Rules 72 109

(2) Special Proceedings is an application or proceeding to establish the

status or right of a party, or a particular fact, generally commenced by
application, petition or special form of pleading as may be provided for by
the particular rule or law.

(1)
Subject Matters of Special Proceedings: CATCH AGED SHARC
(Rules 72 109)

I. SETTLEMENT OF ESTATE OF DECEASED PERSONS (Rules

73 91)

(a)

Change of Name

Settlement of Estate of Deceased Persons, Venue and Process (Rule 73)

(b)

Adoption

Which court has jurisdiction

(c)

Trustees

(d)

Constitution of Family Home

(e)

Hospitalization of Insane Persons

(f)

Absence and Death, Declaration of

(1) If the decedent is an inhabitant of the Philippines at the time of his

death, whether a citizen of an alien, his will shall be proved, or letters of
administration granted, and his estate settled, in the RTC in the province in
which he resides at the time of his death, and if he is an inhabitant of a
foreign country, the RTC of any province in which he had his estate. The
court first taking cognizance of the settlement of the estate of a decedent,
shall exercise jurisdiction to the exclusion of all other courts (Sec. 1).

(g)

Guardianship and Custody of Children

(h)

Escheat

(i)

(Voluntary) Dissolution of Corporation

(j)

Settlement of Estate of Deceased Persons

(k)

Habeas Corpus

SPECIAL PROCEEDINGS

(2) Under RA 7691, the law expanding the jurisdiction of the inferior
courts, MTC, MeTC and MCTC shall exercise exclusive original
jurisdiction over probate proceedings, testate and intestate, where the value
of the estate does not exceed P200,000 (outside Metro Manila) or where
such estate does not exceed P400,000 (in Metro Manila).
(3)
The jurisdiction of the RTC is limited to the settlement and
adjudication of properties of the deceased and cannot extend to collateral
matters.
Venue in judicial settlement of estate

(l)
(Judicial) Approval of Voluntary Recognition of Minor Natural
Children
(m) Rescission and Revocation of Adoption
(n)

Cancellation or Correction of Entries in the Civil Registry

(1) The residence of the decedent at the time of his death is determinative
of the venue of the proceeding. If he was a resident (inhabitant) of the
Philippines, venue is laid exclusively in the province of his residence, the
jurisdiction being vested in the Regional Trial Court thereof. Residence
means his personal, actual, or physical habitation, his actual residence or
place of abode.

(2) It is only where the decedent was a nonresident of the Philippines at

the time of his death that venue lies in any province in which he had estate,
and then CFI thereof first taking cognizance of the proceeding for
settlement acquires jurisdiction to the exclusion of other courts. The
question of residence is determinative only of the venue and does not affect
the jurisdiction of the court. Hence, the institution of the proceeding in the
province wherein the decedent neither had residence nor estate does not
vitiate the action of the probate court.
(3) Where the proceedings were instituted in two courts and the question
of venue is seasonably raised, the court in which the proceeding was first
filed has exclusive jurisdiction to resolve the issue (De Borja vs. Tan, 97
Phil. 872).
Extent of jurisdiction of Probate Court
(1) The main function of a probate court is to settle and liquidate the
estates of deceased person either summarily or through the process of
administration. The RTC acting a s a probate court exercises but limited
jurisdiction, thus it has no power to take cognizance of and determine the
issue of title to property claimed by a third person adversely to the decedent
unless the claimant and all other parties have legal interest in the property
consent, expressly or impliedly, to the submission of the question to the
probate court. In that case, if the probate court allows the introduction of
evidence on ownership it is for the sole purpose of determining whether the
subject properties should be included in the inventory, which is within the
probate courts competence. The determination is only provisional subject
to a proper action at the RTC in a separate action to resolve the title.
(2) The jurisdiction of the probate court merely relates to matters having
to do with the settlement of the estate and the probate of wills, the
appointment and removal of administrators, executors, guardians and
trustees. The question of ownership is, as a rule, an extraneous matter
which the probate court cannot resolve with finality (Intestate Estate of
Ismael Reyes, Heirs of Reyes vs. Reyes, GR 139587, Nov. 2, 2000).

(b) Grants letters of administration of the party best entitled thereto or to

any qualified applicant (Sec. 5, Rule 79);
(c)

Supervises and controls all acts of administration;

(d) Hears and approves claims against the estate of the deceased (Sec. 11,
Rule 86);
(e)

Orders payment of lawful debts (Sec. 11, Rule 88);

(f)
Authorizes sale, mortgage or any encumbrance of real estate (Sec. 2,
Rule 89);
(g) Directs the delivery of the estate to those entitled thereto (Sec. 1, Rule
90);
(h) Issue warrants and processes necessary to compel the attendance of
witnesses or to carry into effect their orders and judgments, and all other
powers granted them by law (Sec. 3, Rule 73);
(i)
If a person defies a probate order, it may issue a warrant for the
apprehension and imprisonment of such person until he performs such order
or judgment, or is released (Sec. 3, Rule 73).
(2) The court acts as trustee, and as such, should jealously guard the
estate and see to it that it is wisely and economically administered, not
dissipated (Timbol vs. Cano, 111 Phil. 923).
Summary Settlement of Estates (Rule 74)

(1)

In probate proceedings, the court:

(1)
Summary settlement of estate is a judicial proceeding wherein,
without the appointment of executor or administrator, and without delay, the
competent court summarily proceeds to value the estate of the decedent;
ascertain his debts and order payment thereof; allow his will if any; declare
his heirs, devisee and legatees; and distribute his net estate among his
known heirs, devisees, and legatees, who shall thereupon be entitled to
receive and enter into the possession of the parts of the estate so awarded to
them, respectively (Sec. 2).

(a)

Orders the probate of the will of the decedent (Sec. 3, Rule 77);

Extrajudicial settlement by agreement between heirs, when allowed

Powers and Duties of Probate Court

(1) If the decedent left no will and no debts and the heirs are all of age, or
the minors are represented by their judicial or legal representatives duly
authorized for the purpose, the parties may, without securing letters of
administration, divide the estate among themselves as they see fit by means
of a public instrument filed in the office of the register of deeds, and should
they disagree, they may do so in an ordinary action of partition. If there is
only one heir, he may adjudicate to himself the entire estate by means of an
affidavit filed in the office of the register of deeds. The parties to an
extrajudicial settlement, whether by public instrument or by stipulation in a
pending action for partition, or the sole heir who adjudicates the entire
estate to himself by means of an affidavit shall file, simultaneously with and
as a condition precedent to the filing of the public instrument, or stipulation
in the action for partition, or of the affidavit in the office of the register of
deeds, a bond with the said register of deeds, in an amount equivalent to the
value of the personal property involved as certified to under oath by the
parties concerned and conditioned upon the payment of any just claim that
may be filed under section 4 of this rule. It shall be presumed that the
decedent left no debts if no creditor files a petition for letters of
administration within two (2) years after the death of the decedent.

(e) The fact of the extrajudicial settlement or administration shall be

published in a newspaper of general circulation.
Two-year prescriptive period
(1) It shall be presumed that the decedent left no debts if no creditor files
a petition for letters of administration within two (2) years after the death of
the decedent (Sec. 1).

(2) Extrajudicial partition of the estate shall be valid when the following
conditions concur:

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

(a)

Affidavit of Self-adjudication by sole heir

The fact of the extrajudicial settlement or administration shall be published

in a newspaper of general circulation in the manner provided in the next
succeeding section; but no extrajudicial settlement shall be binding upon
any person who has not participated therein or had no notice thereof (Sec.
1).

The decedent left no will;

(b) The decedent left no debts, or if there were debts left, all had been
paid;

(1) If there is only one heir, he may adjudicate to himself the entire estate
by means of an affidavit filed in the office of the register of deeds (Sec. 1).

(c) The heirs are all of age or if they are minors, the latter are represented
by their judicial guardian or legal representative;

Summary settlement of estates of small value, when allowed

(d) The partition was made by means of a public instrument or affidavit

duly filed with the Register of Deeds; and

(1) Whenever the gross value of the estate of a deceased person, whether
he died testate or intestate, does not exceed ten thousand pesos, and that
fact is made to appear to the Court of First Instance having jurisdiction of
the estate by the petition of an interested person and upon hearing, which
shall be held not less than (1) month nor more than three (3) months from

the date of the last publication of a notice which shall be published once a
week for three (3) consecutive weeks in a newspaper of general circulation
in the province, and after such other notice to interested persons as the court
may direct, the court may proceed summarily, without the appointment of
an executor or administrator, and without delay, to grant, if proper,
allowance of the will, if any there be, to determine who are the persons
legally entitled to participate in the estate, and to apportion and divide it
among them after the payment of such debts of the estate as the court shall
then find to be due; and such persons, in their own right, if they are of
lawful age and legal capacity, or by their guardians or trustees legally
appointed and qualified, if otherwise, shall thereupon be entitled to receive
and enter into the possession of the portions of the estate so awarded to
them respectively. The court shall make such order as may be just
respecting the costs of the proceedings, and all orders and judgments made
or rendered in the course thereof shall be recorded in the office of the clerk,
and the order of partition or award, if it involves real estate, shall be
recorded in the proper registers office (Sec. 2).
(2) The court, before allowing a partition, may require the distributees, if
property other than real is to be distributed, to file a bond in an amount to be
fixed by court, conditioned for the payment of any just claim (Sec. 3).
Remedies of aggrieved parties after extra-judicial settlement of estate
(1) The creditor may ask for administration of enough property of the
estate sufficient to pay the debt, but the heirs cannot prevent such
administration by paying the obligation (McMicking vs. Sy Conbieng, 21
Phil. 211);
(2) Where the estate has been summarily settled, the unpaid creditor may,
within the two-year period, file a motion in the court wherein such summary
settlement was had for the payment of his credit. After the lapse of the twoyear period, an ordinary action may be instituted against the distributees
within the statute of limitations, but not against the bond.
(3) The action to annul a deed of extrajudicial settlement on the ground of
fraud should be filed within four years from the discovery of the fraud
(Gerona vs. De Guzman, L-19060, May 29, 1964).
Production and Probate of Will (Rule 75)

Nature of probate proceeding

(1) Probate of a will is a proceeding in rem. It cannot be dispensed with
and substituted by another proceeding, judicial or extrajudicial, without
offending public policy. It is mandatory as no will shall pass either real or
personal property unless proved and allowed in accordance with the
Rules. It is imprescriptible, because it is required by public policy and the
state could not have intended to defeat the same by applying thereto the
statute of limitation of actions (Guevara vs. Guevara, 74 Phil. 479).
Who may petition for probate; persons entitled to notice
(1) Any executor, devisee, or legatee named in a will, or any other person
interested in the estate, may, at any time after the death of the testator,
petition the court having jurisdiction to have the will allowed, whether the
same be in his possession or not, or is lost or destroyed. The testator himself
may, during his lifetime, petition the court for the allowance of his will
(Sec. 1, Rule 76).
(2) The court shall also cause copies of the notice of the time and place
fixed for proving the will to be addressed to the designated or other known
heirs, legatees, and devisees of the testator resident in the Philippines at
their places of residence, and deposited in the post office with the postage
thereon prepaid at least twenty (20) days before the hearing, if such places
of residence be known. A copy of the notice must in like manner be mailed
to the person named as executor, if he be not be petitioner; also, to any
person named as co-executor not petitioning, if their places of residence be
known. Personal service of copies of the notice at least ten (10) days
before the day of hearing shall be equivalent to mailing. If the testator asks
for the allowance of his own will, notice shall be sent only to his
compulsory heirs (Sec. 4, Rule 76).
Allowance or Disallowance of Will (Rule 76)
Contents of petition for allowance of will
(1) A petition for the allowance of a will must show, so far as known to the
petitioner:
(a) The jurisdictional facts;

