents shall be endorsed to the Board.

SECTION 33. CHILD’S SUPPORTING DOCUMENTS. - The following documents pertaining to the child shall be attached to the endorsement:a. Child Study and Updated Report (if CSR had been prepared more than six (6) months ago) prepared by the


social worker of the DSWD or NGO Child Caring/Child Placing Agency at the time of matching shall include information about the child’s identity, upbringing, and ethnic, religious and cultural backgrounds, social environment, family history, medical history and special needs;b. Security Paper (SECPA) of the Birth or Foundling Certificate;c. Certified True Copy of the Decree of Abandonment together with the Certificate of Finality for such judgment or the Notarized Deed of Voluntary Commitment executed after the birth of the child;d. Certified True Copy of the Death Certificate of the child’s birthparent/s, if applicable;e. Updated medical evaluation and history of the biological family, if available,f. Psychological evaluation for children above five (5) years old or as may be deemed necessary by the ICPC;g. Child’s own written consent to adoption, if he/she is ten (10) years or older, witnessed by a social worker of the Child Caring/Placing Agency and after proper counseling; andh. Most recent whole body size picture of the child (taken within six (6) months upon submission of documents). If applicable, any physical impairment of the child should be visible in the picture.

SECTION 34. ROSTER OF CHILDREN CLEARED FOR INTER-COUNTRY ADOPTION.- A Roster of Children endorsed by the Department for inter-country adoption shall be prepared, maintained and updated by the Secretariat on a monthly basis.

SECTION 35. MATCHING. - The matching of the child with an applicant shall be carried out during a matching conference by the Committee together with the head or social worker of the agency or the Secretariat social worker of the ICAB to whom the presentation is delegated . The Board shall set the guidelines for the manner by which the matching process shall be conducted. These are the matching procedures:a. Pre-Matchingi. Review of Adoption Dossiersii. Submission of Matching Proposalb. Matching Conferencei. Presentation of the Social Workerii. Deliberationsiii. ICPC Recommendationc. Post Matching Conferencei. Presentation by the ICAB Secretariat Social Workerii. Board Action

SECTION 36. APPROVAL OF MATCHING. - The Committee shall endorse the matching proposal to the Board for its approval or other appropriate action. The endorsement shall state the reasons for the Committee’s recommendation of the placement.

SECTION 37. BOARD ACTION ON APPROVED MATCHING. - The Board shall immediately act on the matching proposal of the Committee. If the same is approved, a notice of matching shall be sent to the concerned Central Authority or foreign adoption agency within five (5) days from the date of approval and shall be accompanied by the following documents:a. Child Study Report and Updated Report (if CSR had been prepared more than six (6) months ago;b. Updated medical evaluation of the child and psychological evaluation, if applicable;c. Most recent whole body size picture of the child (taken within six (6) months upon submission of documents); andd. Itemized pre-adoptive placement costs.

The applicant/s shall notify the Central Authority or Foreign Adoption Agency in writing of their decision on the matching proposal within fifteen (15) working days from receipt of said

proposal. If the applicant needs additional information about the child and/or they need more time to arrive at a decision, an extension of thirty (30) working days may be granted.

SECTION 38. NO CONTACT BETWEEN APPLICANT AND CHILD’S PARENTS. - No matching arrangement except under these Rules shall be made between the applicant and the child’s parents/guardians or custodians, nor shall any contact between them concerning a particular child be done before the matching proposal of the Committee has been approved by the Board. This prohibition shall not apply in cases of adoption of a relative or in cases where the child’s best interests as determined by the Board is at stake.

SECTION 39. PLACEMENT AUTHORITY. - The Board shall issue the Placement Authority within three (3) working days upon receipt of the applicant’s acceptance of the matching proposal and the corresponding fees from the Central Authority or the FAA.

The Board shall transmit a copy of the Placement Authority to the Department of Foreign Affairs and to the Central Authority or FAA.

SECTION 40. PRE-ADOPTIVE PLACEMENT COSTS. - Upon acceptance of the matching proposal, the applicant, through the Central Authority or the FAA, shall pay the expenses incidental to the pre-adoptive placement of the child, including the cost of the child’s travel, medical and psychological evaluation and other related expenses.

SECTION 41. PRE-DEPARTURE PREPARATION OF THE CHILD. - After the issuance of the Placement Authority and prior to the departure, the child shall be prepared for his/her placement by the concerned Child Caring/Placing Agency to minimize the anxiety and trauma due to separation from the persons with whom the child may have formed attachments. Further, the preparation shall ensure that the child is physically able and emotionally ready to travel and to form new relationships.

SECTION 42. PHYSICAL TRANSFER OF THE CHILD. - The adoptive parents or anyone of them shall personally fetch the child from the Philippines not later than twenty (20) working days after notice of issuance of the visa of the child for travel to the country where the applicant resides. The applicant shall stay in the country with the child for at least five (5) days to allow bonding to occur between and among them.

Should the applicants be unable to fetch the child/children within the said period, a letter from the CA or FAA explaining such shall be required. The unauthorized failure of the applicant/s to fetch the child within said period may result in the cancellation of the Placement Authority.

SECTION 43. FAILURE OF THE PHYSICAL TRANSFER TO OCCUR. - In case the adoption of the child is not pursued during the applicant’s period of stay in the country, the Board and the concerned Child Caring Agency shall be duly notified by the applicant. Appropriate steps shall be undertaken by the Board to ensure that the best interest of the child is protected.

The Board shall immediately inform the Central Authority and/or the FAA about the decision of the applicants to leave the child/children behind.

All travel documents of the child shall be turned over by the applicants to the Secretariat before returning to their country. In accordance with Article 19 (3) of the Hague Convention, the applicants’ documents shall be returned to the Central Authority or FAA concerned.

SECTION 44. TRANSFER OF CUSTODY OF THE CHILD. - Trial


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custody shall start upon physical transfer of the child to the applicant who, as custodian, shall exercise substitute parental authority over the person of the child.

SECTION 45. SUPERVISION OF PRE-ADOPTIVE PLACEMENT.- The Central Authority and/or the FAA of the State to which the child has been transferred shall supervise and monitor the placement of the child with the applicants, maintaining communication with the applicants from the time the child leaves the Philippines up to the time adoption is finalized.

The FAA shall be responsible for the pre-adoptive placement, care and family counseling of the child for at least six (6) months from his/her arrival in the residence of the applicant/s, when applicable. During the pre-adoptive placement, the FAA shall furnish the Board with quarterly reports on the child’s health, psycho-social adjustment, and relationship with the applicant/s. The report shall also include updated information regarding the applicants’ personal circumstances, if any. The Board shall furnish the child’s CCA a copy of the reports.

Relative adoptions are subject to the same requirements under this Section.

SECTION 46. EMERGENCY INTERVENTION AND REPORT. - During the trial custody period, the Central Authority and/or the FAA shall immediately notify the Board if any serious ailment, injury or abuse is suffered by the child from the adoptive parent(s) or from other household members or the adoptive parent/s suffer from any serious ailment or injury that will make the adoption untenable.

The Central Authority and/or the FAA shall take the following measures to protect the child:a. Medical/psychological interventions;b. Emergency foster care; andc. Respite care.

A report shall be submitted to the Board within seventy-two (72) hours, to include the nature of the injury and the interventions provided.

In the event that all efforts to restore the parent-child relationship between the child and the applicant/s fail, Sections 48 and 49 of these Rules shall apply.

SECTION 47. DISRUPTION AND TERMINATION OF PLACEMENT. - In the event of serious damage in the relationship between the child and the applicant/s where the continued placement of the child is not in his/her best interests, the Central Authority and/or the FAA shall take the necessary measures to protect the child, in particular, to cause the child to be withdrawn from the applicant/s and to arrange for his/her temporary care.

The Central Authority and/or FAA shall exhaust all means to remove the cause of the unsatisfactory relationship which impedes or prevents the creation of a mutually satisfactory adoptive relationship. A complete report should be immediately forwarded to the Board with actions taken as well as recommendations and appropriate plans. Based on the report, the Board may terminate the pre-adoptive relationship.

In every instance, the collaboration between and among the Central Authority and/or theFAA and the Board shall be carried out to ensure the protection of the child.

SECTION 48. NEW PLACEMENT FOR CHILD. - In the event of termination of the pre- adoptive relationship, the Board shall

identify from the Roster of Approved Applicants a suitable family with whom to place the child. The Central Authority and/or the FAA may also propose a replacement family whose application shall be filed for the approval of the Board. No adoption shall take place until after the Board has approved the application of such replacement family.

Taking into consideration the age and degree of maturity of the child, he or she shall be consulted and, when appropriate, his or her consent shall be obtained.

In the entrustment of the child to a replacement family, Section 39 and Sections 44-46 of these Rules shall apply.

A foster family who eventually decides to adopt the child under its care shall comply with the requirements of Sections 26-30 and Sections 34-36 of these Rules.

SECTION 49. REPATRIATION OF THE CHILD. - If the Board, in coordination with the Central Authority and/or the FAA is unable to find a suitable replacement family for the child within a reasonable period after the termination of the pre-adoptive relationship, the Board, as a last resort, shall arrange for the child’s repatriation. The current prospective adoptive parents through the CA/FAA shall shoulder the cost of the child’s repatriation. The Board shall inform the Department, the Child Caring/Placing Agency concerned and the Department of Foreign Affairs of the decision to repatriate the child.

SECTION 50. CONSENT TO ADOPTION. - If a satisfactory pre-adoptive relationship is formed between the applicant/s and the child, the Board shall transmit an Affidavit of Consent to the Adoption executed by the Department to the Central Authority and/or the FAA within fifteen (15) days after receipt of the last post placement report.

SECTION 51. FILING OF PETITION FOR ADOPTION. - The Central Authority and/or the FAA shall ensure that the applicant/s file the appropriate petition for the adoption of the child to the proper court or tribunal or agency in accordance with their national law.

SECTION 52. DECREE OF ADOPTION. - A copy of the final Decree of Adoption or its equivalent, including the Certificate of Citizenship/Naturalization, whenever applicable, shall be transmitted by the Central Authority and/or the FAA to the Board within one (1) month after its issuance. The Board shall require the recording of the final judgment in the appropriate Philippine Civil Registry.

SECTION 53. DISMISSAL OF PETITION FOR ADOPTION. - In case of dismissal or disapproval of the petition for adoption by the foreign tribunal or agency filed by the applicant, the procedures under Sections 48, 49 and 50 shall apply.

SECTION 54. POST ADOPTION SERVICES. - The Board shall allocate funds for PostAdoption Services and Research. It shall also establish guidelines to cover this program.

ARTICLE IX - CONFIDENTIALITYSECTION 55. RECORDS. - All records relating to adoption cases and proceedings shall be kept confidential. No information thereof shall be released without written authority from the Board or from any of the following:a. The adopted person of legal age;b. The guardian of the adopted person if still a minor or under guardianship;c. The adopted person’s duly authorized representative;d. The court or proper public official whenever necessary in an


administrative, judicial or other official proceeding to determine the identity of the parent or parents or of the circumstances surrounding the birth of the adopted person; ore. The nearest of kin, e.g. spouse, adoptive parent(s), direct descendant(s), etc. in case of the death of the adopted person.

SECTION 56. PRESERVATION OF INFORMATION.- The Board shall ensure that information held by them concerning the origin of the adopted person, in particular the identity of his/her biological parents, as well as his or her medical history is preserved for life.

The Central Authority, the Competent Authority of a Contracting State, the FAAs and the Board shall ensure that the adopted person or his or her representative has access to such information, under appropriate guidance, in so far as is permitted by the law of that State.

Hague Convention on Protection of Children and Cooperation in Respect of Inter-country Adoption

3. Custody of Children of Separated Parents1) Proceedings

R99. SEC. 6. Proceedings as to child whose parents are separated. Appeal.—When husband and wife are divorced or living separately and apart from each other, and the question as to the care, custody, and control of a child or children of their marriage is brought before a Regional Trial Court by petition or as an incident to any other proceeding, the court, upon hearing the testimony as may be pertinent, shall award the care, custody, and control of each such child as will be for its best interest, permitting the child to choose which parent it prefers to live with it be over ten years of age, unless the parent so chosen be unfit to take charge of the child by reason of moral depravity, habitual drunkenness, incapacity, or poverty. If, upon such hearing, it appears that both parents are improper persons to have the care, custody, and control of the child, the court may either designate the paternal or maternal grandparent of the child, or his oldest brother or sister, or some reputable and discreet person to take charge of such child, or commit it to any suitable asylum, children's home, or benevolent society. The court may in conformity with the provisions of the Civil Code order either or both parents to support or help support said child, irrespective of who may be its custodian, and may make any order that is just and reasonable permitting the parent who is deprived of its care and custody to visit the child or have temporary custody thereof. Either parent may appeal from an order made in accordance with the provisions of this section. No child under seven years of age shall be separated from its mother, unless the court finds there are compelling reasons therefor.Scope – R99.6 contemplates a situation: (1) when H&W are divorced or living separately and apart from each other; and (2) the question as to the care, custody, and control of a child or children of their marriage.

Resolution – the issue may resolved through a separate petition or as an incident to a pet for LS, annulment, nullity

2) Substantive Basis

FC. A63. The decree of legal separation shall have the following effects:(3) The custody of the minor children shall be awarded to the innocent spouse, subject to the provisions of Article 213 of this Code;

FC. A213. In case of separation of the parents, parental authority shall be exercised by the parent designated by the Court. The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit.

FC. A363. In all questions on the care, custody, education and property of children the latter's welfare shall be paramount. No mother shall be separated from her child under seven years of age, unless the court finds compelling reasons for such measure

Where a H&W are living separately the ques as to w/c 1 of them is entitled to custody of their 10 y/o child is a matter within the sound discretion of the court, in accordance with R99.6. In such cases, the well being of the minor child is the predominant consideration.

Parental Authority in the event of the separation of the parents – Interest of the Child is the PARAMOUNT CONSIDERATION – A363 provides that in all questions relating to the care, custody, education, and property of the children, the latter’s welfare is paramount. The best interest of the minor can override proc rules and even the rights of the parents to the custody of their children. It also underscores the mandatory character of the prov w/c states that no mother shall be separated from her child under 7 y/o, unless the court finds compelling reasons for such measure

-The task of choosing the parent to whom custody shall be awarded is not a ministerial function to be determined by a simple determination of the age of a minor child. Whether the child is under or over 7 y/o, the paramount criterion will always be the child’s interest. Discretion is given to the court to decide who can best assure the welfare of the child, and award the custody on the basis of that consideration.

-The right of parents to the company and custody of their children is but ancillary to the proper discharge of parental duties to provide their children with adequate support, education, moral, intellectual, and civic training and development.

- In ascertaining the welfare and best interests of the child, courts are mandated to take into account all relevant considerations.

- If the child is under 7, the law presumes that the mother is the best custodian. The presumption is conclusive but may be overcome by “compelling reasons”. If a child is over 7, his choice is paramount but the court is not bound by that choice.

