UST Golden Notes - Special Proceedings

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ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

U N I V E R S I T Y O F S A N T O T O M A S

F a c u l t a d d e D e r e c h o C i v i l

IV. SPECIAL PROCEEDINGS

Q: What is Special Proceeding?

A: It is a remedy by which a party seeks to establish a status, a right or a particular fact. (Sec. 3(c), Rule 1)

NOTE: It is a proceeding in rem.

Q: Distinguish an Ordinary action and Special Civil Action from a special proceeding.

A:

Ordinary Action Special Proceeding Special Civil Action

To protect or enforce a right or prevent or redress a wrong

Involves the establishment of a right, status, or fact

Civil Action subject to specific rules.

Involve 2 or more parties – plaintiff and defendant

May involve only one party – only petitioner

Involves two or more parties

Governed by ordinary rules, supplemented by special rules

Governed by special rules, supplemented by ordinary rules

Ordinary rules apply primarily but subject to specific rules

Initiated by a complaint, and parties respond through an answer

Initiated by a petition and parties respond through an opposition

Some are initiated by complaint, while some are initiated by petition

Heard by courts of general jurisdiction

Heard by courts of limited jurisdiction

Issues or disputes are stated in the pleadings of the parties

Issues are determined by law

Adversarial Not adversarial

Based on a cause of action Not based on a cause of action (except habeas Corpus)

Some special civil action have no cause of action

Q: What are the subject matters of special proceedings? A:

Special Proceeding Jurisdiction Venue

Rules 73-90 Settlement of Estate of Deceased Persons

RTC- Gross value of the estate exceeds 400,000/ 500,000 (Manila) MTC- Gross value of the estate does not exceed 400,000/ 500,000 NOTE: MTC jurisdiction is exclusive of interest, damages of whatever kind, attorney’s fees, litigation expenses and costs

1. If inhabitant (resident) of the Philippines (whether citizen or alien)- Court of the province/ city where the deceased resides at the time of death

2. Inhabitant (non- resident) of foreign country- court of any province/ city wherein he had estate

Rule 91 Escheat RTC

1. Ordinary escheat proceedings: RTC a. If resident- place where the deceased last resided b.If non-resident- place where he had estate

2. Reversion of land to the State for violation of the Consitution/ Laws- RTC where the land lies in whole or in part

3. Unclaimed deposits (for 10 years)- RTC of the city/ province where the bank is located NOTE: All banks located in 1 province where the court is located may be made party- defendant in 1 action.

UST GOLDEN NOTES 2011

164 REMEDIAL LAW TEAM:

ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR

R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

Rule 98 Trustees

RTC-Gross value of the estate exceeds 400,000/500,000 MTC- does not exceed 400,000/ 500,000

Where the will was allowed or where the property or portion thereof affected by the trust is situated

Rule 101 Hospitalization of insane person

RTC Where such insane person may be found

Rule 103 Change of name RTC Where petitioner resides for 3 years prior to the filing of the petition

Rule 108 Cancellation or correction of entries in the civil registry

RTC Where the corresponding civil registry is located

Rule 107 Declaration of absence and death

RTC Where the absentee resided before his disappearance

A.M. No. 00-8-10-SC

Corporate rehabilitation

RTC Where principal office of the corporation is situated

Rule 104 Voluntary dissolution of corporation

SEC Where principal office of corporation is situated

RA 9048

Administrative correction of entry/change of first name or nickname

Local civil registry/Consul general

Local civil registry office where the record is kept/where the interested party is presently residing or domiciled

Rules 92-97; A.M.

No. 03-02-05-SC

Guardianship Family Court – In case of minors RTC – In cases other than minors

1. If resident- place where minor/ incompetent resides

2. If non-resident- place where minor/ incompetent has property

A.M. No. 02-06-02-SC

Domestic Adoption Family Court Where the adopter resides

A.M. No. 02-6-02-SC

Rescission of Adoption

Family Court Where the adoptee resides

A.M. No. 02-6-02-SC

Inter-country Adoption

Family Court or the Inter-Country Adoption Board

Where the adopter resides

Rule 99 Custody of Minors Family Court Where petitioner resides or where

the minor may be found

Rule 105

Judicial Approval of Voluntary Recognition of Minor Natural Children

Family Court Where the child resides

Family Code

Summary Proceedings

Family Court Where the petitioner resides or where the child resides if it involves minors

R.A. 8369

Actions mentioned in the Family Courts Act

1. Petitions on Foster care and Temporary Custody

2. Declaration of Nullity of Marriage

3. Cases of Domestic Violence Against Women and Children

Family Court

Where petitioner or respondent has been residing for at least 6 months prior to the date of filing In case of non-resident respondent, where he may be found at the election of the petitioner

Rule 102 Habeas Corpus

SC, CA, RTC, MTC in the province or city in case there is no RTC judge; SB only in aid of its appellate jurisdiction

Where the aggrieved party is detained (RTC)

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A.M. No. 03-04-04-SC

Habeas Corpus in Relation to Custody of Minors

Family Court, CA, SC Where the petitioner resides or where the minor may be found

A.M. No. 07-9-12-SC

Writ of Amparo RTC, SB, CA or SC or any justice

thereof

Where the threat, act or omission was committed or any of its elements occurred

A.M. No. 08-1-16-SC

Writ of habeas data RTC, SB, CA or SC or any justice

thereof

Where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected or stored, at the option of the petitioner

A.M. No. 09-6-8-SC

Writ of Kalikasan SC or any stations of CA Where the unlawful act, omission or threat was committed

A.M. No.02-11-10-SC

Declaration of nullity of void marriage/Annulment of marriage

Family Court


A.M. No. 02-11-11-SC

Legal Separation Family Court


Q: What is the publication requirement in special proceedings?

