special proceedings bar review guide july 2011

8/14/2019 Special Proceedings Bar Review Guide July 2011

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SPECIAL PROCEEDINGS Bar Review Guide

Justice Magdangal M. de Leon

1. Distinction between civil action and special proceedings

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

b. Special proceeding – remedy by which a party sees to establish a status, right ora particular fact.

!. Nature of special proceedings – initially non"adversarial in nature# in the course ofproceedings, there may be oppositors.

GENERAL PROISION

Rule 72Subject matter and Applicabilityof General Rules

Sec. 1. Subject matter of special proceedings.

1. Rules $%"$& '

!. Rules $(")1 ' Settlement of *state of %. Rules )!")( ' +eceased ersons-. Rules )$"/ '&. 0.. 2o. /%"/!"/&"SC Guardianship of inors(. Rules !"$ Guardianship of 3ncompetents$. 0.. 2o. /!"/("/!"SC 0doption and Custody of inors). Rule ) 4rustees. Rule 1/1 5ospitali6ation of 3nsane ersons1/. Rule 1/! 5abeas Corpus11. Rule 1/% Change of 2ame1!. Rule 1/- 7oluntary +issolution of

Corporations

8+eemed repealed by theCorporation Code,4itle 937, Secs. 11$"1!!'

1%. Rule 1/& :udicial 0pproval of 7oluntaryRecognition of inor

2atural Children1-. Rule 1/( Constitution of ;amily 5ome

8+eemed repealed by the;amily Code, 0rts. !&!"!&%'

1&. Rule 1/$ 0bsentees1(. Rule 1/) Cancellation or Correction of

*ntries

1$. Rule 1/ 0ppeals in Special roceedings

• Special Proceedings !nder arious Laws

1. Summary proceedings under the ;amily Code

!. 0ctions mentioned in the ;amily Courts 0ct of 1$ 8R0 )%('



- declaration of absolute nullity of void marriages and annulment of voidablemarriages

- legal separation

- provisional orders on support, custody of minor children and administration ofcommon property

- violence against women and their children and protection orders

%. roceedings under< Child = >outh ?elfare Code 8+ 1/)%'Child 0buse 0ct 8R0 $(1/'Child *mployment 0ct 8R0 $(&)'

- declaration of status as abandoned, dependent or neglected children

- voluntary or involuntary commitment of children

- suspension, termination or restoration of parental authority

-. +omestic and 3nter"country adoption&. etition for corporate rehabilitation(. etition for writ of amparo$. etition for writ of habeas data). 0rbitration

• Rules in civil actions applicable to special proceedings

Sec. 2. Applicability of rules of civil actions.In the absence of special rules, the rules provided for in ordinary actions shall

be, as far as practicable, applicable to special proceedings.

1. Rule 1$ governing dismissal of actions by plaintiff in civil actions8Ventura vs. Ventura, Sept. !-, 1('

!. Rules regarding<

- preparation, filing and service of applications, motions, and other papers

- omnibus motions

- subpoena

- computation of time

- motion for new trial

- discovery

- trial before commissioners

- procedure of appeal 8Fernandez vs. Maravilla, 1/ SCR0 &) @1(-A'

%. Rule %% regarding udgment on demurrer to evidence8Matute vs. CA, !( SCR0 $() @1(A'

• Recent "urisprudence

3n the absence of special provisions, rules in ordinary actions may be applied in specialproceedings as much as possible and where doing so would not pose an obstacle to saidproceedings. 2owhere in the Rules of Court does it categorically say that rules in ordinaryactions are inapplicable or merely suppletory to special proceedings. rovisions of the Rulesof Court reuiring a certification of non"forum shopping for complaints and initiatory pleadings,a written eDplanation for non"personal service and filing, and the payment of filing fees for

money claims against an estate would not in any way obstruct probate proceedings, thus, theyare applicable to special proceedings such as the settlement of the estate of a deceasedperson. 8he!er versus "state of Alice he!er , G.R. 2o. 1&$1! +ec 1%, !//$'

. Settlement of Estate of Deceased Persons, Venue andProcess

• 0rt. $$$, Civil Code – rights to succession are transmitted from the moment of death

of the decedent.

2



4his is only from the substantive aspect. ;rom the REC*+FR0 aspect, there are

certain procedures that must be observed before actual transmission of the property, but rights

of the heirs retroact from the moment of death.

Recent "urisprudence

4he right of respondentHs predecessors over the subect property is more than sufficientto uphold respondentHs right to possession over the same. RespondentHs right to the propertywas vested in her along with her siblings from the moment of their fatherHs death. 0s heir,respondent had the right to the possession of the property, which is one of the attributes ofownership. Such rights are enforced and protected from encroachments made or attemptedbefore the udicial declaration since respondent acuired hereditary rights even before udicialdeclaration in testate or intestate proceedings.8#unyi versus Factor . G.R. 2o. 1$!&-$, :une%/, !//'

1. Which court has jurisdiction

• Settle#ent of estate

4he determination of which court eDercises urisdiction over matters of probate depends

upon the GRESS 70F* of the estate of the decedent. Rule $%, Sec. 1 is deemed amendedby B 1!, as amended by R0 $(1 $Li% vs. CA, G.R. 2o. 1!-$1&, :anuary !-, !///, %!%SCR0 1/!A', 5ence, the court may be the 4C or R4C.

$inds of settle#ent based on t%e &OR' of settle#ent(

1. *Dtraudicial settlement 8Rule $-, Sec. 1'!. Summary settlement of estates of small value 8Rule $-, Sec. !'%. :udicial settlement through letters testamentary or letters of administration with or

without the will anneDed 8Rules $%, $&"/'

2. Venue in judicial settlement of estates

Rule 73 V!" A!# $R%&SS

Sec. 1.'(ere estate of deceased persons settled )

1. 3f residing in hilippines at time of death, whether citi6en or not, court of 0C* E;R*S3+*2C*.

!. 3f residing in a foreign country – court of 02> 0C* ?5*R* 5* 50+ *S404*.

%. Court first taing cogni6ance of settlement of estate of a decedent shall eDercise urisdiction 4E 45* *9CFS3E2 of all other courts.

" subect to preferential urisdiction of court where 4*S404* proceedings are filed.

-. :urisdiction assumed by a court depending on " place of residence of decedent, or " location of estate shall 2E4 B* CE24*S4*+ in a suit or proceeding,

• eDcept in an appeal from that court, or

• when want of urisdiction appears in the record

• NO*ES(

1. 4erm IresidesJ refers to Iactual or physicalJ residence, as distinguished from IlegalresidenceJ or Idomicile.J

3



4here is a distinction between IresidenceJ for purposes of election laws andIresidenceJ for purposes of fiDing the venue of actions. 3n election cases, IresidenceJ

and IdomicileJ are treated as synonymous terms, that is, the fiDed permanent residenceto which when absent, one has the intention of returning. 5owever, for purposes offiDing venue under the Rules of Court, the IresidenceJ of a person is his personal,actual or physical habitation, or actual residence or place of abode, which may notnecessarily be his legal residence or domicile provided he resides therein withcontinuity and consistency. 5ence, it is possible that a person may have his residencein one place and domicile in another. 8an Luis vs. an Luis, G.R. 2o. 1%%$-%,;ebruary (, !//$'

!. Sec. 1, Rule $% prescribing court where decedentHs estate shall be settled – 8a' place ofresidence or 8b' where his estate is located, relates to 7*2F* and not urisdiction.

%. ?here two proceedings filed, one intestate, the other testate – illustrative cases onwhich courts should have IurisdictionJ<

&'#"&( V. L"')I*A 81! SCR0 %%' – intestate in C;3 anila Branch !/,testate 8reprobate' in C;3 anila, Branch %). Ruling< priority to second branch ofsame court 8C;3 anila'. a. robate of will 02+04ER>" anomalous that estate ofperson who died testate should be settled in intestate proceedings. b. 3ntestatecase should be CE2SE3+04*+ with testate proceeding " :udge assigned totestate proceeding should continue hearing the two cases.

+&IA&(" V. CFI 'F )"&' 'CC. 8%% SCR0 !&!' – intestate in 2egros court,

testate in anila court. Ruling< priority to first court. etitioner in anila court shouldhave submitted will for probate to 2egros court, either in separate specialproceeding or motion. 4estate proceeding taes precedence over intestateproceeding. 3f in the course of intestate proceeding, it is found that decedent left awill, proceeding for probate of will should R*0C* intestate proceeding.

C+")C' V. CA 8&% SCR0 %(/ @1$%A' – intestate in Cebu court, testate in KCcourt. Ruling< priority to second court. ;irst court, upon learning that petition forprobate has been presented in another court, may +*C32* 4E 40L*CEG23M02C* of and 5E+ 32 0B*>02C* petition before it, and instead +*;*Rto second court. 3f the will is admitted to probate, it will definitely +*C32* to taecogni6ance.

*Dplain difference between Friarte and Cuenco rulings – 3n Friarte, there was showingthat petitioner in probate proceeding new before filing of petition in anila that there wasalready intestate proceeding in 2egros.

Sec. 2.'(ere estate settled upon dissolution of marriage

0 creditor cannot sue surviving spouse of a decedent in an ordinary proceeding forcollection of sum of money chargeable against the conugal property. roper remedy – file aclaim in the settlement of estate of the decedent. Reason< upon death of one spouse, powersof administration of surviving spouse ceases and is passed to administrator appointed byprobate court in the settlement proceedings. 8 Alipio vs. CA, %-1 SCR0 --1 @!///A'

3. Extent of jurisdiction of probate court

• Probate court is of li#ited "urisdiction

1. robate court cannot adudicate or determine title to properties claimed to be a part ofthe estate and eually claimed as belonging to outside parties.

!. 3t can only determine whether or not they should be included in the inventory or list ofproperties to be administered by the administrator.

4



%. robate court can only pass upon uestions of title provisionally for the purpose ofdetermining whether a certain property should or should not be included in theinventory.

-. arties have to resort to an ordinary action for final determination of conflicting claimsof title.

C0S*S< Vda. de &odriguez vs. CA, 1 SCR0 &-/# -astor vs. CA, 1!! SCR0 ))&#-ereira vs. CA, 1$- SCR0 1&- .

• Separate civil action for uieting of title " where issue or ownership of properties

eDcluded from the inventory is finally determined 8-obre vs. onong , 1-) SCR0 &&%@1)$A'.

*9C*43E2<

?here interested parties are all heirs and rights of third parties are not impaired,probate court can decide uestion of ownership 8Coca vs. -angilinan, )1 SCR0 !$)@1)$A'.

?ith consent of all the parties, without preudice to third persons 8(rinidad vs. CA, !/!SCR0 1/( @11A'.

4. Powers and duties of probate court

• 5owever, probate court has urisdiction to 8a' determine heirs – separate action for

declaration of heirs not proper 8olivio vs. CA, 1)! SCR0 11 @1/A' and 8b' distributeestate.

• 3n the eDercise of probate urisdiction. the court may issue warrants and

process necessary to compel the attendance of witnesses or to carry into effect theirorders and udgments, and all other powers granted to them by law 8Rule $%, Sec. %'.

.

. Summar! Settlement of Estates

". Extrajudicial settlement b! a#reement between $eirs,w$en allowed

Rule 7)* Sec. 1. +trajudicial settlement by agreement bet,een t(e (eirs

• RE+!ISI*ES O& E,*RA-!DICIAL SE**LE'EN*

1. +ecedent dies intestate!. 2o outstanding debts at time of settlementN%. 5eirs all of legal age or minors represented by udicial guardians or legal

representatives-. Settlement made in public instrument duly filed with Register of +eeds&. ublication in newspaper of general circulation in the province once a wee for %

consecutive wees(. Bond euivalent to value of personal property posted with Register of +eedsNN

N resumed that decedent left no debts if no creditor filed petition for letters of administrationwithin ! years after death of decedent.

NN Bond reuired only when personality is involved in the eDtraudicial settlement. Real estateis subect to lien in favor of creditors, heirs or other persons for ! years from distribution ofestate, notwithstanding any transfers of real estate that may have been made 8Sec. -, Rule$-'.

5



• R043E20* for Sec. 1, Rule $- – when person dies without having obligations to be

paid, his heirs are not bound to submit property for udicial administration, which isalways long and costly 8+tulo vs. -asion, (( hil. %/!'.

• 3; 5*3RS +3S0GR** – ordinary action for partition.

• 3; E2> E2* 5*3R – affidavit of self"adudication.

;332G E; *94R0:F+3C30 S*44**24 ?345 R*G3S4*R E; +**+SR*KF3R*+ – whether by public instrument, affidavit, stipulation in pending action forpartition.

ac of registration of eDtraudicial settlement does not affect its validity whenthere are no creditors or rights of creditors are not involved 8 Vda. de &eyes vs.CA, 1 SCR0 (-( 811'.

• +*S34* 34S FB3C043E2, eDtraudicial settlement 2E4 B32+32G on any person

who has not participated therein or who had no notice thereof 8Sec. 1, last par., Rule$-# a%pilo vs. CA, 1/1 hil. $1 @1&)A'.

• E.tra"udicial settle#ent / on w%o# binding

4he procedure outlined in Section 1 of Rule $- is an eD parte proceeding. 4he ruleplainly states, however, that persons w%o do not participate or %ad no notice of ane.tra"udicial settle#ent will not be bound t%ereb0. 4he publication of the settlementdoes not constitute constructive notice to the heirs who had no nowledge or did not tae

part in it because the same was notice after the fact of eDecution. $Cua vs. Vargas, G.R. 2o.1&(&%(, Ectober %1, !//('

*%e publication of t%e settle#ent does not constitute constructive notice tot%e %eirs w%o %ad no 1nowledge or did not ta1e part in it because t%e sa#e wasnotice after t%e fact of e.ecution. 4he reuirement of publication is geared for theprotection of creditors and was never intended to deprive heirs of their lawful participation inthe decedentHs estate. 8pouses (iro vs. eirs of Cuyos, G.R. 2o. 1(1!!/, :uly %/, !//)2

2. %wo&!ear prescripti'e period

• 0ction to annul deed of eDtraudicial settlement – Sec. -, Rule $- provides a two year

prescriptive period 81' to persons who participated or ta1en part or %ad notice of theeDtraudicial partition, and 8!' when the provisions of Sec. 1 of Rule $- have been strictlycomplied with – that all persons or %eirs of the decedent have ta1en part in theeDtraudicial settlement or are represented by themselves or through guardians 8-edrosa vs.CA, %&% SCR0 (!/ @!//1A'.

3. ffida'it of self&adjudication b! sole $eir 0dudication by an heir of the decedentHs entire estate to himself by means of an

affidavit is allowed only if he is the sole heir to the estate 8*elgado vda. de *e la &osa vs.eirs of Marciana &ustia vda. de *a%ian, -)/ SCR0 %%- @!//(A'.

Respondent, believing rightly or wrongly that she was the sole heir to ortugalHsestate, eDecuted on ;ebruary 1&, 1)) the uestioned 0ffidavit of 0dudication under thesecond sentence of Rule $-, Section 1 of the Revised Rules of Court. Said rule is aneDception to the general rule that when a person dies leaving a property, it should be

udicially administered and the competent court should appoint a ualified administrator, inthe order established in Sec. (, Rule $) in case the deceased left no will, or in case he did,he failed to name an eDecutor therein. $-ortugal vs. -ortugal/#eltran* G.R.2o. 1&&&&&,

0ugust 1(, !//& 0

Since :osefa +elgado had heirs other than Guillermo Rustia, Guillermo could nothave validly adudicated :osefaHs estate all to himself. Rule $-, Section 1 of the Rules of

6



Court is clear. 0dudication by an heir of the decedentHs entire estate to himself by meansof an affidavit is allowed only if he is the sole %eir to the estate. $In the Matter of theIntestate "state of *elgado, G.R. 2o. 1&&$%%, :anuary !$, !//(

4. Summar! settlement of estates of small 'alue, w$en allowed

+istinction between eDtraudicial settlement 8*S' and summary settlement ofestates of small value 8SS'<

1. *S"no court interventionSS"udicial adudication although summary

!. *S"value of estate immaterialSS"applies only where gross value not more than 1/,///.//

%. *S"allowed only in intestate successionSS"both testate and intestate

-. *S"no outstanding debts of estate at time of settlementSS"even if there are debts

(. )emedies of a##rie'ed parties after extrajudicialsettlement of estate

4he remedy of an heir who did not participate in, or had no nowledge of, theeDtraudicial partition is to file an action for reconveyance.

Prescriptive period for non3participants – 1/ years, because an action forreconveyance based on implied or constructive trust, being an obligation created by law,prescribes in 1/ years 80rt. 11--, par. !, Civil Code'

4he period starts from issuance of title over the property 8Mar1uez vs. CA, %// SCR0(&% @1)A'. Constructive trusts under 0rt. 1-&( are established to prevent unustenrichment. 3n Mar1uez , husband eDecuted affidavit of self"adudication without includingthe children

4he ruling in erona vs. *e uz%an, 11 SCR0 1&% 81(-', cited in -edrosa vs. CA,,

that prescriptive period for non"participants is - years from discovery of fraud, i.e., when

deed was filed with Register of +eeds and new title issued, is not applicable, because thesame was based on the old Code of Civil rocedure 8Sec. -%, which governedprescription'. 4he erona doctrine was abandoned in A%erol vs. #agu%baran, 1&- SCR0%( 81)$' and reiterated in Caro vs. CA, 1)/ SCR0 -/1 81)' and Mar1uez vs. CA.

• E.ception to prescription of actions – when plaintiff, the legal owner, and not the

defendant registered owner, is in possession of the land to be reconveyed. Said action,when based on fraud, is imprescriptible as long as the land has not passed to aninnocent purchaser for value 8eirs of aludares vs. CA, -!/ SCR0 &-'.

*. Production and Probate of +ill

Rule 7- $roduction of ,ill*

Allo,ance of ,ill necessary

1. 0llowance of will is conclusive as to its due eDecution.

• 0rt. $)%, Civil Code defines a will as< an act whereby a person is permitted with the

formalities prescribed by law to control to a certain degree the disposition of hisestate to tae effect after his death.