Exercise of PA - The law only confers on the innocent spouse the “exercise” of PA. Having custody of the child, the innocent spouse shall implement the sum of parental rights with respect to his rearing and care. The innocent spouse shall have the right to the child’s services and earnings and the right to direct his activities and make decisions regarding his care and control, education, health, and religion. In a no. of cases, this court has considered PA as the joint exercise of which is vested by law upon the parents, as: “a mass of rights and obligations which the law grants to parents for the purpose of the children’s physical preservation and development, as well as the cultivation of their intellect and the education of their hearts and senses. As regards parental authority, ‘there is no power, but a task; no complex of rights but a sum of duties; no sovereignty by a sacred trust for the welfare of the minor’.”

Inalienability and non-transferability of PA – PA and responsibility may not be transferred or renounced exc in cases authorized by law. The right attached to PA, being purely personal, the law allows a waiver of PA only in cases of adoption, guardianship, and surrender to a children’s home or orphan institution.- When a parent entrusts the custody of a minor to another,

such as a friend or godfather, even in a document, what is given is merely temp custody and it does not constitute a renunciation of PA. Even if a definite renunciation is manifest, the law still disallows the same.

- PA is a constitutionally protected State policy borne out of established customs and traditions of our people.


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3) Procedure on Custody in Petitions for Declaration of Absolute Nullity or Void Marriages or Legal Separation


RA 8369. §5. Jurisdiction of family Courts. - The Family Courts shall have exclusive original jurisdiction to hear and decide the following cases:(b) Petitions for guardianship, custody of children, habeas corpus in relation to the latter;(d) Complaints for annulment of marriage, declaration of nullity of marriage and those relating to marital status and property relations of husband and wife or those living together under different status and agreements, and petitions for dissolution of conjugal partnership of gains;(e) Petitions for support and/or acknowledgment;

A.M. No. 02-11-12-SC. SEC. 1. When Issued.–Upon receipt of a verified petition for declaration of absolute nullity of void marriage or for annulment of voidable marriage, or for legal separation, and at any time during the proceeding, the court, motu proprio or upon application under oath of any of the parties, guardian or designated custodian, may issue provisional orders and protection orders with or without a hearing. These orders may be enforced immediately, with or without a bond, and for such period and under such terms and conditions as the court may deem necessary.Sec. 4. Child Custody.–In determining the right party or person to whom the custody of the child of the parties may be awarded pending the petition, the court shall consider the best interests of the child and shall give paramount consideration to the material and moral welfare of the child,The court may likewise consider the following factors: (a) the agreement of the parties; (b) the desire and ability of each parent to foster an open.’ and loving relationship between the child and the, other parent; (c) the child’s health, safety, and welfare;.(d) any history of child or spousal abuse by the person seeking custody or who has had any filial relationship with the child, including anyone courting the parent; (e) the nature and frequency of contact with both parents; (f) habitual use of alcohol or regulated substances; (g) marital misconduct; (h) the most suitable physical, emotional, spiritual, psychological and educational environment; and (i) the preference of the child, if over seven years of age and of sufficient discernment, unless the parent chosen is unfit.The court may award provisional custody in the following order of preference: (1) to both parents jointly; (2) to either parent taking into account all relevant considerations under the foregoing paragraph, especially the choice of the child over seven years of age, unless the parent chosen is unfit; (3) to the surviving grandparent, or if there are several of them, to the grandparent chosen by the child over seven years of age and of sufficient discernment, unless the grandparent is unfit or disqualified; (4) to the eldest brother or sister over twenty-one years of age, unless he or she is unfit or disqualified; (5) to the child’s actual custodian over twenty-one years of age, unless unfit or disqualified; or (6) to any other person deemed by the court suitable to provide proper care and guidance for the child.The custodian temporarily designated by the court shall give the court and the parents five days notice of any plan to change the residence of the child or take him out of his residence for more than three days provided it does not prejudice the visitation rights of the parents.Sec. 5. Visitation Rights.–Appropriate visitation rights shall be provided to the parent who is not awarded provisional custody unless found unfit or disqualified by the court.Sec. 6. Hold Departure Order.–Pending resolution of the petition, no child of the parties shall be brought out of the country without prior order from the court,

The court, motu proprio or upon application under oath, may issue ex-parte a hold departure order, addressed to the Bureau of Immigration and Deportation, directing it not to allow the departure of the child from the Philippines without the permission of the court.The Family Court issuing the hold departure order shall furnish the Department of Foreign Affairs and the Bureau of Immigration and Deportation of the Department of Justice a copy of the hold departure order issued within twenty-four hours from the time of its issuance and through the fastest available means of transmittal.The hold-departure order shall contain the following information:(a) the complete name (including the middle name), the date and place of birth, and the place of last residence of the person against whom a hold-departure order has been issued or whose departure from the country has been enjoined;(b) the complete title and docket number of the case in which the hold departure was issued;(c) the specific nature of the case; and(d) the date of the hold-departure order,If available, a recent photograph of the person against whom a hold-departure order has been issued or whose departure from the country has been enjoined should also be included.The court may recall the order, motu proprio or upon verified motion of any of the parties after summary hearing, subject to such terms and conditions as may be necessary for the best interests of the child.

Jurisdiction – under the exclusive, original jurisdiction of the Family courts

Court has power to issue Provisional Orders – motu proprio or upon application under oath of any of the parties, guardian, or designated custodian, the court may issue prov orders and protection orders with or without a hearing. These may be enforced immediately, with or without a bond, and for such period and under such terms and conditions as the court may deem necessary.

4) AppealR99. SEC. 6. Proceedings as to child whose parents are separated. Appeal.— Either parent may appeal from an order made in accordance with the provisions of this section. No child under seven years of age shall be separated from its mother, unless the court finds there are compelling reasons therefor.

Remedy of Parents from Order of the Court – the parents may appeal from an order of the court depriving any or both of them of the custody and possession of their child or children However, if it has been found that the Court exercised sound discretion with reference to the possession of children whose parents live separately, the SC will not interfere.

4. Rule on Custody of Minors and Writ of Habeas Corpus in relation to Custody of Minors


RA 8369. §5. Jurisdiction of family Courts. - The Family Courts shall have exclusive original jurisdiction to hear and decide the following cases:(b) Petitions for guardianship, custody of children, habeas corpus in relation to the latter

AM No. 03-04-04-SCSEC. 1. Applicability. - This rule shall apply to petitions for custody of minors and writs of habeas corpus in relation thereto.The Rules of Court shall apply suppletorily.SEC. 2. Petition for custody of minors; who may file.- A verified


petition for the rightful custody of a minor may be filed by any person claiming such right. The party against whom it may be filed shall be designated as the respondent.SEC. 3. Where to file petition. - The petition for custody of minors shall be filed with the Family Court of the province or city where the petitioner resides or where the minor may be found.SEC. 4. Contents of petition. - The verified petition shall allege the following:(a) The personal circumstances of the petitioner and of the respondent;(b) The name, age and present whereabouts of the minor and his or her relationship to the petitioner and the respondent;(c) The material operative facts constituting deprivation of custody; and(d) Such other matters which are relevant to the custody of the minor.The verified petition shall be accompanied by a certificate against forum shopping, which the petitioner must sign personally.SEC. 5. Summons; personal service on respondent. - If the court is satisfied that the petition is sufficient in form and substance, it shall direct the clerk of court to issue summons, which shall be served together with a copy of the petition personally on the respondent.SEC. 6. Motion to Dismiss. - A motion to dismiss the petition is not allowed except on the ground of lack of jurisdiction over the subject matter or over the parties. Any other ground that might warrant the dismissal of the petition may be raised as an affirmative defense in the answer.SEC. 7. Verified Answer. - The respondent shall file an answer to the petition, personally verified by him, within five days after service of summons and a copy of the petition.SEC. 8. Case study; duty of social worker. - Upon the filing of the verified answer or the expiration of the period to file it, the court may order a social worker to make a case study of the minor and the parties and to submit a report and recommendation to the court at least three days before the scheduled pre-trial.SEC. 9. Notice of mandatory pre-trial. - Within fifteen days after the filing of the answer or the expiration of the period to file answer, the court shall issue an order: (1) fixing a date for the pre-trial conference; (2) directing the parties to file and serve their respective pre-trial briefs in such manner as shall ensure receipt thereof by the adverse party at least three days before the date of pre-trial; and (3) requiring the respondent to present the minor before the court.The notice of its order shall be served separately on both the parties and their respective counsels. The pre-trial is mandatory.SEC. 10. Contents of pre-trial brief. - The pre-trial brief shall contain the following:(a) A statement of the willingness of the parties to enter into agreements that may be allowed by law, indicating its terms;(b) A concise statement of their respective claims together with the applicable laws and authorities;(c) Admitted facts and proposed stipulations of facts;(d) The disputed factual and legal issues;(e) All the evidence to be presented, briefly stating or describing its nature and purpose;(f) The number and names of the witnesses and their respective affidavits which shall serve as the affiant's testimony on direct examination; and(g) Such other matters as the court may require to be included in the pre-trial brief.Failure to file the pre-trial brief or to comply with its required contents shall have the same effect as failure to appear at the pre-trial.SEC. 11. Effect of failure to appear at the pre-trial.-(a) If the petitioner fails to appear personally at the pre-trial, the case shall be dismissed, unless his counsel or a duly authorized representative appears in court and proves a valid excuse for the non-appearance of the petitioner.(b) If the respondent has filed his answer but fails to appear at the pre-trial, the petitioner shall be allowed to present his evidence ex parte. The court shall then render judgment on the basis of the

pleadings and the evidence thus presented.SEC. 12. What may be done at pre-trial. - At the pre-trial, the parties may agree on the custody of the minor. If the parties fail to agree, the court may refer the matter to a mediator who shall have five days to effect an agreement between the parties. If the issue is not settled through mediation, the court shall proceed with the pre-trial conference, on which occasion it shall consider such other matters as may aid in the prompt disposition of the petition.SEC. 13. Provisional order awarding custody. - After an answer has been filed or after expiration of the period to file it, the court may issue a provisional order awarding custody of the minor. As far as practicable, the following order of preference shall be observed in the award of custody:(a) Both parents jointly;(b) Either parent, taking into account all relevant considerations, especially the choice of the minor over seven years of age and of sufficient discernment, unless the parent chosen is unfit;(c) The grandparent, or if there are several grandparents, the grandparent chosen by the minor over seven years of age and of sufficient discernment, unless the grandparent chosen is unfit or disqualified;(d) The eldest brother or sister over twenty-one years of age, unless he or she is unfit or disqualified;(e) The actual custodian of the minor over twenty-one years of age, unless the former is unfit or disqualified; or(f) Any other person or institution the court may deem suitable to provide proper care and guidance for the minor.SEC. 14. Factors to consider in determining custody. - In awarding custody, the court shall consider the best interests of the minor and shall give paramount consideration to his material and moral welfare. The best interests of the minor refer to the totality of the circumstances and conditions as are most congenial to the survival, protection, and feelings of security of the minor encouraging to his physical, psychological and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the minor.The court shall also consider the following:(a) Any extrajudicial agreement which the parties may have bound themselves to comply with respecting the rights of the minor to maintain direct contact with the non custodial parent on a regular basis, except when there is an existing threat or danger of physical, mental, sexual or emotional violence which endangers the safety and best interests of the minor;(b) The desire and ability of one parent to foster an open and loving relationship between the minor and the other parent;(c) The health, safety and welfare of the minor;(d) Any history of child or spousal abuse by the person seeking custody or who has had any filial relationship with the minor, including anyone courting the parent;(e) The nature and frequency of contact with both parents;(f) Habitual use of alcohol, dangerous drugs or regulated substances;(g) Marital misconduct;(h) The most suitable physical, emotional, spiritual, psychological and educational environment for the holistic development and growth of the minor; and(i) The preference of the minor over seven years of age and of sufficient discernment, unless the parent chosen is unfit.SEC. 15. Temporary visitation rights. - The court shall provide in its order awarding provisional custody appropriate visitation rights to the non-custodial parent or parents, unless the court finds said parent or parents unfit or disqualified.The temporary custodian shall give the court and non custodial parent or parents at least five days' notice of any plan to change the residence of the minor or take him out of his residence for more than three days provided it does not prejudice the visitation rights of the non-custodial parent or parents.SEC. 16. Hold Departure Order. - The minor child subject of the petition shall not be brought out of the country without prior order from the court while the petition is pending.


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The court, motu proprio or upon application under oath, may issue ex parte a hold departure order, addressed to the Bureau of Immigration and Deportation, directing it not to allow the departure of the minor from the Philippines without the permission of the court.The Family Court issuing the hold departure order shall furnish the Department of Foreign Affairs and the Bureau of Immigration and Deportation of the Department of Justice a copy of the hold departure order within twenty-four hours from its issuance and through the fastest available means of transmittal.The hold departure order shall contain the following information:(a) The complete name (including the middle name), the date and place of birth, the nationality and the place of last residence of the person against whom a hold departure order has been issued or whose departure from the country has been enjoined;(b) The complete title and docket number of the case in which the hold departure order was issued;(c) The specific nature of the case;(d) The date of the hold departure order; and(e) A recent photograph, if available, of the party against whom a hold departure order has been issued or whose departure from the country has been enjoined.The court may recall the hold departure order motu proprio, or upon verified motion of any of the parties after summary hearing, subject to such terms and conditions as may be necessary for the best interests of the minor.SEC. 17. Protection Order. - The court may issue a Protection Order requiring any person:(a) To stay away from the home, school, business, or place of employment of the minor, other parent or any other party, or from any other specific place designated by the court;(b) To cease and desist from harassing, intimidating, or threatening such minor or the other parent or any person to whom custody of the minor is awarded;(c) To refrain from acts of commission or omission that create an unreasonable risk to the health, safety, or welfare of the minor;(d) To permit a parent, or a party entitled to visitation by a court order or a separation agreement, to visit the minor at stated periods;(e) To permit a designated party to enter the residence during a specified period of time in order to take personal belongings not contested in a proceeding pending with the Family Court; and(f) To comply with such other orders as are necessary for the protection of the minor.SEC. 18. Judgment. - After trial, the court shall render judgment awarding the custody of the minor to the proper party considering the best interests of the minor.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.In its judgment, the court may order either or both parents to give an amount necessary for the support, maintenance and education of the minor, irrespective of who may be its custodian. In determining the amount of support, the court may consider the following factors: (1) the financial resources of the custodial and non-custodial parent and those of the minor; (2) the physical and emotional health, special needs, and aptitude of the minor; (3) the standard of living the minor has been accustomed to; and (4) the non-monetary contributions that the parents would make toward the care and well-being of the minor.The court may also issue any order that is just and reasonable permitting the parent who is deprived of the care and custody of the minor to visit or have temporary custody.SEC. 19. Appeal. - No appeal from the decision shall be allowed unless the appellant has filed a motion for reconsideration or new trial within fifteen days from notice of judgment.An aggrieved party may appeal from the decision by filing a Notice of Appeal within fifteen days from notice of the denial of the motion for reconsideration or new trial and serving a copy thereof on the adverse parties.