(b) The names, ages, and residences of the heirs, legatees, and devisees of
the testator or decedent;

(c) If it was executed through force or duress, or the influence of fear, or

threats;

(c) The probable value and character of the property of the estate;

(d) If it was procured by undue and improper pressure and influence, on

the part of the beneficiary or of some other person;

(d) The name of the person for whom letters are prayed;
(e)
(e) If the will has not been delivered to the court, the name of the person
having custody of it.
But no defect in the petition shall render void the allowance of the will, or
the issuance of letters testamentary or of administration with the will
annexed (Sec. 2, Rule 76).
Grounds for disallowing a will
(1)

The will shall be disallowed in any of the following cases;

(a)

If not executed and attested as required by law;

(b) If the testator was insane, or otherwise mentally incapable to make a

will, at the time of its execution;
(c)

If it was executed under duress, or the influence of fear, or threats;

(d) If it was procured by undue and improper pressure and influence, on

the part of the beneficiary, or of some other person for his benefit;
(e) If the signature of the testator was procured by fraud or trick, and he
did not intend that the instrument should be his will at the time of fixing his
signature thereto (Sec. 9, Rule 76).
(2)

Grounds under Art. 839, Civil Code:

(a)

If the formalities required by law have not been complied with;

(b) If the testator was insane, or otherwise mentally incapable of making

a will, at the time of its execution;

If the signature of the testator was procured by fraud;

(f)
If the testator acted by mistake or did not intend that the instrument
he signed should be his will at the time of affixing his signature thereto.
Reprobate; Requisites before will proved outside allowed in the
Philippines; effects of probate
(1) Will proved outside Philippines may be allowed here. Wills proved
and allowed in a foreign country, according to the laws of such country,
may be allowed, filed, and recorded by the proper Court of First Instance in
the Philippines (Sec. 1, Rule 77).
(2) When will allowed, and effect thereof. If it appears at the hearing that
the will should be allowed in the Philippines, the court shall so allow it, and
a
certificate of its allowance, signed by the judge, and attested by the
seal of the court, to which shall be attached a copy of the will, shall be filed
and recorded by the clerk, and the will shall have the same effect as if
originally proved and allowed in such court (Sec. 3, Rule 77).
(3) When a will is thus allowed, the court shall grant letters testamentary,
or letters of administration with the will annexed, and such letters
testamentary or of administration, shall extend to all the estate of the
testator in the Philippines. Such estate, after the payment of just debts and
expenses of administration, shall be disposed of according to such will, so
far as such will may operate upon it; and the residue, if any, shall be
disposed of as is provided by law in cases of estates in the Philippines
belonging to persons who are inhabitants of another state or country (Sec. 4,
Rule 77).
(4) Certificate of allowance attached to proved will. To be recorded in the
Office of Register of Deeds. If the court is satisfied, upon proof taken and
filed, that the will was duly executed, and that the testator at the time of its
execution was of sound and disposing mind, and not acting under duress,
menace, and undue influence, or fraud, a certificate of its allowance, signed

by the judge, and attested by the seal of the court shall be attached to the
will and the will and certificate filed and recorded by the clerk. Attested
copies of the will devising real estate and of certificate of allowance thereof,
shall be recorded in the register of deeds of the province in which the lands
lie (Sec. 13, Rule 76).
(5) The general rule universally recognized is that administration extends
only to the assets of the decedent found within the state or country where it
was granted, so that an administrator appointed in one state or country has
no power over the property in another state or country (Leon & Ghezzi vs.
Manufacturers Life Ins., 80 Phil. 495). When a person dies intestate owning
property in the country of his domicile as well as in foreign country,
administration shall be had in both countries. That which is granted in the
jurisdiction of the decedents domicile is termed the principal
administration, while any other administration is termed ancillary
administration. The ancillary administration is proper whenever a person
dies leaving in a country other than that of his domicile, property to be
administered in the nature of assets of the decedent, liable for his individual
debts or to be distributed among his heirs (Johannes vs. Harvey, 43 Phil.
175).

Letters Testamentary and of Administration (Rule 78)

(1) Letters testamentary is the appointment issued by a probate court,
after the will has been admitted to probate, to the executor named in the
will to administer the estate of the deceased testator, provided the executor
named in the will is competent, accepts the trust and gives a bond (Sec. 4).
When and to whom letters of administration granted
(1) No person is competent to serve as executor or administrator who:

(2) Executor of executor not to administer estate. The executor of an

executor shall not, as such, administer the estate of the first testator (Sec. 2).
(3) Married women may serve. A married woman may serve as executrix or
administratrix, and the marriage of a single woman shall not affect her
authority so to serve under a previous appointment (Sec. 3).
(4) Letters testamentary issued when will allowed. When a will has been
proved and allowed, the court shall issue letters testamentary thereon to the
person named as executor therein, if he is competent, accepts the trust, and
gives bond as required by these rules (Sec. 4).
(5) Where some coexecutors disqualified others may act. When all of the
executors named in a will cannot act because of incompetency, refusal to
accept the trust, or failure to give bond, on the part of one or more of them,
letters testamentary may issue to such of them as are competent, accept and
give bond, and they may perform the duties and discharge the trust required
by the will (Sec. 5).
(6) If no executor is named in the will, or the executor or executors are
incompetent, refuse the trust, or fail to give bond, or a person dies intestate,
administration shall be granted:
(a) To the surviving husband or wife, as the case may be, or next of kin, or
both, in the discretion of the court, or to such person as such surviving
husband or wife, or next of kin, requests to have appointed, if competent
and willing to serve;
(b) If such surviving husband or wife, as the case may be, or next of kin, or
the person selected by them, be incompetent or unwilling, or if the husband
or widow, or next of kin, neglects for thirty (30) days after the death of the
person to apply for administration or to request that administration be
granted to some other person, it may be granted to one or more of the
principal creditors, if competent and willing to serve;

(a) Is a minor;
(b) Is not a resident of the Philippines; and
(c) Is in the opinion of the court unfit to execute the duties of the trust by
reason of drunkenness, improvidence, or want of understanding or integrity,
or by reason of conviction of an offense involving moral turpitude (Sec. 1).

(c) If there is no such creditor competent and willing to serve, it may be

granted to such other person as the court may select (Sec. 6).
Order of preference
(1) Priority in selecting an administrator

(a) Surviving spouse, or next of kin, or both, or person as such surviving

spouse, or next of kin, requests;
(b) One or more of the principal creditors if such surviving spouse, or
next of kin, or the person selected, be incompetent or unwilling, or if they
neglect for 30 days after the death of the decedent to apply for
administration or to request that administration be granted to some other
person, it may be granted to, if competent and willing to serve;
(c)

Such other person as the court may select.

Opposition to issuance of letters testamentary; simultaneous filing of

petition for administration
(1) Any person interested in a will may state in writing the grounds why
letters testamentary should not issue to the persons named therein executors,
or any of them, and the court, after hearing upon notice, shall pass upon the
sufficiency of such grounds. A petition may, at the same time, be filed for
letters of administration with the will annexed (Sec. 1, Rule 79).
Powers and duties of Executors and Administrators; restrictions on the
powers (Rule 84)
(1) An executor is the person nominated by a testator to carry out the
directions and requests in his will and to dispose of his property according
to his testamentary provisions after his death (21 Am. Jur. 369).
(2) An administrator is person appointed by the court, in accordance with
the governing statute, to administer and settle intestate estate and such
testate estate as no competent executor was designated by the testator.
(3) Executor or administrator to have access to partnership books and
property. How right enforced. The executor or administrator of the estate of
a deceased partner shall at all times have access to, and may examine and
take copies of, books and papers relating to the partnership business, and
may examine and make invoices of the property belonging to such
partnership; and the surviving partner or partners, on request, shall exhibit
to him all such books, papers, and property in their hands or control. On the
written application of such executor or administrator, the court having

jurisdiction of the estate may order any such surviving partner or partners to
freely permit the exercise of the rights, and to exhibit the books, papers, and
property, as in this section provided, and may punish any partner failing to
do so for contempt (Sec. 1, Rule 84).
(4) Executor or administrator to keep buildings in repair. An executor or
administrator shall maintain in tenantable repair the houses and other
structures and fences belonging to the estate, and deliver the same in such
repair to the heirs or devisees when directed so to do by the court (Sec. 2,
Rule 84).
(5) Executor or administrator to retain whole estate to pay debts, and to
administer estate not willed. An executor or administrator shall have the
right to the possession and management of the real as well as the personal
estate of the deceased so long as it is necessary for the payment of the debts
and the expenses of administration (Sec. 3, Rule 84).
(6) An administrator of an intestate cannot exercise the right of legal
redemption over a portion of the property owned in common sold by one of
the other co-owners since this is not within the powers of administration
(Caro vs. CA, 113 SCRA 10). Where the estate of a deceased person is
already the subject of a testate or intestate proceeding, the administrator
cannot enter into any transaction involving it without any prior approval of
the Court (Estate of Olave vs. Reyes, 123 SCRA 767). The right of an
executor or administrator to the possession and management of the real and
personal properties of the deceased is not absolute and can only be
exercised so long as it is necessary for the payment of the debts and
expenses of administration (Manaquil vs. Villegas, 189 SCRA 335).
Appointment of Special Administrator
(1)
When there is delay in granting letters testamentary or of
administration by any cause including an appeal from the allowance or
disallowance of a will, the court may appoint a special administrator to take
possession and charge of the estate of the deceased until the questions
causing the delay are decided and executors or administrators appointed
(Sec. 1, Rule 80).
Grounds for removal of administrator

(1) Administration revoked if will discovered. Proceedings thereupon. If

after letters of administration have been granted on the estate of a decedent
as if he had died intestate, his will is proved and allowed by the court, the
letters of administration shall be revoked and all powers thereunder cease,
and the administrator shall forthwith surrender the letters to the court, and
render his account within such time as the court directs. Proceedings for the
issuance of letters testamentary or of administration under the will shall be
as hereinbefore provided (Sec. 1, Rule 82).

(1) In the notice provided in the preceding section, the court shall state
the time for the filing of claims against the estate, which shall not be more
than twelve (12) nor less than six (6) months after the date of the first
publication of the notice. However, at any time before an order of
distribution is entered, on application of a creditor who has failed to file his
claim within the time previously limited, the court may, for cause shown
and on such terms as are equitable, allow such claim to be filed within a
time not exceeding one (1) month (Sec. 2).

(2) Court may remove or accept resignation of executor or administrator.

Proceedings upon death, resignation, or removal. If an executor or
administrator neglects to render his account and settle the estate according
to law, or to perform an order or judgment of the court, or a duty expressly
provided by these rules, or absconds, or becomes insane, or otherwise
incapable or unsuitable to discharge the trust, the court may remove him, or,
in its discretion, may permit him to resign. When an executor or
administrator dies, resigns, or is removed the remaining executor or
administrator may administer the trust alone, unless the court grants letters
to someone to act with him. If there is no remaining executor or
administrator, administration may be granted to any suitable person (Sec. 2,
Rule 82).

Statute of Non-claims

Claims Against the Estate (Rule 86)

(1) Administration is for the purpose of liquidation of the estate and
distribution of the residue among the heirs and legatees. Liquidation means
the determination of all the assets of the estate and payment of all debts and
expenses.
(2) The purpose of presentation of claims against decedents of the estate
in the probate court is to protect the estate of deceased persons. That way,
the executor or administrator will be able to examine each claim and
determine whether it is a proper one which should be allowed. Further, the
primary object of the provisions requiring presentation is to apprise the
administrator and the probate court of the existence of the claim so that a
proper and timely arrangement may be made for its payment in full or by
pro rata portion in the due course of the administration, inasmuch as upon
the death of a person, his entire estate is burdened with the payment of all
his debts and no creditor shall enjoy any preference or priority; all of them
shall share pro rata in the liquidation of the estate of the deceased.