7



etitioner should reali6e that the allowance of %er %usband4s will is conclusive onl0as to its due e.ecution) 4he authority of the probate court is limited to ascertainingwhether the testator, being of sound mind, freely eDecuted the will in accordance with the

formalities prescribed by law. 4hus, petitionerHs claim of title to the properties forming partof her husbandHs estate should be settled in an ordinary action before the regular courts.8)ittscher vs. )ittscher , G.R. 2o. 1(/&%/, 2ovember !/, !//$'

!. robate of will 8special proceeding to establish the validity of a will' is 02+04ER>.

a. 4he law enoins probate of the will and public policy reuires it. Fnless will isprobated and notice given to the whole world, right of a person to dispose of hisproperty by will may be rendered nugatory 8Maninang vs. CA, 11- SCR0 -$)@1)!A'.

4he +eed of +onation which is one of mortis causa, not having followed the formalitiesof a will, is void and transmitted no right to petitionersH mother. But even assuming thatthe formalities were observed, since it was not probated, no right to ot 2os. ($- and ($(was transmitted to aria. 8 Aluad vs. Aluad , G.R. 2o. 1$(-%, Ectober 1$, !//)

b. 3n intestate succession, no valid partition among heirs until after will has beenprobated 8&alla vs. Judge +ntalan, 1$! SCR0 )&) @1)A'.

c. resentation of will cannot be dispensed with on the ground of *S4E*because public policy reuires that a will should be probated 8Fernandez vs.

*i%aguiba, !1 SCR0 -!) @1($A'.

". ature of probate proceedin#

• PRO5A*E CO!R* DOES NO* LOO$ IN*O IN*RINSIC ALIDI*6

GENERAL R!LE< robate courtHs authority is limited only to eDtrinsic validity of thewill, i.e.<

a. due eDecution – voluntarinessb. testatorHs testamentary capacity – sound mindc. compliance with formal reuisites or solemnities

1. 3ntrinsic validity of the will normally comes after court declares that will has been dulyauthenticated.

!. Court at this stage of the proceedings is not called upon to rule on intrinsic validity orlegality of the provisions of the will 8)uguid vs. )uguid , 1$ SCR0 -- @1((A# Maninangvs. CA, supra'.

E,CEP*IONS(

1. 3n eDceptional instances, courts not powerless to pass upon certain provisions of willwhich it may declare invalid even as it upholds eDtrinsic validity of will 8 A2ero vs. Ca,

!%( SCR0 -)) @1-A'.

!. robate court may only disregard passing on eDtrinsic validity of will where intrinsicvalidity apparent on face of will 8Maninang vs. CA, supra'

%. robate of will might become idle ceremony if on its face it appears intrinsically void.

-. 3n )uguid , court ruled that will was intrinsically invalid as it completely preterited parentsof the testator.

a. reterition – annuls institution of heirs

8



b. +isinheritance – annuls institution of heirs as to portion of estate which disinheritedheirs have been illegally deprived

2. +$o ma! petition for probate- persons entitled to notice

Rule 7 Allo,ance or #isallo,ance of 'ill

Sec. 1. '(o may petition for allo,ance of ,ill.

• 78O

1. *Decutor!. egatee – need not be a relative of decedent%. +evisee – need not be a relative of decedent

-. Ether interested person " heir# creditor &. 4estator – during his lifetime

• 78EN – at any time after death of testator – not subect to bar by statute of

limitations and does not prescribe, since it is reuired by public policy.

• 78ERE / court having urisdiction

• 78A* / petition to have will allowed whether<

a. will in possession of petitioner or notb. will lostc. will destroyed

-!RISDIC*ION 8O7 AC+!IRED

a. 0ttaching of mere copy of will sufficient – anneDing of original of will to thepetition is not urisdictional reuirement.

b. +elivery of will sufficient even if no petition filed – under Sec. %, Rule $(, Iwhena will is delivered to the court,J court could %otu proprio tae steps to fiD time and place forproving the will, issue corresponding notices.

• Onl0 1nown %eirs9 legatees and devisees entitled to personal notice

Rule 7* Sec. )./eirs* devisees* legatees and e+ecutor to be notified by mail or personally.

1. 2otice of time and place of hearing should be addressed to

a. designated or nown heirs, legatees and devisees b. person named as eDecutor 8if he is not petitioner'

c. person named as co"eDecutor not petitioning

!. residing in the hilippines%. at their places of residence, if nown-. ersonal service – at least 1/ days before hearing&. ailed service – at least !/ days before hearing(. 3; 4*S404ER ass for allowance of his own will – notice shall be sent only to his

CEFSER> 5*3RS.

• Notice to Designated 8eirs9 Legatees and Devisees -urisdictional – when they are

nown 02+ their places of residence are nown 8*e Arranz vs. aling , 1(1 SCR0(!)'.

2otice is reuired to be personally given to nown heirs, legatees, and devisees of thetestator. @Sec. -, Rule $(, Rules of CourtA. 0 perusal of the will shows that respondent was

9



instituted as the sole heir of the decedent. etitioners, as nephews and nieces of thedecedent, are neither compulsory nor testate heirs who are entitled to be notified of theprobate proceedings under the Rules. Respondent had no legal obligation to mention

petitioners in the petition for probate, or to personally notify them of the same. $Alaban vs.CA, G.R. 2o. 1&(/!1, September !%, !//&'.

D. llowance or Disalllowance of will

1. Contents of petition for allowance of will

Rule 7* Sec. 2. &ontents of petition.

a. :urisdictional facts<1. that a person has died leaving a will# and

!. the testator at the time of death is a resident within the territorial urisdiction of thecourt# or %. the testator is a non"resident at the time of death but left property within the

territorial urisdiction of the court b. names, ages and residences of the heirs, legatees and devisees of the testator or

decedent c. probable value and character of the property of the estate d. name of the person for whom letters are prayed e. if the will has not been delivered to the court, the name of the person having custody

thereof

Rule 7* Sec. 3. &ourt to appoint time for proving t(e ,ill. !otice t(ereof to be

publis(ed.

Notice and 8earing: Publication

1. 0fter will delivered to, or petition for allowance of will filed in court having urisdiction,court –

a. shall fiD time and place for proving will – when all concerned may appear to contestallowance thereof.

b. cause notice of such time and place to be FB3S5*+ % wees successively innewspaper of general circulation in the province.

!. 2E 2*?S0*R FB3C043E2 – where petition for probate filed by 4*S404ERhimself.

Probate of 7ill is In Re#

• 2otice by publication as prereuisite to allowance of will is CE2S4RFC437*

2E43C* to the whole world.

• ?hen probate is granted, the udgment is binding upon everybody, even against the

state.

Probate -!RISDIC*IONAL

?ithout publication of petition, proceedings for settlement of estate is 7E3+ andshould be 022F*+.

Rule 7* Sec. -. $roof of (earing. '(at sufficient in absence of contest.

• EIDENCE IN*ROD!CED A* PRO5A*E O& 7ILL

1. ublication

10



!. 2otice of hearing served on nown heirs, legatees, devisees, etc. if places of residencenown

%. 4estimony of subscribing witnessesa. Fncontested – one witness sufficientb. Contested – all subscribing witnesses and

notary 8wills eDecuted under Civil Code'other witnesses 8under certain conditions'

-. 5olographic willa. Fncontested – at least one witness who nows handwriting and signature of

testator# eDpert testimony 8in the absence of competent witness'b. Contested – at least % witnesses who now handwriting of testator# eDpert

testimony 8in the absence of competent witness'

&. 5olographic will – testator himself as petitioner a. Contested – contestant has burden of disproving genuineness and due eDecutionb. Fncontested – testator must affirm that will and signature are in his own handwriting

• Substantial Co#pliance Rule

3f will eDecuted in substantial compliance with formalities of law, and possibility of bad

faith obviated – it should be admitted to probate 8*e Jesus vs. *e Jesus, 1%- SCR0 !-&'.

2. rounds for disallowin# will

Rule 7* Sec. 0. Grounds for disallo,ing ,ill.

1. egal formalitiesa. not eDecuted and attested as reuired by law

!. 4estamentary capacityb. testator insane or otherwise mentally incapable to mae will at time of eDecution

%. +ue eDecutionc. eDecuted under duress, or the influence of fear, or threatsd. procured by undue and improper pressure and influence on the part of the

beneficiary, or some other person, for his benefit.e. signature of testator procured by fraud or tric and he did not intend that the

instrument be his will at time of fiDing his signaturef. testator acted by %ista!e or did not intend that instru%ent be signed or should be

his 3ill at the ti%e of affi4ing his signature 80rt. %), Civil Code'

• Grounds for Disallowance of 7ill E.clusive

ists in Sec. , Rule $( and 0rt. %) are *9CFS37* – 2E E45*R GREF2+ can serveto disallow a will.

*Dample< 3f testator fails to sign and date some dispositions in holographic will, it affectsonly the validity of the dispositions, but not the whole will. *Dc. 3f unauthenticated alterations,cancellations or insertions are made on the +04* of will of on testatorHs S3G204FR* 8 A2erovs. CA, supra'.

• Separate wills #a0 be probated "ointl0 8Vda. de -erez vs. (olete, !%! SCR0 $!!

@1-A'.

3. )eprobate- )e/uisites before will pro'ed outside allowedin t$e P$ilippines- effects of probate

Rule 77 Allo,ance of ,ill proved outside of p(ilippines

11



and administration of estate t(ereunder

Sec. 1. 'ill proved outside of t(e $(ilippines may be allo,ed (ere.

• *73+*2C* 2*C*SS0R> ;ER R*REB04* E; ?3 or will probated outside the

hilippines<

1. due eDecution of will in accordance with foreign laws!. testator has domicile in foreign country and not hilippines%. will has been admitted to probate in such country-. fact that foreign court is a probate court&. law of the foreign country on procedure and allowance of wills

8Vda. de -erez vs. (olete, supra'

• Reprobate of will

?hile foreign laws do not prove themselves in our urisdiction and our courts are notauthori6ed to tae udicial notice of them# however, petitioner, as ancillary administrator of

0udreyHs estate, was duty"bound to introduce in evidence the pertinent law of the State ofaryland. 8 Ancheta vs. uersey/*alaygon, G.R. 2o. 1%)(), :une ), !//('

P!5LICA*ION AND NO*ICE RE+!IRED Compliance with Secs. % and - of Rule $(, re publication and notice by mail or

personally to nown heirs, legatees and devisees of testator resident in the hilippines andto eDecutor, if he is not the petitioner, reuired also in wills for reprobate 8Vda. de -erez vs.(olete'.

E&&EC* O& PRO5A*E ?hen the will is allowed, it shall have the same effect as if originally proved andallowed in such court 8Rule $$, Sec. %'.

4he letters testamentary or of administration granted shall eDtend to all of the estate ofthe testator in the hilippines. 0fter payment of ust debts and eDpenses of administration,the estate shall be disposed of according to such will, so far as such will may operate upon it8Rule $$, Sec. -'.

E. 0etters %estamentar! and of dministration

Rule 7 etters testamentary and of administration* ,(en and to ,(om issued

Sec. 1. '(o are incompetent to serve as e+ecutors or administrators

• *9*CF4ER – person named in the will to administer decedentHs estate to carry out

provisions thereof

• 0+323S4R04ER – person appointed by the court to administer the estate

• 0dministrator need not be an heir – can be a stranger to the deceased, such as a

creditor.

GRO!NDS &OR INCO'PE*ENCE

1. inority!. 2on"residence%. Fnfitness

a. drunennessb. incompetencec. want of understandingd. want of integritye. conviction of offense involving moral turpitude 8anything done contrary to ustice,

honesty, good morals'

12



• Courts may refuse to appoint a person as eDecutor or administrator on ground

of F2SF340B*2*SS – adverse interest or hostile to those immediatelyinterested in the estate 8Li% vs. *iaz/Maillares, 1) SCR0 %$1 @1((A'.

;ailure to file an income taD returnJ is not a crime involving moral turpitude because themere omission is already a violation regardless of the fraudulent intent or willfulness of theindividual. 8&epublic vs. Marcos, G.R. 2o. 1%/%$1, 0ugust -, !//'

LE**ERS *ES*A'EN*AR6 ISS!ED 78EN 7ILL ALLO7ED 8Rule $), Sec. -' ?hen the will is proved and allowed, the court shall issue *44*RS4*S40*240R> thereon to the person named as *9*CF4ER therein, if he is ""

a. competent b. accepts the trust and c. gives bond

". +$en and to w$om letters of administration #ranted

Rule 7* Sec. . '(en and to ,(om letters of administration granted

• 7%en ad#inistration granted

1. 2o eDecutor named in will ' letters of ad%inistration!. *DecutorOs 8isOare'< ' 3ith 3ill anne4ed

a. 3ncompetent

- inor

- 2on"resident

- Fnfitb. Refuse the trustc. ;ail to give bond

%. erson dies intestate ' letters of ad%inistration-. ?ill void and not allowed '

2. 1rder of preference

Order of preference in appoint#ent of ad#inistrator 8Rule $), Sec. ('

1. surviving spouse – partner in conugal partnership and heir of deceased !. neDt of in

• 'eaning of ne.t of 1in

En the matter of appointment osf administrator of the estate of the deceased, the

surviving spouse is preferred over the neDt of in of the decedent. ?hen the law speas ofIneDt of inJ, the reference is to those who are entitled, under the statute of distribution, to thedecedentHs property# one whose relationship is such that he is entitled to share in the estate asdistributed, or, in short, an heir. 3n resolving, therefore, the issue of whether an applicant forletters of administration is a neDt of in or an heir of the decedent, the probate court perforcehas to determine and pass upon the issue of filiation. 0 separate action will only result in amultiplicity of suits. $Angeles vs. Maglaya, G.R. 2o. 1&%$), September !, !//& 0

!. person reuested by spouse or neDt of in %. principal creditors

a. if spouse or neDt of in is incompetent or unwilling or b. neglects for %/ days after death of decedent to apply for administration, or to

reuest that administration be granted to some other person

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

4he order of preference in the appointment of a regular administrator as provided in theafore"uoted provision does not apply to the selection of a special administrator. 4he

13



preference under Section (, Rule $) of the Rules of Court for the neDt of in refers to theappointment of a regular administrator, and not of a special administrator, as the appointmentof the latter lies entirely in the discretion of the court, and is not appealable) 2ot being

appealable, the only remedy against the appointment of a special administrator is Certiorariunder Rule (& of the Rules of Court. 8(an vs. edorio, Jr ., G.R. 2o. 1((&!/, arch 1-, !//)'

• Court #a0 re"ect order of preference

?hile surviving spouse is entitled to preference in the appointment, circumstancesmight warrant his reection and appointment of someone else, at the discretion of the court )

• Interest in estate as principal consideration

3n the appointment of an administrator, the principal consideration is the interest in the

estate of the one to be appointed.

4hose who will reap benefit of a wise, speedy and economical administration or willsuffer conseuences of waste, improvidence or mismanagement – have the 53G5*S4324*R*S4 and ES4 32;F*2430 E437* to administer estate correctly 8onzales vs.

Aguinaldo, 1/ SCR0 11! @1/A'.

4he order of preference does not rule out the appointment of co"administrators,especially in cases where ustice and euity demand that opposing parties or factions berepresented in the management of the estate.

3. 1pposition to issuance of letters testamentar!-

simultaneous filin# of petition for administration

Rule 70 %pposing issuance of letters testamentary* petition and contest

for letters of administration

• LE**ERS *ES*A'EN*AR6 – issued to eDecutor

• LE**ERS O& AD'INIS*RA*ION 7I*8 7ILL ANNE,ED / issued to administrator

when there is no eDecutor named in will, or eDecutor is incompetent, refuses trust orfails to give bond.

• LE**ERS O& AD'INIS*RA*ION – issued to administrator in intestate proceedings.

Sec. 1. %pposition to issuance of letters testamentary. Simultaneous petition foradministration

0ny person interested in a will may oppose in writing the issuance of letters

testamentary to persons named as eDecutors, and at the same time file petition for letters ofadministration with will anneDed.

'eaning of ;interested person< – one who would be benefited by the estate 8heir',or one who has a clai# against the estate 8creditor'. 3nterest must be 04*R30 and

+3R*C4, not merely indirect or contingent 8agunsin vs. Lindayag , ( SCR0 )$-'.

0n Iinterested personJ has been defined as one w%o would be benefited by theestate, such as an heir, or one w%o %as a clai# against the estate, such as a creditor. 4heinterest must be material and direct, and not merely indirect or contingent 8an Luis vs. anLuis, G.R. 2o. 1%%$-%, ;ebruary (, !//$'

?here the right of the person filing a petition for the issuance of letters ofadministration is dependent on a fact which has not been established or worse, can no longerbe established, such contingent interest does not mae her an interested party. 8 (ayag ve.(ayag/allor , G.R. 2o. 1$-()/, arch !-, !//)'

14



P!5LICA*ION AND NO*ICE RE+!IRED 8Sec. %, Rule $'

ublication and notice of hearing 8per Sec. %, Rule $(' urisdictional.

0lso, notice to Inown heirs and creditors of the decedent, and to any other personbelieved to have an interest in the estateJ 8per Sec. -, Rule $(' if names and addresses arenown 8*e Arranz vs. aling '.

4. Powers and duties of executors and administrators-restrictions on t$eir powers

owers<

a. ossess and manage estate of the deceased to pay debts and eDpenses ofadministration. 8Rule )-, Sec. !'

b. 8*Decutor or administrator of estate of a deceased partner' 5ave access to, eDamineand tae copies of, boos and papers relating to the partnership business, andeDamine and mae invoices of the property belonging to such partnership 83bid., Sec.1'.

c. ?ith the approval of the court, to compound or compromise with a debtor of thedeceased 8Rule )$, Sec. -'

+uties a. aintain the estate in tenantable repair, and.

b. +eliver the same to the heirs or devisees when directed by the court. 8Rule )-,Sec. %'

4he administrator may only deliver properties of the estate to the heirs after payment ofthe debts, funeral charges and other eDpenses against the estate, eDcept whenauthori6ed by the court 8ilverio, Jr. vs. Court of Appeals, G.R. 2o. 1$)%%, September1(, !//'

(. ppointment of special administrator

Rule Special administrator

• 78EN IS SPECIAL AD'INIS*RA*OR APPOIN*ED

1. ?hen there is dela0 in granting letters testamentary or of administration by anycause

" including appeal from allowance or disallowance of will!. court may appoint special administrator to tae possession and charge of the estate

of the deceased%. until

a. uestions causing delay decided or b. eDecutors or administrators appointed

4he appointment of a special administrator is ustified only when there is delay ingranting letters, testamentary 8in case the decedent leaves behind a will' or administrative 8inthe event that the decedent leaves behind no will, as in the etition at bar' occasioned by anycause. 4he principal obect of the appointment of a temporary administrator is to preserve theestate until it can pass into the hands of a person fully authori6ed to administer it for the benefitof creditors and heirs. 8(an vs. edorio, Jr ., G.R. 2o. 1((&!/, arch 1-, !//)'

• P!5LICA*ION AND NO*ICE RE+!IRED

*ven in the appointment of a special administrator, same urisdictional reuirementsunder Sec. %, Rule $.