SEC. 20. Petition for writ of habeas corpus. - A verified petition for a writ of habeas corpus involving custody of minors shall be filed with the Family Court. The writ shall be enforceable within its judicial region to which the Family Court belongs.However, the petition may be filed with the regular court in the absence of the presiding judge of the Family Court, provided, however, that the regular court shall refer the case to the Family Court as soon as its presiding judge returns to duty.The petition may also be filed with the appropriate regular courts in places where there are no Family Courts.The writ issued by the Family Court or the regular court shall be enforceable in the judicial region where they belong.The petition may likewise be filed with the Supreme Court, Court of Appeals, or with any of its members and, if so granted, the writ shall be enforceable anywhere in the Philippines. The writ may be made returnable to a Family Court or to any regular court within the region where the petitioner resides or where the minor may be found for hearing and decision on the merits.Upon return of the writ, the court shall decide the issue on custody of minors. The appellate court, or the member thereof, issuing the writ shall be furnished a copy of the decision.SEC. 21. Confidentiality of proceedings. - The hearings on custody of minors may, at the discretion of the court, be closed to the public and the records of the case shall not be released to non-parties without its approval.SEC. 22. Effectivity. - This Rule shall take effect on May 15, 2003 following its publication in a newspaper of general circulation not later than April 30, 2003.

Scope of Rule – broad enough to cover: (a) unlawful deprivation of the custody of a minor; or (b) which parent shall have the care and custody of a minor, when such parent is in the midst of nullity, annulment, or LS proc

Resolution of issue – may be included in the petition for writ of HC pursuant to R102 w/o filing a separate petition under R99

Jurisdiction of CA to issue writ of Habeas Corpus – the Family Courts law have not divested the CA, much less the SC, of its jurisdiction to issue writs of habeas corpus involving the rightful custody of children

Complete facts constituting deprivation of custody must be alleged in the petition by the pleader – so that the litigation does not become protracted with the unnecessary filing of MTDs, bills of particulars, and other such pleadings which could be elevated to ACs by certiorari

Service of summons w/ copy of the pet. is to be made on the respondent himself – ensure that he will file the Answer promptly

Shorter pd of 5 days in §7 – prevent resp from hiding the minor subj of the custody proc

Case Study Report – may include the family relationships, educational, environmental, emotional, psychological, and spiritual profiles of the minor, the person claiming rightful custody of the minor, and the person opposing the same

If petitioner fails to appear at pre-trial – case is dismissed

If petitioner cannot appear – counsel/rep must appear and show to the court satisfaction that the pet has a valid reason for not appearing

If respondent fails to appear at pre-trial – petitioner will be allowed to present evidence ex parte; court may proceed to render judgment based on the pleadings filed and the evidence submitted


2 Stages of Pre-trial – (1) Parties may agree on the custody of the minor They may reach a settlement even before attending the pre-trial or they may reach an agreement in court itself If during the pre-trial, it appears that no such settlement is forthcoming, the TC will direct the parties to secure the services of a mediator(2) If no amicable settlement is produced, the court will proceed

with the pre-trial conference where it may consider such other matters as may aid in the prompt disposition of the petition.

Awarding of provisional custody of minor – after the pre-trial, the judge may be able to determine, based on the admitted facts, the evidence presented by the parties with its nature and purposes described, and the case study submitted by the social worker

Order of Preference – (1) both parents jointly(2) either parent, especially the choice of the minor over 7 (3) the grandparent, especially the one chosen by the minor

over 7 (4) eldest bro or sis over 21 (5) minor’s actual custodian who is over 21(6) any other person or institution deemed suitable by the court

Best interests defined – the totality of the circumstances and conditions as are most congenial to the survival, protection, and feelings of security of the minor and most encouraging to his physical, psychological, and emotional development; the least detrimental available alternative for safeguarding the growth and development of the minor

5. Custody of Vagrant or Abused Children


RA 8369. §5. Jurisdiction of family Courts. - The Family Courts shall have exclusive original jurisdiction to hear and decide the following cases:(g) Petitions for declaration of status of children as abandoned, dependent o neglected children, petitions for voluntary or involuntary commitment of children; the suspension, termination, or restoration of parental authority and other cases cognizable under Presidential Decree No. 603, Executive Order No. 56, (Series of 1986), and other related laws

R99. SEC. 7. Proceedings as to vagrant or abused child.—When the parents of any minor child are dead, or by reason of long absence or legal or physical disability have abandoned it, or cannot support it through vagrancy, negligence, or misconduct, or neglect or refuse to support it, or treat it with excessive harshness or give it corrupting orders, counsels, or examples, or cause or allow it to engage in begging, or to Commit offenses against the law, the proper Regional Trial Court, upon petition filed by some reputable resident of the province setting forth the facts, may issue an order requiring such parents for show cause, or, if the parents are dead or cannot be found, requiring the fiscal of the province to show cause, at a time and place fixed in the order, why the child should not be taken from its parents, if living; and if upon the hearing it appears that the allegations of the petition are true, and that it is for the best interest of the child, the court may make an order taking it from its parents, if living; and committing it to any suitable orphan asylum, children's home, or benevolent society or person to be ultimately placed, by adoption or

otherwise, in a home found for it by such asylum, children's home, society, or person.

PD 603. A21-23; 141-167

AM No. 02-1-19-SCSEC. 4. –(a) Who may file. - The Secretary of the Department or his authorized representative or any duly licensed child-placement or child-caring agency having knowledge of a child who appears to be dependent, abandoned or neglected, may file a verified petition for involuntary commitment of said child to the care of any duly licensed child-placement or child-caring agency or individual.(b) Venue. - The petition shall be filed with the Family Court of the province or city in which the parent or guardian resides or where the child is found.(c) Contents of Verified Petition. -The petition must state:1. The names of the parents or guardian and their place of residence. If the child's parents are unknown, petitioner must allege that diligent efforts have been exerted to locate them. It said parents are deceased, petitioner shall attach a certified true copy of their death certificate;2. The facts showing that the child is dependent, abandoned, or neglected;3. The facts showing who has custody of the child at the time of the filing of the petition; and4. The name, address and written consent of the Department or duly licensed child-placement or child-caring agency or individual to whose care the commitment of the child is sought to be entrusted.(d) Summons; Court to Set Time for Hearing. - If the court is satisfied that the petition is sufficient in form and substance, it snail direct the clerk of court to immediately issue summons which shall be served together with a copy of the petition and a notice of hearing, upon the parents or guardian of the child and the office of the public prosecutor not less than five (5) days before the date of the hearing. The office of the public prosecutor shall be directed to immediately transmit the summons to the prosecutor assigned to the Family Court concerned.If it appears from the petition that both parents of the child are dead or that neither parent can be found in the province or city where the court is located and the child has no guardian residing therein, summons may not be issued and the court shall thereupon appoint a guardian ad litem pursuant to Sub-section (f) below and proceed with the hearing of the case with due notice to the provincial or city prosecutor.(e) Social Worker. - After the court sets the petition for hearing in accordance with Sub-section (d) above, it shall direct the social worker to submit, before the hearing, a case study report of the child to aid it in evaluating whether said child should be committed to the care of the Department or any duly licensed child-placement or child-caring agency or individual. The report shall bear the signature of the social worker on every page.(f) Guardian Ad Litem of Child. - If neither of the parents nor the guardian of the child can be located or does not appear in court despite due notice, or if the court finds them incompetent to protect the best interests of the child, it shall be the duty of the court to appoint a suitable person as guardian ad litem to represent the child. In making the appointment, the court shall consider the background of the guardian ad litem and his familiarity with the judicial process, social service programs and child development. A member of the Philippine Bar may be appointed guardian ad litem.(g) Child's Right to Counsel. - The court, upon request of the child capable of forming his own views or upon request of his guardian ad litem, shall appoint a lawyer to represent him in the proceedings.(h) Duty of Public Prosecutor. - The provincial or "city prosecutor shall appear for the State and ascertain if there has been due notice to all parties concerned and that there is


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justification for the declaration of dependency, abandonment or neglect.(i) Hearing. - The court shall direct the person or agency which has custody of the child to bring the latter to the court on the date of the hearing of the petition and shall ascertain the facts and determine whether the child is dependent, abandoned, or neglected, and if so, the-cause and circumstances of such condition.(j) Judgment. - If, after the hearing, the court shall find the child to be dependent, abandoned, or neglected, it shall render judgment committing him to the care and custody of the Department or any duly licensed child-placement or child-caring agency or individual until he reaches the age of eighteen (18), The judgment shall likewise make proper provisions for the custody of the property or money belonging to the committed child.If the child is committed to the Department, it shall notify the court within thirty (30) days from the order of commitment, the name and address of the duly licensed and accredited child-placement or child-caring agency or individual where the child shall be placed.However, if the court finds that the abandonment or neglect of the child may be remedied, the child may be allowed to stay in his own home under the care and control of his parents or guardian, subject to supervision and direction of the Department.(k) Visitation or Inspection. - Any duly licensed child-placement or child-caring agency or individual to whom a child has been committed by the court shall be subject to visitation or inspection by a representative of the court or of the Department, as the case may be or of both, to determine whether the welfare and interests of the child are being served,(I) Report of Person or Institution. - Any duly licensed child-placement or child-caring agency or individual to whom a child has been committed by judicial order may at any time be required by the court to submit a report, containing all necessary information for determining whether the welfare of the child is being served.(m) Temporary Custody of Child. - The duly licensed child-placement or child-caring agency or individual to whom a child has been committed may file a verified motion with the court which granted the petition for involuntary commitment of a child to place him in the care of any suitable person, upon the latter's request, for a period not exceeding one month at a time. The court may order the social worker to submit a case study report to aid it in evaluating whether such temporary custody shall be for the best interests of the child. The period of temporary custody of the child may be extended by the court for a period not exceeding one month at a time upon motion of the duly licensed child-placement or child-caring agency or individual to which the child has been committed.The court, motu proprio, or upon request of the child assisted by his guardian ad litem, or at the instance of the agency or person to whom the child was committed, after due notice and hearing, shall discontinue the temporary custody of the child if it appears that he is not being given proper care.After one month from the date temporary custody of the child was given to another suitable person, the agency or individual shall submit to the court a verified report on whether the temporary custody of the child has promoted his best interests.(n) Change of Custody. - If the child is committed to the Department, it shall have the authority to change the custody o! a child it had placed with any duly licensed child-placement or child-caring agency or individual if it appears that such change is for the best interests of the child. The Department shall notify the court of any change in custody of the child,When conflicting interests arise among child-placement or child-caring agencies, the court which granted the involuntary commitment of the child, upon motion of the Department or any of the agencies concerned, shall order the change of commitment of the child.

(o) Removal of Custody. - A motion to remove custody of a child may be filed by an authorized representative of the Department with knowledge of the facts against a child-placement or child-caring agency or individual to whose custody a child has been committed by the court on the ground of neglect of such child as defined in Section 3 (e) of this Rule. The court shall set the motion for hearing with notice to the public prosecutor and the court-designated social worker. If the court finds after hearing that the allegations of the motion have been established and that it is for the best interests and welfare of the child, the court shall issue an order removing him from the custody of the person or agency, as the case may be, and committing him to the custody of another duly licensed child-placement or child-caring agency or individual.In the same proceeding, the court may suspend or revoke the license of the agency or individual found guilty of such neglect depending upon the gravity or frequency of the offense.(p) Restoration of Parental Authority After Involuntary Commitment. -(i) Who may file; Ground. - The parents or guardian of a child committed to the care of a person, agency or institution by judicial order may file a verified motion for the restoration of his rights over the child with the court which granted the involuntary commit ment on the ground that he is now able to take proper care and custody of said child, provided, however, that the child has not yet been adopted.(ii) Notice of Hearing. - The court shall fix the time and date for the hearing of the motion, which shall not be earlier than thirty (30) days nor later than sixty (60) days from the date of the filing of said motion and cause notice of the hearing to be sent to the person, agency or institution to which the child has been committed, the public prosecutor and the court-designated social worker, at least five (5) days before the date of hearing.(iii) Hearing. - At the hearing, any person may be allowed to intervene at the discretion of the court to contest the right to the relief demanded. Witnesses may be called and examined by the parties or by the court motu proprio.(iv) Resolution. - If it is found that the cause for the commitment of the child no longer exists and that the movant is already able to take proper care and custody of the child, the court, after taking into consideration the best interests and the welfare of the child, shall issue a resolution terminating the parental authority of the person, agency or institution to whom the child was committed by judicial order and restoring parental authority to the movant.q) Jurisdiction for Prosecution of Punishable Acts. - The Family Court which granted the involuntary commitment shall have jurisdiction over the prosecution of a child who left without prior permission from the person or institution to which he has been judicially committed or the person under whose custody he has been judicially committed in accordance with Sub-section (m) of Section 4 of this Rule. It shall likewise have jurisdiction over the person who induced the child to leave such person or institution, except in case of actual or imminent grave physical or moral danger to the child. The Family Court which granted the involuntary commitment shall also have jurisdiction over the prosecution of parents or guardians of the child who may be held liable under Articles 59 and 60 of P.D. No. 603 and Sections 9, 10 and 31 of R.A. No. 7610.

SEC. 5. Voluntary Commitment of a Child to an Institution or Individual. - The parent or guardian of a dependent, abandoned or neglected child may voluntarily commit him to the Department or any duly licensed child- placement or child-caring agency or individual subject to the rules of the Department. However, no child shall be committed unless he is surrendered in writing by his parents or guardian stating such voluntary commitment and specifically naming the office, agency, or individual to whose custody the child is to be committed. Such written instrument should be notarized and signed in the presence of an authorized representative of the Department after counseling and other services have been made available to encourage the child's


parents to keep the child.(a) Petition for Removal of Custody. -(i) Who may file; Ground. - The parents or guardian who voluntarily committed the child, or in their absence or failure, any person with knowledge of the facts, may file a verified petition to remove custody of the child against the child-placement or child-caring agency or individual to whose custody the child has been voluntarily committed on the ground of neglect of such child as defined in Section 3 (e) of this Rule. A child may also be removed from the custody of the child-placement or child-caring agency or individual on the ground that the voluntary commitment of the child was unjustified.(ii) Venue. - The petition shall be filed with the Family Court of the province or city where the child-placement or child-caring agency to which the child has been voluntarily committed is located or where the child may be found.(iii) Contents of Verified Petition. - The petition must state:- The name and address of the child-placement or child-caring agency or individual to whose custody the child has been voluntarily committed;- The facts showing that the child has been neglected by the agency or in cases where the voluntary commitment was unjustified, that the parents of the child are actually capable of taking care and custody of the child;- The name, address and written consent of the duly licensed child-placement or child-caring agency or individual to whose care the child may be transferred.- The facts showing that petitioner has exhausted the administrative remedies available to him,(iv) Notice of Hearing. - If the petition is sufficient in form and substance, the court shall set the same for hearing with notice to the Department, the public prosecutor, the court-designated social worker, the agency or individual to whom the child has been committed and in appropriate cases, the parents of the child.(v) Judgment. - If after hearing the court finds that the allegations of the petition have been established and that it is for the best interests and welfare of the child, it shall issue an order removing the child from the custody of the person or agency concerned, and committing him to the custody of another duly licensed child-placement or child-caring agency or individual.The court, in the same proceeding may, after hearing the comment or recommendation of the Department, suspend or revoke the license of the agency or individual found guilty of such neglect depending upon the gravity or frequency of the offense.(b) Restoration of Parental Authority After Voluntary Commitment. - The restoration of rights of the parent or guardian over the child who has been voluntarily committed shall be governed by the rules of the Department, provided, however, that the petition for restoration is filed within six (6) months from the date of voluntary commitment. In case the Department refuses to grant legal custody and parental authority to the parent or guardian over the child who has been voluntarily committed to an agency or individual, the parent or guardian may file a petition in court for restoration of parental authority in accordance with Section 4 (p) of this Rule.(c) Jurisdiction for Prosecution of Punishable Acts. - The Family Court of the place where the child may be found or where the duly licensed child-placement or child-caring agency or individual is located shall have jurisdiction over the prosecution of a child who left without prior permission from the person or institution to which he has been voluntarily committed. It shall likewise have jurisdiction over the person who induced the child to leave such person or institution, except in case of grave actual or imminent physical or moral danger, to the child. The same Family Court shall also have jurisdiction over the prosecution of parents or guardians of the child who may be held liable under Articles 59 and 60 of P.O. No, 603 and Sections 9, 10 and 31 of R.A. No. 7610.