(1) The rule requires certain creditors of a deceased person to present

their claims for examination and allowance within a specified period, the
purpose thereof being to settle the estate with dispatch, so that the residue
may be delivered to the persons entitled thereto without their being
afterwards called upon to respond in actions for claims, which, under the
ordinary statute of limitations, have not yet prescribed (Santos vs.
Manarang, 27 Phil. 213).
Claim of Executor or administrator against the Estate
(1) If the executor or administrator has a claim against the estate he
represents, he shall give notice thereof, in writing, to the court, and the court
shall appoint a special administrator, who shall, in the adjustment of such
claim, have the same power and be subject to the same liability as the
general administrator or executor in the settlement of other claims. The
court may order the executor or administrator to pay to the special
administrator necessary funds to defend such claim (Sec. 8).
Payment of Debts (Rule 88)
(1)

If there are sufficient properties, the debts shall be paid, thus:

(a) All debts shall be paid in full within the time limited for the purpose
(Sec. 1);
(b) If the testator makes provision by his will, or designates the estate to
be appropriated for the payment of debts they shall be paid according to the
provisions of the will, which must be respected (Sec. 2);

Time within which claims shall be filed; exceptions

(c) If the estate designated in the will is not sufficient, such part of the
estate as is not disposed of by will shall be appropriated for the purpose
(Sec. 2);

property of such deceased person in another country is likewise equally

apportioned to the creditors residing in the Philippines and other creditors,
according to their respective claims (Sec. 10);

(d) The personal estate not disposed of by will shall be first chargeable
with payment of debts and expenses (Sec. 3);

(f)
It must be noted that the payments of debts of the decedent shall be
made pursuant to the order of the probate court (Sec. 11).

(e) If the personal estate is not sufficient, or its sale would be detrimental
to the participants of the estate, the real estate not disposed of by will shall
be sold or encumbered for that purpose (Sec. 3);

(3) Time for paying debts and legacies fixed, or extended after notice,
within what periods. On granting letters testamentary or administration the
court shall allow to the executor or administrator a time for disposing of the
estate and paying the debts and legacies of the deceased, which shall not, in
the first instance, exceed one (1) year; but the court may, on application of
the executor or administrator and after hearing on such notice of the time
and place therefor given to all persons interested as it shall direct, extend
the time as the circumstances of the estate require not exceeding six (6)
months for a single extension nor so that the whole period allowed to the
original executor or administrator shall exceed two (2) years (Sec. 15).

(f)
Any deficiency shall be met by contributions from devisees, legatees
and heirs who have entered into possession of portions of the estate before
debts and expenses have been paid (Sec. 6);
(g) The executor or administrator shall retain sufficient estate to pay
contingent claims when the same becomes absolute (Sec. 4).
(2) If the estate is insolvent, the debts shall be paid in the following
manner:
(a) The executor or administrator shall pay the debts in accordance with
the preference of credits established by the Civil Code (Sec. 7);
(b) No creditor of any one class shall receive any payment until those of
the preceding class are paid (Sec. 8);
(c) If there are no assets sufficient to pay the credits of any one class of
creditors, each creditor within such class shall be paid a dividend in
proportion to his claim (Sec. 8);
(d) Where the deceased was a nonresident, his estate in the Philippines
shall be disposed of in such a way that creditors in the Philippines and
elsewhere may receive an equal share in proportion to their respective
credits (Sec. 9);
(e) Claims duly proved against the estate of an insolvent resident of the
Philippines, the executor or administrator, having had the opportunity to
contest such claims, shall e included in the certified list of claims proved
against the deceased. The owner of such claims shall be entitled to a just
distribution of the estate in accordance with the preceding rules if the

(4)

Applicable provisions under the Civil Code:

Art. 2241. With reference to specific movable property of the debtor, the
following claims or liens shall be preferred:
(1) Duties, taxes and fees due thereon to the State or any subdivision
thereof;
(2) Claims arising from misappropriation, breach of trust, or malfeasance by
public officials committed in the performance of their duties, on the
movables, money or securities obtained by them;
(3) Claims for the unpaid price of movables sold, on said movables, so long
as they are in the possession of the debtor, up to the value of the same; and
if the movable has been resold by the debtor and the price is still unpaid, the
lien may be enforced on the price; this right is not lost by the
immobilization of the thing by destination, provided it has not lost its form,
substance and identity; neither is the right lost by the sale of the thing
together with other property for a lump sum, when the price thereof can be
determined proportionally;

(4) Credits guaranteed with a pledge so long as the things pledged are in the
hands of the creditor, or those guaranteed by a chattel mortgage, upon the
things pledged or mortgaged, up to the value thereof;

(1) Taxes due upon the land or building;

(5) Credits for the making, repair, safekeeping or preservation of personal

property, on the movable thus made, repaired, kept or possessed;

(3) Claims of laborers, masons, mechanics and other workmen, as well as of

architects, engineers and contractors, engaged in the construction,
reconstruction or repair of buildings, canals or other works, upon said
buildings, canals or other works;

(6) Claims for laborers wages, on the goods manufactured or the work
done;
(7) For expenses of salvage, upon the goods salvaged;
(8) Credits between the landlord and the tenant, arising from the contract of
tenancy on shares, on the share of each in the fruits or harvest;
(9) Credits for transportation, upon the goods carried, for the price of the
contract and incidental expenses, until their delivery and for thirty days
thereafter;
(10) Credits for lodging and supplies usually furnished to travellers by hotel
keepers, on the movables belonging to the guest as long as such movables
are in the hotel, but not for money loaned to the guests;
(11) Credits for seeds and expenses for cultivation and harvest advanced to
the debtor, upon the fruits harvested;

(2) For the unpaid price of real property sold, upon the immovable sold;

(4) Claims of furnishers of materials used in the construction,

reconstruction, or repair of buildings, canals or other works, upon said
buildings, canals or other works;
(5) Mortgage credits recorded in the Registry of Property, upon the real
estate mortgaged;
(6) Expenses for the preservation or improvement of real property when the
law authorizes reimbursement, upon the immovable preserved or
improved;
(7) Credits annotated in the Registry of Property, in virtue of a judicial
order, by attachments or executions, upon the property affected, and only as
to later credits;
(8) Claims of co-heirs for warranty in the partition of an immovable among
them, upon the real property thus divided;

(12) Credits for rent for one year, upon the personal property of the lessee
existing on the immovable leased and on the fruits of the same, but not on
money or instruments of credit;

(9) Claims of donors or real property for pecuniary charges or other

conditions imposed upon the donee, upon the immovable donated;

(13) Claims in favor of the depositor if the depositary has wrongfully sold
the thing deposited, upon the price of the sale.

(10) Credits of insurers, upon the property insured, for the insurance
premium for two years.

In the foregoing cases, if the movables to which the lien or preference

attaches have been wrongfully taken, the creditor may demand them from
any possessor, within thirty days from the unlawful seizure.

Art. 2243. The claims or credits enumerated in the two preceding articles
shall be considered as mortgages or pledges of real or personal property, or
liens within the purview of legal provisions governing insolvency. Taxes
mentioned in No. 1, article 2241, and No. 1, article 2242, shall first be
satisfied.

Art. 2242. With reference to specific immovable property and real rights of
the debtor, the following claims, mortgages and liens shall be preferred, and
shall constitute an encumbrance on the immovable or real right:

10

Art. 2244. With reference to other property, real and personal, of the debtor,
the following claims or credits shall be preferred in the order named:

(12) Damages for death or personal injuries caused by a quasi-delict;

(13) Gifts due to public and private institutions of charity or beneficence;

(1) Proper funeral expenses for the debtor, or children under his or her
parental authority who have no property of their own, when approved by the
court;
(2) Credits for services rendered the insolvent by employees, laborers, or
household helpers for one year preceding the commencement of the
proceedings in insolvency;
(3) Expenses during the last illness of the debtor or of his or her spouse and
children under his or her parental authority, if they have no property of their
own;
(4) Compensation due the laborers or their dependents under laws providing
for indemnity for damages in cases of labor accident, or illness resulting
from the nature of the employment;
(5) Credits and advancements made to the debtor for support of himself or
herself, and family, during the last year preceding the insolvency;
(6) Support during the insolvency proceedings, and for three months
thereafter;
(7) Fines and civil indemnification arising from a criminal offense;
(8) Legal expenses, and expenses incurred in the administration of the
insolvents estate for the common interest of the creditors, when properly
authorized and approved by the court;
(9) Taxes and assessments due the national government, other than those
mentioned in articles 2241, No. 1, and 2242, No. 1;
(10) Taxes and assessments due any province, other than those referred to in
articles 2241, No. 1, and 2242, No. 1;

(14) Credits which, without special privilege, appear in (a) a public

instrument; or (b) in a final judgment, if they have been the subject of
litigation. These credits shall have preference among themselves in the
order of priority of the dates of the instruments and of the judgments,
respectively.
Art. 2245. Credits of any other kind or class, or by any other right or title
not comprised in the four preceding articles, shall enjoy no preference.
CHAPTER 3
ORDER OF PREFERENCE OF CREDITS
Art. 2246. Those credits which enjoy preference with respect to specific
movables, exclude all others to the extent of the value of the personal
property to which the preference refers.
Art. 2247. If there are two or more credits with respect to the same specific
movable property, they shall be satisfied pro rata, after the payment of
duties, taxes and fees due the State or any subdivision thereof.
Art. 2248. Those credits which enjoy preference in relation to specific real
property or real rights, exclude all others to the extent of the value of the
immovable or real right to which the preference refers.
Art. 2249. If there are two or more credits with respect to the same specific
real property or real rights, they shall be satisfied pro rata, after the payment
of the taxes and assessments upon the immovable property or real right.
Art. 2250. The excess, if any, after the payment of the credits which enjoy
preference with respect to specific property, real or personal, shall be added
to the free property which the debtor may have, for the payment of the other
credits.

(11) Taxes and assessments due any city or municipality, other than those
indicated in articles 2241, No. 1, and 2242, No. 1;

11

Art. 2251. Those credits which do not enjoy any preference with respect to
specific property, and those which enjoy preference, as to the amount not
paid, shall be satisfied according to the following rules:
(1) In the order established in article 2244;
(2) Common credits referred to in article 2245 shall be paid pro rata
regardless of dates.
Actions by and against Executors and Administrators (Rule 87)
(1) No action upon a claim for the recovery of money or debts or interest
thereon shall be commenced against the executor or administrator (Sec. 1).
Actions that may be brought against executors and administrators
(1) An action to recover real or personal property, or an interest therein,
from the estate, or to enforce a lien thereon, and actions to recover damages
for an injury to person or property, real or personal, may be commenced
against the executor or administrator (Sec. 1).
(2) Whenever a party to a pending action dies, and the claim is not
thereby extinguished, it shall be the duty of his counsel to inform the court
within thirty (30) days after such death of the fact thereof, and to give the
name and address of his legal representative or representatives. Failure of
counsel to comply with this duty shall be a ground for disciplinary action.
The heirs of the deceased may be allowed to be substituted for the deceased,
without requiring the appointment of an executor or administrator and the
court may appoint a guardian ad litem for the minor heirs.
The court shall forthwith order said legal representative or
representatives to appear and be substituted within a period of thirty (30)
days from notice. If no legal representative is named by the counsel for the
deceased party, or if the one so named shall fail to appear within the
specified period, the court may order the opposing party, within a specified
time, to procure the appointment of an executor or administrator for the
estate of the deceased and the latter shall immediately appear for and on
behalf of the deceased. The court charges in procuring such appointment, if
defrayed by the opposing party, may be recovered as costs (Sec. 16, Rule 3).