A: Special Proceeding Publication of Order of Hearing Administrative change of first name or nickname

Once a week for 2 consecutive weeks Corporate rehabilitation Settlement of estate of deceased persons

Once a week for 3 consecutive weeks

Judicial change of name Judicial cancellation or correction of entries in the civil registry Domestic adoption

Inter-country adoption Voluntary dissolution of corporation (Except shortening of corporate term)

Declaration of absence

Once a week for 3 consecutive weeks Note: The declaration of absence shall not take effect until six (6) months after its publication in a newspaper of general circulation.

Escheat Once a week for 6 consecutive weeks Guardianship

None

Trustees Custody of minors Hospitalization of insane person Rescission of adoption Administrative cancellation or correction of entries Habeas corpus Writ of amparo Writ of habeas data

Writ of kalikasan 1. Petitions on foster care and temporary custody 2. Cases of domestic violence against women and





children Summary proceedings Note: In declaration of nullity or annulment of marriage or legal separation, service of summons may be through publication once a week for 2 consecutive weeks.

Q: Who should be notified in special proceedings?

A: Special proceeding To whom notice must be given Settlement of estate of deceased persons Executor/administrator/any interested party Trustees All persons interested on the trust

Hospitalization of insane person On the person alleged to be insane and to the one having charge of him or any of his relatives

Judicial change of name Interested parties/Solicitor General Judicial cancellation or correction of entries in the civil registry

Persons named in the petition/Solicitor General/Civil Registrar impleaded as respondent

Declaration of absence and death Heirs/legatees/devisees/creditors/other interested persons

Corporate rehabilitation Creditors/Debtors Voluntary dissolution of corporation Creditors Administrative correction of entry/ change of first name or nickname

Interested parties

Guardianship The minor if above 14 years of age/incompetent himself/Interested parties on the property of the ward. General or special notice may be given.

Domestic Adoption Biological parents/Solicitor General Rescission of Adoption Adopter

Inter-country Adoption Biological parents, if any/guardian

Custody of Minors Biological parents/guardian if any

Habeas corpus To the person to which the writ is directed

Writ of amparo Respondent

Writ of habeas data Respondent

Writ of kalikasan Respondent

Summary proceedings Respondent and interested party

1. Petitions on foster care and temporary custody 2. Cases of domestic violence against women and

children Solicitor General/Public Prosecutor

Declaration of nullity of void marriage / Annulment of marriage

City/Provincial Prosecutor/ Respondent

Legal separation City/Provincial prosecutor/ Respondent

Escheat None

A. SETTLEMENT OF ESTATE OF DECEASED

PERSONS, VENUE AND PROCESSES

1. WHICH COURT HAS JURISDICTION Q: Which court has jurisdiction over the estate of the deceased?

A: Regional Trial Court Metropolitan Trial Court

Gross value of the estate exceeds 500,000 (within Metro Manila) or 400,000 (outside Metro Manila)

Gross value of the estate does not exceed 500,000/400,00

Q: State the rule on venue in judicial settlement of estate of deceased persons. A:

Resident Non-Resident

Court of the province/city where the deceased resided at the time of death, whether a citizen or alien

Court of the province/city wherein he had the estate

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2. VENUE IN JUDICIAL SETTLEMENT OF ESTATE Q: What is venue?

A: Under the Rules of Court, the province where the estate of the deceased shall be settled (Cuenco v. CA, G.R. No. L-24742, October 26, 1973)

Q: Is venue waivable?

A: Yes. Wrong venue is a waivable procedural defect, and such waiver may occur by laches where a party had been served notice of the filing of the probate petition for a year and allowed the proceedings to continue for such time before filing a motion to dismiss. Note: Jurisdiction under Rule 73 does not relate to jurisdiction per se but to venue. Hence institution in the court where the decedent is neither an inhabitant nor had his estate may be waived (Uriarte v. CFI, G.R. Nos. L-21938-39, May 29, 1970).

Q: What constitutes residence?

A: It is the personal, actual, physical habitation, his actual residence or place of abode (Fule v. CA, G.R. No. L-40502, Nov. 29, 1976) and not his permanent legal residence or domicile.

Note: MTC jurisdiction is exclusive of interest, damages of whatever kind, attorney’s fees, litigation expenses and costs.

Q: What is the remedy if Venue is improperly laid? A:

GR: ORDINARY APPEAL should be filed, not certiorari or mandamus.