SEC. 6. Petition for Commitment of a Disabled Child. -

(a) Who may file. - Where a child appears to be mentally retarded physically handicapped, emotionally disturbed, mentally ill, with cerebral palsy or with similar afflictions and needs institutional care but his parents or guardians are opposed thereto, the Department, or any duly licensed child-placement or child-caring agency or individual may file a verified petition for commitment of the said child to any reputable institution providing care, training and rehabilitation for disabled children.The parents or guardian of the child may file a similar petition in case no immediate placement can be arranged for the disabled child when his welfare and interests are at stake,(b) Venue. - The petition for commitment of a disabled child shall be filed with the Family Court of the place where the parent or guardian resides or where the child is found.(c) Contents of Verified Petition. - The petition for commitment must stale the following:(1) The facts showing that the child appears to be mentally retarded, physically handicapped, emotionally disturbed, mentally ill, with cerebral 'palsy or with similar afflictions and needs institutional care;(2) The name of the parents and their residence, if known, or if the child has no living parent, the name and residence of the guardian, if any; and(3) The fact that the parents or guardian or any duty licensed disabled child-placement or child-caring agency, as the case may be, has opposed the commitment of such child;(4) The name and written conformity of the institution where the child is to be committed.(5) An estimate of the costs and other expenses of maintaining the child in the institution.The verified petition shall be sufficient if based upon the personal knowledge of the petitioner.(d) Order of Hearing; Notice. - If the petition filed is sufficient in form and substance, the court, by an order reciting the purpose of the petition, shall fix the date of the hearing thereof, and a copy of such order shall be served on the child alleged to be mentally retarded, physically handicapped, emotionally disturbed, mentally ill, with cerebral palsy or with similar afflictions and on the person having charge of him or any of his relatives residing in the province or city as the court may deem proper.The order shall also direct the sheriff or any other officer of the court to produce, if necessary, the alleged disabled child on the date of the hearing.(e) Hearing and Judgment. - If the court finds that the allegations of the petition have been established and that institutional care of the child is for his best interests or the public welfare and that his parents, or guardian or relatives are unable for any reason whatsoever to take proper care of him, the court shall order his commitment to the proper institution for disabled children. The court shall likewise make proper provisions for the custody of the property or money belonging to the committed child.The expense of maintaining a disabled child in the institution to which he has been committed shall be borne primarily by the parents or guardian and secondarily, by such disabled child, if he has property of his own.In all cases where the expenses for the maintenance of the disabled child cannot be paid in accordance with the immediately preceding paragraph, the Department shall bear the expenses, or such part thereof as may remain unpaid.The court shall furnish the institution to which the child has been committed with a copy of its judgment, together with ail the reports and other data pertinent to the case.(f) Discharge of Judicially Committed Disabled Child. - Upon motion of the parent, guardian or institution to which the child has been judicially committed under this Rule, the court, after hearing, shall order the discharge of such child if it is established and certified by the Department that:(1) He is no longer a danger to himself and the community;(2) He has been sufficiently rehabilitated from his physical handicap or if of working age, is already fit to engage in gainful


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occupation; or(3) He has been sufficiently relieved of his psychological, mental and emotional problems and is ready to assume normal social relations.

Original exclusive jurisdiction – to be exercised by the Family courts Situation contemplated by R99.7 – when the parents of any minor child are: (a) dead, or (b) by reason of long absence or physical disability have abandoned the child, or (c) cannot support the child through vagrancy, negligence or misconduct, or neglect or refuse to support the child, or (d) treat the child with excessive harshness, or (e) give the child corrupting orders, counsels or examples, or (f) cause to allow the child to engage in begging, or to commit offenses against the law In such cases the proper TC, upon petition filed by some reputable resident of the province setting forth the facts, may issue an order (a) requiring such parents to show cause; (b) if the parents are dead or cannot be found fiscal of the provinceObjective – To show cause, at a time and place fixed in the order, why the child should not be taken from his parents, if living; and if upon the hearing it appears that the allegations of the petition are true, and that it is for the best interest of the child, the court may make an order taking him from his parents, if living; and committing him to any suitable orphan asylum, children’s home or benevolent society or person to be ultimately placed, by adoption or otherwise, in a home found for him by such asylum, children’s home, society or person

Constitutional bases of the Rule on Commitment of Children – A2§12: directs the state to protect the life of the child from the moment of conception and to support the character devt of the youth; A13§11: emphasizes the need to prioritize the needs of children; A14§2: duty of the State to provide a system of free public educ in the primary and secondary levels, and voc training for out of school youth; A15§2: commands the State to provide assistance and special protection to children against all forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their development Confers a right directly on children and not merely an extension or incident of his parents’ rights

Concept of child as an autonomous person – came from the Convention of the Rights of the Child Further enlarges the role of the State in ensuring the protection of the child. 4 general principles: (1) non-discrimination (2) best interests of the child (3) the right to life, survival, and development (4) the views of the child given due weight in accordance w/ the age and maturity of the child; the child shall be provided the opportunity to be heard in any judicial and admin proceeding affecting the child either directly or through a representative or an appropriate body in a manner consistent with procedural rules of national law

The PHL pre-empted the 1990 CRC by creating the Council for the Welfare of Children – crafted the most comprehensive compilation of updated rights of the child: PD 603 While considered a landmark legislation, several of its provs may no longer by responsive to the realities facing a Filipino child todayFactors:1) Appalling poverty in developing countries including the PHL

w/c pushes children to perform dangerous work or to become prostitutes thus endangering their survival and devt

2) Population growth in excess of available resources3) Changing milieu and values of children and youth and the

breakdown of family ties4) Impact of modernization, pornography, and drugs5) Global menace of child trafficking

6) Internal and external migration, globalization, including inter-country movement of children

7) Advances in modern tech and science including IT8) Situation of children in difficult circumstances, including

children caught in armed conflict, the abandoned, neglected, and disabled youth offenders

The proposed Rule on Commitment of Children can be divided into 3 major areas – (1) involuntary commitment (2) voluntary commitment (3) commitment of a disabled child

Involuntary commitment – the process by w/c the child’s parents or guardian are permanently and judicially deprived of PA due to abandonment; substantial, continuous, and repeated neglect; abuse; or incompetence to discharge parental responsibilities

Voluntary commitment – the act by w/c the parents or guardians of the child knowingly and willingly relinquish their PA to the DSWD or any duly licensed child-placement or child-caring agency or individual

Commitment of a Disabled Child – the Rule describes the procedure that must be observed by the DSWD in committing the disabled child to an institution w/c provides care, training, and rehab for disabled children and whose parents are opposed §4(c)[4] was added to avoid any admin probs that may be encountered in the commitment of the child

Appointment of guardian ad litem: pursuant to the CRC concept of the child as an individual and autonomous person in law where he is recognized as possessing rights independent from the interest of his parents, his family, and the State

Case Study Report – a written report of the results of an investigation conducted by a social worker as to the socio-cultural, economic, and legal status or condition of the child sought to be committed. It shall include among others his developmental age, educational attainment, family and social relationships, the quality of his peer group, his family’s strengths and weaknesses, and parental control over him Aimed at aiding the court in evaluating WON the commitment of the child will serves his best interestsFactors:1) Nature of the petition which may always be considered an

urgent matter since it involves a child who needs immediate care and attention

2) The volume of cases which a FC has to hear daily3) The very distinct possibility that it may no longer have the

time and resources to determine in detail the facts and circumstances of each case

Appointment of lawyer to represent him when the child requests – child must be provided w/ opportunity to be heard in any jud and admin proc affecting him either directly or through a rep

§4(j)&(n) – to enable the court to monitor the condition of the children it has judicially committed and to prevent abuse by the DSWD

§5 – No court intervention is necessary in case of vol commitment. Consequently, the restoration of PA shall be governed by the rules of the DSWD.

§6 – The committee has made the req of producing the disabled child on the date of the hearing discretionary upon the court depending on the facts and circumstances of each case


Interests of the Child: Paramount Consideration – the court should not allow technicality in the way of its giving the child full protection

- What matters is that the immoral situation disclosed by the records be not allowed to continue (Macazo vs Nuñez).

C. Judicial Approval of Voluntary Recognition of Minor Natural Child

R105. SEC. 1. Venue.—Where judicial approval of a voluntary recognition of a minor natural child is required, such child or his parents shall obtain the same by filing a petition to that effect with the Regional Trial Court of the province in which the child resides. [In the City of Manila, the petition shall be filed in the Juvenile and Domestic Relations Court].

SEC. 2. Contents of petition. — The petition for judicial approval of a voluntary recognition of a minor natural child shall contain the following allegations:(a) The jurisdictional facts;(b) The names and residences of the parents who acknowledged the child, or of either of them, and their compulsory heirs, and the person or persons with whom the child lives;(c) The fact that the recognition made by the parent or parents took place in a statement before a court of record or in an authentic writing, copy of the statement or writing being attached to the petition.

SEC. 3. Order for hearing.—Upon the filing of the petition, the court, by an order reciting the purpose of the same, shall fix the date and place for the hearing thereof, which date shall not be more than six (6) months after the entry of the order, and shall, moreover, cause a copy of the order to be served personally or by mail upon the interested parties, and published once a week for three (3) consecutive weeks, in a newspaper or newspapers of general circulation in the province.

SEC. 4. Opposition.— Any interested party must, within fifteen (15) days from service, or from the last date of publication, of the order referred to in the next preceding section, file his opposition to the petition, stating the grounds or reasons therefor.

SEC. 5. Judgment.—If, from the evidence presented during the hearing, the court is satisfied that the recognition of the minor natural child was willingly and voluntarily made by the parent or parents concerned, and that the recognition is for the best interest of the child, it shall render judgment granting judicial approval of such recognition.

SEC. 6. Service of judgment upon civil registrar.—A copy of the judgment rendered in accordance with the preceding section shall be served upon the civil registrar whose duty it shall be to enter the same in the register.

FC. Art. 163. The filiation of children may be by nature or by adoption. Natural filiation may be legitimate or illegitimate. (n)

Art. 164. Children conceived or born during the marriage of the parents are legitimate. Children conceived as a result of artificial insemination of the wife with the sperm of the husband or that of a donor or both are likewise legitimate children of the husband and his wife, provided, that both of them authorized or ratified such insemination in a written instrument executed and signed by them before the birth of the child. The instrument shall be recorded in the civil registry together with the birth certificate of the child. (55a, 258a)

Art. 165. Children conceived and born outside a valid marriage are illegitimate, unless otherwise provided in this Code. (n)

Art. 172. The filiation of legitimate children is established by any of the following:(1) The record of birth appearing in the civil register or a final judgment; or(2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence of the foregoing evidence, the legitimate filiation shall beproved by:(1) The open and continuous possession of the status of a legitimate child; or(2) Any other means allowed by the Rules of Court and special laws. (265a, 266a, 267a)

Art. 173. The action to claim legitimacy may be brought by the child during his or her lifetime and shall be transmitted to the heirs should the child die during minority or in a state of insanity. In these cases, the heirs shall have a period of five years within which to institute the action.

Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children.

The action must be brought within the same period specified in Article 173, except when the action is based on the second paragraph of Article 172, in which case the action may be brought during the lifetime of the alleged parent. (289a)

CC, A278. Recognition shall be made in the record of birth, a will, a statement before a court of record, or in any authentic writing.

RA 9255. SECTION 1. Article 176 of Executive Order No. 209, otherwise known as the Family Code of the Philippines, is hereby amended to read as follows:"Article 176. Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. However, illegitimate children may use the surname of their father if their filiation has been expressly recognized by the father through the record of birth appearing in the civil register, or when an admission in a public document or private handwritten instrument is made by the father. Provided, the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child."

RA 9255, IRR. As mandated by Commonwealth Act No. 591, the Office of the Civil Registrar General hereby promulgates the following Implementing Rules and Regulations of Republic Act No. 9255 signed by President Arroyo on February 24, 2004 and took effect on March 19,2004, 15 days after publication in a newspaper of general circulation.Rule 1. Coverage1.1 These Rules shall apply to all illegitimate children born before or after the effectivity of R.A. 9255. This includes:1.1.1 Unregistered births;1.1.2 Registered births where the illegitimate children use the surname of the mother.Rule 2. Definition of TermsAs used in these rules, the following terms shall mean:2.1. Public document - refers to affidavit of recognition executed by the father such as the Affidavit of Admission of Paternity or the Affidavit of Acknowledgment.2.2. Private handwritten instrument - an instrument executed in the handwriting of the father and duly signed by him where he expressly recognizes paternity to the child.