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

Requisites before creditor may bring an action for recovery of property

fraudulently conveyed by the deceased
(1) For the creditor to file and action to recover property fraudulently
conveyed by the deceased, the following requisites must be present:
(a)
There is a deficiency of assets in the hands of an executor or
administrator for the payment of debts and expenses of administration;
(b)
The deceased in his lifetime had made or attempted to make a
fraudulent conveyance of his real or personal property, or a right or interest
therein, or a debt or credit, with intent to defraud his creditors or to avoid
any right, debt or duty; or had so conveyed such property, right, debt, or
credit that by law the conveyance would be void as against his creditors;
(c)
The subject of the attempted conveyance would be liable to
attachment by any of them in his lifetime;
(d) The executor or administrator has shown to have no desire to file the
action or failed to institute the same within a reasonable time;
(e)

Leave is granted by the court to the creditor to file the action;

(f)

A bond is filed by the creditor as prescribed in the Rules;

(g)
The action by the creditor is in the name of the executor or
administrator (Sec. 10).
Distribution and Partition (Rule 90)

12

(1) Before there could be a distribution of the estate, the following two
stages must be followed:
(a) Payment of obligations (liquidation of estate) under the Rules, the
distribution of a decedents assets may only be ordered under any of the
following three circumstances: (1) when the inheritance tax, among other is
paid; (2) when a sufficient bond is given to meet the payment of the
inheritance tax and all other obligations; and (3) when the payment of the
said tax and all other obligations has been provided for; and
(b)
Declaration of heirs there must first be declaration of heirs to
determine to whom the residue of the estate should e distributed. A separate
action for the declaration of heirs is not proper. And likewise after, not
before the declaration of heirs is made may the residue be distributed and
delivered to the heirs.
(2) The settlement of a decedents estate is a proceeding in rem which is
binding against the whole world. All persons having interest in the subject
matter involved, whether they were notified or not, are equally bound.
Liquidation
Sec. 1. When order for distribution of residue made. When the debts,
funeral charges, and expenses of administration, the allowance to the
widow, and inheritance tax, if any, chargeable to the estate in accordance
with law, have been paid, the court, on the application of the executor or
administrator, or of a person interested in the estate, and after hearing upon
notice, shall assign the residue of the estate to the persons entitled to the
same, naming them and the proportions, or parts, to which each is entitled,
and such person may demand and recover their respective shares from the
executor or administrator, or any other person having the same in his
possession. If there is a controversy before the court as to who are the
lawful heirs of the deceased person or as to the distributive shares to which
each person is entitled under the law, the controversy shall be heard and
decided as in ordinary cases.
No distribution shall be allowed until the payment of the obligations
above mentioned has been made or provided for, unless the distributees, or
any of them, give a bond, in a sum to be fixed by the court, conditioned for
the payment of said obligations within such time as the court directs.

Sec. 2. Questions as to advancement to be determined. Questions as to

advancement made, or alleged to have been made, by the deceased to any
heir may be heard and determined by the court having jurisdiction of the
estate proceedings; and the final order of the court thereon shall be binding
on the person raising the questions and on the heir.
Sec. 3. By whom expenses of partition paid. If at the time of the distribution
the executor or administrator has retained sufficient effects in his hands
which may lawfully be applied for the expenses of partition of the
properties distributed, such expenses of partition may be paid by such
executor or administrator when it appears equitable to the court and not
inconsistent with the intention of the testator; otherwise, they shall be paid
by the parties in proportion to their respective shares or interest in the
premises, and the apportionment shall be settled and allowed by the court,
and, if any person interested in the partition does not pay his proportion or
share, the court may issue an execution in the name of the executor or
administrator against the party not paying for the sum assessed.
Project of Partition
(1)
Project of partition is a document prepared by the executor or
administrator setting forth the manner in which the estate of the deceased is
to be distributed among the heirs. If the estate is a testate estate, the project
of partition must conform to the terms of the will; if intestate, the project of
partition must be in accordance with the provisions of the Civil Code
(Camia de Reyes vs. Reyes de Ilano, 63 Phil. 629).
Remedy of an heir entitled to residue but not given his share
(1) If there is a controversy before the court as to who are the lawful heirs
of the deceased person or as to the distributive shares to which each person
is entitled under the law, the controversy shall be heard and decided as in
ordinary cases (Sec. 1).
(2) The better practice for the heir who has not received his share is to
demand his share through a proper motion in the same probate or
administration proceedings, or for reopening of the probate or
administrative proceedings if it had already been closed, and not through an
independent action, which would be tried by another court or judge (Ramos
vs. Octuzar, 89 Phil. 730).

13

(3) It has been held that an order which determines the distributive share
of the heirs of a deceased person is appealable. If not appealed within the
reglementary period, it becomes final (Imperial vs. Muoz, 58 SCRA).
(4) The Court allowed the continuation of a separate action to annul the
project of partition by a preterited heir, since the estate proceedings have
been closed and terminated for over three years (Guilas vs. Judge of the
CFI of Pampanga, 43 SCRA 117), and on the ground of lesion, preterition
and fraud (Solivio vs. CA, 99 Phil. 1069).

cancelled by the court at any time, and the trustee required to forthwith file
a bond (Sec. 5). If the trustee fails to furnish a bond as required by the court,
he fails to qualify as such. Nonetheless the trust is not defeated by such a
failure to give bond.
(2) The following conditions shall be deemed to be a part of the bond
whether written therein or not:
(a) That the trustee will make and return to the court, at such time as it
may order, a true inventory of all the real and personal estate belonging to
him as trustee, which at the time of the making of such inventory shall have
come to his possession or knowledge;

Instances when probate court may issue writ of execution

(1)
The only instances when the probate court may issue a writ of
execution are as follows:
(a) To satisfy the contributive shares of devisees, legatees and heirs in
possession of the decedents assets (Sec. 6, Rule 88);
(b)

To enforce payment of expenses of partition (Sec. 3, Rule 90); and

(c) To satisfy the costs when a person is cited for examination in probate
proceedings (Sec. 13, Rule 132).
1.

II.

GENERAL GUARDIANS AND GUARDIANSHIP

(b) That he will manage and dispose of all such estate, and faithfully
discharge his trust in relation thereto, according to law and the will of the
testator or the provisions of the instrument or order under which he is
appointed;
(c) That he will render upon oath at least once a year until his trust is
fulfilled, unless he is excused therefrom in any year by the court, a true
account of the property in his hands and of the management and disposition
thereof, and will render such other accounts as the court may order;
(d) That at the expiration of his trust he will settle his accounts in court and
pay over and deliver all the estate remaining in his hands, or due from him
on such settlement, to the person or persons entitled thereto.

Distinguished from executor/administrator

But when the trustee is appointed as a successor to a prior trustee, the

court may dispense with the making and return of an inventory, if one has
already been filed, and in such case the condition of the bond shall be
deemed to be altered accordingly (Sec. 6).

Conditions of the Bond

Requisites for the removal and resignation of a trustee

(1) A trustee appointed by the court is required to furnish a bond and the
terms of the trust or a statute may provide that a trustee appointed by a court
shall be required to furnish a bond in order to qualify him to administer the
trust (54 Am. Jur. 425). However, the court may until further order exempt a
trustee under a will from giving a bond when the testator has directed or
requested such exemption or when all persons beneficially interested in the
trust, being of full age, request the exemption. Such exemption may be

(1) A trustee may be removed upon petition to the proper RTC of the
parties beneficially interested, after due notice to the trustee and hearing, if
it appears essential in the interests of the petitioners. The court may also,
after due notice to all persons interested, remove a trustee who is insane or
otherwise incapable of discharging his trust or evidently unsuitable therefor.
A trustee, whether appointed by the court or under a written instrument,

Trustees (Rule 98)

14

may resign his trust if it appears to the court proper to allow such
resignation (Sec. 8).
(2) A trustee whose acts or omissions are such as to show a want of
reasonable fidelity will be removed by the court and where trust funds are to
be invested by the trustee, neglect to invest constitutes of itself a breach of
trust, and is a ground for removal (Gisborn vs. CAvende, 114 US 464).
Grounds for removal and resignation of a trustee
(1) The proper Regional Trial Court may, upon petition of the parties
beneficially interested and after due notice to the trustee and hearing,
remove a trustee if such removal appears essential in the interests of the
petitioners. The court may also, after due notice to all persons interested,
remove a trustee who is insane or otherwise incapable of discharging his
trust or evidently unsuitable therefor. A trustee, whether appointed by the
court or under a written instrument, may resign his trust if it appears to the
court proper to allow such resignation (Sec. 8).
(2) A trustee whose acts or omissions are such as to show a want of
reasonable fidelity will be removed by the court and where trust funds are to
be invested by the trustee, neglect to invest constitutes of itself a breach of
trust, and is a ground for removal (Gisborn vs. CAvende, 114 US 464).

Extent of authority of trustee

(1) A trustee appointed by the RTC shall have the same rights, powers,
and duties as if he had been appointed by the testator. No person succeeding
to a trust as executor or administrator of a former trustee shall be required
to accept such trust (Sec. 2).
(2) Such new trustee shall have and exercise the same powers, rights, and
duties as if he had been originally appointed, and the trust estate shall vest
in him in like manner as it had vested or would have vested, in the trustee in
whose place he is substituted; and the court may order such conveyance to
be made by the former trustee or his representatives, or by the other
remaining trustees, as may be necessary or proper to vest the trust estate in
the new trustee, either alone or jointly with the others (Sec. 3).

Escheat (Rule 91)

(1) Escheat is a proceeding whereby the real and personal property of a
deceased person in the Philippines, become the property of the state upon
his death, without leaving any will or legal heirs (21 CJS, Sec. 1, p. 848).
When to file
(1) When a person dies intestate, seized of real or personal property in the
Philippines, leaving no heir or person by law entitled to the same, the
Solicitor General or his representative in behalf of the Republic of the
Philippines, may file a petition in the Court of First Instance of the province
where the deceased last resided or in which he had estate, if he resided out
of the Philippines, setting forth the facts, and praying that the estate of the
deceased be declared escheated (Sec. 1).
Requisites for filing of petition
(1) In order that a proceeding for escheat may prosper, the following
requisites must be present:
(a)

That a person died intestate;

(b)

That he left no heirs or person by law entitled to the same; and

(c) That the deceased left properties (City of Manila vs. Archbishop of
Manila, 36 Phil. 815).
Remedy of respondent against petition; period for filing a claim
(1) When a petition for escheat does not state facts which entitle the
petitioner to the remedy prayed for, and even admitting them hypothetically,
it is clear that there is no ground for the court to proceed to the inquisition
provided by law, an interested party should not be disallowed from filing a
motion to dismiss the petition which is untenable from all standpoints. And
when the motion to dismiss is entertained upon this ground, the petition
may be dismissed unconditionally and the petitioner is not entitled to be
afforded an opportunity to amend his petition (Go Poco Grocery vs. Pacific
Biscuit Co., 65 Phil. 443).

15

(2) While the Rules do not in fact authorize the filing of a motion to
dismiss the petition presented for that purpose, and the Rules permitting the
interposition of a motion to dismiss to the complaint and answer,
respectively, are not applicable to special proceedings, nevertheless, there is
no reason of a procedural nature which prevents the filing of a motion to
dismiss based upon any of the grounds provided for by law for a motion to
dismiss the complaint. In such a case, the motion to dismiss plays the role
of a demurrer and the court should resolve the legal questions raised therein
(Municipal Council of San Pedro, Laugna vs. Colegio de San Jose, 65 Phil.
318).