• ORDER APPOIN*ING SPECIAL AD'INIS*RA*OR NO* APPEALA5LE

15



Erder appointing special administrator interlocutory in nature and mere incident in the udicial proceedings, hence not appealable 8a%son vs. a%son, 1/! hil. $%&'

. rounds for remo'al of administrator

Rule 2 Revocation of Administration*#eat(* Resignation and Removal of +ecutors

and Administrators

Sec. 1. Administration revo4ed if ,ill discovered. $roceedings t(ereon.

1. 3f after letters of administration have been granted as if decedent died intestate, his willis RE7*+ 02+ 0E?*+ by the court,

!. letters of administration shall be R*7EL*+ and all powers thereunder cease.%. 0dministrator shall forthwith

a. surrender letters to the court andb. render his account within such time as the court directs

-. roceedings for issuance of letters testamentary or of administration will follow.

Sec. 2. &ourt may remove or accept resignation of e+ecutor or administrator. $roceedings upon deat(* resignation* or removal.

Concerning complaints against the general competence of the administrator, theproper remedy is to see the removal of the administrator in accordance with Section !, Rule)!. ?hile the provision is silent as to who may see with the court the removal of the

administrator, a creditor, even a contingent one, would have the personality to see such relief. 0fter all, the interest of the creditor in the estate relates to the preservation of sufficient assetsto answer for the debt, and the general competence or good faith of the administrator isnecessary to fulfill such purpose. 8ilado vs. Court of Appeals, G.R. 2o. 1(-1/), ay ), !//'

Sec. 3. Acts before revocation* resignation* or removal to be valid. Effect of revocation9 resignation or re#oval of e.ecutor or ad#inistrator on %is

previous acts – lawful acts shall have same validity as if no revocation, resignation orremoval.

• Rule on Precedence of Probate of 7ill

Sec. 1, Rule )! was followed in +riarte vs. CFI of )egros 'ccidental <

1. 3f in the course of intestate proceedings, it is found out that decedent left a lastwill,

!. probate proceedings should R*0C* intestate proceedings%. even if at that stage an administrator had already been appointed.-. 0dministrator is reuired to –

a. render final accountb. turn over estate in his possession to eDecutor subseuently appointed

&. ?ithout preudice that proceeding shall continue as intestacy should alleged willbe reected or disapproved.

robate of the will is mandatory 8Sec. 1, Rule $&' and therefore taes precedence overintestate proceedings.

• 78A* *O DO 7I*8 PROCEEDINGS / DISCRE*IONAR6 7I*8 CO!R*

?hether intestate proceedings already commenced should be discontinued and a newproceeding under a separate number and title should be constituted – entirely a 044*R E;;ER and lies within SEF2+ +3SCR*43E2 of court. +oes not preudice substantial rights ofheirs and creditors 8Intestate "state of 5olfson, -& SCR0 %)1'.

16



. *laims #ainst t$e Estate

Rule &laims against state

• Notice to creditors / immediately after granting letters testamentary or of

administration, court shall issue

- 2E43C* reuiring all persons having E2*> C03S against the estate

- to ;3* them in the office of the cler of court 8Sec. 1'.

". %ime wit$in w$ic$ claims s$all be filed- exception

• *i#e for filing clai#s / not more than 1! months nor less than (

months after date of ;3RS4 FB3C043E2 of the notice 8Sec. !'.

• New period allowed 8Sec. !, second sentence'

0t any time before order of distribution is entered, creditor who failed to file his claimwithin the time set may move to be allowed to file such claim. Court may for good causeshown and on such terms as are ust allow such claim to be filed within a period 2E4*9C**+32G E2* E245. Ene month does not commence from eDpiration of the original period for filing claims. 3tbegins from the date of the order of the court allowing said filing 8Barredo vs. C0, ( SCR0(!/'.

2. Statute of on&*laims

• Statute of Non3Clai#s =SNC2 / the period fiDed for the filing of claims against the

estate)

1. eriod fiDed by probate court must not be less than ( months nor more than 1! monthsfrom the date of first publication of the notice.

!. Such period once fiDed by the court is 02+04ER> – it cannot be shortened.eD. eriod fiDed within ( months

%. S2C supersedes statute of limitations – even if claim has not yet prescribed, it may bebarred by S2C.

• Ruling spirit of our probate law / S**+> S*44**24 of the estate of deceasedpersons for the benefit of CR*+34ERS and those entitled to the R*S3+F* by way of325*R3402C* or *G0C> after the debts and eDpenses of administration have been03+ 8i!at vs. Villanueva, &$ hil. -)('.

• Publication of notice to creditors 8Sec. %'

3mmediately after notice to creditors is issued, eDecutor or administrator shall cause "

1. publication of said notice % wees successively in newspaper of general circulation inthe province, and

!. posting for the same period ina. - public places in the province and

b. ! public places in the municipality where decedent last resided

P!5LICA*ION O& NO*ICE *O CREDI*ORS CONS*R!C*IE NO*ICE *O *8E78OLE 7ORLD

5ence, creditor cannot be permitted to file his claim beyond the period fiDed in the noticeon the ground that he had no nowledge of the administration proceedings 8Villanueva vs.-)#, SCR0 1-&'.

• Clai#s t%at #ust be filed 8Sec. &'

17



1. Claims for money against the decedent arising from contract9 eDpress or implied,whether due, not due or contingent

!. Claims for funeral eDpenses and eDpenses for last sicness of decedent%. :udgment for money against decedent

a. 4he udgment must be presented as a claim against the estate where the udgmentdebtor dies before levy on eDecution of his properties 8"vangelista vs. La -rovedra,%) SCR0 %$'.

b. ?hen the action is for recovery of money arising from contract, and defendant diesbefore entry of final udgment, it shall not be dismissed but shall be allowed tocontinue until entry of final udgment. 0 favorable udgment obtained by plaintiffshall be enforced under Rule )( 8Rule %, Sec. !/'.

• 'one0 clai#s against a deceased debtor

1. Section & of Rule )( of the Rules of Court eDpressly allows the prosecution of moneyclaims arising from a contract against the estate of a deceased debtor. 4hose claims are notactually eDtinguished. ?hat is eDtinguished is only the obligeeHs action or suit filed before thecourt, which is not then acting as a probate court. 3n the present case, whatever monetaryliabilities or obligations Santos had under his contracts with respondent were notintransmissible by their nature, by stipulation, or by provision of law. 5ence, his death did notresult in the eDtinguishment of those obligations or liabilities, which merely passed on to hisestate. +eath is not a defense that he or his estate can set up to wipe out the obligations underthe performance bond. $tronghold Insurance Co%pany, Inc. vs. &epublic/Asahi lassCorporation, .&. )o. 6789:6, June, ;<<:0

!. RespondentsH monetary claim shall be governed by Section !/ 8then Section !1', Rule %

3n relation to Section &, Rule )( of the Rules of Court. 4hus, said money claims must be filedagainst the estate of petitioner elencio Gabriel. $abriel vs. #ilon, .&. )o. 67:=>=,February 8, ;<<80

• ust be filed within the time limited in the notice, otherwise they are B0RR*+

;ER*7*R.

*Dception – may be set forth as CEF24*RC03S in any action eDecutor oradministrator may bring against the claimants.

• Rationale< 1' to protect the estate of the deceased by informing the eDecutor or

administrator of the claims against it, thus enabling him to eDamine each claim and to

determine whether it is a proper one which should be allowed# !' speedy settlement ofaffairs of deceased# and %' early delivery of property to distributes, legatees, or heirs8+nion #an! of the -hilippines vs. antiba?ez , G.R. 2o. 1-!(, ;ebruary !%, !//&'.

0 money claim against an estate is more ain to a motion for creditorsP claims to berecogni6ed and taen into consideration in the proper disposition of the properties of theestate.

0 money claim is only an incidental matter in the main action for the settlement of thedecedentPs estate# more so if the claim is contingent since the claimant cannot even institute aseparate action for a mere contingent claim. 5ence, herein petitionerPs contingent moneyclaim, not being an initiatory pleading, does not reuire a certification against non"forum

shopping.8he!er vs. "state of Alice he! er, G.R. 2o. 1&$1!, +ecember 1%, !//$'

• Enly E2*> C03S may be presented in the testate or intestate proceedings.

• 2E4 0 E2*> C03S but only those arising upon a liability contracted by

decedent before his death.

• Claims arising after his death cannot be presented *9C*4

18



" funeral eDpenses" eDpenses for last sicness

2.B. Claims arising after decedentHs death may be allowed as eDpenses ofadministration.

• Enu#eration e.clusive / refers onl0 to contractual #one0 clai#s

Enly claims for money, debt or interest thereon, arising from contract can be presentedin the testate or intestate proceedings.

• Clai#s w%ic% survive deat% of accused

Claim for civil liability survives notwithstanding death of accused if the same may alsobe based on a source of obligation other than delict 8contract, law, uasi"contract, uasi"delict'

Separate civil action may be enforced either against

a. *state of accused 8contract'b. *DecutorO administrator 8law, uasi"contract, uasi"delict' 8-eople vs. #ayotas, !%( SCR0 !% @1-A'.

Civil actions for tort or uasi"delict do not fall within the class of claims to be filed underthe notice to creditors reuired under Rule )(. 4hese actions, being civil, survive the death ofthe decedent and may be commenced against the administrator pursuant to Section 1, Rule)$.. =ilado vs. Court of Appeals, G.R. 2o. 1(-1/), ay ), !//'

• E.ecution of final "udg#ent not proper re#ed0 but filing of clai#

?hen udgment in a civil case has become final and eDecutory, eDecution not properremedy to enforce payment# claimant should R*S*24 C03 before probate court 8*o%ingovs. arlitos, :une !, 1(%'.

• 'anda#us not available / immediate payment of claim by the administrator is 2E4 0

044*R E; R3G54 8"chaus vs. #lanco, 1$ SCR0 $/- @1)&A'.

• Ordinar0 action for collection not allowed 8)acar vs. )istal , 11 SCR0 !'

• -udg#ent appealable =Sec) >?2 / udgment of the court approving or disapproving a

claim is 0*00B* as in ordinary actions

3. *laim of executor or administrator a#ainst t$e estate

Rule )(, Sec. ) 1. 3f the eDecutor or administrator has a claim against the estate he represents,

!. he shall give notice thereof, in writing, to the court %. the court shall appoint a special administrator, and

-. the special administrator shall, in the adustment of such claim, have the samepower and be subect to the same liability as the general administrator or eDecutor inthe settlement of the estate

;rom an estate proceeding perspective, the Special 0dministratorHs commission is no lessa claim against the estate than a claim that third parties may mae. DDD 4he ruling on theeDtent of the Special 0dministratorHs commission – effectively, a claim by the specialadministrator against the estate – is the lower courtHs last word on the matter and one that isappealable. 8#riones vs. enson/Cruz , G.R. 2o. 1&1%/, 0ugust !!, !//)'

4. Pa!ment of debts

Rule

19



$ayment of debts of t(e estate

Sec. 1. #ebts paid in full if estate sufficient

Sec. 2. $art of estate from ,(ic( debt paid ,(en provision made by ,ill.

Sec. 7. %rder of payment if estate insolvent " follow preference of credits under 0rts. 1/&, !!%"!!&1 of Civil Code

• *I'E &OR PA6ING DE5*S 8Secs. 1& = 1('

1. *DecutorOadministrator allowed to pay debts 8and legacies' for a period not morethan 1 year.

!. *Dtendible 8on application of eDecutorO administrator and after notice and hearing' –not eDceeding ( months for a single eDtension.

%. ?hole period allowed to original eDecutorOadministrator shall not eDceed ! years.-. Successor of dead eDecutorOadministrator may have time eDtended on notice not

eDceeding ( months at a time and not eDceeding ( months beyond the time allowedto original eDecutorOadministrator.

Sec. . &ourt to fi+ contributive s(ares ,(ere devisees* legatees or (eirs (avebeen in possession.

1. ?here devisees, legatees or heirs have entered into possession or the estate beforedebts and eDpenses settled and paid, and

!. have become liable to contribute for payment of such debts and eDpenses,%. Court may, after hearing, order settlement of their several liabilities and order how

much and in what manner each person shall contribute and may issue eDecution ascircumstances reuire. 2E4*< 4his provision clearly authori6es eDecution to enforce payment of the debts of

the estate. Legac0 is not a debt of t%e estate – legatees are among those against whomeDecution is authori6ed to be issued 8-astor vs. CA, 1!! SCR0 ))& @1)%A'.

Compare to< Rule )), Secs. 1& = 1(Rule ), Secs. 1"&, $ 8a'

referring to payment of debts andOor legacies

0s ruled in -astor, ordered payment of legacy violative of rule reuiring prior liuidationof estate 8determination of assets of estate and payment of debts and eDpenses' beforeapportionment and distributed of residue among heirs# legatees and devisees.

Correct rule< Sec. 1 of Rule / does not include legacies as among those that shouldbe paid before order of distribution – only debts, funeral charges, eDpenses of administration,allowance to widow and inheritance taD.

0fter debts and eDpenses of administration paid, residue given to heirs and thoseentitled by way of inheritance or legac0 8Magbanua vs. A!ol , $! hil. &($'. urpose ofadministration – distribution of residue among heirs and legatees after payment of debts and

eDpenses 8Luzon urety vs. @uebrar , 1!$ SCR0 %/1'.

• 7rit of e.ecution not proper procedure for pa0#ent of debts and e.penses of

ad#inistration

Fpon motion of the administrator with notice to all heirs, legatees and devisees residingin the hilippines, court shall order sale of personal property or sale or mortgage of realproperty of the deceased to pay debts and eDpenses of administration out of the proceeds ofthe sale or mortgage.

20



E.ception( where devisees, legatees or heirs have entered into possession of theirrespective portions in the estate prior to settlement and payment of debts and eDpenses 8SeeSec. (, Rule )) above'.

. ctions b! and a#ainst Executors and dministrators

Rule 7 Actions by and against e+ecutorsand administrators

". ctions t$at ma! be brou#$t a#ainst executors andadministrators

Sec. 1. Actions ,(ic( may and ,(ic( may not be broug(t against e+ecutor oradministrator.

Sec. 2. +ecutor or administrator may bring or defend actions ,(ic( survive.

1. 2E4 0E?*+ 0G032S4 *9*CF4ER ER 0+323S4R04ER – action upon claim forrecovery of money or debt or interest thereon.

- '!S* 5E AGAINS* ES*A*E 8Secs. 1, ! = &, Rule )('

!. 0E?*+ – actions which survive

a. 0ctions to recover real or personal property or interest thereon, or to enforce a lienthereon

Civil Case 2o. !&$/ is an action for uieting of title with damages which is an actioninvolving real property. 3t is an action that survives pursuant to Section 1, Rule )$ as the claimis not eDtinguished by the death of a party. 8aligu%ba vs. -alanog , G.R. 2o. 1-%%(&,+ecember -, !//)'

Civil Case 2o. %-)), which is an action for the recovery of 0a personal property, a motorvehicle, is an action that survives pursuant to Section 1, Rule )$ of the Rules of Court. 0ssuch, it is not eDtinguished by the death of a party. 8arsaba vs. Vda. de (e, G.R. 2o. 1$&1/,:uly %/, !//'

b. 0ctions to recover damages for an inury to person or property, real or personal

• *Decutor or administrator may sue upon any cause of action which accrued to the

decedent during his lifetime 8#ayot vs. orbito, % hil. (&/'.

• 0ny action affecting the property rights of a deceased which may be brought by or

against him if he were alive, may be instituted and prosecuted by or against theadministrator, unless by its very nature, it cannot survive, because death eDtinguishessuch right.

Sec. 3. /eir 5and devisee6 may not sue 5e+ecutor or administrator to recover title or possession or for damages to property6 until s(are assigned.

Before distribution is made or before any residue nown – heirs and devisees have 2EC0FS* E; 0C43E2 against the administrator for recovery of property left by the deceased8Lao vs. *ee, / hil. )()'.

• 7%en %eirs #a0 file action in court

General rule< heirs have no legal standing to sue for recovery or protection of property

rights of the deceased.

21



*Dceptions<

1. ending the filing of administration proceedings – under 0rt, $$$, rights tosuccession are transmitted from the moment of death of the decedent.

!. 0dministration proceedings have already been commenced but administrator hasnot yet been appointed.

%. *Decutor or administrator is unwilling or refuses to bring suit.-. 0dministrator is alleged to have participated in the act complained of and he is

made a party defendant.

Sec. . mbelement before letters issued.

• Double value rule

3f before grant of letters testamentary or of administration, a person embe66les oralienates money or property of the deceased – liable to an action in favor ofeDecutorOadministrator for +EFB* 45* 70F* of the property sold, embe66led or alienated )

3. )e/uisites before creditor ma! brin# an action forreco'er! of propert! fraudulentl! con'e!ed b! t$edeceased

Sec. 1. '(en creditor may bring action. ien for costs.

?hen there is1. +eficiency of assets

!. +eceased in his lifetime had made or attempted such a conveyance 8with intent todefraud creditors or to avoid any right, debt or duty' as stated in Sec. , and

%. *Decutor or administrator has not commenced the action provided in Sec. 8entitled-roperty fraudulently conveyed by the deceased %ay be recovered. 5hen e4ecutoror ad%inistrator %ust bring action0

0ny creditor of the estate may, with the permission of the court, commence and prosecuteto final udgment, in the name of the eDecutor or administrator, a lie action for the recoveryof the subect of the conveyance or attempted reconveyance for the benefit of the creditors.

o Creditor should file a BE2+ eDecuted to the eDecutor or administrator, in an amount

approved by the udge, conditioned to indemnify the eDecutor or administratoragainst the costs and eDpenses incurred by reason of such action.

o Creditor shall have a 3*2 upon any udgment recovered by him for reasonable

costs and eDpenses

?hen conveyance or attempted conveyance made by deceasedin his lifetime in favor of the eDecutor or administrator, action shall be in the name of all thecreditors and permission of the court and filing of bond not necessary

. Distribution and Partition

Rule 0 #istribution and partition of estate

Sec. 1. '(en order for distribution of residue made

• General rule < distribution of the residue to persons entitled thereto after notice and

hearing and after payment of –a. debtsb. funeral chargesc. eDpenses of administrationd. allowance to widowe. inheritance taD

22



*Dception< distribution before payment of obligations provided distributees giveBE2+ conditioned for payment thereof within such time as court directs.