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2.3. Local Civil Registry Office (LCRO) - a department in the city/municipal government mandated to perform civil registration functions.2.4. Office of the Civil Registrar General (OCRG) - refers to the national government office mandated to carry out and administer the provisions of the laws on civil registration headed by the Civil Registrar General who is also the Administrator of the National Statistics Office (NSO).2.5. Affidavit to Use the Surname of the Father (AUSF) - an affidavit to be executed in order to use the surname of the father. The AUSF is a registrable document.2.6. Guardian - refers to a person lawfully invested with the power, and charged with the duty, of taking care of one who, for defect of age, understanding, or self control, is considered incapable in administering his own affairs. This term also refers to those authorized to exercise substitute parental authority over the child in default of parents or a judicially appointed guardian (Title IX, Family Code). Those exercising substitute parental authority are the following:2.6.1 The surviving grandparent (Article 214, Family Code);2.6.2 The oldest brother or sister, over 21 years of age, unless unfit or disqualified (Article 216(2), Family Code); and2.6.3 The child's actual custodian, over 21 years of age, unless unfit or disqualified (Article 216 (3), Family Code).Rule 3. Who may fileUnder these rules, the father, mother, child if of age, or the guardian, may file the public document or Affidavit to Use the Surname of the Father (AUSF) in order for the child to use the surname of the father.Rule 4. Where to file4.1. The public document or AUSF executed within the Philippines shall be filed at the Local Civil Registry Office (LCRO) where the child was born, if the birth occurred within the Philippines.4.2. The public document or AUSF executed outside the Philippines shall be filed at the LCRO of Manila, if the birth occurred within the Philippines.4.3. The public document or AUSF whether executed within or outside the Philippines shall be filed at the LCRO of Manila, if the birth occurred outside the Philippines.Rule 5. What to fileThe following shall be filed at the LCRO:5.1. Certificate of Live Birth with accomplished Affidavit of Acknowledgement/ Admission of Paternity at the back5.2. Public document5.3. AUSF, including all supporting documentsRule 6. When to registerThe public document not made on the record of birth, or the AUSF shall be registered within twenty (20) days from the date of execution at the place where the birth was registered. Otherwise the procedures of late registration shall be applied.Rule 7. Requirements for the Child to Use the Surname of the Father7.1 For Births Not Yet Registered7.1.1 The illegitimate child shall use the surname of the father if a public document is executed by the father, either at the back of the Certificate of Live Birth or in a separate document.7.1.2 If admission of paternity is made through a private handwritten instrument, the child shall use the surname of the father, provided the registration is supported by the following documents:a. AUSFb. Consent of the child, if 18 years old and over at the time of the filing of the documentc. Any two of the following documents showing clearly the paternity between the father and the child:1) Employment records2) SSS/GSIS records3) Insurance4) Certification of membership in any organization

5) Statement of Assets and Liabilities6) Income Tax Return (ITR)7.2 For Births Previously Registered under the Surname of the Mother7.2.1 If filiation has been expressly recognized by the father, the child shall use the surname of the father upon the submission of the accomplished AUSF.7.2.2 If filiation has not been expressly recognized by the father, the child shall use the surname of father upon submission of a public document or a private handwritten instrument supported by the documents listed in Rule 7.1.2.7.3 Except in Item 7.2.1, the consent of the illegitimate child is required if he/she has reached the age of majority. The consent may be contained in a separate instrument duly notarized.Rule 8. Effects of Recognition8.1 For Births Not Yet Registered8.1.1 The surname of the father shall be entered as the last name of the child in the Certificate of Live Birth. The Certificate of Live Birth shall be recorded in the Register of Births.8.1.2 If admission of paternity is done at the back of the Certificate of Live Birth, no annotation is made in the Certificate of Live Birth. However, annotation shall be made in the Register of Births as follows:"Acknowledged by (name of father) on (date) pursuant to RA 9255."8.1.3 If admission of paternity is made in a separate public document, the proper annotation shall be made in the Certificate of Live Birth and the Register of Births. The annotation shall be as follows: "Acknowledged by (name of father) on (date) pursuant to RA 9255."8.1.4 In case of delayed registration, follow the provisions under 8.1.1 to 8.1.3 and comply with the requirements under Rule 25 of Administrative Order No. 1 series of 1993. Proper annotation with regard to delayed registration shall be made.8.2 For Births Previously Registered under the Surname of the Mother8.2.1 If admission of paternity was made either at the back of the Certificate of Live Birth or in a separate public document or in a private handwritten document, the public document or AUSF shall be recorded in the Register of Legal Instruments. Proper annotation shall be made in the Certificate of Live Birth and the Register of Births as follows: "The surname of the child is hereby changed from (original surname) to (new surname) pursuant to RA 9255."The original surname of the child appearing in the Certificate of Live Birth and Register of Births shall not be changed or deleted.8.2.2 If filiation was not expressly recognized at the time of registration, the public document or AUSF shall be recorded in the Register of Legal Instruments. Proper annotation shall be made in the Certificate of Live Birth and the Register of Births as follows: "Acknowledged by (name of father) on (date). The surname of the child is hereby changed from (original surname) to (new surname) on (date) pursuant to RA 9255."Rule 9. Issuance of Certified Copy of Certificate of Live Birth and LCR Form 1AIn the issuance of the certified copy, proper annotations as provided under Rule 8 shall be made on the Certificate of Live Birth or on the certified transcription (LCR Form 1A) from the Register of Births.Rule 10. Duties of the Local Civil Registrar10.1. Examines the authenticity of the Certificate of Live Birth and/or ascertains the truth of the facts stated in the affidavit and the documents presented.10.2. Accepts for registration the following documents:a. Certificate of Live Birthb. Public documentc. AUSF10.3. Records the entries in the Certificate of Live Birth in the Register of Births, and the public document and AUSF in the Register of Legal Instruments.


10.4. Annotates the Certificate of Live Birth and the remarks portion of the Register of Births.10.5. Issues certified copies of Certificate of Live Birth or certified transcription (LCR form 1A) with annotations.10.6. Distributes the annotated Certificate of Live Birth, registered public document or AUSF including any supporting document as follows:a. First copy to owner of the document;b. Second copy to the OCRG;c. Third copy to the LCRO.

The FC limits the classification of children to legitimate and illegitimate, thereby eliminating the Acknowledged Natural Children, and the Natural Children by Legal Fiction

Meaning of Voluntary Recognition – an admission of the fact of paternity or maternity by the presumed parent, expressed in the form prescribed by the CC

Its essence lies in the avowal of the parent that the child is his; the formality is added to make the admission incontestable, in view of its consequences.

The form is prescribed by A278 of the CC, and the period to file action is given by A173 of the FC exc when based on 2nd par of A172 w/c must be brought w/in the lifetime of the putative parent

How Voluntary Recognition is Expressed – “in any authentic writing”: any genuine or indubitable writing sufficient for compulsory recognition

Judicial Approval When Needed – if the recognition of the minor is effected not through a record of birth or in a will but through a statement in a court of record or an authentic document. In any case, the individual recognized can impugn the recognition w/in 4 yrs following the attainment of his majority.

Distinction bet Voluntary and Involuntary Recognition – The father of a natural child may recognize in 2 diff ways: (a) by voluntary recognition; (2) by an involuntary recognition enforced by either a civil or criminal action

Voluntary Recognition may be made – (a) in the record of births; (b) by will; and (c) by any other public instrument.

Involuntary recognition may be made – (a) by an incontrovertible paper written by the parent expressly recognizing his paternity; (b) by giving such child the status of a natural child of the father, justified by direct act of the child of the father or his family; and (c) by a criminal action for rape, seduction, or abduction.

D. Constitution of Family Home

Rule 106 is repealed by the FC provisions on the constitution of family homes (effective: 3 Aug 1988)

FC. Art. 152. The family home, constituted jointly by the husband and the wife or by an unmarried head of a family, is the dwelling house where they and their family reside, and the land on which it is situated. (223a)

Art. 153. The family home is deemed constituted on a house and lot from the time it is occupied as a family residence. From the time of its constitution and so long as any of its beneficiaries actually resides therein, the family home continues to be such and is exempt from execution, forced sale or attachment except as hereinafter provided and to the extent of the value allowed by law. (223a)

Art. 154. The beneficiaries of a family home are:

(1) The husband and wife, or an unmarried person who is the head of a family; and(2) Their parents, ascendants, descendants, brothers and sisters, whether the relationship be legitimate or illegitimate, who are living in the family home and who depend upon the head of the family for legal support. (226a)

Art. 155. The family home shall be exempt from execution, forced sale or attachment except:(1) For nonpayment of taxes;(2) For debts incurred prior to the constitution of the family home;(3) For debts secured by mortgages on the premises before or after such constitution; and(4) For debts due to laborers, mechanics, architects, builders, material men and others who have rendered service or furnished material for the construction of the building. (243a)

Art. 156. The family home must be part of the properties of the absolute community or the conjugal partnership, or of the exclusive properties of either spouse with the latter's consent. It may also be constituted by an unmarried head of a family on his or her own property.

Nevertheless, property that is the subject of a conditional sale on installments where ownership is reserved by the vendor only to guarantee payment of the purchase price may be constituted as a family home. (227a, 228a)

Art. 157. The actual value of the family home shall not exceed, at the time of its constitution, the amount of the three hundred thousand pesos in urban areas, and two hundred thousand pesos in rural areas, or such amounts as may hereafter be fixed by law.

In any event, if the value of the currency changes after the adoption of this Code, the value most favorable for the constitution of a family home shall be the basis of evaluation.

For purposes of this Article, urban areas are deemed to include chartered cities and municipalities whose annual income at least equals that legally required for chartered cities. All others are deemed to be rural areas. (231a)

Art. 158. The family home may be sold, alienated, donated, assigned or encumbered by the owner or owners thereof with the written consent of the person constituting the same, the latter's spouse, and a majority of the beneficiaries of legal age. In case of conflict, the court shall decide. (235a)

Art. 159. The family home shall continue despite the death of one or both spouses or of the unmarried head of the family for a period of ten years or for as long as there is a minor beneficiary, and the heirs cannot partition the same unless the court finds compelling reasons therefor. This rule shall apply regardless of whoever owns the property or constituted the family home. (238a)

Art. 160. When a creditor whose claims is not among those mentioned in Article 155 obtains a judgment in his favor, and he has reasonable grounds to believe that the family home is actually worth more than the maximum amount fixed in Article 157, he may apply to the court which rendered the judgment for an order directing the sale of the property under execution. The court shall so order if it finds that the actual value of the family home exceeds the maximum amount allowed by law as of the time of its constitution. If the increased actual value exceeds the maximum allowed in Article 157 and results from subsequent voluntary improvements introduced by the person or persons constituting the family home, by the owner or owners of the property, or by any of the beneficiaries, the same rule and procedure shall apply.

At the execution sale, no bid below the value allowed for a family


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home shall be considered. The proceeds shall be applied first to the amount mentioned in Article 157, and then to the liabilities under the judgment and the costs. The excess, if any, shall be delivered to the judgment debtor. (247a, 248a)

Art. 161. For purposes of availing of the benefits of a family home as provided for in this Chapter, a person may constitute, or be the beneficiary of, only one family home. (n)

Art. 162. The provisions in this Chapter shall also govern existing family residences insofar as said provisions are applicable. (n)

There is no need to file a verified petition for constitution of Family Home under the Family Code – a FH is deemed constituted on a house and lot from the time it is occupied as a family residence. If the family actually resides in the premises, it is a family home as contemplated by law. Thus, the creditors should take the necessary precautions to protect their interest before extending credit to the spouses or head of the family who owns the home.

Exemption provided in A155 of the FC – effective from the time of the constitution of the FH as such and continues so long as any of its beneficiaries actually resides therein.

Modequillo vs Breva – In the present case, the residential house and lot of petitioner was not constituted as a FH under the CC. It became a FH by operation of law only under A153 of the FC. It is deemed constituted as a FH upon the effectivity of the FC on 3 Aug 1988, 1 yr after its publication. The contention of petitioner that it should be considered a FH from the time it was occupied by the petitioner and his family in 1969 is not well-taken. Under A162 of the FC, it is provided that “the provisions of this Chapter shall also govern existing family residences insofar as said provisions are applicable”. It does not mean that A152&153 of the FC have a retroactive effect such that all existing family residences are deemed to have been constituted as FHs at the time of their occupation prior to the effectivity of the FC and are exempt from execution for the payment of obligations incurred before the FC’s effectivity. A162 simply means that all existing family residences at the time of the effectivity of the FC are considered FHs and are prospectively entitled to the benefits accorded to a FH under the FC. A162 does not state that the provisions of Chapter 2, Title V have a retroactive effect.

V. Rules on Change or Correction of Civil EntriesA. Change of Name

Rule 103, Sec. 1. Venue. - A person desiring to change his name shall present the petition to the Court of First Instance of the province in which he resides, or, in the City of Manila, to the Juvenile and Domestic Relations Court.

Legal significance of a man’s name—defined as the word or combination of words by which a person is distinguished from other individuals and also, as the label or appellation which he bears for the convenience of the world at large addressing him, or in speaking of or dealing with him.

Usually have two parts, the given or proper name and the surname or family name. The given name is that which is given to the individual at birth or baptism, to distinguish him from other individuals. The family name is that which identifies the family to which he belongs and is continued from parent to child. The given name may be freely selected by the parents for the child, but the surname to which the child is entitled is fixed by law.Characteristics—

a) Absolute, intended to protect the individual from being confused with others

b) It is obligatory in certain respects

c) It is fixed, unchangeable, immutable at least at the start and may be changed only for a good cause

d) It is outside the commerce of man, and therefore inalienable and intransmissible

e) ImprescriptiblePurpose—to have, wherever possible, a record of the change, and in keeping with the object of the statute, a court to which application is made should normally make its decree recording such change of name

Nature of Proceeding—a change of name is a special proceeding to establish the status of a person involving his relation with others, that is, his legal position in, or with regard to the rest of the community. It is a proceeding in rem, and, as such strict compliance with all jurisdictional requirements, particularly on publication, is essential in order to vest the court with jurisdiction thereover.

Philippine Citizenship not necessary—The word “person” is a generic term which is not limited to Filipino citizens, but embraces all natural persons. The rule does not even require that the citizenship of the petitioner be stated in his petition.

It is enough that the petition be verified, signed by the petitioner or some other person in his behalf and set forth:

a) That the petitioner has been a bona fied resident of the province where the petition is filed for at least 3 years to the date of filing;

b) The cause for which the change of name is sought; andc) The name asked for.

Change of name is not a matter of right—the change 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 likely follow

Only domicile aliens allowed to file petition—an alien who temporarily stay in the Philippines may not there avail of the right to change his name. It would not be of much benefit to him; court proceedings for the purpose could be a useless ceremony; that salutary effects flowing from a change of his social relation and condition may not thus be achieved. We accordingly lay down the rule that only alien domiciled in the Philippines may apply for change of name in the courts thereof.

Petition for change of name an exception to the mandatory provisions of Civil Code

Real name of person in register—the real name of a person is that given him in the Civil register, not the name by which he was baptized in his Church or by which he has been known in the community, or which he has adopted.

No need for change of name by a married woman—In case of annulment of marriage, or divorce, there is no need to file a petition for resumption of maiden name or surname. The true and real name if a person is that given to him and entered in the civil register which a woman may continue to use despite her marriage or cessation of the marriage for whatever cause. The use of the husband’s name is merely permissive which the wife may and continue to use except in case for legal separation.

Rule 103, Section 2. Contents of petition. - A petition for change of name shall be signed and verified by the person desiring his name changed, or some other person on his behalf, and shall set forth:(a) That the petitioner has been a bona fide resident of the province where the petition is filed for at least three (3) years prior to the date of such filing;(b) The cause for which the change of the petitioner's name is sought;


(c) The name asked for.Strict compliance with requirements--requirement verification of a pleading is a formal, not a jurisdictional, requisite. It is simply intended to secure an assurance that what are alleged in the pleading are true and correct and not the product of the imagination or a matter of speculation, and that the pleading is filed in good faith.

The court may order the correction of the pleadings, if the verification is lacking, or act on the pleading, although it is not verified, if the attending circumstances are such that the strict compliance with the rule may be dispensed with in order that the end of justice or he law may be served.

Jurisdictional requirements—to confer jurisdiction on the court, since petition for change of name are proceedings in rem, strict compliance with the requirements is essential, namely, that such verified petition should be published for 3 successive weeks in some newspaper of general circulation in the province; and that both the title or the caption of the petition and its body shall recite: a) the name or names or aliases of the applicant b) the cause for which the change of name is sought; and c) the new name asked for.

Failure to comply with these jurisdictional requirements, renders the proceedings a nullity.