Guardianship (Rules 92 97)

(1) Guardianship is the power of protective authority given by law and
imposed on an individual who is free and in the enjoyment of his rights,
over one whose weakness on account of his age or other infirmity renders
him unable to protect himself (Cyclopedic Law Dictionary, 908).
Guardianship may also describe the relation subsisting between the
guardian and the ward. It involves the taking of possession of an
management of, the estate of another unable to act for himself.
(2) A guardian is a person lawfully invested with power and charged with
the duty of taking care of a person who for some peculiarity or status or
defect of age, understanding or self-control is considered incapable of
administering his own affairs (Blacks Law Dictionary, Fifth Editoin).
(3)

Kinds of guardians:

(a)

According to scope or exent

a)
Guardian of the person one who has been lawfully invested with the
care of the person of minor whose father is dead. His authority is derived
out of that of the parent;
b)
Guardian of the property that appointed by the court to have the
management of the estate of a minor or incompetent person;

c)
General guardians those appointed by the court to have the care and
custody of the person and of all the property of the ward.
(b)

According to constitution

1)
Legal those deemed as guardians without need of a court
appointment (Art. 225, Family Court);
2)
Guardian ad litem those appointed by courts of justice to prosecute
or defend a minor, insane or person declared to be incompetent, in an action
in court; and
3)
Judicial those who are appointed by the court in pursuance to law,
as guardian for insane persons, prodigals, minor heirs or deceased was
veterans and other incompetent persons.
(4) Under the Family Courts Act of 1997 (RA 8369), the Family Courts
are vested with exclusive original jurisdiction over the following cases:
(a) Criminal case where one or more of the accused is below 18 years of
age but less than 9 years of age, or where one or more of the victims is a
minor at the time of the commission of the offense;
(b)
Petitions for guardianship, custody of children, habeas corpus in
relation to the latter;
(c)

Petitions for adoption of children and the revocation thereof;

(d)
Complaints for annulment of marriage, declaration of nullity of
marriage and those relating to marital status and property relations of
husband and wife or those living together under different status and
agreements, and petitions for dissolution of conjugal partnership of gains;
(e)

Actions for support and acknowledgment;

(f)
Summary judicial proceedings brought under the provisions of EO
209, the Family Code;
(g) Petitions for declaration of status of children as abandoned, dependent
or neglected children, petitions for voluntary or involuntary commitment of

16

children; the suspension, termination, or restoration of parental authority

and other cases cognizable under PD 603, EO 56 (s. 1986), and other
related laws;
(h)

Petitions for the constitution of family home;

(i)
Cases against minors cognizable under the Dangerous Drugs Act, as
amended;
(j)
Violations of RA 7610, the Anti-Child Abuse Law, as amended by
RA 7658;
(k)

(a) To file with the court complete inventory of the estate of the ward
within 3 months;
(b) To faithfully execute the duties of his trust to manage and dispose of
the estate according to the Rules for the best interests of the ward, and to
provide for the proper use, custody, and education of the ward;
(c) To render a true account of all the estate, and of the management and
disposition of the same;
(d) To settle his accounts with the court and deliver over all the estate
remaining in his hands to the person entitled thereto;

Cases of domestic violence against women and children;

General powers and duties of guardians (Rule 96)

(e) To perform all orders of the court by him to be performed (Sec. 1;

Sec. 14, AM 03-02-05-SC).

(1)

Rule on Guardianship over Minors (AM 03-02-05-SC)

The powers and duties of a guardian are:

(a) To have care and custody over the person of his ward, and/or the
management of his estate (Sec. 1);
(b)

To pay the just debts of his ward out of the latters estate (Sec. 2);

(c) To bring or defend suits in behalf of the ward, and, with the approval
of the court, compound for debts due the ward and give discharges to the
debtor (Sec. 3);
(d)
To manage the estate frugally and without waste, and apply the
income and profits to the comfortable and suitable maintenance of the ward
and his family (Sec. 4);
(e) To sell or encumber the real estate of the ward upon being authorized
to do so (Sec. 4);
(f) To join in an assent to a partition of real or personal estate held by the
ward jointly or in common with others (Sec. 5).

(1) The father and mother shall jointly exercise legal guardianship over
the person and property of their unemancipated common child without the
necessity of a court appointment. The Rule shall be suppletory to the
provisions of the Family Code on guardianship (Sec. 1).
(2) On grounds authorized by law, any relative or other person on behalf
of a minor, or the minor himself if 14 years of age or over, may petition the
Family Court for the appointment of a general guardian over the person or
property, or both, of such minor. The petition may also be filed by the
Secretary of DSWD and of the DOH in the case of an insane minor who
needs to be hospitalized (Sec. 1).
(3)

Grounds of petition (Sec. 4):

(a)

Death, continued absence, or incapacity of his parents;

(b)

Suspension, deprivation or termination of parental authority;

Conditions of the bond of the guardian

(c) Remarriage of his surviving parent, if the latter is found unsuitable to

exercise parental authority; or

(1)

(d)

Under Sec. 1, Rule 94, the conditions for the bond of a guardian are:

When the best interest of the minor so require.

17

(4)

Qualifications of guardians (Sec. 4);

(a)

Moral character;

(b) The desire and ability of one parent to foster an open and loving
relationship between the minor and the other parent;
(c)

(b)

Physical, mental and psychological condition;

(c)

Financial status;

(d)

Relationship of trust with the minor;

The health, safety and welfare of the minor;

(d) Any history of child or spousal abuse by the person seeking custody
or who has had any filial relationship with the minor, including anyone
courting the parent;
(e)

The nature and frequency of contact with both parents;

(e) Availability to exercise the powers and duties of a guardian for the full
period of the guardianship;

(f)

Habitual use of alcohol, dangerous drugs or regulated substances;

(f)

Lack of conflict of interest with the minor; and

(g)

Marital misconduct;

(g)

Ability to manage the property of the minor.

(h) The most suitable physical, emotional, spiritual, psychological and

educational environment for the holistic development and growth of the
minor; and

(5) Order of preference in the appointment of guardian or the person

and/or property of minor (Sec. 6):
(a) The surviving grandparent and in case several grandparents survive,
the court shall select any of them taking into account all relevant
considerations;
(b) The oldest brother or sister of the minor over 21 years of age, unless
unfit or disqualified;
(c) The actual custodian of the minor over 21 years of age, unless unfit or
disqualified; and
(d) Any other person, who in the sound discretion of the court, would
serve the best interests of the minor.
(6)

Factors to consider in determining custody:

(a)
Any extrajudicial agreement which the parties may have bound
themselves to comply with respecting the rights of the minor to maintain
direct contact with the non-custodial parent on a regular basis, except when
there is an existing threat or danger of physical, mental, sexual or emotional
violence which endangers the safety and best interests of the minor;

(i)
The preference of the minor over 7 years of age and of sufficient
discernment, unless the parent chosen is unfit (Sec. 14, AM No. 03-04-04SC).
(7) The court shall order a social worker to conduct a case study of the
minor and all the prospective guardians and submit his report and
recommendation to the court for its guidance before the scheduled hearing.
Adoption (Rules 99-100, superseded by AM 02-6-02-SC)
(1) Adoption is a juridical act which creates between two persons a
relationship similar to that which results from legitimate paternity (Prasnick
vs. Republic, 98 Phil. 669).
(2)
Adoption is a juridical act, a proceeding in rem, which creates
between the two persons a relationship similar to that which results from
legitimate paternity and filiation.
(3) Adoption is not an adversarial proceeding. An adversarial proceeding
is one having opposing parties, contested, as distinguished from an ex parte
application, one of which the party seeking relief has given legal warning to

18

the other party and afforded the latter an opportunity to contest it excludes
an adoption proceeding. In adoption, there is no particular defendant to
speak of since the proceeding involves the status of a person it being an
action in rem.

c)
Person of legal age if, prior to the adoption said
person has been consistently considered and treated by the
adopter/s as his/her own child since minority.

Who may adopt

Who may ado

Distinguish domestic adoption from inter-country adoption

1.
Domestic Adoption
Governed by RA 8552, the Domestic Adoption Act of
1998; procedure governed by AM No. 02-06-02-SC, Aug.
22, 2002.
Applies to domestic adoption of Filipino children, where
the entire adoption process beginning from the filing of the
petition up to the issuance of the adoption decree takes
place in the Philippines.
Who may be adopted
A child legally available for adoption. Requisites:
a)

Below 18 years of age; and

b)

Judicially declared available for adoption.

Exceptions:
a)
Legitimate son/daughter of one spouse by the other
spouse;
b)

Illegitimate son/daughter by a qualified adopter;

Filipino Citizens

1)
Of
legal age;
Inter-Country
Adoption
2)
In possession of full civil capacity and legal rights;
Governed by RA 8043, the Inter-Country Adoption Act of
1995; procedure governed by the Amended Implementing
Rules and Regulations on3)
ICAA.Of good moral character;
Applies to adoption of a Filipino child in a foreign country,
4)
notthe
been
convictedtrial
of any crime involving
where the petition for adoption
isHas
filed,
supervised
moral
turpitude;
custody is undertaken and the decree of adoption is issued
outside of the Philippines.
5)
Emotionally and psychologically capable of caring
for children;
Who may be adopted

1.
1)

Filipino Citizens

Permanent resident of a fore

2)
Has the capacity to act and a
responsibilities of parental authorit

3)
Has undergone the appropria
accredited counselor in country of
4)
Has not been convicted of a
turpitude;

5)
Eligible to adopt under Phili
6)
In a position to support and care for his/her children
Only a legally free child may
be adopted.
Requisites:
in keeping
with the
means of the family;
6)
In a position to provide the p
and to give the necessary moral val
his children, including the child to
a) Below 15 years of age;7)and At least 16 years older than the adoptee but this
latter requirement may be waived if (a) the adopter is the
biological
parentcommitted
of the adoptee;
Agrees to uphold the basic ri
b) Has been voluntarily or
involuntarily
to theor (b) the adopter is the 7)
of the adoptees parent; and
embodied under Philippine laws, th
DSWD in accordance withspouse
PD 603.
Rights of the Child, and to abide by
regulations issued to implement the
8)
Permanent resident of the Philippines.
ICAA;
1.

Aliens

1)

Same qualifications as above, and in addition:

2)

His/her country has diplomatic relations with the

8)
Residing in a country with w
diplomatic relations and whose gov
similarly authorized and accredited
adoption is allowed in that country

19

Republic of the Philippines;

3)
His/her government allows the adoptee to enter
his/her country as his/her adopted son/daughter;
4)
Has been living in the Philippines for at least 3
continuous years prior to the filing of the application for
adoption and maintains such residence until the adoption
decree is entered; and

9)
Possesses all the qualifications and none of the
disqualifications provided in the ICAA and in other
applicable Philippine laws;
10) At least 27 years of age at the time of the application;
and

11) At least 16 years older than the child to be adopted at

the time of application, unless (a) adopted is the parent by
nature of the child to be adopted; or (b) adopter is the
5)
Has been certified by his/her diplomatic or consular spouse of the parent by nature of the child to be adopted.
office or any appropriate government agency that he/she
has the legal capacity to adopt in his/her country. This
1. Aliens
requirement may be waived if (a) a former Filipino citizens
seeks to adopt a relative within the 4th degree of
1)
At least 27 years of age at the time of the
consanguinity or affinity; (b) one seeks to adopt the
application;
Requirement of Joint Adoption by Spouses
legitimate son/daughter of his/her Filipino spouse; (c) one
who is married to a Filipino citizen and seeks to adopt a
2)
At least 16 years older than the child to be adopted
General rule: husband and wife shall jointly adopt;
relative within the 4th degree of consanguinity or affinity of at the time of application unless
the adopter is the parent
otherwise, the adoption shall not be allowed.Exceptions:
the Filipino spouse.
by nature of the child to be adopted or the spouse of such
parent;
1)
If one spouse seeks to adopt the legitimate
son/daughter of the other;
3)
Has the capacity to act and assume all rights and
responsibilities of parental authority under his national
2)
If one spouse seeks to adopt his/her own illegitimate
laws;
son/daughter but the other spouse must give his/her
consent;
4)
Has undergone the appropriate counseling from an
accredited counselor in his/her country;
3)
If the spouses are legally separated from each other.

embodied under Philippine laws, th

the Rights of the Child, and to abid
regulations issued to implement the
ICAA;

9)
Comes from a country with w
has diplomatic relations and whose
a similarly authorized and accredite
adoption is allowed under his/her n

10) Possesses all the qualification

disqualifications provided in the IC
applicable Philippine laws.