1. Liquidation

• Re@uisites before distribution of estate

1. iuidation " determination of all assets of the estate and payment of all debts andeDpenses

!. +eclaration of heirs – to determine to whom residue of the estate should bedistributed. Separate action for declaration of heirs not proper.

4he Regional 4rial Court in the instant case, acting in its general urisdiction, is devoidof authority to render an adudication and resolve the issue of advancement of the real

property in favor of herein petitioner 2atcher, inasmuch as Civil Case 2o. $1/$& forreconveyance and annulment of title with damages is not, to our mind, the proper vehicle tothresh out said uestion.

4he net estate of the decedent must be ascertained, by deducting all payableobligations and charges from the value of the property owned by the deceased at the time ofhis death# then, all donations subect to collation would be added to it ?ith the partible estatethus determined, the legitime of the compulsory heir or heirs can be established# and only thencan it be ascertained whether or not a donation had preudiced the legitimes. =eirs of *oronioversus eirs of *oronio, G.R. 2o. 1(-&-, +ecember !$, !//$'

2. Project of partition

78EN PRO5A*E CO!R* LOSES -!RISDIC*ION roect of partition – 4owards the end of the proceedings in a settlement of estate

petition, a proect of partition is usually prepared and presented to the court. 4he proect ofpartition is a proposal for distribution of the hereditary estimates and determines the personsentitled thereto 8oran, Comments on the Rules of Court, 1$ ed., 7ol. %, pp. ())"()'

;inality of approval of proect of partition by itself does 2E4 4*R3204* probateproceeding 8(i%bol vs. Cano, 1 SCR0 1!$1'.

robate court loses urisdiction of an estate under administration only 0;4*R payment ofall debts and remaining estate +*37*R*+ to heirs entitled to receive the same 8 uilas vs.

Judge of CFI of -a%panga, -% SCR0 111 0 udicial partition is not final and conclusive and does not prevent the heir from bringingan action to obtain his share, provided the prescriptive period has not closed 8Mari vs. #onilla,)% SCR0 11%$'.

4he R4C of aati, acting as a special commercial court, has no urisdiction to settle,partition, and distribute the estate of a deceased.

0 probate court has the power to enforce an accounting as a necessary means to itsauthority to determine the properties included in the inventory of the estate to be administered,divided up, and distributed. Beyond this, the determination of title or ownership over thesubect shares 8whether belonging to 0nastacia or Escar' may be conclusively settled by theprobate court as a uestion of collation or advancement. 8&eyes vs. &(C Ma!ati , Branch 1-!,

G.R. 2o. 1(&$--, 0ugust 11, !//)'

artial distribution of the estate should not have been allowed. 4here was nodetermination on sufficiency of assets or absence of any outstanding obligations of the estateof the late Raymond 4riviere made by the R4C in this case. 3n fact, there is a pending claim byC2 against the estate, and the amount thereof eDceeds the value of the entire estate.8@uasha Ancheta -ena and )olasco La3 'ffice vs. LC) Construction Corp., G.R. 2o. 1$-)$%,

0ugust !(, !//)'

23



0lthough the right of an heir over the property of the decedent is inchoate as long as theestate has not been fully settled and partitioned, the law allows a co"owner to eDercise rights ofownership over such inchoate right.

Ence an action for the settlement of an estate is filed with the court, the propertiesincluded therein are under the control of the intestate court. 0nd not even the administratormay tae possession of any property that is part of the estate without the prior authority of theCourt. 8ilverio, Jr. vs. Court of Appeals, G.R. 2o. 1$)%%, September 1(, !//'

3. )emed! of $eir entitled to residue but not #i'en $iss$are

4o demand his share through "

a. a proper motion in the same probate or administration proceedings, ERb. motion to reopen if it had already been closed, and not through an independent

action which would be tried by another court or udge which might reverse adecision or order of the probate court already final and eDecuted and reshuffleproperties long ago distributed and disposed of 8uilas vs. Judge of CFI of-a%panga, infra'.

• ;our cases illustrate the proper remedy Vda de Lopez vs. Lopez, *ivinagracia vs.

&ovira, uillas vs. Judge of CFI of -a%panga and eirs of Jesus Fran vs. alas.

• ope 8%& SCR0 )1 ' compared to #ivinagracia 8$! SCR0 %/$ '<

Both involved the issue of the reglementary period within which 2E2"0R43*S to thepartition, heir, devisee or any person interested in the estate, can reopen the case.

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

party deprived of his lawful participation, as long as it is within %/ days 8now 1& days' or beforeorder closing the proceedings becomes final.

• Guilas 8-% SCR0 111' compared to 8ran 8!1/ SCR0 %/%'<

Both involved 0R43*S who have not received their shares.

Conclusion – parties to partition agreement who have not received their shares can filea motion for eDecution within & >*0RS. But if other grounds such as forgery of will are raised,final udgment cannot be attaced eDcept through a separate action. 4he validity of a final

udgment can be assailed through a petition for relief under Rule %), annulment of udgmentunder Rule -$, and petition for certiorari under Rule (&, assuming the udgment is void forwant of urisdiction.

RE'ED6 O& PRE*ERI*ED 8EIR

4he intestate proceedings, although closed and terminated, can still be opened withinthe prescriptive period upon petition by the preterited heir 8olivio vs. CA, 1)! SCR0 11'

rescriptive period – 1/ years. 0ction upon an obligation created by law must bebrought within 1/ years from the time the right of action accrues 80rt. 11--, Civil Code'.

• 7%ere "udg#ent %as beco#e final9 w%at is t%e re#ed0 for inclusion of a part03

%eir

0fter the decision became final and eDecutory, the trial udge lost urisdiction over thecase. 0ny modification that he would mae, i.e., the inclusion of ary yon artin would be ineDcess of his authority. 4he remedy of ary is to file an 32+**2+*24 SF34 against theparties and all other heirs for her share in the subect property, in order that all the parties ininterest can prove their respective claims 8)unal vs. CA, !!1 SCR0 !( @11A'.

24



4. 5nstances w$en probate court ma! issue writ of execution

0s a general rule, a probate court cannot issue a writ of eDecution.

*Dceptions< 1. 4o satisfy the distributive shares of devisees, legatees and heirs in possession of the

decedentHs assets !. 4o enforce payment of the eDpenses of partition %, 4o satisfy the costs when a person is cited for eDamination in probate proceedings

SEEN S*AGES IN SE**LE'EN* O& ES*A*E

1. etition!. 5earing%. Court Erder

-. Claims 0gainst *state&. ayment of +ebts of *state(. +istribution and artition of *state$. Closing

SE**LE'EN* O& ES*A*E S*AGES

I

PE*I*ION

*estate Intestate

&iling of petition &iling of petitionfor allowance for issuance of of will / b0 e.ecutor9 letters of devisee9 legatee9 ad#inistration 3ot%er interested person person=Rule B9 Secs) > 2 =Rule BF9 Sec) 2

Order setting petition for %earing

Notice of %earing

>) Publication of notice for t%ree consecutive wee1s=Rule B9 Sec) ?2

) Notice b0 #ail or personall0

to designated or 1nown %eirs9legatees9 devisees9 e.ecutor =Rule B9 Sec) 2:

1nown %eirs9 creditors9ot%er interested persons=Rule BF9 Sec) ?2

25



II

8EARING

Proof of notice of %earing=Rule B9 Sec) H2=Rule BF9 Sec) H2

Evidence for petitioner

>) Deat% of decedent) Residence at ti#e of deat%

*esti#on0ies of Decedent left no will or subscribing t%ere is no co#petentwitnesses and willing e.ecutor =Rule B Secs) H >>2 =Rule BF9 Sec) H2

Petitioner is @ualified for appoint#ent=Rule BJ9 Secs) > 2

Proof w%entestator is petitioner =Rule B9 Sec) >2

Evidence for Oppositor

&ile grounds for contest=Rule B9 Sec) >K2

III

CO!R* ORDER

Order or decision allowingwill or ad#itting it to probate

Certificate of allowanceattac%ed to prove will=Rule B9 Sec) >?2

Order for issuanceof letters testa#entar0

=Rule BJ9 Sec) 2

Order for issuance of letters of ad#inistration=Rule BF9 Sec) H2

Issuance of letters b0 cler1 of court

26



Oat% of e.ecutor or ad#inistrator

&iling of e.ecutor or ad#inistrator4s bond=Rule J>9 Sec) >2

&iling of inventor0 wit%in ? #os)=Rule J>9 Sec) >aM2

Accounting wit%in > 0ear =Rule J>9 Sec) > cM:Rule JH9 Sec) J2

Actions b0 or against e.ecutor or ad#inistrator =Rule JB2

I

CLAI'S AGAINS* ES*A*E

Notice of filing of clai#s /

ti#e for filing not #ore t%an > #os) nor less t%an #os) fro# first publication

=Rule J9 Secs) > 2

Publication of noticefor ? consecutive wee1s

and posting=Rule J9 Secs) ? 2

&iling of clai# and answer t%ereto=Rule J9 Secs) F >K2

*rial of contested clai#=Rule J9 Sec) >2

-udg#ent approving or disapproving clai#

=Rule J9 Sec) >?2

PA6'EN* O& DE5*S O& ES*A*E

Debts paid in full if estate sufficient=Rule JJ9 Sec) >2

Order of pa0#ent if estate insolvent=Rule JJ9 Sec) B2

Order for pa0#ent of debts=Rule JJ9 Sec) >>2

27



*i#e for pa0#ent not to e.ceed> 0ear9 e.tendible for > #ore 0ear

=Rule JJ9 Sec) >H2

Sales9 #ortgages and ot%er encu#brancesof propert0 of decedent for pa0ingdebts) etc)=Rule JF2

I

DIS*RI5!*ION AND PAR*I*ION O& ES*A*E

Rule FK

Approval of final accounting and pro"ect of partition

Actual distribution or deliver0 to %eirs of t%eir respective s%ares

II

CLOSING

Order declaring proceedings closed and ter#inated

3333333333333333333333333333333333333333333333333

5. %rustees

Rule 0 9rustees

Sec. 1. '(en trustee appointed

1. 0 trustee necessary to carry into effect the provisions of aa. ?illb. ?ritten instrument

!. shall be appointed by the R4C in which the will is allowed, or %. R4C of the province in which the property or some portion thereof affected by the

trust is situated

• *rust defined

0 trust is a confidence reposed in one person, called the trustee, for the benefit ofanother called the cestui @ue trust, with respect to property held by the former for the benefitof the latter )

• E.ercise of sound "udg#ent b0 t%e court in t%e appoint#ent of a trustee

28



0lthough the will does not name a trustee, the probate court eDercises sound udgmentin appointing a trustee to carry into effect the provisions of the will – where a trust is actuallycreated by the will by the provision that certain of the property shall be ept together

undisposed during a fiDed period and for a stated purpose 8Lorenzo v. -osadas, (- hil. %&%'.

• Ac@uiring t%e trust b0 prescription

0 trustee may acuire the trust estate by prescription provided there is a repudiation ofthe trust, such repudiation being open, clear and uneuivocal, nown to the cestui 1ui trust8alinas vs. (uazon, && hil. $!'.

Rule ) applies only to e.press trust, one which is created by will or writteninstrument, and not to an implied trust, which is deducible from the nature of the transaction asa matter of intent, or which are superinduced on the transaction by operation of law as mattersof euity, independent of the particular intention of the parties 8EHao vs Co Co Chit, !!/

SCR0 (&('.

". Distin#uis$ed from executor6administrator

0 trustee, lie an eDecutor or administrator, holds an office of trust, particularly when thetrustee acts as such under udicial authority. +istinction< 81' duties of eDecutors oradministrators are fiDed andOor limited by law while those of the trustee of an eDpress trust areusually governed by the intention of the trustor or the parties, if established by contract# 8!'duties of trustees may cover a wider range than those of eDecutors or administrators of theestate of deceased persons. 8 Araneta vs. -erez , G.R. 2os. "1(1)&")(, ay %1, 1(!'.

2. *onditions of t$e bond

4he trustee must file a bond in an amount fiDed by the court payable to the Government ofthe hilippines. ;ailure to do so shall be cosidered as declining or resigning the trust.Conditions of the bond<

1. ae and return to the court a true inventory of all real and personal estate that atthe time of the inventory shall have come to his possession or nowledge

!. anage and dispose of all such estate according to law and the will of the testatoror provisions of the instrument or order under which he was appointed

%. Render a true account of the property in his hands -. 0t the eDpiration of the trust, settle his accounts in court and pay over deliver allthe estate remaining in his hands, or due from him on such settlement, to the person orpersons entitled thereto

3. rounds for remo'al and resi#nation of a trustee

4he court may remove a trustee on the following grounds< 1. 4he removal appears essential in the interest of the petitioners !. 4he trustee is insane %. 4he trustee is otherwise incapable of discharging the trust or is evidently unsuitable

to act as one 0 trustee, whether appointed by the court or under a written instrument, may resign histrust if it appears to the court proper so allow such resignation

4. Extent of aut$orit! of trustee

a. 4he powers of a trustee appointed by a hilippine court cannot eDtend beyond theconfines of the territory of the Republic of the hilippines. 4his is based on the principle thathis authority cannot eDtend beyond the urisdiction of the country under whose courts he wasappointed. b. 3n the eDecution of trusts, the trustee is bound to comply with the directions containedin the trust instrument defining the eDtent and limits of his authority, and the nature of hispower and duties.

29



7. Esc$eat

Rule 01

sc(eat

• Esc%eat defined

*scheat is a proceeding whereby the real and personal property of a deceased personin the hilippines, who died without leaving any will or legal heirs, become the property of thestate upon his death.

• Nature of Esc%eat Proceedings

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

• Parties in Esc%eat Proceedings

0n escheat proceeding is initiated by the government through the Solicitor General. 0llinterested parties, especially the

" actual occupants and" adacent lot owners

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

". +$en to file

2. )e/uisites for filin# of petition

• Re@uisites for filing petition for esc%eat

1. person died intestate!. he left properties in the hilippines%. he left no heirs or persons entitled to the same.

• 7%ere to file

Regional 4rial Court of the place where the deceased was resident, or in which hehad estste, if he was a nonresident.

• Parties in a petition for esc%eat

*scheat proceeding must be initiated by the Solicitor General. 0ll interested parties,especially the actual occupant and the adacent lot owners shall be personally notifiedof the proceedings and given the opportunity to present their vaid claims, otherwise theproperty will be reverted to the State 8(an vs. City of *avao, G.R. 2o. "--%-$,September !(, 1))'.

• Notice and Publication 8Sec. !, Rule 1'

1. +ate of hearing not more than ( months after entry of order. !. ublication of order at least once a wee for ( consecutive wees in newspaper of

general circulation in the province.

• Publication "urisdictional

ublication of the notice of hearing is a urisdictional reuisite, non"compliance withwhich affects the validity of the proceedings 8*ivino v. ilario, (! hil. !('.

30



• Esc%eat of unclai#ed balances

Fnclaimed balances which include credits or deposits of money, bullion, security or otherevidence of indebtedness of any ind, and interest thereon with bans in favor of any personunheard from for a period of ten 81/' years of more, together with the interest and proceedsthereof shall be deposited with the 3nsular Government of the hilippines as the hilippineegislature may direct 80ct 2o. %%(, Fnclaimed Balances 0ct, Sec. 1' 0ction to recover unclaimed balances shall be commenced by the Solicitor General in anaction for escheat in the name of the eople of the hilippines in the Regional 4rial Court ofthe province where the ban is located, in which shall be oined as parties the ban and suchcreditors or depositors. 0ll or any member of such creditors or depositors or bans, may beincluded in one action. 83d., Sec. %# Republic vs. Court of ;irst 3nstance of anila and res..RoDas Rural Ban, 3nc., G.R. 2o. "%/%)1, 0ugust %/, 1))'

3. )emed! of respondent a#ainst petition- period for filin#a claim

Re#ed0 of respondent against esc%eat petition

otion to dismiss for failure to state a cause of action. where petition for escheat does notstate facts which entitle petitioner to the remedy prayed for 8Go -oco rocery vs. -acific#iscuit Co., (& hil. --%# &ep. vs, -)#, G.R. 2o. "1(/1(, +ec. %/, 1(1'# or other groundsfor dismissal under the rules 8Municipal Council of an -edro, Laguna vs. Colegio de anJose, (& hil. %1)'.

&iling of clai# to estate 8Sec. -, Rule 1'

1. +evisee, legatee, widow, widower or other person entitled to such estate who!. appears and files claim thereto within H 0ears from date of udgment

82ote< &"year period is prescribed to encourage would"be claimants to be punctilious inasserting their claims, otherwise they may lose them forever in a final udgment.'

%. shall have possession and title thereto or if sold, municipality or city accountable to himfor proceeds, after deducting reasonable charges of care of estate.

-. Claim not made within said time barred forever.

8. uardians$ip

• Guardians%ip – a trust relation in which one

person acts for another whom the law regards as incapable of managing his ownaffairs. 4he person who acts is called the guardian and the incompetent is called theward.

• 5asis of Guardians%ip 8arens atriae'

?here minors are involved, the State acts as parens patriae. 3t is the duty of protecting

the rights of persons or individuals who because of age or incapability are in an unfavorableposition vis"Q"vis other parties.

• Purpose of Guardians%ip

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

• Guardian – a person in whom the law has entrusted the custody and control of the

person or estate or both of an infant, insane, or other person incapable of managinghis own affairs.