Need for separate petition by proper party—petition for change of name must be filed by the person desiring to change his/her name even if it may be signed or verified by some other reason in his behalf. The decision to change her name, the reason for the change, and the choice of a new name and surname shall be hers alone to make. The reason is obvious. When she grows up to adulthood, she may not want to use her stepfather’s surname, nor any of the aliases chosen for her by her mother

All names or aliases must appear in caption of petition—all names or aliases of the petitioner must appear in the title or caption of the petition; because the reader usually merely glances at the title of the petition and may only proceed to read the entire petition if the title is of interests to him. Moreover, the petition and the order directing its publication are usually found in the inside or back pages of a newspaper, which escape the notice of the reader who merely glances at the title of the petition and does not notice the other names and/or aliases of the applicant if these are mentioned only in the body of the petition or the order. The omission is fatal to the petition

Name in civil register is the official name—So it is, that the civil register records his name. That name in the civil register, for legal purposes, is his real name. And correctly so, because the civil register is an official record of the civil status of persons.

Prohibition use of aliases--one cannot simply is use an alias without court authorization – prohibited by CA 142.

Rule 103, Section 3. Order for hearing. - If the petition filed is sufficient in form and substance, the court, by an order reciting the purpose of the petition, shall fix a date and place for the hearing thereof, and shall direct that a copy of the order be published before the hearing at least once a week for three (3) successive weeks in some newspaper of general circulation published in the province, as the court shall deem best. The date set for the hearing shall not be within thirty (30) days prior to an election nor within four (4) months after the last publication of the notice.

Purpose of publication—purpose of publication us to apprise the public of the pendency of the petition so that those who may know of any legal objection to it might come forward with the information in order to determine the fitness of petitioner for Philippines Citizenship.

Need for publication for court to obtain jurisdiction—jurisdiction to hear and determine the petition for change of name is acquired after due publication of the order containing certain data, among which is the name sought to be adopted, a matter which should be indicated in the title of the petition.

Contents of petition—for the publication to be valid and effective, the published order should reproduce the title of the petition containing the data already stated and should contain correct information as to: a) the name or names of the applicant;b) the cause for the change of name; andc) the new name asked for.

Effect of discrepancy in the petition and the published order—considering that the proceedings is one for change of name, the defect in the petition and the order, as to the spelling if the name of the petitioner, is substantial, because it did not correctly identify the party to said proceedings…by said act, he made it difficult or virtually impossible for anyone who might have an adverse interest to oppose his petition.

Rule 103, Section 4. Hearing. - Any interested person may appear at the hearing and oppose the petition. The Solicitor General or the proper provincial or city fiscal shall appear on behalf of the Government of the Republic.

Rule 103, Section 5. Judgment. - Upon satisfactory proof in open court on the date fixed in the order that such order has been published as directed and that the allegations of the petition are true, the court shall, if proper and reasonable cause appears for changing the name of the petitioner, adjudge that such name be changed in accordance with the prayer of the petition.

Court’s discretion—in granting or denying petitions for change of name, te question of proper and reasonable cause is left to the sound discretion of the court. The evidence presented need onl be satisfactory to the court and not all the best evidence available., Summarizing, in special proceedings for change of name, what is involved is not a mere matter of allowance or disallowance of the request, but a judicious evaluation of the sufficiency and propriety of the justifications advanced in support thereof, mindful of the consequent results in the event of its grant and wit the sole prerogative for making such determination being lodged in the courts.

The rule in changing the name of minors—should be granted only where to do so is clearly for the best interest of the child.

In republic v Marcos, the reasons offered for changing the name of petitioner’s daughter are:

a) That her daughter grew up with, and learned to love and recognize Alfred de la Cruz as her own father;

b) to afford her daughter a feeling of security; andc) that Alfredo de la Cruz agrees to this petition, and has

signified his conformity at the foot of this pleading.

Supreme court held that, these are not valid reasons for a change of name. The general rule is that a change of name should not be permitted if it will give a false impression of family relationship to another where none actually exists.

Insufficient grounds change of name:a) separation of spousesb) no proof of prejudice by use of official namec) mere use and known by different named) no proof that the true name evokes derisive laughter


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RA No. 9048

“SECTION 1. 10 Authority to Correct Clerical or Typographical Error and Change of First Name or Nickname. – No entry in a civil register shall be changed or corrected without a judicial order, except for clerical or typographical errors and change of first name or nickname, the day and month in the date of birth or sex of a person where it is patently clear that there was a clerical or typographical error or mistake in the entry, which can be corrected or changed by the concerned city or municipal civil registrar or consul general in accordance with the provisions of this Act and its implementing rules and regulations.”

Section 2. Definition of Terms – As used in this Act, the following terms shall mean:

(1) "City or Municipal civil registrar" refers to the head of the local civil registry office of the city or municipality, as the case may be, who is appointed as such by the city or municipal mayor in accordance with the provisions of existing laws.

(2) "Petitioner" refers to a natural person filing the petition and who has direct and personal interest in the correction of a clerical or typographical error in an entry or change of first name or nickname in the civil register.

(3) ‘Clerical or typographical error’ 11refers to a mistake committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous, such as misspelled name or misspelled place of birth, mistake in the entry of day and month in the date of birth or the sex of the person or the like, which is visible to the eyes or obvious to the understanding, and can be corrected or changed only by reference to other existing record or records: Provided, however, That no correction must involve the change of nationality, age, or status of the petitioner.”

(4) "Civil Register" refers to the various registry books and related certificates and documents kept in the archives of the local civil registry offices, Philippine Consulates and of the Office of the Civil Registrar General.

(5) "Civil registrar general" refers to the Administrator of the National Statistics Office which is the agency mandated to carry out and administer the provision of laws on civil registration.

(6) "First name" refers to a name or nickname given to a person which may consist of one or more names in addition to the middle and last names.

Section 3. Who May File the Petition and Where. – Any person having direct and personal interest in the correction of a clerical or typographical error in an entry and/or change of first name or nickname in the civil register may file, in person, a verified petition with the local civil registry office of the city or municipality where the record being sought to be corrected or changed is kept.

In case the petitioner has already migrated to another place in the country and it would not be practical for such party, in terms of transportation expenses, time and effort to appear in person before the local civil registrar keeping the documents to be corrected or changed, the petition may be filed, in person, with the local civil registrar of the place where the interested party is presently residing or domiciled. The two (2) local civil registrars concerned will then communicate to facilitate the processing of the petition.

10 As amended by RA 10172


Citizens of the Philippines who are presently residing or domiciled in foreign countries may file their petition, in person, with the nearest Philippine Consulates.

The petitions filed with the city or municipal civil registrar or the consul general shall be processed in accordance with this Act and its implementing rules and regulations.All petitions for the clerical or typographical errors and/or change of first names or nicknames may be availed of only once.

Section 4. Grounds for Change of First Name or Nickname. – The petition for change of first name or nickname may be allowed in any of the following cases:

(1) The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce.(2) The new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by that by that first name or nickname in the community: or(3) The change will avoid confusion.

“SEC. 5. Form and Contents of the Petition12. – The petition for correction of a clerical or typographical error, or for change of first name or nickname, as the case may be, shall be in the form of an affidavit, subscribed and sworn to before any person authorized by law to administer oaths. The affidavit shall set forth facts necessary to establish the merits of the petition and shall show affirmatively that the petitioner is competent to testify to the matters stated. The petitioner shall state the particular erroneous entry or entries, which are sought to be corrected and/or the change sought to be made. The petition shall be supported with the following documents:

(1) A certified true machine copy of the certificate or of the page of the registry book containing the entry or entries sought to be corrected or changed;(2) At least two (2) public or private documents showing the correct entry or entries upon which the correction or change shall be based; and(3) Other documents which the petitioner or the city or municipal civil registrar or the consul general may consider relevant and necessary for the approval of the petition.

No petition for correction of erroneous entry concerning the date of birth or the sex of a person shall be entertained except if the petition is accompanied by earliest school record or earliest school documents such as, but not limited to, medical records, baptismal certificate and other documents issued by religious authorities; nor shall any entry involving change of gender corrected except if the petition is accompanied by a certification issued by an accredited government physician attesting to the fact that the petitioner has not undergone sex change or sex transplant. The petition for change of first name or nickname, or for correction of erroneous entry concerning the day and month in the date of birth or the sex of a person, as the case may be, shall be published at least once a week for two (2) consecutive weeks in a newspaper of general circulation. Furthermore, the petitioner shall submit a certification from the appropriate law enforcements, agencies that he has no pending case or no criminal record. The petition and its supporting papers shall be filed in three (3) copies to be distributed as follows: first copy to the concerned city or municipal civil registrar, or the consul general; second copy to the Office of the Civil Registrar General; and third copy to the petitioner.”

Section 6. Duties of the City or Municipal Civil Registrar or the Consul General. – The city or municipal civil registrar or the consul general to whom the petition is presented shall examine the petition and its supporting documents. He shall post the petition in a



conspicuous place provided for that purpose for ten (10) consecutive days after he finds the petition and its supporting documents sufficient in form and substance.

The city or municipal civil registrar or the consul general shall act on the petition and shall render a decision not later than five (5) working days after the completion of the posting and/or publication requirement. He shall transmit a copy of his decision together with the records of the proceedings to the Office of the Civil Registrar General within five (5) working days from the date of the decision.

Section 7. Duties and Powers of the Civil Registrar General. – The civil registrar general shall, within ten (10) working days from receipt of the decision granting a petition, exercise the power to impugn such decision by way of an objection based on the following grounds:

(1) The error is not clerical or typographical;(2) The correction of an entry or entries in the civil register is substantial or controversial as it affects the civil status of a person; or(3) The basis used in changing the first name or nickname of a person does not fall under Section 4.

The civil registrar general shall immediately notify the city or municipal civil registrar or the consul general of the action taken on the decision. Upon receipt of the notice thereof, the city or municipal civil registrar or the consul general shall notify the petitioner of such action.

The petitioner may seek reconsideration with the civil registrar general or file the appropriate petition with the proper court.

If the civil registrar general fails to exercise his power to impugn the decision of the city or municipal civil registrar or of the consul general within the period prescribed herein, such decision shall become final and executory.

Where the petition is denied by the city or municipal civil registrar or the consul general, the petitioner may either appeal the decision to the civil registrar general or file the appropriate petition with the proper court.

SEC. 8. Payment of Fees. 13 – The city or municipal civil registrar or the consul general shall be authorized to collect reasonable fees as a condition for accepting the petition. An indigent petitioner shall be exempt from the payment of the said fee. The fees collected by the city or municipal civil registrar or the consul general pursuant to this Act shall accrue to the funds of the Local Civil Registry Office concerned or the Office of the Consul General for modernization of the office and hiring of new personnel and procurement of supplies, subject to government accounting and auditing rules.”

Section 9. Penalty Clause. - A person who violates any of the provisions of this Act shall, upon conviction, be penalized by imprisonment of not less than six (6) years but not more than twelve (12) years, or a fine of not less than Ten thousand pesos (P10,000.00) but not more than One Hundred Thousand pesos (P100,000.00), or both, at the discretion of the court.In addition, if the offender is a government official or employee he shall suffer the penalties provided under civil service laws, rules and regulations.

Section 10. Implementing Rules and Regulations. - The civil registrar general shall, in consultation with the Department of Justice, the Department of Foreign Affairs, the Office of the Supreme Court Administrator, the University of the Philippines Law


Center and the Philippine Association of Civil Registrars, issue the necessary rules and regulations for the effective implementation of this Act not later than three (3) months from the effectivity of this law.

REPUBLIC ACT No. 6085AN ACT AMENDING COMMONWEALTH ACT NUMBERED ONE HUNDRED FORTY-TWO REGULATING THE USE OF ALIASES.

Section 1. Section one of Commonwealth Act Numbered One hundred forty-two is hereby amended to read as follows:"Sec. 1. Except as a pseudonym solely for literary, cinema, television, radio or other entertainment purposes and in athletic events where the use of pseudonym is a normally accepted practice, no person shall use any name different from the one with which he was registered at birth in the office of the local civil registry, or with which he was baptized for the first time, or, in case of an alien, with which he was registered in the bureau of immigration upon entry; or such substitute name as may have been authorized by a competent court: Provided, That persons, whose births have not been registered in any local civil registry and who have not been baptized, have one year from the approval of this act within which to register their names in the civil registry of their residence. The name shall comprise the patronymic name and one or two surnames."

Section 2. Section Two of Commonwealth Act Numbered One hundred forty-two is hereby amended to read as follows:"Sec. 2. Any person desiring to use an alias shall apply for authority therefor in proceedings like those legally provided to obtain judicial authority for a change of name, and no person shall be allowed to secure such judicial authority for more than one alias. The petition for an alias shall set forth the person's baptismal and family name and the name recorded in the civil registry, if different, his immigrant's name, if an alien, and his pseudonym, if he has such names other than his original or real name, specifying the reason or reasons for the use of the desired alias. The judicial authority for the use of alias the Christian name and the alien immigrant's name shall be recorded in the proper local civil registry, and no person shall use any name or names other, than his original or real name unless the same is or are duly recorded in the proper local civil registry."

Section 3. Section three of Commonwealth Act Numbered One hundred forty-two, is hereby amended to read as Follows:"Sec. 3. No person having been baptized with a name different from that with which he was registered at birth in the local civil registry, or in case of an alien, registered in the bureau of immigration upon entry, or any person who obtained judicial authority to use an alias, or who uses a pseudonym, shall represent himself in any public or private transaction or shall sign or execute any public or private document without stating or affixing his real or original name and all names or aliases or pseudonym he is or may have been authorized to use."

Section 4. Commonwealth Act Numbered One hundred forty-two is hereby amended by the insertion of the following new section to be designated Section four to read as follows:"Sec. 4. Six months from the approval of this act and subject to the provisions of section 1 hereof, all persons who have used any name and/or names and alias or aliases different from those authorized in section one of this act and duly recorded in the local civil registry, shall be prohibited to use such other name or names and/or alias or aliases."

Section 5. Section four of Commonwealth Act Numbered One hundred forty-two is hereby amended to read as Section five, as follows:"Sec. 5. Any violation of this Act shall be punished with imprisonment of from one year to five years and a fine of P5,000 to


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P10,000."

Section 6. This Act shall take effect upon its approval, and all Acts, rules or regulations of laws inconsistent herewith are hereby repealed.

Civil Code, Art. 376. No person can change his name or surname without judicial authority.

Gil Go vs Republic It was not indicated in the title or caption of Gil Go's petition that he desired to change his name to Henry Yao. The published order setting his petition for hearing reproduced that defective title. Nor was it indicated in his petition that his registered name is Gil Co, a name which he allegedly used in his official transactions. The proceeding for a change of name is a proceeding in rem. Jurisdiction to hear and determine the petition for change of name is acquired after due Publication of the order, setting it for hearing, which order should contain certain data, among which is the name sought to be adopted, a matter which should be indicated in the title of the petition. Inasmuch as the title of the petition in this case and the order setting it for hearing were deficient, the lower court did not acquire jurisdiction over the proceeding. Change of name is a matter of public interest. It is a privilege and not a matter of right. The court should weigh carefully the consequences of the change of name and deny the same unless weighty reasons are shown. The State has an interest in the names borne by individuals and entities for purposes of Identification. It should be authorized only for compelling reasons.Silverio vs Republic RA 9048 does not sanction a change of first name on the ground of sex reassignment. Rather than avoiding confusion, changing petitioner’s first name for his declared purpose may only create grave complications in the civil registry and the public interest. Before a person can legally change his given name, he must present proper or reasonable cause or any compelling reason justifying such change. In addition, he must show that he will be prejudiced by the use of his true and official name. In this case, he failed to show, or even allege, any prejudice that he might suffer as a result of using his true and official name. Under the Civil Register Law, a birth certificate is a historical record of the facts as they existed at the time of birth.Thus, the sex of a person is determined at birth, visually done by the birth attendant (the physician or midwife) by examining the genitals of the infant. Considering that there is no law legally recognizing sex reassignment, the determination of a person’s sex made at the time of his or her birth, if not attended by error, is immutable.