Requirement of Joint Adop

Rule: if the adopter is married, his/

file for the adoption.

5)
Has not been convicted of a crime involving moral
turpitude;
Procedure
6)
Eligible to adopt under his/her national law;

Procedure

Where to file application: In the Family Court of the

Where to file application: Either in
7)
In a position to provide
the proper
andthe
support
province
or citycare
where
prospective parents reside. After having jurisdiction over the place w
and to give the necessary filing:
moral values
and example
allset for hearing without a
The petition
shall nottobe
or may be found, or (b) Inter-Coun
his children, including thecase
childstudy
to bereport
adopted;
by a licensed social worker.
(ICAB) through an intermediate ag
governmental or an authorized and
8)
Agrees to uphold the basic rights of the child as
the country of the prospective adop

20

Supervised Trial Custody:

a)
Temporary parental authority is vested in
prospective adopter;
b)
Period is at least 6 months, but may be reduced by
the court motu propio or upon motion;
c)
If adopter is alien, the law mandatorily requires
completion of the 6-month trial custody and may not be
reduced, except if: (1) a former Filipino citizen seeks to
adopt a relative within 4th degree of consanguinity or
affinity; (2) one seeks to adopt the legitimate son/daughter
of his/her Filipino spouse; (3) one who is married to a
Filipino citizen and seeks to adopt jointly with his/her
spouse a relative within the 4th degree of consanguinity or
affinity of the Filipino spouse.

filing: (a) if filed in the FC, court determines sufficiency of

petition in respect to form and substance, after which,
petition is transmitted to ICAB; (b) if petition is already
with ICAB, it conducts matching of the applicant with an
adoptive child; (c) after matchmaking, the child is
personally fetched by the applicant for the trial custody
which takes place outside of the Philippines.
Domestic Adoption Act (RA 8552; AM 02-06-02-SC)
Effects of adoption
Supervised Trial Custody
(1) Transfer of parental authority except in cases where the biological
parentoutside
is the of
spouse
of the and
adopter, the parental authority of the biological
a)
This process takes place
the country
parents
shall
terminate
and the same shall be vested in the adopters (Sec.
under the supervision of the
foreign
adoption
agency;
16).
b)
For a period of 6 months;
(2)
Legitimacy the adoptee shall be considered the legitimate
son/daughter
adopter(s) for all intents and purposes and as such is
c)
If unsuccessful, ICAB shall look of
for the
another
entitled
to
all
the
rights
and obligations provided by law to legitimate
prospective applicant. Repatriation of the child is to be
sons/daughters
born
to
them
without discrimination of any kind (Sec. 17).
resorted only as a last resort;

Successional
d)
If successful, ICAB(3)
transmits
a writtenrights
consent for
the adoption to be executed by the DSWD, and the
(a) forInadoption
legal and
in intestate
his/her succession, the adopter(s) and the adoptee shall
Decree of Adoption: Issued by Philippine Family Court. applicant then files a petition
have
reciprocal
rights
of succession without distinction from legitimate
country.
filiation (Sec. 18);
Consent Required: Written consent of the following to the
adoption is required, in the form of affidavit: (1) adoptee, Decree of Adoption: Issued by a foreign court.
(b) However, if the adoptee and his/her biological parent(s) had left a
if 10 years of age or over; (2) biological parent/s of the
will, the law on testamentary succession shall govern (Sec. 18);
child, if known, or the legal guardian, or the proper
Consent Required:
government instrumentality which has legal custody of the
(c) Art.
18(3) of children
the Family
Code and Sec. 18, Art V of RA 8552 provide
child; (3) legitimate and adopted sons or daughters, 10
(1) Written consent of biological
or adopted
above
thatof the
adoptee
remains
an
years of age or over, of the adopter/s and adoptee, if any; 10 years of age, in the form
sworn statement is requiredintestate heir of his/her biological parent
(ObitertoDictum
In rethe
In FC
the or
Matter of Adoption of Stephanie Naty Astorga
(4) illegitimate sons/daughters, 10 years of age of over, of to be attached to the application
be filedinwith
Garcia, 454 SCRA 541).
the adopter if living with said adopter and the latters
ICAB;
spouse, if any; (5) spouse, if any, of the person adopting or
to be adopted.
(4) Issuance
of new
certificate and first name and surname of adoptee
(2) If a satisfactory pre-adoptive
relationship
is formed
between the applicant and the child, the written consent to
(a) DSWD
The adoption
decree shall state the name by which the child is to be
the adoption executed by the
is required.
known (Sec. 13). An amended certificate of birth shall be issued by the Civil
Registry attesting to the fact that the adoptee is the child of the adopter(s)
by being registered with his/her surname (Sec. 14);

21

(b) The original certificate of birth shall be stamped cancelled with the
annotation of the issuance of an amended birth certificate in its place and
shall be sealed in the civil registry records. The new birth certificate to be
issued to the adoptee shall not bear any notation that it is an amended issue
(Sec. 14);
(c) All records, books, and papers relating to the adoption cases in the
files of the court, the DSWD, or any other agency or institution
participating in the adoption proceedings shall be kept strictly confidential
and the court may order its release under the following conditions only: (1)
the disclosure of the information to a third person is necessary for purposes
connected with or arising out of the adoption; (2) the disclosure will be for
the best interest of the adoptee; and (3) the court may restrict the purposes
for which it may be used (Sec. 15).

(1) Parental authority of the adoptees biological parent(s), if known, or

the legal custody of the DSWD shall be restored if the adoptee is still a
minor or incapacitated;
(2) Reciprocal rights and obligations of the adopter(s) and the adoptee to
each other shall be extinguished;
(3) Cancellation of the amended certificate of birth of the adoptee and
restoration of his/her original birth certificate; and
(4) Succession rights shall revert to its status prior to adoption, but only
as of the date of judgment of judicial rescission. Vested rights acquired prior
to judicial rescission shall be respected (Sec. 20).

Instances when adoption may be rescinded

(1)

Grounds for rescission:

(a) Repeated physical and verbal maltreatment by the adopter(s) despite

having undergone counseling;
(b)

Attempt on the life of the adoptee;

(c)

Sexual assault or violence; or

(d) Abandonment and failure to comply with parental obligations (Sec.

19).
(2)

Prescriptive period:

(a) If incapacitated within five (5) years after he reaches the age of
majority;
(b) If incompetent at the time of the adoption within five (5) years after
recovery from such incompetency (Sec. 21, Rule on Adoption).
Effects of rescission of adoption

Inter-Country Adoption (RA 8043)

(1) Inter-Country Adoption refers to the socio-legal process of adopting a
Filipino child by a foreigner or a Filipino citizen permanently residing
abroad where the petition is filed, the supervised trial custody is undertaken,
and the decree of adoption is issued in the Philippines (Sec. 3[a]).
When allowed
(1)
Inter-country adoptions are allowed when the same shall prove
beneficial to the childs best interests, and shall serve and protect his/her
fundamental rights (Sec. 2).
(2) It is allowed when all the requirements and standards set forth under
RA 8043 are complied with.
Functions of the RTC
(1) An application to adopt a Filipino child shall be filed either with the
Philippine Regional Trial Court having jurisdiction over the child, or with
the Board, through an intermediate agency, whether governmental or an
authorized and accredited agency, in the country of the prospective adoptive
parents, which application shall be in accordance with the requirements as
set forth in the implementing rules and regulations (Sec. 10).

22

Best Interest of the Minor Standard

(1) In case of custody cases of minor children, the court after hearing and
bearing in mind the best interest of the minor, shall award the custody as
will be for the minors best interests.
(2) The totality of the circumstances and conditions as are most congenial
to the survival, protection, and feelings of security of the minor and most
encouraging to his physical, psychological and emotional development. It
also means the least detrimental available alternative for safeguarding the
growth and development of the minor.
Writ of Habeas Corpus (Rule 102)
(1) Writ of habeas corpus is a writ which has been esteemed to the best
and only sufficient defense of personal freedom having for its object the
speedy release by judicial decree of persons who are illegally restrained of
their liberty, or illegally detained from the control of those who are entitled
to their custody (Ballentines Law Dictionary, 2nd Edition; Nava vs.
Gatmaitan, 90 Phil. 172).
(2)
The writ of habeas corpus shall extend to all cases of illegal
confinement or detention by which any person is deprived of his liberty, or
by which the rightful custody of any person is withheld from the person
entitled thereto. The function of the special proceeding of habeas corpus is
to inquire into the legality of ones detention. In all petitions for habeas
corpus, the court must inquire into every phase and aspect of the
petitioners detention from the moment petitioner was taken into custody up
to the moment the court passes upon the merits of the petition and only after
such scrutiny can the court satisfy itself that the due process clause of the
Constitution has been satisfied. However, once the person detained is duly
charged in court, he may no longer question his detention by a petition for
the issuance of a writ of habeas corpus. His remedy then is the quashal of
the information and/or the warrant of arrest duly issued. The reason for the
issuance of the writ even becomes more unavailing when the person
detained files a bond for his temporary release (Sec. 1; Bernarte vs. CA, 75
SCAD 400 [Oct. 18, 1996]).
(3) Habeas corpus may not be used as a means of obtaining evidence on
the whereabouts of a person, or as a means of finding out who has
specifically abducted or caused the disappearance of a certain person
(Martinez vs. Dir. Gen. Mendoza, GR 153795, Aug. 17, 2006).

(4) The writs of habeas corpus and certiorari may be ancillary to each
other where necessary to give effect to the supervisory powers of the higher
courts. A writ of habeas corpus reaches the body and the jurisdictional
matters, but not the record. A writ of certiorari reaches the record but not
the body. Hence, a writ of habeas corpus may be used with the writ of
certiorari for the purpose of review (Galvez vs. CA, 237 SCRA 685).
(5) The general rule is that the release, whether permanent or temporary,
of a detained person renders the petition for habeas corpus moot and
academic, unless there are restraints attached to his release which precludes
freedom of action, in which case the Court can still inquire into the nature
of his involuntary restraint. Petitioners temporary release does not render
the petition for writ moot and academic (Villavicencio vs. Lukban, 39 Phil.
778).
(6)

Some instances when the writ may issue:

(a) To inquire into the legality of an order of confinement by a court

martial (Ogvir vs. Dir. of Prisons, 80 Phil. 401);
(b) To test the legality of an aliens confinement and proposed expulsion
from the Philippines (Lao Tang Bun vs. Fabre, 81 Phil. 682);
(c) To enable parents to regain custody of a minor child, even if the latter
be in the custody of a third person of her own free will (Salvaa vs. Gaela,
55 Phil. 680);
(d) To obtain freedom for an accused confined for failure to post bail
where the prosecuting officer unreasonably delays trial by continued
postponement (Conde vs. Rivera, 45 Phil. 650);
(e) To give retroactive effect to a penal provision favorable to the accused
when the trial judge has lost jurisdiction by virtue of the finality of the
judgment of conviction (Rodriguez vs. Dir. of Prisons, 57 Phil. 133);
(f)
To determine the constitutionality of a statute (People vs. Vera, 65
Phil. 66);
(g) To permit an alien to land in the Philippines (The Huan vs. Collector
of Customs, 54 Phil. 129);