". eneral powers and duties of #uardians

31



a. Care and custody of person of the ward and

b. anagement of his estate, or

c. anagement of his estate only d. 4he guardian of the estate of a non"resident shall have the management of his estatewithin the hilippines, and no other court than that in which such guardian was appointed shallhave urisdiction over the guardianship 8Sec. 1, Rule ('

$INDS O& G!ARDIANS 1' Legal Guardian – such by provision of law without the need for udicial appointment, as inthe case of the parents over the persons of their minor children, or in his absence the mother,with respect to the property of the minor children not eDceeding &/,/// in value# 8!'Guardian ad lite#, who is a competent person appointed by the court for purposes of aparticular action or proceeding involving a minor# 8%' the -udicial guardian, or a person

appointed by the court for the person andOor property of the ward to represent the latter in allcivil acts and litigation .

• Parents as guardians

?hen the property of the child under parental authority is worth !,///.// or less, the

father or the mother, without the necessity of court appointment, shall be his legal guardian.?hen the property of the child is worth more than !,///.//, the father or the mother shall beconsidered guardian of the childHs property, with the duties and obligations of guardians underthese Rules, and shall file the petition reuired by Section ! hereof. ;or good reasons, thecourt may, however, appoint another suitable person.8Sec. $, Rule %'

• 5ond of parents as guardians of propert0 of #inor . "3f the maret value of the property or the annual income of the child eDceeds &/,///.//,

the parent concerned shall furnish a bond in such amount as the court may determine, but inno case less than 1/ of the value of such property or annual income, to guarantee theperformance of the obligations prescribed for general guardians. $ Sec. 1(, RG'

2. *onditions of t$e bond of t$e #uardian

8a' ?ithin % months after the issuance of letters of guardianship mae inventory of all theproperty# 8b' faithfully eDecute the duties of the trust# 8c' render a true and ust account of allthe property of the ward# and 8d' perform all orders of the court 8Sec. 1, Rule -'

3. )ule on #uardians$ip o'er minors

• Governing rule on guardians%ip of #inors

Guardianship of minors as distinguished from IincompetentsJ other than minority is nowgoverned by the RF* E2 GF0R+302S53 E; 32ERS 80.. 2o. //%"/%"/&"SC'.

Sections 1 and !$ of the RG mae it clear that it shall apply only to petitions forguardianship over the person, property or both, of a minor. etitions for guardianship ofincompetents who are not minors shall continue to be governed by Rules !"$ and heard andtried by regular Regional 4rial Courts.

Rules !"$ may therefore be deemed modified by the RG.

• 7%o #a0 petition for appoint#ent of guardian of inco#petent 8Sec. 1, Rule

%'

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

• 7%o #a0 petition for appoint#ent of guardian of #inor 8Sec. !, RG'

32



1. Relative or other person on behalf of the minor !. inor himself if 1- years of age or over

for the appointment of a general guardian over the person or property, or both, of suchminor.

4he petition may also be filed by the Secretary of Social ?elfare and +evelopment and

Secretary of 5ealth in the case of an insane minor person who needs to be hospitali6ed.

• -urisdictional facts 8Sec. !, Rule %'

1. incompetency of person for whom guardianship is sought#!. domicile

• Notice of application and %earing 8Sec. %2 / NO P!5LICA*ION RE+!IRED

2otice of hearing of the petition shall be served on1. persons mentioned in the petition residing in the hilippines#!. incompetent himself

N minor if 1- years of age or over 8Sec. ), RG'

NO*ICE IS -!RISDIC*IONAL

Service of notice upon the minor if 1- years of age or over or upon the incompetent is urisdictional. ?ithout such notice, the court acuired no urisdiction to appoint a guardian8)ery vs. Lorenzo, -- SCR0 -%1 @1$!A'.

4he rules do not necessitate that creditors of the minor or incompetent be liewiseidentified and notified. 4he reason is simple< because their presence is not essential to theproceedings for appointment of a guardian. 4hey will only insist that the supposed minor orincompetent is actually capacitated to enter into contracts, so as to preserve the validity of saidcontracts and eep the supposed minor or incompetent obligated to comply therewith.8 Ala%ayri vs. -abale, G.R. 2o. 1&1!-%, 0pril %/, !//)'

0. doption

• Nature and concept of adoption

0doption is a uridical act, a proceeding in rem which creates between two persons arelationship similar to that which results from legitimate paternity and filiation.

• Purpose of Adoption

0doption used to be for the benefit of the adoptor. 3t was intended to afford persons

who have no child of their own the consolation of having one by creating thru legal fiction therelation of paternity and filiation where none eDists by blood relationship.

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

Fnder the law now in force, having legitimate, legitimated, acnowledged naturalchildren or children by legal fiction is no longer a ground for disualification to adopt.

• Ob"ectives of Rule on Adoption

a. Best interests of child – paramount consideration in all matters relating to his care,custody and adoption.

b. 4he state shall provide alternative protection and assistance thru foster care oradoption for every child who is a foundling, neglected, orphaned, or abandoned.

33



• Laws on adoption

4he prevailing laws on adoption are RA JHH 8 +omestic 0doption 0ct of 1)' and RA

JK? 83nter"Country 0doption 0ct of 1&'.

• Rule on Adoption 80.. 2o. /!"("/!"SC', 0ugust !!, !//! – Guidelines issued by the

Supreme Court in petitions for adoption. 4he Rule repealed Rules "1//. 3t coversdo#estic adoption 8Secs. 1"!&' and inter3countr0 adoption 8Secs. !("%!'.

". Distin#uis$ domestic adoption from inter&countr!adoption

$IND Do#estic Adoption Inter3countr0 Adoption

4ype of roceeding :udicial 0doption *Dtraudicial 0doption

?ho may adopt 4he following may adopt<8a' 0ny ;ilipino citi6en#8b' 0ny alien possessing the

same ualifications as abovestated for ;ilipino nationals#

8c'4he guardian with respect tothe ward.

0n alien or a ;ilipino citi6enpermanently residing abroadmay file an application forinter"country adoption of a;ilipino child.

?ho may be adopted 4he following may be adopted<8a' 0ny person below eighteen

81)' years of age who hasbeen administratively or

udicially declared availablefor adoption#

8b' 4he legitimate sonOdaughterof one spouse by the otherspouse#

8c' 0n illegitimate sonOdaughterby a ualified adopter to

improve hisOher status to thatof legitimacy#8d' 0 person of legal age if, prior

to the adoption, said personhas been consistentlyconsidered and treated bythe adopter8s' as hisOher ownchild since minority#

8e' 0 child whose adoption hasbeen previously rescinded# or

8f' 0 child whose biological oradoptive parent8s' has died#rovided, 4hat noproceedings shall be initiatedwithin siD 8(' months from thetime of death of saidparent8s' 8Section )'

Enly a legally free child maybe the subect of inter"countryadoption

?here to file application ;amily Court of the place wherethe adopter resides

R4C having urisdiction overthe child, or with the 3nter"Country 0doption Board,through an intermediateagency, whether

34



governmental or anauthori6ed and accreditedagency, in the country of the

prospective adoptive parents.8Section 1/'

?hat petition for adoptionmay include

ay include prayer for change ofname, rectification of simulatedbirth or declaration that the childis a foundling, abandoned,dependent or neglected child.

Enly petition for adoption.

Supervised trial custody Supervised trial custody periodin the hilippines for at least siD8(' months 8Court may reduceperiod or eDempt parties from

trial custody' 8Section 1!'

Supervised trial custodyperiod in the hilippines for atleast siD 8(' months. 8Section1-'

2. Domestic doption

• 7%o #a0 adopt

1. 0ny ;3332E

" of legal age" in possession of full civil capacity and legal rights" of good moral character " has not been convicted of any crime involving moral turpitude

" emotionally and psychologically capable of caring for children" at least 1( yrs. older than the adopteeN may be waived when adopter is biological parent of adoptee or is spouse ofadopteeHs parent" in a position to support and care for his children in eeping with means of thefamily.

!. 0ny 03*2 possessing same ualifications, subect to certain conditions.

• 8!S5AND AND 7I&E '!S* -OIN*L6 ADOP*

*9C*43E2S<a' if one spouse sees to adopt legitimate child of the other#b' if one spouse sees to adopt his own illegitimate child 8provided the other spouses

signified his consent thereto'c' if the spouses are legally separated from each other.

3n case husband and wife ointly adopt or one spouse adopts the illegitimate child ofthe other, oint parental authority shall be eDercised by the spouses.

• 7%ose consent necessar0

1. biological parents of adoptee, if nown N5owever, consent of biological parents, even if they are nown, is not necessary if

they have 0B02+E2*+ the child 8Lang vs. CA, !) SCR0 1!) @1)A'.

!. adoptee, if 1/ years of age or older %. legitimate or adopted children of adopter or adoptee, if 1/ years of age or older -. illegitimate children of adopter, if living with him, if 1/ years of age or older &. spouse of adopter or adoptee

• C%ange of na#e

35



3n case petition also prays for change of name, title or caption must contain<

1. registered name of child

!. aliases of other names by which child has been nown %. full name by which child is to be nown

• P!5LICA*ION -!RISDIC*IONAL

0doption is action in rem – involves the status of persons.

• Decree of Adoption

3f supervised trial custody S043S;0C4ER> and " court CE2732C*+ from trial custody report and evidence adduced that

- adoption shall redound to B*S4 324*R*S4S of adoptee

- +*CR** E; 0+E43E2 issued which shall tae effect as of date original petition filedeven if petitioners DIE before issuance

a. effects of adoption

81' ;or civil purposes the adopted shall be deemed to be a legitimate child of theadoptioners and both shall acuire the reciprocal rights and obligations arising from therelationship of parents and child, including the right of the adopted to use the surname of theadopters# 8!' 4he parental authority of the parents by nature over the adoped shall terminateand be vested in the adopters, eDcept that if the adopter is the spouse of the parents bynature of the adopted, the parental authority over the adopted shall be eDercised ointely byboth spouses# and 8%' 4he adopted shall remain an intestate heir of his parents and otherblood relatives. 80rt. 1), ;amily Code'

• Adoption strictl0 between adopter and adopted

3f adopting parent should die before adopted child, latter cannot represent the adopter

in the inheritance from the parents and ascendants of the adopter. 0dopted child is not relatedto the deceased in that case because filiation created by fiction of law is eDclusive betweenadopted and adopter. By adoption, the adopters can mae for themselves an heir but theycannot mae one for their relatives.8&epublic vs. Valencia, G.R. 2o. "%!1)1, arch &, 1)('

• An illegiti#ate c%ild9 upon adoption b0 %er natural fat%er9 #a0 use t%e surna#e of

%er natural #ot%er as %er #iddle na#e. 8In the Matter of the Adoption of tephanie)athy Astorga arcia, G.R. 2o. 1-)%11, arch %1, !//&.'

b. instances w$en adoption ma! be rescinded

• RESCISSION O& ADOP*ION 56 ADOP*EE

etition 7*R3;3*+

;iled by adoptee

- over 1) years of age

- with assistance of +S?+, if minor

- by guardian or counsel, if over 1) but incapacitated Grounds committed by 0+E4*R<

1. repeated physical and verbal maltreatment by adopter despite having undergonecounseling

!. attempt on life of adoptee %. seDual assault or violence -. abandonment or failure to comply with parental obligations

• 0doption, being for best interests of child, not subect to rescission by 0+E4*R

• *i#e wit%in w%ic% to file petition

36



3f 32ER – within & yrs. after reaching age of maority

3f 32CE*4*24 – within & yrs. after recovery from incompetency.

c. Effects of rescission of adoption 8Rule on 0doption, Sec. !%'

8a' parental authority of the biological parent of the adoptee, if nown, or the legal custody of

+S?+ is restored if the adoptee is still a minor or incapacitated#8b' reciprocal rights and obligations of the adopter and adoptee to each other are

eDtinguished#8c' succession rights revert to their status prior to adoption, as of the date of udgment of

rescission, but vested rights acuired prior to rescission are to be respected8d' court shall order adoptee to use the name stated 3n the original birth or foundling

certificate8e' court shall order the Civil Registrar where the adoption decree was registered to

cancel the new birth certificate of the adoptee and reinstate the original birth or foundlingcertificate

3. 5nter&countr! doption a. w$en allowed

3nter"country adoption of ;ilipino children by foreign nationals and ;ilipino citi6ens

permanently residing abroad is allowed by law if such children cannot be adopted byualified ;ilipino citi6ens or aliens.

b. functions of t$e )%* 9amil! *ourt: 0 verified petition for inter"country adoption may be filed by a foreign national or ;ilipino

citi6en permanently residing abroad with the ;amily Court having urisdiction over the placewhere the child resides or may be found. 3ts functions are 81' receive the application, 8b'assess the ualification of the prospective adopter and 8%' refer its findings, if favorable, tothe 3nter"Country 0doption Board. 4he latter, on its own, however, can receive the originalapplication 8R0 )/-%, Sec. 1/# Rule on 0doption, Secs. !) = %!''

4he Inter3Countr0 Adoption 5oard is the central authority in matters relating to inter"country adoption. 3t is the policy"maing body for purposes of carrying out the provisions ofthe law, in consultation and coordination with the +S?+, the different child"care and

placement agencies, adoptive agencies as well as non"governmental organi6ationsengaged in child care and placement activities 8R0 )/-%, Sec. -'.

c. ;best interest of t$e minor< standard

3nter"country adoption is allowed only when the same shall prove beneficial to the childHsbest interests, and shall serve and protect hisOher fundamental rights 8R0 )/-%, Sec. !'

Enly a child legally available for domestic adoption may be the subect of inter"country

adoption 8Rule on 0doption, Sec. !'.

&inancial @ualification in adoption

Since the primary consideration in adoption is the best interest of the child, it followsthat the financial capacity of prospective parents should also be carefully evaluated andconsidered. Certainly, the adopter should be in a position to support the would"be adoptedchild or children, in eeping with the means of the family..8Landingin vs. &epublic , G.R. 2o.1(--), :une !$, !//('

=. +rit of 4ab as *orpus

37



Rule 12 /abeas &orpus

• *o w%at %abeas corpus e.tends 8Sec. 1'

1. 0ll cases of illegal confinement of detention !. by which any person is deprived of his liberty, or %. by which the rightful custody of any person is withheld from the person entitledthereto

• Purpose of %abeas corpus – relieve a person from unlawful restraint.

Specifically< 1. to obtain immediate relief from illegal confinement !. to liberate those who may be imprisoned without sufficient cause %. to deliver them from unlawful custody

*ssentially a writ of inuiry and is granted to test the right under which a person is

detained 8Velasco v. CA, !-& SCR0 ($$'.

3t is a remedy intended to determine whether the person under detention is held underlawful authority 8o%bong v. CA, !1, 1(('.

3t is a summary remedy. 8Caballes vs. CA, G.R. 2o. 1(%1/), ;ebruary !%, !//&'

7%en constitutional rig%ts disregarded / writ #a0 issue *Dceptional remedyto release a person whose liberty is illegally restrained such as when the constitutional rightsof the accused are disregarded. Such defect results in the absence or loss of urisdiction andtherefore invalidates the trial and conseuent conviction of the accused. 4hat void udgmentmay be challenged by collateral attac1 which precisely is the function of habeas corpus.

4his writ may issue even if another remedy which is less effective may be availed of –

failure by accused to perfect his appeal before the C0 does not preclude recourse to the writ. 4he writ may be granted upon a udgment already final 8Chavez v. CA, !- SCR0 ((% @1()A'.

". *ontents of t$e petition a. 4hat the person in whose behalf the application is made is imprisoned or restrained ofhis liberty# b. 4he officer or name of the person by whom he is so imprisoned or restrained# c. 4he place where he is so imprisoned or restrained, if nown# d. Copy of the commitment or caue of detention of such person. 3f it can be procuredwithout any legal authority, such fact shall appear. 8Sec. %'

2. *ontents of t$e )eturn a. ?hether he has or has not the party in his custody or power, or under restraint# b. 3f the party is in his custody or power, or under restraint "" the authority and the trueand whole cause thereof, with a copy of the writ, order, eDecution, or other processes uponwhich the party is held c. 3f the party, etc. , and is not produced – nature and gravity of sicness or infirmity d. 3f the party was in his custody, etc. and has transferred such custody or restraint to

another – to whom, at what time, for what cause and by what authority such transfer wasmade. 8Sec. 1/'

3. Distin#uis$ peremptor! writ from preliminar! citation

Pere#ptor0 writ of %abeas corpus – unconditionally commanding the respondent to

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

Preli#inar0 citation – reuiring the respondent to appear and show cause why theperemptory writ should not be granted.

38



• Order to produce bod0 not a grant of t%e re#ed0 of %abeas corpus

3n a habeas corpus petition, the order to present an individual before the court is apreliminary step in the hearing of the petition. 4he respondent must produce the person andeDplain the cause of his detention. 5owever, this order is not a ruling on the propriety of theremedy or on the substantive matters covered by the remedy. 4hus, the CourtHs order to theCourt of 0ppeals to conduct a factual hearing was not an affirmation of the propriety of theremedy of habeas corpus. 8In the Matter of the -etition for abeas Corpus of Ale2ano vs.Cabuay, G.R. 2o. 1(/$!, 0ugust !&, !//&

4. +$en not proper6applicable

a. ;or asserting or vindicating denial of right to bail 8*nrile vs. Sala6ar, 1)( SCR0 !1$@1/A' b. ;or correcting errors in appreciation of facts andOor in the application of law. 3t is not awrit of error. 8Sotto vs. +irector of risons, ay %/, 1(!'.

(. +$en writ disallowed6disc$ar#ed aut$ori>ed 8Sec. -'

a. ?hen the person alleged to be restrained of his liberty is in the custody of an officer1. under process issued by a court or udge or

!. by virtue of a udgment or order of a court of record and %. the court or udge had urisdiction to issue the process, render the udgment or mae the order

the writ shall not be allowed b. ?hen a person is

1. charged with or!. convicted of an offense or%. suffering imprisonment under lawful udgment

his discharge shall not be authori6ed

. Distin#uis$ from writ of amparo and $ab as data 8See

+iagram'

7RI* O& 8A5EAS CORP!S A'PARO 8A5EAS DA*A

+*;32343E2 Babeas corpus is aatin phrase which

literally means Iyouhave the body.J 3t is awrit directed to theperson detaininganother, commandinghim to produce the bodyof the prisoner at adesignated time andplace, with the day andcause of his captureand detention, to do,submit to, and receive

whatsoever the court or udge awarding the writshall consider in thatbehalf.