Republic vs Cagandahan (Intersex case) Biologically, nature endowed respondent with a mixed composition. Respondent has female (XX) chromosomes. However, respondent’s body system naturally produces high levels of male hormones. As a result, respondent has ambiguous genitalia and the phenotypic features of a male. We are of the view that 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. Respondent is the one who has to live with his intersex anatomy. To him belongs the human right to the pursuit of happiness and of health. Thus, to him should belong the primordial choice of what courses of action to take along the path of his sexual development and maturation.

Republic vs Coseteng-Magpayo This was an action for change of name from his old surname into that of his mother. His ground is that his mother and father were never marries. Therefore, he was an illegitimate child and should bear the surname of his mother. The change being sought in the petition goes so far as to affect his legal status in relation to his parents. It seeks to change his legitimacy to that of illegitimacy. Rule 103 then would not suffice to grant respondent’s supplication. Changes which may affect the civil status from legitimate to illegitimate . . . are substantial and controversial alterations which can only be allowed after appropriate adversary proceedings. Since respondent’s desired change affects his civil status from legitimate to illegitimate, Rule 108 applies. When a petition for cancellation or correction of an entry in the civil register involves substantial and controversial alterations including those on citizenship, legitimacy of paternity or filiation, or legitimacy of marriage, a strict compliance with the requirements of Rule 108 (particularly Sections 3,4,&5) of the Rules of Court is mandated.

C. Cancellation and correction of entries in civil registry

Rule 108, Section 1. Who may file petition. - Any person interested in any act, event, order or decree concerning the civil status of persons which has been recorded in the civil register, may file a verified petition for the cancellation or correction of any entry relating thereto, with the Court of First Instance of the province where the corresponding civil registry is located

Appropriate summary proceedings distinguished from appropriate adversary proceedings—clerical or typographical errors in entries of the civil register are now to be corrected and changed without the need of a judicial order and the city or municipal civil registrar or consul general. The obvious effect is to remove from the ambit of Rule 108the correction or changing of such errors in entries of the civil register.

What is left for the scope of operation of Rule 108 are substantial changes and corrections in entries of the civil register.

RA 9048 is the Congress’ response to the confusion wrought by the failure to delineate as to what exactly is that so called summary procedure for changes or corrections of a harmless or innocuous nature as distinguished from that appropriate adversary proceeding for changes or corrections of a substantial kind. RA 9048 now embodies that summary procedure while R108 is that appropriate adversary proceeding. RA 9048 however, has a prospective application.

Thus, if the correction sought to be made in the civil register is clerical, then the procedure to be adopted is summary. If the rectification affects the civil status, citizenship or nationality of a party, it is deemed substantial, and the procedure to be adopted is adversary.

Role of the court in hearing the petition—court’s role is to ascertain the truth about the facts recorded therein.

It is worth emphasizing that proceedings for the correction of erroneous entry should not be considered as establishing one’s status in a legal manner conclusively beyond the dispute or controversion. Hence, the status as corrected would not have a superior quality for evidentiary purpose. Moreover, the correction should not imply a change of status but a mere rectification of error to make the matter corrected speak for the truth. There is, therefore, no increase or diminution of substantive right.

Right to file petition for correction of entries by child erroneously entered as child of entrant:a. Impugning legitimacy of child collaterally not allowed—there must be a separate action to impugn their legitimacy that is, a direct action for purpose. The presumption of legitimacy fixes a civil status for the child born in wedlock, and only the father, or in


exceptional circumstances the latter’s heirs can contest in an appropriate action to impugn the legitimacy of a child born to his wife.b. Petition under Rule 108 to correct and/or to cancel wrong filiation allowed—but while the child may not collaterally impugn his legitimacy as entered in the registered in an action for partition, he may file a petition for cancellation and/or correction of entries in the records of birth of respondent to establish that petitioner is not the child of the person named in the entry as his mother. In other words, the prayer therein is not to declare that petitioner is an illegitimate child of the person entered as his mother but to establish that the former is not the latter’s child at al.

Period to file petition is from discovery of error—Inasmuch as no law or rule specifically prescribes a fixed time for filing the special proceeding under Rule 108, we apply Art. 1149: other actions whose periods are not fixed in this code or in the other laws must be brought within 5 years from the time the right of action accrues.

The right of action accrues when there exists a COA. It is only when the last element occurs or takes place that it can be said in law that a COA has arisen.

Petitioners would have us reckon the 5 year prescriptive period from the date of the registration if the last birth among the petitioners-siblings in 1960, and not from the date private respondents had discovered the false entries in petitioners’ birth records in 1989. We cannot agree with petitioners’ thinking in that point. It is true that the books making yp the Civil register and all documents relating thereto are public documents and shall be prima facie evidence of the facts therein contained. Petitioners liken their birth records to land titles, public docs that serve as a notice to the whole world. Unfortunately for the petitioner, this analogy does not hold water. Unlike a title to a parcel of land, a person’s parentage cannot be acquired by prescription. One is either born of a particular mother or not. It is that simple.

Distinction between R103 & R108—The procedure recited in Rule 103 regarding change of name and in Rule 108 concerning the cancellation or correction of entries in the civil registry are separate and distinct, They may not be substituted one for the other for the sole purpose of expediency to hold otherwise would render nugatory the provisions of the ROC allowing the change of one’s name or the correction of entries in the civil registry only upon meritorious grounds.

Rule 108, Section 2. Entries subject to cancellation or correction. - Upon good and valid grounds, the following entries in the civil register may be cancelled or corrected:(a) births;(b) marriages;(c) deaths;(d) legal separations;(e) judgments of annulments of marriage;(f) judgments declaring marriages void from the beginning;(g) legitimations;(h) adoptions;(i) acknowledgments of natural children;(j) naturalization(k) election, loss or recovery of citizenship(l) civil interdiction;(m) judicial determination of filiation;(n) voluntary emancipation of a minor; and(o) changes of name.Scope of rule—general perception, following the Ty Kong Tin v Republic and cases contemporary and closely subsequent to it was that the judicial proceeding under NCC 412, implemented by R108, could only justify the correction of innocuous or clerical errors apparent on the facts of the record and capable of being

corrected by mere reference to it such as misspellings and obvious mistakes.

Abandonment of old doctrines—the foregoing pronouncement was, however, abandoned in subsequent cases. The Court held that the proceedings under Rule 108 were adversarial. And is not limited to those corrections contemplated by Art. 412 NCC or mere clerical erros of a harmless or innocuous nature.

This court adheres to the principle that even substantial errors in a civil registry may be corrected and the true facts established provided the parties aggrieved by the error avail themselves of the appropriate adversary proceeding.

What is meant by appropriate adversary proceeding?Black’s Law Dictionary: 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.”

Cancellation or correction of substantial errors allowed provided proceeding is adversary—thus, even if the subject matter of a petition is not for the correction of clerical errors of a harmless and innocuous nature, but one involving nationality or citizenship, which is indisputably substantial as well as controverted, affirmative relief cannot be granted in a proceeding summary in nature, since a right in law nay be enforced and a wring may be remedied as the appropriate remedy is used, the Court adhered to the principle that even substantial errors in a civil registry may be corrected and the tru facts established provided the parties aggrieved by the error avail themselves of the appropriate adversary proceeding.

R108 provides the procedure for cancellation or correction if entries in the civil registry, The proceedings under said rule may either be summary or adversary in nature. If the correction sought to be made in the civil register is clerical, then the procedure to be adopted is summary. If the rectification affects the civil status, citizenship or nationality of a party, it is deemed substantial, and the procedure to be adopted is adversary.

Any appropriate adversary suit or proceeding is one where the trial court has conducted proceedings where all relevant facts have been fully and properly developed, where opposing counsel have been given opportunity to demolish the opposite party’s case, and where the evidence has been thoroughly weighed and considered.

Rule 108, Section 3. Parties. - When cancellation or correction of an entry in the civil register is sought, the civil registrar and all persons who have or claim any interest which would be affected thereby shall be made parties to the proceeding.

Rule 108, Section 4. Notice and publication. - Upon the filing of the petition, the court shall, by an order, fix the time and place for the hearing of the same, and cause reasonable notice thereof to be given to the persons named in the petition. The court shall also cause the order to be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province.

Publication sufficient to include all interested parties—Jurisdiction over the parties was properly acquired through the notice by publication effected in conformity with Section 4 of Rule 108. The sweep of the decision would cover even parties who should have been impleaded under Section 3, Rule 108 but were inadvertently left out.

Rule 108, Section 5. Opposition. - The civil registrar and any person having or claiming any interest under the entry whose cancellation or correction is sought may, within fifteen (15) days from notice of the petition, or from the last date of publication of


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such notice, file his opposition thereto.

Thus for as long as the trial court has conducted proceedings where all relevant facts have been fully and properly developed, where opposing counsel have been given opportunity to demolish the opposite party’s case, and where the evidence has been thoroughly weighed and considered, the suit or proceeding is appropriate.

When an opposition to the petition is filed either buy the Civil Registrar or any person having or claiming any interest in the entries sought to be cancelled and/or corrected and the opposition is actively prosecuted, the proceedings thereon become adversary proceedings.

Republic vs Valencia The mother seeks to change her status (single married). The children seek to change their status from illegitimate to legitimate and from Chinese to Filipino. OSG opposed saying that Rule 108 only refers to mistakes w/c are clerical in nature or changes that are harmless and the changes sought here are better threshed out by an adversarial proceeding. SC ruled that when all the procedural requirements under Rule 108 have been followed, a petition for correction and/or cancellation of entries in the record of birth, even if filed and conducted under Rule 108 of the Revised Rules of Court can no longer be described as "summary". There can be no doubt that when an opposition to the petition is filed either by the Civil Registrar or any person having or claiming any interest in the entries sought to be cancelled and/or corrected and the opposition is actively prosecuted, the proceedings thereon become adversary proceedings.

Chiao Ben Lim vs Zosa The Valencia ruling has in effect adopted the above-stated views insofar as it now allows changes in the birth entry regarding a person's citizenship as long as adversary proceedings are held. Where such a change is ordered, the Court will not be establishing a substantive right but only correcting or rectifying an erroneous entry in the civil registry as authorized by law. In short, Rule 108 of the Rules of Court provides only the procedure or mechanism for the proper enforcement of the substantive law embodied in Article 412 of the Civil Code and so does not violate the Constitution.

Republic vs Bautista If the correction sought to be made in the civil register is clerical, then the procedure to be adopted is summary. If the rectification affects the civil status, citizenship or nationality of a party, it is deemed substantial, and the procedure to be adopted is adversary. Since there was compliance with Sections 2, 4 and 5 of Rule 108, the proceedings undertaken were unmistakably adversary, thus removing the initial apprehension of the State that "if the entries in the civil registrar could be corrected through a mere summary proceeding and not through an appropriate action wherein all the parties who may be affected by the entries are notified or represented, we would set wide open the door to fraud or other mischief, the consequence of which might be detrimental and far-reaching."

Silverio vs Republic Under RA 9048, a correction in the civil registry involving the change of sex is not a mere clerical or typographical error. It is a substantial change for which the applicable procedure is Rule 108 RoC. 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 entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the Rules of Court are those provided in Articles 407 and 408 Civil Code. 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. Article 407 of the Civil Code authorizes the entry in the civil registry of certain acts (such as legitimations, acknowledgments of illegitimate children and naturalization), events (such as births, marriages, naturalization and deaths) and judicial decrees (such as legal separations, annulments of marriage, declarations of nullity of marriages, adoptions, naturalization, loss or recovery of citizenship, civil interdiction, judicial determination of filiation and changes of name). These acts, events and judicial decrees produce legal consequences that touch upon the legal capacity, status and nationality of a person. Their effects are expressly sanctioned by the laws. In contrast, sex reassignment is not among those acts or events mentioned in Article 407. Neither is it recognized nor even mentioned by any law, expressly or impliedly. But there is no such special law in the Philippines governing sex reassignment and its effects. This is fatal to petitioner’s cause.

VI. Other Special ProceedingsA. Hospitalization of Insane Persons

Rule 101, Section 1. Venue; Petition for commitment. - A petition for the commitment of a person to a hospital or other place for the insane may be filed with the Court of First Instance of the province where the person alleged to be insane is found. The petition shall be filed by the Director of Health in the all cases where, in his opinion, such commitment is for the public welfare, or for the welfare of said person who, in his judgment, is insane, and such person or the one having charged of him is opposed to his being taken to a hospital or other place for the insane

Application of the rule—the rule is applicable only when the hospitalization of the insane person is for the public welfare of said person, who in the judgment of the Director of Health, is insane, provided that the one who has charge of him is opposed to such confinement.

Nature of the acts of the Director of Health—the intervention of the Director of Health on the demented, who needs hospitalization, may be preliminary but is entirely independent and forms part of the judicial proceedings dealing with the guardianship of insane persons.

Nature of proceedings—nature of the proceedings under R101 (primarily for the purpose of protecting the community at large and in the nature of police regulations) are distinguishable from the proceedings for the appointment of a guardian for the person and estate of such insane person (for the purpose of protecting the person and estate of the insane)

Insanity—condition of mind, which is so impaired in function or so deranged as to induce deviation from normal conduct in the person so afflicted.

Craziness is not insanity—fact the a person is acting crazy is not conclusive that he is insane.

Rule 101, Section 2. Order for hearing. - If the petition filed is sufficient in form and substance, the court, by an order reciting the purpose of the petition, shall fix a date for the hearing thereof, and copy of such order shall be served on the person alleged to be insane, and to the one having charge of him, or on such of his relatives residing in the province or city as the judge may deem proper. The court shall furthermore order the sheriff to produce the alleged insane person, if possible, on the date of the hearing.

Right of insane person to notice and hearing—the court or judge to whom application is made may proceed by citation or rule to show cause to bring in the proper parties for a hearing.


While it has been held that want of notice does not render the proceedings invalid and that the commitment is not subject to collateral attack, it has also been held that want of notice renders the proceedings void or at least, is good ground for vacating the order of commitment.

Time of notice where it is not fixed by the statute must be as is reasonable under the circumstances of the particular case.

Rule 101, Section 3. Hearing and judgment. - Upon satisfactory proof, in open court on the date fixed in the order, that the commitment applied for is for the public welfare or for the welfare of the insane person, and that his relatives are unable for any reason to take proper custody and care of him, the court shall order his commitment to such hospital or other place for the insane as may be recommended by the Director of Health. The court shall make proper provisions for the custody of property or money belonging to the insane until a guardian be properly appointed.

Burden of proof—burden of proving insanity is on the P who alleged it, as where it is set up as an affirmative defense the burden of proving rests on D. If a party asserts insanity, which has been shown to be only occasional or intermittent in its nature, the burden is on him of proving it of its existence at the time alleged. On the other hand, if a person alleges insanity as an element of his case, the burden of proof rests on him to establish that fact, although the presumption of sanity operates in his favor at the outset.