23

(h) To put an end to an immoral situation, as when a minor girl, although

preferring to stay with her employer, maintains illicit relationship with him
(Macazo vs. Nuez, L-12772, Jan. 24, 1956);
(i)
When a bond given by an accused entitled thereto is not admitted or
excessive bail is required of him (In re Dick, 38 Phil. 41);
(j)
To determine the legality of an extradition (US vs. Rauscher, 119 US
407);
(k)
To determine the legality of the action of a legislative body in
punishing a citizen for contempt (Lopez vs. Delos Reyes, 55 Phil. 170);
(l)
To obtain freedom after serving minimum sentence when the penalty
under an old law has been reduced by an amendatory law.
Contents of the petition
(1) Application for the writ shall be by petition signed and verified either by
the party for whose relief it is intended, or by some person on his behalf,
and shall set forth:
(a) That the person in whose behalf the application is made is imprisoned
or restrained of his liberty;

(1) When the person to be produced is imprisoned or restrained by an

officer, the person who makes the return shall state therein, and in other
cases the person in whose custody the prisoner is found shall state, in
writing to the court or judge before whom the writ is returnable, plainly and
unequivocably:
(a) Whether he has or has not the party in his custody or power, or under
restraint;
(b) If he has the party in his custody or power, or under restraint, the
authority and the true and whole cause thereof, set forth at large, with a
copy of the writ, order, execution, or other process, if any, upon which the
party is held;
(c) If the party is in his custody or power or is restrained by him, and is not
produced, particularly the nature and gravity of the sickness or infirmity of
such party by reason of which he cannot, without danger, be brought before
the court or judge;
(d) If he has had the party in his custody or power, or under restraint, and
has transferred such custody or restraint to another, particularly to whom, at
what time, for what cause, and by what authority such transfer was made
(Sec. 10).
Distinguish peremptory writ from preliminary citation

(b) The officer or name of the person by whom he is so imprisoned or

restrained; or, if both are unknown or uncertain, such officer or person may
be described by an assumed appellation, and the person who is served with
the writ shall be deemed the person intended;
(c) The place where he is so imprisoned or restrained, if known;
(d) A copy of the commitment or cause of detention of such person, if it
can be procured without impairing the efficiency of the remedy; or, if the
imprisonment or restraint is without any legal authority, such fact shall
appear (Sec. 3).

Peremptory writ

Preliminary ci

Unconditionally commands the respondent to have the body Requires the respondent to appear
of the detained person before the court at a time and place the peremptory writ should not be
therein specified;
(Lee Yick Hon vs. Collector of Customs, 41 Phil. 563)
When not proper/applicable
(1)

Instances when the writ of habeas corpus is not proper are:

Contents of the Return

24

(a) For asserting or vindicating denial of right to bail (Galvez vs. CA, 237
SCRA 685);
(b) For correcting errors in appreciation of facts or appreciation of law
where the trial court had no jurisdiction over the cause, over the person of
the accused, and to impose the penalty provided for by law, the mistake
committed by the trial court, in the appreciation of the facts and/or in the
appreciation of the law cannot be corrected by habeas corpus (Sotto vs.
Director of Prisons, May 30, 1962);
(c) Once a person detained is duly charged in court, he may no longer file
a petition for habeas corpus. His remedy would be to quash the information
or warrant (Rodriguez vs. Judge Bonifacio, Nov. 26, 2000).

When writ disallowed/discharged

(1) If it appears that the person alleged to be restrained of his liberty is in
the custody of an officer under process issued by a court or judge or by
virtue of a judgment or order of a court of record, and that the court or judge
had jurisdiction to issue the process, render the judgment, or make the order,
the writ shall not be allowed; or if the jurisdiction appears after the writ is
allowed, the person shall not be discharged by reason of any informality or
defect in the process, judgment, or order. Nor shall anything in this rule be
held to authorize the discharge of a person charged with or convicted of an
offense in the Philippines, or of a person suffering imprisonment under
lawful judgment (Sec. 4).

Distinguish from writ of Amparo and Habeas Data

Writ of Habeas Corpus

Writ of Amparo

A remedy available to any person,

it covers cases of illegal
confinement or detention by which
any person is deprived of his

A remedy available to any person whose

right to life, liberty and security is violated
or threatened with violation by an
unlawful act or omission of a public

liberty, or by which the rightful

custody of any person is withheld
from the person entitled thereto.

official or employee, or of a private

individual or entity. The writ covers
extrajudicial killings and enforced
disappearances or threats thereof.

official or emp
individual or e
gathering, coll
or information
family, home a
the aggrieved p
Who may file petition: By the party Who may file (in order):a) Any member Who may file (
for whose relief it is intended, or by of the immediate family: spouse, children member of the
some person on his behalf.
and parents of the aggrieved party;
spouse, childre
aggrieved party
b) Any ascendant, descendant or
collateral relative of aggrieved party
b) Any ascen
within the 4th civil degree of consanguinity collateral relati
or affinity;
within the 4th c
consanguinity
c) Any concerned citizen, organization,
association or institution, if no known
member of immediate family.
Where to file:RTC, enforceable
within its area of jurisdiction.

Where to file:RTC, Sandiganbayan, CA,

SC;

Where to file:R
Sandiganbayan

CA or SC, enforceable anywhere in Writ is enforceable anywhere in the

the Philippines.
Philippines.

Writ is also enf

the Philippines

Petitioner is exempted to pay docket and

other lawful fees.
When issued: Forthwith when a
When issued: Immediately if on its face it
petition therefor is presented and it ought to be issued;
appears that the writ ought to issue,
Served immediately;

Indigent petitio
docket and oth
When issued: I
face it ought to
Served within

Summary hearing set not later than seven Summary hear

(7) days from date of issuance.
(10) work days
Contents
of verified
A remedy
available
to anypetition:
person
whose right to privacy in life, liberty
(a) That
the person
in whose by
or security
is violated
or threatened
behalf the
is
an unlawful
act application
or omissionisofmade
a public

Contents of verified petition: a)

Personal circumstances of petitioner and
of respondent responsible for the threat,
act or omission;

25

Contents of ve
Personal circum
and responden

imprisoned or restrained of his

liberty;
(b) The officer or name of the
person by whom he is so
imprisoned or restrained; or, if both
are unknown or uncertain, such
officer or person may be described
by an assumed appellation, and the
person who is served with the writ
shall be deemed the person
intended;
(c) The place where he is so
imprisoned or restrained, if known;
(d) A copy of the commitment or
cause of detention of such person,
if it can be procured without
impairing the efficiency of the
remedy; or, if the imprisonment or
restraint is without any legal
authority, such fact shall appear

b) Violated or threatened right to life,

b) execution, or other process, if any, identity of aggrieved; (2) recover and
liberty and security of aggrieved party, and violated
upon
or which
threatened
the party
and how
is held;
it
preserve evidence related to death or
how committed with attendance
affects the right to life, liberty or
disappearance of person identified in
circumstances detailed in supporting
security
of
aggrieved
party;
c) If the party is in his custody or petition; (3) identify witnesses and their
affidavits;
power or is restrained by him, and statements; (4) determine cause, manner,
location and time of death or
c) is not produced, particularly the
c) Investigation conducted, specifying petitioner
nature
to and
secure
gravity
the data
of the
or sickness disappearance as well as pattern or
names, personal circumstances and
information;
or infirmity of such party by reason practice; (5) identify and apprehend
addresses of investigating authority or
of which he cannot, without danger, person/s involved in the
death/disappearance; (6) bring suspected
individuals, as well as manner and conduct d) be brought before the court or
offenders before a competent court.
of investigation together with any report; databases,
judge;government office, and the
person in charge, in possession or in
d) Actions and recourses taken by
control
d) ofIfthe
he has
datahad
or information,
the party in his
if
petitioner to determine the fate or
known;
custody or power, or under
whereabouts of aggrieved party and
restraint, and has transferred such
identity of person responsible for the
e) custody or restraint to another,
threat, act or omission; and
particularly
to whom,
at what time,
include
the updating,
rectification,
for what
and byofwhat
suppression
orcause,
destruction
the
authority
such transfer
waskept
made.
e) The relief prayed for.
database
or information
or files
by respondent;
f)
May include general prayer for other
Effects of failure to file return: The court,
just and equitable reliefs.
f)
justice or judge shall proceed to hear the
include a prayer for an order enjoining petition ex parte.
the act complained of; and
g)
equitable.

Contents of return:

Contents of return: a) Lawful defenses;

a) Whether he has or has not the

party in his custody or power, or
under restraint;

b) Steps or actions taken to determine

whereabouts of aggrieved party;

c) All relevant information pertaining to

b) If he has the party in his custody threat, act or omission against aggrieved
or power, or under restraint, the
party;
authority and the true and whole
cause thereof, set forth at large,
d) If respondent is a public official or
with a copy of the writ, order,
employee, further state: (1) verify the

Contents of return
defenses such as national security,
state secrets, privileged
communications, confidentiality of
source of information;
b)
petitioner, nature of data/info, purpose
of collection;

respondent to e
confidentiality
d) Currency
information;

e) Other alleg
resolution of th

* A general den
the petition is n

Effects of failu
court, justice o
hear the petitio
petitioner such
may warrant u
discretion requ
evidence.
Procedure for hearing: The hearing on the Procedure for h
petition shall be summary. However the
the petition sha
court, justice or judge may call for a
However the c
preliminary conference to simplify the
may call for a
issues and determine the possibility of
to simplify the
obtaining stipulations and admissions from the possibility
the parties.
and admissions
The hearing shall be from day to day until
completed and given the same priority as
petitions for habeas corpus.

c)

26

Interim reliefs available before final

(Not applicable)
judgment: a) Temporary Protection
proceedings of a court having
Order protected in a government agency
jurisdiction over the person and the
of by an accredited person or private
subject matter (Galvez vs. CA, GR
institution capable of keeping and securing
114046, Oct. 24, 1994).
their safety;
b) Inspection Order with a lifetime of 5
days which may be extended, may be
opposed on the ground of national security
or privileged information, allows entry
into and inspect, measure, survey or
photograph the property;
c) Production Order to require
respondents to produce and permit
inspection, copying or photographing of
documents, papers, books, accounts,
letters, photographs, objects or tangible
things that contain evidence.

Appeal: To the SC under Rule 45,

within 48 hours from notice of
judgment (Tan Chin Hui vs.
Rodriguez, GR 137571, Sept. 21,
2000).
A writ of habeas corpus does not
lie where petitioner has the remedy
of appeal or certiorari because it
will not be permitted to perform the
functions of a writ of error or
appeal for the purpose of reviewing
mere errors or irregularities in the

Quantum of proof: By substantial

evidence. Private respondent to prove
ordinary diligence was observed in the
performance of duty. Public
official/employee respondent to prove
extraordinary diligence was observed, and
cannot invoke the presumption that official
duty has been regularly performed to
evade responsibility or liability.
Rules on Custody of Minors and Writ of Habeas Corpus in Relation to
Custody of Minors (AM No. 03-04-04-SC)

(1) The Family Court has exclusive original jurisdiction to hear petitions
for custody of minors and the issuance of the writ of habeas corpus in
Effect of filing criminal action: A criminal Effect of filing criminal action
relation to custody of minors. The Court is tasked with the duty of
action first filed excludes the filing of the criminal action first filed excludes the
promulgating special rules or procedure for the disposition of family cases
writ; relief shall be by motion in the
filing of the writ; relief shall be by
with the best interests of the minor as primary consideration, taking into
criminal case. A criminal case filed
motion in the criminal case; A criminal
account the United Nations Convention on the Rights of the Child. It should
subsequently shall be consolidated with
case filed subsequently shall be
be clarified that the writ is issued by the Family Court only in relation to
the petition for the writ of amparo.
consolidated with the petition for the
custody of minors. An ordinary petition for habeas corpus should be filed in
writ of
the regular Court. The issue of child custody may be tackled by the Family
Appeal: To the SC under Rule 45, within 5 Appeal
Court without need of a separate petition for custody being filed.
days from notice of adverse judgment, to within 5 days from notice of judgment
be given the same priority as habeas
or final
be given thechose
samethe phrase any person claiming custody as it
(2)order,
ThetoCommittee
corpus cases.
priority
as
is broad enough to cover the following: (a) the unlawful deprivation of the
cases.custody of a minor; or (b) which parent shall have the care and custody of a
minor, when such parent is in the midst of nullity, annulment or legal
separation proceedings (Sec. 2).
(3) The hearings on custody of minors may, at the discretion of the court,
be closed to the public and the records of the case shall not be released to
non-parties without its approval (Sec. 21).