3t is a remedy availableto any person whose

right to life, liberty, andsecurity has beenviolated or is threatenedwith violation by anunlawful act or omissionof a public official oremployee, or of aprivate individual orentity. 4he writ coverseDtralegal illings andenforceddisappearances or

threats thereof.

3t is a remedyavailable to any

person whose rightto privacy in life,liberty or security isviolated orthreatened by anunlawful act oromission of a publicofficial or employee,or of a privateindividual or entityengaged in thegathering, collecting

or storing data orinformationregarding theperson, family, homeand correspondenceof the aggrievedparty.

07030B334>

Sec. 1 4o all cases of illegal

Sec. 1

4o any person whose

Sec. 1

4o any person

39



0ll at the option ofpetitioner.

*94*24 E;*2;ERC*0B334>

SC, C0 and SB<anywhere in thehilippines

R4C< only within its udicial district

0nywhere in thehilippines

0nywhere in thehilippines

?5*2 4E ;3*O*9*43E2 ;RE+ECL*4 ;**S

Sec. !

En any day and at anytime

Sec. %

En any day and at anytime. etitioner eDemptfrom docet fees

3ndigent petitionereDempt from docet

fees

S*4432G E;5*0R32G

Sec. 1!

5earing on return

Sec. (

2ot later than $ daysfrom date of issuance ofwrit

Sec. $

2ot later than 1/days from date ofissuance of writ

5E? S*R7*+ Sec. $

Service of the writ shallbe made by leaving theoriginal with the person

to whom it is directedand preserving a copyon which to mae returnof service. 3f that personcannot be found, or hasnot the prisoner incustody then the serviceshall be made on anyperson having oreDercising such custody

Sec. )

3f the writ cannot beserved personally onrespondent, the rules on

substituted service shallapply

Sec.

3f the writ cannot beserved personally onrespondent, the rules

on substitutedservice shall apply

;332G E; R*4FR2 Sec. 1/

Signed and shall alsobe sworn to if theprisoner is not produced

Sec.

7erified written returnwithin & wor days fromservice of writ

" cannot be eDtendedeDcept on highlymeritorious grounds

Sec.

7erified writtenreturn within & daysfrom service of writ

"may be reasonablyeDtended by thecourt for ustifiablegrounds

*;;*C4 E; ;03FR*4E ;3* R*4FR2

Sec. 1!

3n case respondent fails

to file a return, the court, ustice or udge shallproceed to hear thepetition eD parte

Sec. 1-

3n case respondent

fails to return, thecourt, ustice or udge shall proceedto hear the petitioneD parte, grantingpetitioner such reliefas the petition maywarrant unless thecourt in its discretionreuires petitioner tosubmit evidence.

41



SF0R> 5*0R32G Sec. 1%

4he hearing on the

petition shall besummary. 5owever, thecourt, ustice or udgemay call for apreliminary conferenceto simplify the issuesand determine thepossibility of obtainingstipulations andadmissions from theparties.

4he hearing shall befrom day to day untilcompleted and giventhe same priority aspetitions for habeascorpus.

Sec. 1&

Same as ?E0

324*R3 R*3*;S S*C. 1!

1. Fnless for goodcause shown, thehearing is adourned, inwhich event the courtshall mae an order forthe safeeeping of theperson imprisoned orrestrained as the natureof the case reuires#

!. 4he court or udgemust be satisfied thatthe personPs illness is sograve that he cannot beproduced without anydanger.

Sec. 1-

8a' 4emporaryrotection Erder.

8b' 3nspection Erder.

8c' roduction Erder.

8d' ?itness rotectionErder.

:F+G*24 Sec. 1&

?hen the court or udgehas eDamined into thecause of caption andrestraint of the prisoner,and is satisfied that heis unlawfully imprisonedor restrained, he shallforthwith order hisdischarge from

confinement, but suchdischarge shall not beeffective until a copy ofthe order has beenserved on the officer orperson detaining theprisoner. 3f the officer orperson detaining theprisoner does not desireto appeal, the prisonershall be forthwith

Sec. 1)

4he court shall render udgment within ten 81/'days from the time thepetition is submitted fordecision. 3f theallegations in thepetition are proven bysubstantial evidence,the court shall grant the

privilege of the writ andsuch reliefs as may beproper and appropriate#otherwise, the privilegeshall be denied.

Sec. 1(

Same with ?E0 withan addition that uponfinality, the udgmentshall be enforced bythe sheriff or anylawful officers asmay be designatedby the court, usticeor udge within &

woring days.

42



released.

0*0 Sec. 1& in relation to

Sec. % Rule -1 and Sec.% of B 1!<

-) hours from notice of udgment appealed fromby ordinary appeal

Sec. 1

Rule -& by petition forreview on certiorari withpeculiar features<

1. 0ppeal may raiseuestions of fact or lawor both#

!. eriod of appeal shallbe & woring days fromthe date of notice of the

adverse udgment#

%. Same priority ashabeas corpus cases

Sec. 1

Same as ?E0

32S434F43E2 E;S*0R04* 0C43E2S

Sec. !1

4his Rule shall notpreclude the filing ofseparate criminal, civilor administrativeactions.

Sec. !/

Same as ?E0

*;;*C4 E; ;332GCR3320 0C43E2

Sec. !

?hen a criminal actionhas been commenced,no separate petition forthe writ shall be filed.4he reliefs under thewrit shall be available bymotion in the criminalcase.

Sec. !1

Same as ?E0

CE2SE3+043E2 Sec. !%

?hen a criminal actionis filed subseuent tothe filing of a petition forthe writ, the latter shallbe consolidated with thecriminal action.

?hen a criminal actionand a separate civilaction are filedsubseuent to a petitionfor a writ of amparo, the

latter shall beconsolidated with thecriminal action.

Sec. !!

Same as ?E0

• Grant of writ

?hen court is satisfied that prisoner does not desire to appeal, the prisoner shall be

forthwith released 8Sec. 1&, Rule 1/!'

43



• eriod to appeal – within -) hours from notice of udgment or final order appealed from

80..2. /1"1"/%"SC, :uly 1, !//1'.

• 8abeas corpus as a post3conviction re#ed0

4he writ of habeas corpus applies to all cases of illegal confinement or detention inwhich individuals are deprived of liberty. 4he writ may not be availed of when the person incustody is under a udicial process or by virtue of a valid udgment.

5owever, as a post"conviction remedy, it may be allowed when, as a conseuence of a udicial proceeding, any of the following eDceptional circumstances is attendant< 81' there hasbeen a deprivation of a constitutional right resulting in the restraint of a person# 8!' the courthad no urisdiction to impose the sentence# or 8%' the imposed penalty has been eDcessive,thus voiding the sentence as to such eDcess. $o vs. *i%agiba, G.R. 2o. 1&1)$(, :une !1,!//&D Andal v. -eople, %/$ SCR0 (/& @1A'

• No rig%t to bail w%ere applicant is serving sentence b0 reason of final "udg#ent

Respondent udge contends that under Section 1-, Rule 1/! of the Rules of Court, he

has the discretion to allow 4e to be released on bail. 5owever, the Court reiterates itspronouncement in its Resolution of ;ebruary 1, !//1 in G.R. 2os. 1-&$1&"1) that Section 1-,Rule 1/! of the Rules of Court applies only to cases where the applicant for the writ of habeascorpus is restrained by virtue of a criminal charge against him and not in an instance, as in thecase involved in the present controversy, where the applicant is serving sentence by reason ofa final udgment. 8Vicente vs. Ma2aducon, 0.. 2o. R4:"/!"1() 8;ormerly EC0 33 2o. //"1/!-"R4:', :une !%, !//&'

• 'arital rig%ts including co3venture and living in con"ugal dwelling #a0 not be

enforced b0 t%e e.traordinar0 writ of %abeas corpus) 8Ilusorio vs. #ildner, et.al.,G.R. 2o. 1%)/), ay 1!, !///'

• 7rit of %abeas corpus cannot be issued once person is c%arged wit% a cri#inal

offense

Fnder Section 1, Rule 1/! of the Rules of Court, the writ of habeas corpus eDtends toIall case of illegal confinement or detention by which any person is deprived of his liberty, or bywhich the rightful custody of any person is withheld from the person entitled thereto.J 4heremedy of habeas corpus has one obective< to inuire into the cause of detention of a person,and if found illegal, the court orders the release of the detainee. 3f, however, the detention isproven lawful, then the habeas corpus proceedings terminate. 8In the Matter of the -etition forabeas Corpus of Eunting, G.R. 2o. 1($1%, 0pril 1, !//('

• 8abeas corpus in custod0 cases

5abeas corpus may be resorted to in cases where rightful custody is withheld from aperson entitled thereto. Fnder 0rticle !11 of the ;amily Code, respondent oran and petitionerarie 0ntonette have oint parental authority over their son and conseuently oint custody.;urther, although the couple is separated de facto, the issue of custody has yet to beadudicated by the court. 3n the absence of a udicial grant of custody to one parent, bothparents are still entitled to the custody of their child. 3n the present case, private respondentHscause of action is the deprivation of his right to see his child as alleged in his petition. 5ence,the remedy of habeas corpus is available to him.

3n a petition for habeas corpus, the childHs welfare is the supreme consideration. 4heChild and >outh ?elfare Code uneuivocally provides that in all uestions regarding the careand custody, among others, of the child, his welfare shall be the paramount consideration.8alientes vs. Abanilla, G.R. 2o. 1(!$%-, 0ugust !, !//('

• Retroactive effect of favorable law " -eople vs. Caco, !( SCR0 !$1 81$'

44



1. Caco sentenced to life imprisonment for violation of +angerous +rugs 0ct 8R0 (-!&' !. ;iled motion for modification of sentence pursuant to R0 $(& and eople v. Simonthat where mariuana less than !// grams penalty is prision correccional

%. etition granted – provisions of R0 $(& favorable to accused should be givenretroactive effect.

-. ?here decision already final, appropriate remedy of accused to secure release fromprison is petition for habeas corpus

• #ernarte vs. CA, !(% SCR0 %!% 81('

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

uestion his detention by petition for habeas corpus !. Remedy< motion to uash the information andOor warrant of arrest %. ;iling of bond for temporary release is waiver of illegality of detention

• -aredes vs. #, 1% SCR0 -(-< absence of preliminary investigation not a ground forhabeas corpus. Remedy< motion to uash warrant of arrest andOor information, or as forinvestigationOreinvestigation

2ote< Rule 11-, Sec. !( of !/// Revised Rules of Criminal rocedure< Bail not a bar

to obections on illegal arrest, lac of or irregular preliminary investigation, provided he raisesthem B*;ER* entering his plea

• Larraaga vs. CA, !)$ SCR0 &)1 81)' – Lidnapping = serious illegal detention

1. ;iling of charges and issuance of warrant of arrest cures defect of invalid detention

!. 0bsence of preliminary investigation – will not nullify information and warrant ofarrest

• alvez vs. CA, !%$ SCR0 ()&

1. 5abeas corpus and certiorari may be ancillary where necessary to give effect tosupervisory power of higher courts !. 5abeas corpus – reaches body and urisdictional matters but not the records %. Certiorari – reaches record but not the body -. 2ot appropriate for asserting right to bail – file petition to be admitted to bail

• Velasco vs. CA, !-& SCR0 (($ 81&'

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

• Recent -urisprudence

Section 1, Rule 1/! of the Rules of Court provides that a petition for the issuance of a writof habeas corpus may be availed of in cases of illegal confinement by which any person isdeprived of his liberty, or by which the rightful custody of any person is withheld from theperson entitled thereto. 4he writ may also be issued where, as a conseuence of a udicialproceeding, 8a' there has been a deprivation of a constitutional right resulting in the restraint ofa person# 8b' the court had no urisdiction to impose the sentence# or 8c' an eDcessive penaltyhas been imposed, as such sentence is void as to such eDcess. 8In the Matter of the

Application for the 5rit of abeas Corpus &eclassifying entence to &.A. )'. >G9G in #ehalfof &ogelio 'r%illa, et al. vs, (he *irector, #ureau of Corrections, G.R. 2o. 1$/-$, :anuary!!, !//$'

etitioner was detained pursuant to a final udgment of the Kue6on City R4C convictinghim for the crimes of carnapping and illegal possession of firearms. 5e is therefore not entitledto the writ of habeas corpus. 4he rule is that if a person alleged to be restrained of his liberty is in custody of an officerunder process issued by a court or udge or by virtue of a udgment or order of a court of

45



record the writ of habeas corpus will not be allowed. 8 #arredo vs. Vinarao,. G.R. 2o. 1()$!), 0ugust !, !//$'

Ence a person detained is duly charged in court, he may no longer uestion his detentionthrough a petition for issuance of a writ of habeas corpus. 5is remedy would be to uash theinformation andOor the warrant of arrest duly issued. 4he writ of habeas corpus should not beallowed after the party sought to be released had been charged before any court. 4he termIcourtJ includes uasi"udicial bodies or governmental agencies authori6ed to order thepersonHs confinement, lie the +eportation Board of the Bureau of 3mmigration.

4he provisional or temporary release of Gao >uan also effectively granted the petition forhabeas corpus insofar as the discharge of the detainee is concerned, since the main prayer ina petition for habeas corpus relates to the release or discharge of the detainee. 4he generalrule is that the release, whether permanent or temporary, of a detained person renders thepetition for habeas corpus moot and academic. 8'ffice of the olicitor eneral vs. Judge deCastro, 0.. 2o. R4:"/("!/1) 8;ormerly 0dm. atter EC0"33 2o. /&"!%(/"R4:', 0ugust %,

!//$'

3n general, the purpose of the writ of habeas corpus is to determine whether or not aparticular person is legally held. 0 prime specification of an application for a writ of habeascorpus, in fact, is an actual and effective, and not merely nominal or moral, illegal restraint ofliberty. 8In the Matter of the -etition of abeas Corpus of "ufe%ia &odriguez vs. LuisaVillanueva, G.R. 2o. 1(-)!, :anuary !, !//)'

2otably, the record shows that :udge erello granted the writs of habeas corpus evenwithout the pertinent copies of detention and udgment of conviction. 4his is contrary to theprovisions of Section %8d' of Rule 1/! of the Rules of Court. 4he Rules clearly reuire that acopy of the commitment or cause of detention must accompany the application for the writ of

habeas corpus. 8'ffice of the Court Ad%inistrator vs. Judge -erello , 0.. 2o. R4:"/&"1&!,+ecember !-, !//)'

Strict compliance with the technical reuirements for a habeas corpus petition as provided

in the Rules of Court may be dispensed with where the allegations in the application aresufficient to mae out a case for habeas corpus.

2onetheless, we agree with the ESG that petitioner is not entitled to the issuance of thewrit. 0 convict may be released on parole after serving the minimum period of his sentence.5owever, the pendency of another criminal case is a ground for the disualification of suchconvict from being released on parole. 8Fletcher vs. (he *irector of #ureau of Corrections,F+L"1-/$1, :uly 1$, !//'

4he writ of habeas corpus should not be allowed after the party sought to be released hadbeen charged before any court. 4he term IcourtJ in this conteDt includes uasi"udicial bodiesof governmental agencies authori6ed to order the personHs confinement, lie the +eportationBoard of the Bureau of 3mmigration. iewise, the cancellation of his bail cannot be assailedvia a petition for habeas corpus. ?hen an alien is detained by the Bureau of 3mmigration fordeportation pursuant to an order of deportation by the +eportation Board, the Regional 4rialCourts have no power to release such alien on bail even in habeas corpus proceedingsbecause there is no law authori6ing it.8o, r. vs. &a%os, G.R. 2o. 1($&(, September -,!//'

0 writ of habeas corpus eDtends to all cases of illegal confinement or detention or by whichthe rightful custody of person is withheld from the one entitled thereto. Respondent, as the

udicial guardian of ulu, was duty"bound to care for and protect her ward. ;or her to performher obligation, respondent must have custody of ulu. 4hus, she was entitled to a writ ofhabeas corpus after she was unduly deprived of the custody of her ward. 8ernandez vs. anJuan/antos, G.R. 2o. 1((-$/, 0ugust $, !//'

?. )ule on *ustod! of =inors and +rit of abeas *orpus in)elation to *ustod! of =inors 80.. 2o. /%"/-"/-"SC' – too effect ay

1&, !//% a. 0 verified petition for the rightful custody of a minor may be filed by any personclaiming such right. 4he petition shall be filed with the ;amily Court of the province or citywhere the petitioner resides or where the minor may be found.

46



b. 0fter trial, the court shall render udgment awarding custody of the minor to the properparty considering the best interests of the minor. c. 5owever, 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 hisoldest brother or sister, or any reputable person to tae charge of such minor, or commit him toany suitable home for children.

d. 4he court may issue any order that is ust and reasonable permitting the parent who isdeprived of the care and custody of the minor to visit or have temporary custody.

• Court of Appeals %as "urisdiction to issue writs of %abeas corpus in cases

involving custod0 of #inors

4here is nothing in R0 )%( which revoed the Court of 0ppealsH urisdiction to issuewrits of habeas corpus involving the custody of minors. 8In the Matter of Application for theIssuance of a 5rit of abeas Corpus (hornton vs. (hornton , G.R. 2o. 1&-&), 0ugust 1(,

!//-' 3n fact, the Court of 0ppeals and Supreme Court have concurrent urisdiction with familycourts in habeas corpus cases where the custody of minors is involved. 8Madri?an vs.Madri?an, G.R. 2o. 1&%$-, :uly 1!, !//$'

. +rit of mparo (A)') No) KB3F3>3SC) - October 9 KKB

1. Coverage =See Diagra# under Definition2

• IE.tralegal 1illingsJ – illings

committed without due process of law, i.e., without legal safeguards or udicial

proceedings.

• IEnforced disappearancesJ – attended by the following characteristics< an arrest,

detention or abduction of a person by a government official or organi6ed groups orprivate individuals acting with the direct or indirect acuiescence of the government# therefusal of the State to disclose the fate or whereabouts of the person concerned or arefusal to acnowledge the deprivation of liberty which places such persons outside theprotection of law.