Protection of the estate of the insane person—pending an appeal from a judgment declaring a person to be a lunatic, the TC has jurisdiction to order a 3p to appear and show cause why he should not deliver to the guardian property of the lunatic alleged to be unlawfully in said party’s possession.

Rule 101, Section 4. Discharge of insane. - When, in the opinion of the Director of Health, the person ordered to be committed to a hospital or other place for the insane is temporarily or permanently cured, or may be released without danger he may file the proper petition with the Court of First Instance which ordered the commitment.

Jurisdiction and venue of proceedings for restoration of capacity—as GR, the application should be made to the court in which proceedings were had resulting in the adjudication of incompetency.

Nature of the proceeding—a proceeding for the restoration to competency is a special proceeding of a summary character and regarded not as a new proceeding but as a continuance of the original guardianship proceeding.

A statutory proceeding to determine whether the applicant has been restored to mental competency assumes the validity of the original proceedings, which he has adjudged incompetent, and such applicant may not thereafter question the validity of the original jurisdiction.

Release of the insane person—Where the insane person was judicially committed to the hospital or asylum, the Director of Health cannot order his release without the approval of the RTC, which ordered the commitment. Also said court cannot order his release without the recommendation of the Director of Health.

B. Voluntary Dissolution of Corporations

Rule 104, Sec. 1. Where, by whom and on what showing application made. - A petition for dissolution of a corporation shall be filed in the Court of First Instance of the province where the principal office of a corporation is situated. The petition shall be

signed by a majority of its board of directors or other officers having the management of its affairs, verified by its president or secretary or one of its directors, and shall set forth all claims and demands against it, and that its dissolution was resolved upon by a majority of the members, or, if a stock corporation, by the affirmative vote of the stockholders holding and representing two-thirds of all shares of stock issued or subscribed, at a meeting of its members or stockholders called for that purpose.

Rule 104, Sec. 2. Order thereupon for filing objections. - If the petition is sufficient in form and substance, the court, by an order reciting the purpose of the petition, shall fix a date on or before which objections thereto may be filed by any person, which date shall not be less than thirty (30) nor more than sixty (60) days after the entry of the order. Before such date a copy of the order shall be published at least once a week for four (4) successive weeks in some newspaper of general circulation published in the municipality or city where the principal office of the corporation is situated, or, if there be no such newspaper, then in some newspaper of general circulation in the Philippines, and a similar copy shall be posted for four (4) weeks in three public places in such municipality or city.

Rule 104, Sec. 3. Hearing, dissolution, and disposition of assets; Receiver. - Upon five (5) days' notice given after the date on which the right to file objections as fixed in the order expired, the court shall proceed to hear the petition and try any issue made by objections filed; and if no such objection is sufficient, and the material allegations of the petition are true, it shall render judgment dissolving the corporation and directing such disposition of its assets as justice requires, and may appoint a receiver to collect such assets and pay the debts of the corporation.

Rule 104, Sec. 4. What shall constitute record. - The petition, orders, proof of publication and posting, objections filed, declaration of dissolution, and any evidence taken, shall constitute the record in the case.

BP 68 ( Corporation Code)Sec. 117. Methods of dissolution. - A corporation formed or organized under the provisions of this Code may be dissolved voluntarily or involuntarily.

Sec. 118. Voluntary dissolution where no creditors are affected. - If dissolution of a corporation does not prejudice the rights of any creditor having a claim against it, the dissolution may be effected by majority vote of the board of directors or trustees, and by a resolution duly adopted by the affirmative vote of the stockholders owning at least two-thirds (2/3) of the outstanding capital stock or of at least two-thirds (2/3) of the members of a meeting to be held upon call of the directors or trustees after publication of the notice of time, place and object of the meeting for three (3) consecutive weeks in a newspaper published in the place where the principal office of said corporation is located; and if no newspaper is published in such place, then in a newspaper of general circulation in the Philippines, after sending such notice to each stockholder or member either by registered mail or by personal delivery at least thirty (30) days prior to said meeting. A copy of the resolution authorizing the dissolution shall be certified by a majority of the board of directors or trustees and countersigned by the secretary of the corporation. The Securities and Exchange Commission shall thereupon issue the certificate of dissolution. (62a)

Sec. 119. Voluntary dissolution where creditors are affected. - Where the dissolution of a corporation may prejudice the rights of any creditor, the petition for dissolution shall be filed with the Securities and Exchange Commission. The petition shall be signed by a majority of its board of directors or trustees or other officers having the management of its affairs, verified by its president or secretary or one of its directors or trustees, and shall set forth all claims and demands against it, and that its dissolution was resolved


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upon by the affirmative vote of the stockholders representing at least two-thirds (2/3) of the outstanding capital stock or by at least two-thirds (2/3) of the members at a meeting of its stockholders or members called for that purpose. If the petition is sufficient in form and substance, the Commission shall, by an order reciting the purpose of the petition, fix a date on or before which objections thereto may be filed by any person, which date shall not be less than thirty (30) days nor more than sixty (60) days after the entry of the order. Before such date, a copy of the order shall be published at least once a week for three (3) consecutive weeks in a newspaper of general circulation published in the municipality or city where the principal office of the corporation is situated, or if there be no such newspaper, then in a newspaper of general circulation in the Philippines, and a similar copy shall be posted for three (3) consecutive weeks in three (3) public places in such municipality or city. Upon five (5) day's notice, given after the date on which the right to file objections as fixed in the order has expired, the Commission shall proceed to hear the petition and try any issue made by the objections filed; and if no such objection is sufficient, and the material allegations of the petition are true, it shall render judgment dissolving the corporation and directing such disposition of its assets as justice requires, and may appoint a receiver to collect such assets and pay the debts of the corporation. (Rule 104, RCa)

Sec. 120. Dissolution by shortening corporate term. - A voluntary dissolution may be effected by amending the articles of incorporation to shorten the corporate term pursuant to the provisions of this Code. A copy of the amended articles of incorporation shall be submitted to the Securities and Exchange Commission in accordance with this Code. Upon approval of the amended articles of incorporation of the expiration of the shortened term, as the case may be, the corporation shall be deemed dissolved without any further proceedings, subject to the provisions of this Code on liquidation.

Sec. 121. Involuntary dissolution. - A corporation may be dissolved by the Securities and Exchange Commission upon filing of a verified complaint and after proper notice and hearing on the grounds provided by existing laws, rules and regulations. (n)

Sec. 122. Corporate liquidation. - Every corporation whose charter expires by its own limitation or is annulled by forfeiture or otherwise, or whose corporate existence for other purposes is terminated in any other manner, shall nevertheless be continued as a body corporate for three (3) years after the time when it would have been so dissolved, for the purpose of prosecuting and defending suits by or against it and enabling it to settle and close its affairs, to dispose of and convey its property and to distribute its assets, but not for the purpose of continuing the business for which it was established. At any time during said three (3) years, the corporation is authorized and empowered to convey all of its property to trustees for the benefit of stockholders, members, creditors, and other persons in interest. From and after any such conveyance by the corporation of its property in trust for the benefit of its stockholders, members, creditors and others in interest, all interest which the corporation had in the property terminates, the legal interest vests in the trustees, and the beneficial interest in the stockholders, members, creditors or other persons in interest. Upon the winding up of the corporate affairs, any asset distributable to any creditor or stockholder or member who is unknown or cannot be found shall be escheated to the city or municipality where such assets are located. Except by decrease of capital stock and as otherwise allowed by this Code, no corporation shall distribute any of its assets or property except upon lawful dissolution and after payment of all its debts and liabilities. (77a, 89a, 16a)

A.M. No. 04-9-07-SCRe: Mode of Appeal in Cases Formerly Cognizable by the

Securities and Exchange Commission1. All decisions and final orders in cases falling under the Interim Rules of Corporate Rehabilitation and the Interim Rules of Procedure Governing Intra-Corporate Controversies under Republic Act No. 8799 shall be appealable to the Court of Appeals through a petition for review under Rule 43 of the Rules of Court.

2. The petition for review shall be taken within fifteen (15) days from notice of the decision or final order of the Regional Trial Court. Upon proper motion and the payment of the full amount of the legal fee prescribed in Rule 141 as amended before the expiration of the reglementary period, the Court of Appeals may grant an additional period of fifteen (15) days within which to file the petition for review. No further extension shall be granted except for the most compelling reasons and in no case to exceed fifteen (15) days.

A.M. No. 00-8-10-SC December 2, 2008RULES OF PROCEDURE ON CORPORATE REHABILITATION

RA No. 10142

VII. Appeals in Special ProceedingsA. Rule 109

Rule 109, Section 1. Orders or judgments from which appeals may be taken. - An interested person may appeal in special proceedings from an order or judgment rendered by a Court of First Instance or a Juvenile and Domestic Relations Court, where such order or judgment:(a) Allows or disallows a will;(b) Determines who are the lawful heirs of a deceased person, or the distributive share of the estate to which such person is entitled;(c) Allows or disallows, in whole or in part, any claim against the estate of a deceased person, or any claim presented on behalf of the estate in offset to a claim against it;(d) Settles the account of an executor, administrator, trustee or guardian;(e) Constitutes, in proceedings relating to the settlement of the estate of a deceased person, or the administration of a trustee or guardian, a final determination in the lower court of the rights of the party appealing, except that no appeal shall be allowed from the appointment of a special administrator; and(f) 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 a new trial or for reconsideration.

Mode of Appeal—in special proceedings in accordance with R109, the period of appeal shall be 30 days, a record on appeal being required.

An appeal from an award of attorney’s fees filed in the probate case should be governed by R109 on appeal from such proceedings. Hence, EXC in BP 129 and the IRR should be followed, i.e. record on appeal should be required.

Appeals in liquidation proceedings against insolvent corporation is by record on appeal—since liquidation proceedings against an insolvent corporation is a special proceeding, the appeal is by record on appeal. The reason for this is that the several claims are actually separate ones and a decision or final order with respect to any claim can be appealed.

Who may appeal—only an interested person may be allowed to appeal. A stranger having neither material nor direct interest in a testate or intestate has no right to appeal from any order issued herein.

The fact that the administratrix of the estate didn’t prosecute the appeal before her discharge is no legal obstacle to her lawful heirs prosecuting it. When the executor of an estate dies pending the determination of an appeal from a judgment rendered against him and in favor of a legatee and the latter


succeeding as executor dismisses the appeal, an order may be granted permitted any interested party to prosecute the appeal

As representative of the heirs instituted therein, an executor under the will is an interested party and may appeal for the purpose of maintaining the validity of the will, the provisions of which, he is in duty bound to execute.

The validity of a judgment or order of a court entered in a special proceedings cannot be assailed collaterally unless the ground for the attack is lack of jurisdiction of the court entering such judgment or order or fraud by the party sought to be charged with it in its procurement. If the nullity if the judgment or order assailed is for failure to adhere to or comply with the statutory requirements which must be followed before such judgment or order may be entered, the remedy for the aggrieved party is to appeal from such order or judgment, or, if final, to apply for relief under R38 which is also applicable to special proceedings

Certiorari and Mandamus not a substitute for appeal—having thus lost their remedy by appeal due to their own neglect, they cannot now seek redress by certiorari and mandamus, it not appearing that the lower court has acted without jurisdiction. Certiorari and mandamus will not lie as a substitute for an appeal. Especially would this be true where, as in the present case, the factual basis of the order complained of is challenged so that there is a need of going into the sufficiency of the evidence presented.

GR: Absent statutory provision directing otherwise, any order, judgment or decree of PC capable of being enforced or taking effect w/o further order may be appealed from; and that no action of the probate court can be appealed from which requires a subsequent order or judgment to give effect

Appealable orders:a) Appeal by surety from any order approving or disapproving

acctg: when a surety of an E/A of the estate of a deceased is admitted as a party to an accounting made by the E/A under R85.11

b) Appeal by heir from order approving money claim (R86.11); by CR who is allowed by court to bring an action for recovery of property (R87.10); and by SA from order disallowing a will.

c) Order for license to sell real estate in administration proceedings (nature: judgment on issue involved)

d) Order against bond—constitutes definitive pronouncement as to bond and movable property

e) Order to contract obligation—final and definitive bec affects substantial rights of parties and may prolong admin of intestate estate to the detriment of the heirs

f) Order appointing administrator (also, removing him or declaring him incompetent)

g) Order annulling appointment of guardianh) Order removing a guardiani) Inventories and claims against the estate, and sale of the

property of decedent (e.g. order directing cost be deducted from FP)

j) Appeal by a person declared incompetentk) Appeal from an order refusing to intervene in a special

proceedingsl) Ruling on declaration of heirs

Orders that are not appealablea) Order directing administrator to take action to recover amount

due to the estateb) Order to made in administration proceedings relating to

inclusion or exclusion of items of property in the inventory of executor or administrator

c) Order appointing special administrator or receiver

Rule 109, Section 2. Advance distribution in special proceedings. - Notwithstanding a pending controversy or appeal in proceedings 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 not be affected by the controversy or appeal be distributed among the heirs or legatees, upon compliance with the conditions set forth in Rule 90 of these rules.

Testate Estate of Vda. De Biascan vs Biascan Rule 109 of the Rules of Court enumerates the orders and judgments in special proceedings which may be the subject of an appeal… An appeal is allowed in these aforesaid cases as these orders, decrees or judgments issued by a court in a special proceeding constitute a final determination of the rights of the parties so appealing. In contrast, interlocutory orders are not appealable as these are merely incidental to judicial proceedings. In these cases, the court issuing such orders retains control over the same and may thus modify, rescind, or revoke the same on sufficient grounds at any time before the final judgment. The order in this case involves a determination of the petitioner’s valid marriage a determination that the respondent’s were entitled to participate in the settlement of her estate. It is clear that these may be the subject of an appeal in a special proceeding. (However, in this case, the notice of appeal was filed out of time.)

Republic vs Nishima The republic appeals from an order by the trial court that cancelled the respondent’s second birth certificate (after the first birth cert was found) and changed her surname (in view of her adoption). The respondent however counters that the Republic adopted a wrong mode of appeal since it did note file a record on appeal as required. The requirement of filing a record on appeal contemplates multiple appeals during the pendency of special proceedings. A record on appeal, in addition to the notice of appeal, is thus required to be filed as the original records of the case should remain with the trial cour t to enable the rest of the case to proceed in the event that a separate and distinct issue is resolved by said court and held to be final. In the present case, the filing of a record on appeal was not necessary since no other matter remained to be heard and determined by the trial court after it issued the appealed order granting respondent’s petition for cancellation of birth record and change of surname in the civil registry.

B. BP 129 (as amended)

C. Amparo and Habeas Data Rules, Note: For HC, 48h from notice of judgment appealed fromAMPARO.SEC. 19. Appeal. – Any party may appeal from the final judgment or order to the Supreme Court under Rule 45. The appeal may raise questions of fact or law or both.The period of appeal shall be five (5) working days from the date of notice of the adverse judgment.The appeal shall be given the same priority as in habeas corpus cases.


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HABEAS DATASEC. 19. Appeal.—Any party may appeal from the judgment or final order to the Supreme Court under Rule 45. The appeal may raise questions of fact or law or both.The period of appeal shall be five (5) work days from the date of notice of the judgment or final order.The appeal shall be given the same priority as habeas corpus and amparo cases.

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