27

(4) A motion to dismiss the petition is not allowed except on the ground
of lack of jurisdiction over the subject matter or over the parties. Any other
ground that might warrant the dismissal of the petition shall be raised as an
affirmative defense in the answer (Sec. 6).

Scope of writ; Availability of writ; Distinguish from Habeas Corpus and

Amparo; Who may file; Contents of the petition; Consolidation; Effect
of filing of a criminal action; Institution of separate action

(5) Upon the filing of the verified answer of the expiration of the period
to file it, the court may order a social worker to make a case study of the
minor and the parties and to submit a report and recommendation to the
court at least three days before the scheduled pre-trial (Sec. 8).

(1)

(6) Hold Departure Order The minor child subject of the petition shall
not be brought out of the country without prior order from the court while
the petition is pending. The court motu propio or upon application under
oath may issue ex parte a hold departure order addressed to the BID of the
DOJ a copy of the hold departure order within 24 hours from its issuance
and through the fastest available means of transmittal (Sec.16).

(1)
A hearing in chambers may be conducted where the respondent
invokes the defense that the release of the data or information in question
shall compromise national security or state secrets, or when the data or
information cannot be divulged to the public due to its nature or privileged
character (Sec. 12).

See table above.

Instances when petition be heard in chambers

Writ of Amparo (AM No. 07-9-12-SC)

Coverage; Distinguish from habeas corpus and habeas data; Who may
file; Contents of return; Effects of failure to file return; Procedure for
hearing; Institution of separate action; Effect of filing of a criminal
action; Consolidation; Interim reliefs available to petitioner and
respondent; Quantum of proof in application for issuance of writ of
Amparo

Change of Name (Rule 103)

Differences under Rule 103, RA 9048 and Rule 108

Rule 103
(1)

See table above.

Differences between Amparo and search warrant

Omnibus waiver rule

Petition should be filed in the RTC

where the petitioner resides

RA 9048

Petitions filed with the city or

municipal civil registrar, or with
consul general for citizens living
abroad

Verified petition
the correspondin
located

Civil Registrar is not a party. Solicitor

General to be notified by service of a
copy of petition.

Civil Registrar is
If not made a par
and void. Reason
in protecting the
documents. Solic
be notified by ser
petition.
By a person inter

Writ of Habeas Data (AM No. 08-1-16-SC)

Petition is filed by the person desiring Verified petition in the form of

28

to change his name

affidavit is filed by any person having order or decree

direct and personal interest in the
anybody; and
correction
Involves change of name only
Involves first name and nickname
All cancellation
or correction
entries
(f) Surname
causesof
embarrassment
of: (a) births;
(b)
marriages;
(c)
deaths;
and there is no showing that the
(d) legaldesired
separation;
(e)of
judgments
change
name wasorfor a
annulments
of marriage;
(f) or
judgments
fraudulent
purpose,
that the change
declaring
void
from thepublic
of marriages
name would
prejudice
beginning;
(g) legitimations;
interest
(Republic vs. (h)
Hernandez, 68
adoptions;
(i) acknowledgments
SCAD
279); Republic vs.of
Avila, 122
natural children;
(j) naturalizations; (k)
SCRA 483).
election, loss
(l) civil interdiction; (m) judicial
Order for
hearing to
published once Petition shall be published at least
Order shall also b
determination
of filiation;
(n)bevoluntary
a
week
for
three
consecutive
weeks
in
once
a
week
for
two
consecutive
week for three co
emancipation of a minor; and (o) changes
a
newspaper
of
general
circulation
in
weeks
in
a
newspaper
of
general
newspaper of gen
of name.
the province.
circulation. Also to be posted in a
province, and cou
Involves substantial changes
Involves clerical or typographical
Substantial and adversary if change
conspicuous place for ten consecutive reasonable notice
errors
affects the civil status, citizenship or
days.
the petition.
nationality of a party; Summary if
correcterrors
but petitioner desires Entry is incorrect.
Cancellation or c
involvesEntry
mereisclerical
to
change
the
entry
incorrect entries
vs. Valencia, 141 SCRA 462)
An
appropriate
adversary
proceeding
An
appropriate
administrative
An appropriate su
Grounds:(a) Name is ridiculous,
Grounds: a)
First name or
Grounds: Cancellation or correction of
proceeding.
proceeding depen
dishonorable or extremely difficult to nickname is found to be ridiculous, entries of: (a) births; (b) marriages; (c)
Requires
judicial order
Does not require judicial order.
Directed or chang
write or pronounce;
tainted with dishonor or extremely
deaths; (d)
legal separation;
(e)
municipal civil re
difficult to write or pronounce;
judgments or annulments of marriage; (f)
general without j
judgments
declaring
marriages
void
from
(b) Change is a legal consequence
Service(g)
of legitimations;
judgment shall(h)
be upon the Transmittal of decision to civil
Service of judgm
of legitimation or adoption;
b)
The first name or nickname has the beginning;
acknowledgments
civil(i)register
concerned of
registrar general
civil register con
been habitually and continuous used adoptions;
natural
children;
(j)
naturalizations;
(k)
by
petitioner
publicly
known
by
that
(c) Change will avoid confusion;
Appeal may be availed of if judgment In case denied by the city or
Appeal may be a
election,orloss
first name or nickname in the
final order rendered affects
municipal civil registrar or the consul final order render
(l) civil substantial
interdiction;rights
(m) judicial
of person appealing. general, petitioner may either appeal rights of person a
(d) One has continuously used and community;
determination of filiation; (n) voluntary
the decision to the civil register
to the CA.
been known since childhood by a
emancipation of a minor; and (o) changes
c)
Change
will
avoid
confusion.
general
or
file
appropriate
petition
Filipino name and was unaware of
of name.
with proper court by petition for
alien parentage;
review under Rule 43.
(e) Change is based on a sincere
desire to adopt a Filipino name to
erase signs of former alienage, all in
good faith and without prejudice to

Grounds for change of name

(g) When the name is ridiculous, dishonorable or extremely difficult to
write or pronounce;

29

(h)

When the change is a legal consequence of legitimation or adoption;

(i)

When the change will avoid confusion;

(b) Heirs instituted in a will, who may present an authentic copy of the
same;
(c)

(j)
When one has continuously used and been known since childhood by
a Filipino name and was unaware of alien parentage;
(k) When the change is based on a sincere desire to adopt a Filipino name
to erase signs of former alienage, all in good faith and without prejudice to
anybody; and
(l)
When the surname causes embarrassment and there is no showing
that the desired change of name was for a fraudulent purpose, or that the
change of name would prejudice public interest (Republic vs. Hernandez,
68 SCAD 279); Republic vs. Avila, 122 SCRA 483).
Absentees (Rule 107)
(1) Stages of absence:
(a)

provisional absence

(b)

declaration of absence

(c)

presumption of death

Purpose of the Rule

(1)
The purpose of the Rule is to allow the court to appoint an
administrator or representative to take care of the property of the person
who is sought to be judicially declared absent. It also aims to have the court
appoint the present spouse as administrator or administratrix of the absent
spouses properties, or for the separation of properties of the spouses.
Who may file; when to file
(1) The following may file an application for the declaration of absence
of a person:
(a)

Spouse present;

Relatives who would succeed by the law of intestacy; and

(d)
Those who have over the property of the absentee some right
subordinated to the condition of his death (Sec. 2).
(2) After the lapse of two (2) years from his disappearance and without
any news about the absentee or since the receipt of the last news, or of five
(5) years in case the absentee has left a person in charge of the
administration of his property, the declaration of his absence and
appointment of a trustee or administrator may be applied for (Sec. 2).
(3) When a person disappears from his domicile, his whereabouts being
unknown, and without having left an agent to administer his property, or the
power conferred upon the agent has expired, any interested party, relative or
friend, may petition the Court of First Instance of the place where the
absentee resided before his disappearance for the appointment of a person to
represent him provisionally in all that may be necessary (Sec. 1).

Cancellation or Correction of Entries in the Civil Registry (Rule 108)

Entries subject to cancellation or correction under Rule 108, in relation
to RA 9048
(1)
Upon good and valid grounds, the following entries in the civil
register may be cancelled or corrected: (a) births; (b) marriages; (c) deaths;
(d) legal separations; (e) judgments of annulments of marriage; (f)
judgments declaring marriages void from the beginning; (g) legitimations;
(h) adoptions; (i) acknowledgments of natural children; (j) naturalization (k)
election, loss or recovery of citizenship (l) civil interdiction; (m) judicial
determination of filiation; (n) voluntary emancipation of a minor; and (a)
changes of name (Sec. 2, Rule 108).
(2) The petition for change of first names or nicknames may be allowed
when such names or nicknames are ridiculous, tainted with dishonor or
extremely difficult to write or pronounce; or the new name or nickname has
been used habitually and continuously petitioner and has been publicly

30

known by that first name or nickname in the community; or the change will
avoid confusion (Sec. 4, RA 9048).

period of thirty (30) days is provided for the perfection of appeals in special
proceedings.

Appeals in Special Proceeding (Rule 109)

Modes of appeal

Judgments and orders for which appeal may be taken

(1) While under the concept in ordinary civil actions some of the orders
stated in Sec. 1 may be considered interlocutory, the nature of special
proceedings declares them as appealable orders, as exceptions to the
provisions of Sec., Rule 41. Thus:

(1) An interested person may appeal in special proceedings from an order or

judgment rendered by a Court of First Instance or a Juvenile and Domestic
Relations Court, where such order or judgment:
(a) Allows or disallows a will;
(b) Determines who are the lawful heirs of a deceased person, or the
distributive share of the estate to which such person is entitled;
(c) Allows or disallows, in whole or in part, any claim against the estate of
a deceased person, or any claim presented on behalf of the estate in offset to
a claim against it;
(d) Settles the account of an executor, administrator, trustee or guardian;
(e) Constitutes, in proceedings relating to the settlement of the estate of a
deceased person, or the administration of a trustee or guardian, a final
determination in the lower court of the rights of the party appealing, except
that no appeal shall be allowed from the appointment of a special
administrator; and
(f) Is the final order or judgment rendered in the case, and affects the
substantial rights of the person appealing, unless it be an order granting or
denying a motion for a new trial or for reconsideration (Sec. 1).
When to appeal

(a) Ordinary appeal. The appeal to the CA in cases decided by the RTC in
the exercise of its original jurisdiction shall be taken by filing a notice of
appeal with the court which rendered the judgment or final order appealed
from and serving a copy thereof upon the adverse party. No record on
appeal shall be required except in special proceedings and other cases of
multiple or separate appeals where the law or the Rules so require. In such
cases, the record on appeal shall be filed and served in like manner.
(b) Petition for review. The appeal to the CA in cases decided by the RTC
in the exercise of its appellate jurisdiction shall be by petition for review in
accordance with Rule 42.
(c) Petition for review on certiorari. In all cases where only questions of
law are raised or involved, the appeal shall be to the SC by petition for
review on certiorari in accordance with Rule 45.
Rule on Advance Distribution
(1) Notwithstanding a pending controversy or appeal in proceedings to
settle the estate of a decedent, the court may, in its discretion and upon such
terms as it may deem proper and just, permit that such part of the estate as
may not be affected by the controversy or appeal be distributed among the
heirs or legatees, upon compliance with the conditions set forth in Rule 90
of these rules (Sec. 2).

(1) Appeals in special proceedings necessitate a record on appeal as the

original record should remain with the trial court, hence the reglementary

31