2. Distin#uis$ from $abeas corpus and $abeas data =See Diagra#

2

3. Differences between mparo and searc$ warrant

4he production order under the 0mparo Rule should not be confused with a searchwarrant or law enforcement under 0rt. 333, Sec. ! of the Constitution. 4he Constitutionalprovision is a protection of the people from the unreasonable intrusion of the government, nota protection of the government from the demand of the people as such respondents. 3nstead,the amparo production order may be limited to the production of documents or things underSec. 1, Rule !$ of the Rules of Civil rocedure 8ecretary of )ational *efense vs. Manalo,G.R. 2o. 1)//(, Ectober $, !//)'.

4. +$o ma! file =See Diagra#2

(. *ontents of return 8a' awful defenses to show that respondent did not violate or thereaten with violation theright to life, liberty or security of the aggrieved party, through any act or omisson . 8b' Steps or actions taen by the respondent to determine the facts or whereabouts of theaggrieved party and person Os responsible for the threat, act or omission# 8c' 0ll relevant information in the possession of respondent pertaining to the threat, act oromission against the aggrieved party# 8d' 3f respondent is a public official or employee, the return shall further state the actionsthat have been or will be taen< 8i' to verify the identity of the aggrieved party#

47



8ii' to recover and preserve evidence related to the death or disappearance of the personidentified in the petition which may aid in the prosecution of the person or persons

responsible#

8iii' to identify witnesses and obtain statements from them concerning the death ordisappearance

8iv' to determine the cause, manner, location and time of death or disappearance as wellas any pattern or practice that may have brought about the death or disappearance#

8v' to identify and apprehend the person or persons involved in the death ordisappearance# and

8vi' to bring the suspected offenders before a competent court.

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

. Effects of failure to file return =See Diagra#2

?. 1mnibus wai'er rule *efenses )ot -leaded *ee%ed 5aived . ""0ll defenses shall be raised in the return,otherwise, they shall be deemed waived 8Sec. 1/'.

@. Procedure for $earin# =See Diagra# on Su##ar0 8earing2

A. 5nstitution of separate action =See Diagra#2

"B. Effect of filin# of a criminal action =See Diagra#'

"". *onsolidation =See Diagra#2

"2. 5nterim reliefs a'ailable to petitioner and respondent=See Diagra#2

"3. Cuantum of proof in application for issuance of writ ofmparo

#urden of proof and standard of dilligence re1uired – 4he parties shall establish theirclaims by substantial evidence. Respondent private individual or entity – prove that ordinary diligence as reuired by

applicable laws, rules and regulations was observed in the performance of duty. Respondent public official or employee

– prove that eDtraordinary diligence as reuired, etc. was observed in the performance ofduty.

- cannot invoe presumption that official duty has been regularly performed to evade

ressponsibility or liability 8Sec. 1$'

• ?rit of 0mparo provides rapid "udicial relief as it partaes of a

summary proceeding that reuires only substantial evidence to mae the appropriate reliefsavailable to the petitioner# not an action to determine criminal guilt reuiring proof beyondreasonable doubt, or liability for damages reuiring preponderance of evidence, or

administrative responsibility reuiring substantial evidence that will reuire full and eDhaustiveproceedings

• 5ot% preventive and curative

3t is preventive in that it breas the eDpectation of impunity in the commission of theseoffenses# it is curative in that it facilitates the subseuent punishment of perpetrators as it willinevitably yield leads to subseuent investigation and action.

• -urisprudence

48



4he threatened demolition of a dwelling by virtue of a final udgment of the court is notincluded among the enumeration of rights for which the remedy of a writ of amparo is madeavailable. 4heir claim to their dwelling, assuming they still have any despite the final and

eDecutory udgment adverse to them, does not constitute right to life, liberty and security.4here is, therefore, no legal basis for the issuance of the writ of amparo. 8Canlas vs. )apicoo%eo3ners Association I H III, Inc.,. G.R. 2o. 1)!$&, :une &, !//)'

Fnder these legal and factual situations, we are far from satisfied with the prima facieeDistence of the ultimate facts that would ustify the issuance of a writ of amparo. Rather thanacts of terrorism that pose a continuing threat to the persons of the petitioners, the violentincidents alleged appear to us to be purely property"related and focused on the disputed land.4hus, if the petitioners wish to see redress and hold the alleged perpetrators criminallyaccountable, the remedy may lie more in the realm of ordinary criminal prosecution rather thanon the use of the eDtraordinary remedy of the writ of amparo. 8(apuz vs. Judge del &osario,G.R. 2o.1)!-)-, :une 1$, !//)'

?hile the right to life under 0rticle 333, Section 1 guarantees essentially the right to be alive" upon which the enoyment of all other rights is preconditioned " the right to security of personis a guarantee of the secure uality of this life. ;irst, the right to security of person is Ifreedom from fear.J 8Fniversal +eclaration of 5umanRights @F+5RA and 3nternational Covenant on Civil and olitical Rights @3CCRA' 4hehilippines is a signatory to both the F+5R and the 3CCR. Second, the right to security of person is a guarantee of bodily and psychological integrityor security. 80rticle 333, Section 1! of the 1)$ Constitution' 4hird, the right to security of person is a guarantee of protection of oneHs rights by thegovernment. rotection includes conducting effective investigations, organi6ation of thegovernment apparatus to eDtend protection to victims of eDtralegal illings or enforced

disappearances 8or threats thereof' andOor their families, and bringing offenders to the bar of ustice. 8(he ecretary of )ational *efense vs. Manalo, G.R. 2o. 1)//(, Ectober $, !//)'

1. +rit of 4ab as Data 9 .=. o. B@&"&"&S*: / &ebruar0 9 KKJ

". Scope of writ =See Diagra# under Definition'

2. 'ailabilit! of writ =See Diagra# under Availabilit02

3. Distin#uis$ from abeas *orpus and mparo =See Diagra#2

4. +$o ma! file =See Diagra#

2

(. *ontents of petition

8a' 4he personal circumstances of the petitioner and the respondent# 8b' 4he manner the right to privacy is violated or threatened and how itaffects the right to life, liberty or security of the aggrieved party#

8c' 4he actions and recourses taen by the petitioner to secure the data orinformation#

8d' 4he 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

nown# 8e' 4he reliefs prayed for, which may include the updating, rectification,suppression or destruction of the database or information or files ept by therespondent. 3n case of threats, the relief may include a prayer for an order enoiningthe act complained of# and

8f' Such other relevant reliefs as are ust and euitable 8Sec. ('.

. *ontents of return

49



8a' awful defenses such as national security, state secrets, priviliged communication,confidentiality of the source of information of media and others# 8b' 3f respondent in charge, in possession or in control of the data or information

subect of the petition "" 8i' a disclosure of the data or information about petitioner, nature of such data orinformation, and purpose of its collection# 8ii' steps or actions taen by respondent to ensure the security and confidentialityof the data or information#

8iii' currency and accuracy of the data and information held# and 8c' other allegations relevant to the resolution of the proceeding# 0 general denial of the allegations in the petition shall not be allowed.

?. 5nstances w$en petition $eard in c$ambers

5earing in chambers may be conducted where respondent invoes the defense thatthe release of the data or information shall compromise national security or state secrets,or when the data or information cannot be divulged to the public due its nature or privilegedcharacter 8Sec.1!'.

@. *onsolidation =See Diagra#2

A. Effect of filin# a criminal action =See Diagra#

2

"B. 5nstitution of separate action =See Diagra#

2

• -urisprudence

Section ( of the Rule on the ?rit of 5abeas +ata reuires material allegations of ultimatefacts in a petition for the issuance of a writ of habeas data< Specifically, we see no concrete allegations of unustified or unlawful violation of the rightto privacy related to the right to life, liberty or security. 4he petition liewise has not alleged,much less demonstrated, any need for information under the control of police authorities otherthan those it has already set forth as integral anneDes. 4he necessity or ustification for theissuance of the writ, based on the insufficiency of previous efforts made to secure information,has not also been shown. 3n sum, the prayer for the issuance of a writ of habeas data isnothing more than the Ifishing eDpedition< that this Court " in the course of drafting the Rule onhabeas data " had in mind in defining what the purpose of a writ of habeas data is not. 3n

these lights, the outright denial of the petition for the issuance of the writ of habeas data is fullyin order. 8(apuz vs. Judge &osario, G.R. 2o.1)!-)-, :une 1$, !//)'

P. Change of Nae

Rule 13&(ange of !ame

• Purpose of Rule

Fnder 0rt. %$(, Civil Code – no person can change his name or surname without uridical authority

3nvolving substantial changes, obective is the prevention of fraud.

• Nature of proceeding

4o 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

• 7%o #a0 file petition

50



IersonJ – all natural persons regardless of status 1. 0dopted child 8Rep. v. ?ong, !/ SCR0 1)'

!. 0lien " " domiciled in the hilippines, not one temporarily staying

• -urisdictional re@uire#ents

1. ublication of petition for % consecutive wees in newspaper, etc.!. Both title or caption and body shall recite

a. name or names or alias of applicant b. cause for which change of name is sought c. new name ased for

Reason< change of name a matter of public interest

- petitioner might be in rogues gallery or hiding to avoid service of sentence orescaped from prison

- if alien might have given case for deportation, or subect of deportation order

". Differences under )ule "B3, ) AB4@ and )ule "B@

Rule >K? Rule >KJ R)A) FKJ

Rule or aw Change of 2ame CancellationO Correctionof *ntries in the CivilRegistry

Clerical *rror 0ct

Subect atter Change of full name orfamily name 8substantialcorrections'

Cancellation orcorrection of civilregistry entries

8substantial corrections'

Change of first name ornicname andcorrrection of civil

registry entries 8onlytypographical or clericalerrors'

?ho may ;ile 0 person desiring tochange his name.8Section 1'

0ny person interested inany act, event, order ordecree concerning thecivil status of personswhich has beenrecorded in the civilregister. 8Section 1'

0ny person havingdirect and personalinterest in the correctionof a clerical ortypographical error in anentry andOor change offirst name or nicname.8Section %'

7enue R4C of the province inwhich petitioner residedfor % years prior to filing.

R4C of city or provincewhere thecorresponding civilregistry is located.

1. ocal civil registryoffice of the city ormunicipality where therecord being sought tobe corrected orchanged is ept#

!. ocal civil registrar ofthe place where theinterested party ispresently residing ordomiciled#

%. hilippine Consulate

Contents of petition 8a' 4hat petitioner hasbeen a bona fideresident of the provincewhere the petition isfiled for at least three8%' years prior to thedate of such filing#

8a' ;acts necessary toestablish the merits ofpetition#

8b' articular erroneousentry or entries, whichare sought to becorrected andOor the

51



8b' 4he cause for whichthe change ofpetitionerPs name is

sought#

8c' 4he name ased for.8Section !'

change sought to bemade.

etition shall besupported by thefollowing documents<

81' 0 certified truemachine copy of thecertificate or of the pageof the registry boocontaining the entry orentries sought to becorrected or changed#

8!' 0t least two 8!'public or privatedocuments showing thecorrect entry or entriesupon which thecorrection or changeshall be based# and

8%' Ether documentswhich petitioner or thecity or municipal civilregistrar or the consul

general may considerrelevant and necessaryfor the approval ofpetition. 8Section &'

Grounds 1. 2ame is ridiculous,tainted with dishonorand eDtremely difficult towrite of pronounce#

!. Conseuence ofchange of status#

%. 2ecessity to avoidconfusion#

-. 5aving continuouslyused and been nownsince childhood by a;ilipino name, unawareof her alien parentage#

&. 0 sincere desire toadopt a ;ilipino name toerase signs of formeralienage all in good faithand without preudicinganybody.

Fpon good and validgrounds.

1. etitioner finds thefirst name or nicnameto be ridiculous, taintedwith dishonor oreDtremely difficult towrite or pronounce#

!. 4he new first name ornicname has beenhabitually andcontinuously used bypetitioner and he hasbeen publicly nown bythat first name ornicname in thecommunity# or

%. 4he change will avoidconfusion. 8Section -'

Lind of proceeding :udicial roceeding :udicial roceeding

0dversarial in naturebecause involvessubstantial changes andaffects the status of anindividual

0dministrativeroceeding

52



?hat to file ;ile a signed andverified petition.

.

;ile a verified petitionfor the cancellation orcorrection of any entry.

;ile an affidavit.

2otice and ublication 0t least once a wee forthree consecutivewees in a newspapercirculation 8notice ofhearing'

0t least once a wee forthree consecutivewees in a newspaperof general circulation8notice of hearing'

0t least once a wee fortwo consecutive wees8publish the wholeaffidavit' – in change offirst name or nicname

osting 2o posting 2o posting +uty of the civil registraror Consul to postpetition in aconspicuous place for1/ consecutive days

?ho participates on thepart of the Government

4he Solicitor General orthe proper provincial orcity fiscal shall appearon behalf of theGovernment of theRepublic.

4he Civil Registrar. 4he CivilRegistrar orConsul.

?here to appeal< 0ppeal decision to theCourt of 0ppeals.

0ppeal decision to theCourt of 0ppeals.

0ppeal decision to theCivil Registrar General8head of 2CSE'.

2. rounds for c$an#e of name

4he State has an interest in the names borne by individuals and entities for purposes ofidentification. 0 change of name is a privilege and not a right, so that before a person can beauthori6ed to change his name, he must show proper or reasonable cause, or any compellingreason which may ustify such change.

Grounds for change of name which have been held valid<1' 2ame is ridiculous, dishonorable, or eDtremely difficult to write or pronounce#!' Change results as a legal conseuence, as in legitimation#%' Change will avoid confusion#-' ?hen one has continuously used and been nown since childhood by a ;ilipino

name, and was unaware of alien parentage#&' Sincere desire to adopt ;ilipino name to erase signs of former alienage, all in good

faith and without preudicing anybody#(' Surname causes embarrassment and there is no showing that the desired change

of name was for a fraudulent purpose or that the change of name would preudicepublic interest.

iddle names serve to identify the maternal lineage or filiation of a person as well asfurther distinguish him from others who may have the same given name and surname as hehas. 3n the case at bar, the only reason advanced by petitioner for dropping his middle nameis convenience 8In &e -etition for Change of )a%e andor CorrectionCancellation of "ntry ofCivil &egistry of Julian Lin Carulasan 5ang , G.R. 2o. 1&((, arch %/, !//&'

• Ot%er cases

Fnder 0rt. 1$( of the Civil Code, Giovanni is entitled to change his name as he was never

recogni6ed by his father while his mother has always recogni6ed him as her child. 0 change ofname will erase the impression that he was ever recogni6ed by his father. 3t is also his bestinterest as it will facilitate his motherHs intended petition to have him oin her in the FnitedStates. 4he Court will not stand in the way of the reunification of moter and son. 8&epublic ofthe -hilippines vs. Capote, G.R. 2o. 1&$/-%, ;ebruary !, !//$'

53



4he court shall grant the petition under Rule 1/% only when satisfactory proof has beenpresented in open court that the order had been published as directed, the allegations in thepetition are true, and proper and reasonable causes appear for changing the name of the

petitioner. 8R*< ;320 R*ER4 E2 45* :F+3C30 0F+34 CE2+FC4*+ 04 45* R4C, BR.($, 023KF3, 40R0C, 0.. 2o. /("$"-1-"R4C, Ectober 1, !//$'

0s for respondentHs change of name under Rule 1/%, this Court has held that a change ofname is not a matter of right but of udicial discretion, to be eDercised in the light of the reasonsadduced and the conseuences that will follow. 4he trial courtHs grant of respondentHs changeof name from :ennifer to :eff implies a change of a feminine name to a masculine name.Considering the conseuence that respondentHs change of name merely recogni6es hispreferred gender, we find merit in respondentHs change of name. Such a change will conformwith the change of the entry in his birth certificate from female to male. 8&epublic vs.Cagandahan, G.R. 2o. 1((($(, September 1!, !//)'

C. bsentees Rule 17

Absentees

". Purpose of t$e rule

2. +$o ma! file- w$en to file

• Provisional representative

?hen a person disappears from his domicile, his whereabouts being unnown, andwithout having left an agent to administer property or the power conferred on the agent haseDpired, an interested party, relative or friend may file a petition in the R4C of the place wherethe absentee resided before disappearanceo appoint provisionally a representative for him8Sec. 1'.

• *rustee or ad#inistrator

0fter ! years without any news or after & years if an agent was left to administer theabsenteeHs property, a petition for declaration of absence and appointment of a trustee oradministrator may be filed.8Sec. !'

• Notice and publication re@uired

Copies of tne notice and hearing shall be served on nown heirs and creditors andother interested persons and published once a wee for % consecutive wees in a newspaperof general circulation. 8Sec. -'

• Declaration of presu#ptive deat%

2o independent action for declaration of presumption of death – presumption may arise

and be invoed in an action or special proceeding

"4ception

Fnder 0rt. -1 of ;amily Code, for purpose of present spouse contracting a second

marriage, he must file summary proceeding for declaration of presumptive death of theabsentee, without preudice to the latterHs reappearance.

4his is intended to protect present spouse from criminal prosecution for bigamy under 0rt. %- of RC. ?ith udicial declaration that missing spouse is presumptively dead, goodfaith of present spouse in contracting marriage is established.

• Period of absence of spouse before subse@uent #arriage

- - consecutive years – well founded belief that absent spouse already dead

- ! years – danger of death

54



). *ancellation or *orrection of Entries in t$e *i'il)e#istr!

Rule 1 &ancellation or correction of entriesin t(e civil registry

• 7%o #a0 file petition

1. 0ny person interested in any " act" event " decree

!. concerning the civil status of persons

%. which has been recorded in the civil registry

• enue

Regional 4rial Court of place where corresponding civil registry is located 8Sec. 1'

• Correction of entr0 under Rule >KJ proceeding in re# / publication binds

t%e w%ole world

Substantial corrections or cancellations of entries in civil registry records affecting thestatus or legitimacy of a person may be effected through the institution of a petition under Rule1/) of the Revised Rules of Court, with the proper Regional 4rial Court. Being a proceeding inrem, acuisition of urisdiction over the person of petitioner is therefore not reuired in the

present case. 3t is enough that the trial court is vested with urisdiction over the subect matter. 4he service of the order at 2o. -1) 0rui6a St., *rmita, anila and the publication thereofin a newspaper of general circulation in anila, sufficiently complied with the reuirement ofdue process, the essence of which is an opportunity to be heard. 4he publication of the orderis a notice to all indispensable parties, including 0rmi and petitioner minor, which binds thewhole world to the udgment that may be rendered in the petition. 8 Alba vs. CA, G.R. 2o.1(-/-1, :uly !, !//& 0

• Indispensable parties #ust be notified

Fnder Sec. %, Rule 1/) not only the civil registrar but also all persons who have or claimany interest which would be affected by a proceeding concerning the cancellation or correction

of an entry in the civil register must be made parties thereto.2o party could be more interested in the cancellation of RosilynHs birth certificate than

Rosilyn herself. 5er filiation, legitimacy, and date of birth are at stae.

4he lac of summons on Rosilyn was not cured by the publication of the order of the trialcourt setting the case for hearing for three consecutive wees in a newspaper of generalcirculation. Summons must still be served, not for the purpose of vesting the courts with

urisdiction, but to comply with the reuirements of fair play and due process. 4his is butproper, to afford the person concerned the opportunity to protect her interest if she so chooses.8Ceruila vs. *elantar * G.R. 2o. 1-/%/&, +ecember , !//&'

".Entries subject to cancellation or correction under )ule

"B@, in relation to ) AB4@

• Ad#inistrative correction of clerical or t0pograp%ical errors

4he obvious effect of Republic 0ct /-) is merely to mae possible the administrativecorrection of clerical or typographical errors or change of first name or nicname in entries inthe civil register, leaving to Rule 1/) the correction of substantial changes in the civil registry inappropriate adversarial proceedings. 8&epublic v. #ene%erito G.R. 2o. 1-((%, arch 1&,!//-'.

• C%ange of na#e under Rule >KJ

55



4he enactment in arch !//1 of Republic 0ct 2o. /-) has been considered to lend

legislative affirmation to the udicial precedence that substantial corrections to the civil status of

persons recorded in the civil registry may be effected through the filing of a petition under Rule1/). ?hen all the procedural reuirements under Rule 1/) are thus followed, the appropriateadversary proceeding necessary to effect substantial corrections to the entries of the civilregister is satisfied. ?ith respect to the correction in CarlitoHs birth certificate of his name from ICarlito :ohnJ toICarlito,J the same was properly granted under Rule 1/) of the Rules of Court. 0s correctlypointed out by the C0, the cancellation or correction of entries involving changes of name fallsunder letter IoJ of the following provision of Section ! of Rule 1/)< I*ntries subect tocancellation or correction. Fpon good and valid grounds, the following entries in the civilregister may be cancelled or corrected< D D D 8o' changes of name.J 5ence, while the

urisdictional reuirements of Rule 1/% 8which governs petitions for change of name' were notcomplied with, observance of the provisions of Rule 1/) suffices to effect the correction sought

for. 8&epublic vs. Eho, G.R. 2o. 1$/%-/, :une !), !//$'

• No intent on t%e part of t%e law#a1ers to re#ove t%e aut%orit0 of t%e trial courts to

#a1e "udicial corrections of entries in t%e civil registr0

3t can thus be concluded that the local civil registrar has pri#ar09 not e.clusive9 "urisdiction over such petitions for correction of clerical errors and change of first name ornicname, with R.0. 2o. /-) prescribing the procedure that the petitioner and local civilregistrar should follow. Since R.0. 2o. /-) refers specifically to the administrative summaryproceeding before the local civil registrar it would be inappropriate to apply the sameprocedure to petitions for the correction of entries in the civil registry before the courts. 8 &eFinal &eport on the Judicial Audit Conducted at the &egional (rial Court, #r. :8, -ani1ui,

(arlac, 0.. 2o. /("$"-1-"R4C, Ectober 1, !//$'.

• C%ange of first na#e is wit%in t%e pri#ar0 "urisdiction of t%e local civil registrar

R0 /-) now governs the change of first name. 3t vests the power and authority to

entertain petitions for change of first name to the city or municipal civil registrar or consulgeneral concerned. Fnder the law, therefore, urisdiction over applications for change of firstname is now primarily lodged with the aforementioned administrative officers. 4he intent andeffect of the law is to eDclude the change of first name from the coverage of Rules 1/%8Change of 2ame' and 1/) 8Cancellation or Correction of *ntries in the Civil Registry' of theRules of Court, until and unless an administrative petition for change of name is first filed andsubseuently denied. 3t liewise lays down the corresponding venue, form and procedure. 3n

sum, the remedy and the proceedings regulating change of first name are primarilyadministrative in nature, not udicial 8ilverio vs &epublic , G.R. 2o. 1$-(), Ectober !!, !//$'

• C%ange of se. or gender allowed w%ere person %as bot% #ale and fe#ale se.ual

c%aracteristics

4he trial court ordered the correction of entries in the birth certificate of respondent tochange her seD or gender, from female to male, on the ground of her medical condition nownas Congenital 0drenal 5yerplasia 8C05', and her name from I:enniferJ to I:eff,J under Rules1/% and 1/) of the Rules of Court. DDD C05 is one of many conditions that involve interseDanatomy. 4he term IinterseDualityJ applies to human beings who cannot be classified as eithermale or female. ?e respect respondentHs congenital condition and his mature decision to be a

male. 0s for respondentHs change of name under Rule 1/%, this Court has held that a change of

name is not a matter of right but of udicial discretion, to be eDercised in the light of thereasons adduced and the conseuences that will follow. 4he trial courtHs grant ofrespondentHs change of name from :ennifer to :eff implies a change of a feminine name to amasculine name. Considering the conseuence that respondentHs change of name merelyrecogni6es his preferred gender, we find merit in respondentHs change of name. Such achange will conform with the change of the entry in his birth certificate from female to male8&epublic vs. Jennifer Cagandahan, G.R. 2o. 1((($(, September 1!, !//)'.

• A person4s first na#e cannot be c%anged on t%e ground of se. reassign#ent

56



etitioner sought to have his name in his birth certificate changed from IRommel :acintoJto Iely,J and his seD from ImaleJ to Ifemale.J etitionerHs basis in praying for the change ofhis first name was his seD reassignment. 5e intended to mae his first name compatible with

the seD he thought he transformed himself into through surgery. 5owever, a change of namedoes not alter oneHs legal capacity or civil status. R0 /-) does not sanction a change of firstname on the ground of seD reassignment. Rather than avoiding confusion, changingpetitionerHs first name for his declared purpose may only create grave complications in the civilregistry and the public interest. Before a person can legally change his given name, he must present proper or reasonablecause or any compelling reason ustifying such change. 3n addition, he must show that he willbe preudiced by the use of his true and official name. 3n this case, he failed to show, or evenallege, any preudice that he might suffer as a result of using his true and official name.8ilverio vs &epublic , G.R. 2o. 1$-(), Ectober !!, !//$'

• No law allows t%e c%ange of entr0 in t%e birt% certificate as to se. on t%e ground of

se. reassign#ent)

4he acts, events or factual errors contemplated under 0rticle -/$ of the Civil Code includeeven those that occur after birth. 5owever, no reasonable interpretation of the provision can

ustify the conclusion that it covers the correction on the ground of seD reassignment. 4ocorrect simply means Ito mae or set aright# to remove the faults or error fromJ while to changemeans Ito replace something with something else of the same ind or with something thatserves as a substitute.J 4he birth certificate of petitioner contained no error. 0ll entries therein,including those corresponding to his first name and seD, were all correct. 2o correction isnecessary. ?hile petitioner may have succeeded in altering his body and appearance through theintervention of modern surgery, no law authori6es the change of entry as to seD in the civil

registry for that reason. 4hus, there is no legal basis for his petition for the correction orchange of the entries in his birth certificate. 8ilverio vs &epublic , G.R. 2o. 1$-(), Ectober!!, !//$'

• Registered na#e of illegiti#ate c%ild

0n illegitimate child whose filiation is not recogni6ed by the father bears only a given

name and his motherHs surname, and does not have a middle name. 4he name of theunrecogni6ed illegitimate child therefore identifies him as such. 3t is only when the illegitimatechild is legitimated by the subseuent marriage of his parents or acnowledged by the father ina public document or private handwritten instrument that he bears both his motherHs surnameas his middle name and his fatherHs surname as his surname, reflecting his status as a

legitimated child or an acnowledged illegitimate child. 0ccordingly, the registration in the civilregistry of the birth of such individuals reuires that the middle name be indicated in thecertificate. 4he registered name of a legitimate, legitimated and recogni6ed illegitimate childthus contains a given or proper name, a middle name, and a surname. 8 In &e -etition forChange of )a%e andor CorrectionCancellation of "ntry in Civil &egistry of Julian LinCarulasan 5ang , G.R. 2o. 1&((, arch %/, !//&'.

• Ot%er -urisprudence

(y Eong (in 81&-'< followed by Chua ?ee vs. Rep., ?ong vs. Rep., Rep. vs. edina –

Rule 1/) should be limited solely to implementation of 0rt. -1!, the substantive law on thematter of correcting errors in the civil register.

0rt. -1! contemplates a summary procedure, involving correction of clerical errors, or a

harmless, innocuous nature, not changes involving civil status, nationality or citi6enship, whichare substantial andOor controversial

&ep. vs. Macli/ing – proceedings, although filed under Rule 1/), not summary becausepublished for % consecutive wees# SolGen notified and filed opposition, etc.

&ep. vs. Valencia 81-1 SCR0 -(! @1)(A' – turning point, paradigm shift<

Rule 1/) embodies two inds of proceedings<

57



1. procedure summary in nature for correcting clerical or unsubstantial matters tomae it less tedious and eDpensive

!. procedure adversary in nature to govern proceedings involving substantial changes

3f all procedural reuirements have been followed, petition for correctionOorcancellation even if filed under Rule 1/) no longer summary.

*ven substantial errors may be corrected and true facts established prov. partiesaggrieved by the error avail of the appropriate adversary proceeding.

• 0ppropriate proceeding<

a. where all relevant facts have been fully weighed and consideredb. where opposing counsel have been given opportunity to demolish the opposing

partyHs casec. where evidence has been thoroughly weighed and considered

• rocedure becomes 0+7*RS0R> proceedings when opposition to petition is filed by CR

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

• Substantial corrections allowed< citi6enship from Chinese to ;ilipino# status from legitimate

to illegitimateH status of mother from married to single

• Valencia ruling 8en banc' reiterated in Chia #en Li% vs. Kosa 8en banc', &ep. vs. #autista

and Kapanta vs. LC& of *avao

• 0ttempts to revert to (y Eong (in H Labayo &o3e vs. &ep., Leonor vs. CA and &ep. vs.

Labrador

5owever, all doubts resolved in Lee vs. CA 8%($ SCR0 11/ @!//1A'<1. Substantial corrections – Rule 1/)!. Clerical or typographical errors 8including change of first name' – R0 /-)

8administrative correction'

• Recent -urisprudence

I0ppropriate adversary proceedingJ is Ione having opposing parties# contested, asdistinguished from an eD parte application, one of which the party seeing relief has given legal

warning to the other party, and afforded the latter an opportunity to contest it.J ?hen all the procedural reuirements under Rule 1/) are thus followed, the appropriateadversary proceeding necessary to effect substantial corrections to the entries of the civilregister is satisfied.

2o substantial change or correction in an entry in a civil register can be made without a udicial order, and, under the law, a change in citi6enship status is a substantial change.8&epublic vs. Eho, G.R. 2o. 1$/%-/, :une !, !//$'

Republic 0ct 2o. /-) provides in Section ! 8%' that a summary administrative proceedingto correct clerical or typographical errors in a birth certificate cannot apply to a change innationality. Substantial corrections to the nationality or citi6enship of persons recorded in thecivil registry should, therefore, be effected through a petition filed in court under Rule 1/) ofthe Rules of Court. 8Eilosbayan Foundation vs. "r%ita, G.R. 2o. 1$$$!1, :uly %, !//$'

4he local civil registrar has primary, not eDclusive, urisdiction over such petitions forcorrection of clerical errors and change of first name or nicname, with R.0. 2o. /-)prescribing the procedure that the petitioner and local civil registrar should follow. 8 &e Final&eport on the Judicial Audit Conducted at the &(C, #&. :8, -ani1ui, (arlac, 0.. 2o. /("$"-1-"R4C, Ectober 1, !//$'

0 change of name does not alter oneHs legal capacity or civil status. R0 /-) does notsanction a change of first name on the ground of seD reassignment. Rather than avoidingconfusion, changing petitionerHs first name for his declared purpose may only create grave

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complications in the civil registry and the public interest. 0lso, there is no such special law inthe hilippines governing seD reassignment and its effects.

3n our system of government, it is for the legislature, should it choose to do so, to

determine what guidelines should govern the recognition of the effects of seD reassignment.4he need for legislative guidelines becomes particularly important in this case where theclaims asserted are statute"based. 8ilverio vs. &epublic , G.R. 2o. 1$-(), Ectober !!, !//$'

?here the person is biologically or naturally interseD the determining factor in his genderclassification would be what the individual, lie respondent, having reached the age of maority,with good reason thins of hisOher seD. Respondent here thins of himself as a male andconsidering that his body produces high levels of male hormones 8androgen' there ispreponderant biological support for considering him as being male. SeDual development incases of interseD persons maes the gender classification at birth inconclusive. 3t is at maturitythat the gender of such persons, lie respondent, is fiDed. 8&epublic vs. Cagandahan, G.R. 2o.1((($(, September 1!, !//)'

S. ppeal in Special Proceedin#s

Rule 10 Appeals in special proceeding

". 7ud#ments and orders for w$ic$ appeal ma! be taen

2. +$en to appeal

Sec. 1. 0ny 324*R*S4*+ *RSE2 may appeal from an order or udgment rendered by the

R4C, where such order or udgment

1. 0llows or disallows a ?3!. +etermines who are the lawful heirs of a deceased or the +3S4R3BF437* S50R* of

the estate to which he is entitled%. 0llows or disallows, in whole and any part, any C03 against the estate, or any

C03 presented in behalf of the estate 32 E;;S*4 to any claim against it-. Settles the 0CCEF24 of an eDecutor, administrator, trustee or guardian&. Constitutes, in proceedings relating to the S*44**24 of the estate of the deceased,

or the 0+323S4R043E2 of a trustee or guardian, a ;320 +*4*R32043E2 in thelower court of the rights of the party appealing. *Dception< no appeal from appointmentof special administrator.

(. 3s the ;320 ER+*R or :F+G*24 rendered in the case, and affects theSFBS402430 R3G54S of the person appealing. Fnless it be an order granting ordenying a motion for new trial or reconsideration – Sec. 1 8a', Rule -1< no appeal maybe taen from an order denying a motion for new trial or reconsideration.

• 3n certain inds of special proceedings, such as settlement of estate, appeal may

be taen at various stages of the proceedings.

3. =odes of appeal

Rules -/, -1, -! and -& apply in conformity with Rule $!, Sec. ! 8applicability of rules ofcivil actions') 3f it is an ordinary appeal under Rules -/ or -1, and the special proceedings aresubect to multiple appeals, lie settlement of estates, the appeal period is %/ days, a notice ofappeal and record on appeal being reuired.

4he rationale behind allowing more than one appeal in the same case is to enable the restof the case to proceed in the event that a separate and distinct issue is resolved by the courtand held to be final. 3n this multi"appeal mode, the probate court loses urisdiction only overthe subect matter of the appeal but retains urisdiction over the special proceeding from whichthe appeal was taen for purposes of further remedies the parties may avail of.

59



?here multi"appeals are allowed, we see no reason why a separate petition for certioraricannot be allowed on an interlocutory aspect of the case that is separate and distinct as anissue from the aspect of the case that has been adudged with finality by the lower court.

8#riones vs. enson/Cruz , G.R. 2o. 1&1%/, 0ugust !!, !//)'

4. )ule on ad'ance distribution 2otwithstanding a pending controversy or appeal in prccedings to settle the estate of adecedent, the court may, in its discretion and upon such terms as it may deem proper and ust,permit that such part of the estate as may be affected by the controversy or appeal bedistributed among the heirs or legatees, upon compliance with the conditions set forth in Rule/.

Rule /, Sec. 1 " +istribution before payment of obligations is allowed provideddistributees give BE2+ conditioned for payment thereof within such time as court directs.

EN!E O& SPECIAL PROCEEDINGS

1. Settle#ent of estate 8Rule $%'< R4C 8or 4C' of province where deceased last residedOproperty situated.

!. Esc%eat 8Rule 1'< R4C of province where deceased last residedOproperty situated.

%. Guardians%ip<8Rule on Guardianship of inors @0.. 2o. /%"/!"/&"SCA'

;amily Court of province or city where minor residesOproperty situated.

Rule !R4C of province or city where incompetent residesOproperty situated.

-. Adoption 8Rule on 0doption @0.. 2o. /!"("/!"SCA'<;amily Court of province or city where prospective adoptive parents reside.

Rescission – where adoptee resides.

&. 8abeas Corpus 8Rule 1/!'< 3f filed with R4C, where detainee is detained. SC, C0 and R4C have concurrent

urisdiction. 5owever, the writ of habeas corpus issued by the R4C shall be

enforceable only within its udicial region 8Sec. !1, B 1!'.

5abeas Corpus for custody of minors< ;amily courts have eDclusive urisdiction 8;amily Courts 0ct of 1$ @R0 )%/A.

5owever, under the Rule on Custody of inors and ?rit of 5abeas Corpus in relationto Custody of inors 80.. 2o. /%"/-"/-"SC', the petition may be filed with SC, C0 orany of its members, and the writ shall be enforceable anywhere in the hilippines.

() A#paro 80.. 2o. /$""1!"SC' SC, C0 and SB

R4C of the place where the threat, act or omission was committed or any of its

elements occurred

$. 8abeas Data 9 0.. 2o. /)"1"1("SC'

SC, C0 and SB

R4C< 1. ?here petitioner resides# or !. ?here respondent resides# or %. ?hich has urisdiction over the place where data or information is gathered, etc. 0ll at the option of petitioner.

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(. C%ange of na#e 8Rule 1/%'< R4C of province of residence of petitioner.

$. Absentees 8Rule 1/$'<R4C of place where absentee resided before his disappearance.

). Cancellation or correction of entries 8Rule 1/)'<R4C of place where civil registry is located.

Correction of clerical or typographical errors 8R0 /-)'< ocal Civil Registrar of place where record is located. *Dc. – if impractical in terms of transportation eDpenses, time and effort as where

petitioner has transferred to another place – ocal Civil Registrar of petitionerHsresidence.

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special proceedings bar review guide july 2011

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