XPN: CERTIORARI OR MANDAMUS should be filed when want of jurisdiction appear on the record of the case.

Q: What is the Principle of Preferential Jurisdiction?

A: GR: The court first taking cognizance of the settlement of the estate of the decedent shall exercise jurisdiction to the exclusion of all other courts (Sec. 1 of Rule 73.)

The probate court acquires jurisdiction from the moment the petition for the settlement of estate is filed with said court. It cannot be divested of such jurisdiction by the subsequent acts of the parties as by entering into extrajudicial partition of the estate (Sandoval

v. Santiago, L- 1723, May 30, 1949); or by filing another petition for settlement in a proper court of concurrent venue (De Borja v. Tan, 77 Phil 872).

XPN: Estoppel by Laches

Note: The rule applies to both testate and intestate proceedings.

3. EXTENT OF JURISDICTION OF PROBATE COURT Q: May probate courts determine issues of ownership in a proceeding for the settlement of estate of decedent? Explain.

A: GR: No, because probate courts are courts of limited jurisdiction.

XPNS: 1. Provisionally, for the sole purpose of

including the property in the inventory, without prejudice to its final determination in a separate action;

2. When all the parties are heirs of the decedent and they agreed to submit the issue of ownership to the probate court, provided that no rights of third persons are prejudiced;

3. If the question is one of collation or advancement; or

4. If the parties consent to the assumption of jurisdiction by the probate court and no rights of third parties are prejudiced. (Agpalo, Handbook on Special Proceedings, pp. 10-12, 2003 ed.)

Q: The probate court ordered the inclusion of a parcel of land registered in the name of Richard in the inventory of the properties of the deceased Anna. Richard opposed the inclusion arguing that the probate court cannot determine the issue of the ownership of the parcel of land inasmuch as the same was registered in his name. Is Richard correct?

A: Yes. In probate proceedings, if a property covered by Torrens title is involved, the presumptive conclusiveness of such title should be given due weight, and in the absence of strong compelling evidence to the contrary, the holder thereof should be considered as the owner of the property in controversy until his title is nullified or modified in an appropriate ordinary action, particularly, when as in the case at bar, possession of the property itself is in the persons named in the title (Luy Lim v. CA, G.R. No. 124715, Jan. 24, 2000).





Q: What may the court do in the exercise of its probate jurisdiction? A: It may issue warrants and processes to compel the attendance of witnesses or carry into effect their orders and judgments and all other powers granted them by law. (Sec. 3, Rule 73) Q: May the probate court issue a writ of execution?

A: GR: No, because its orders usually refer to the adjudication of claims against the estate which the executor or administrator may satisfy without the necessity of resorting to a writ of execution.

XPNS: 1. To satisfy the contributive share of the

devisees, legatees and heirs when the latter had entered prior possession over the estate (Sec. 6, Rule 88);

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

3. To satisfy the costs when a person is cited for examination in probate proceedings (Sec. 13, Rule 142; De Valera v. Hon. Ofilada, G.R. No. L-27526, Sept. 19, 1974).

4. To satisfy the claim in a summary proceedings of creditors or heirs who appear within two years from distribution.

Q: Can a declaration of heirship be made in an independent action?

A: 1. If the special proceedings are pending, or

if there are no special proceedings filed but there is a need to file one, then the determination of heirship should be raised and settled in said special proceedings.

2. If the special proceeding had been instituted but had been finally closed and terminated, or if a putative heir has lost the right to have himself declared in the special proceedings as co-heir and he can no longer ask for its re-opening, then an ordinary civil action can be filed for his declaration as heir in order to bring about the annulment of the partition or distribution or adjudication of properties belonging to the estate of the deceased (Portugal and Portugal, Jr. v. Portugal-Beltran, G.R. No. 155555, Aug. 16, 2005).

Q: Where should the estate be settled if the marriage is dissolved by death of either spouse or both?

A: When the marriage is dissolved by the death of the husband or wife, the community property shall be inventoried, administered and liquidated, and the debts thereof paid, in the testate or intestate proceedings of the deceased spouse. If both spouses have died, the conjugal partnership shall be liquidated in the testate or intestate proceedings of either. (Sec. 2, Rule 73) Note: If separate proceedings have been instituted for each estate, both proceedings may be consolidated if they were filed in the same court.

The rule on consolidation in settlement proceedings for husband and wife exclusively applies to them. It does not apply to siblings, parents and child or other relatives no matter how close. (Benigno v. de la Peña, G.R. No. L-38036, Oct. 15, 1932)

Notes: 1. The jurisdiction of a court as well as the

concomitant nature of the action is determined by the averments in the complaint and not by the defenses contained in the answer. (Vda. De Manalo v. CA, 349 SCRA 135).

2. The residence of the deceased or the location of his estate is not an element of jurisdiction over the subject matter but merely of venue (Cuenca v. CA 53 SCRA 360, 1973.)

3. Testate proceedings take precedence over intestate proceedings for the same estate. If in the course of the intestate proceedings, it is found that the decedent had left a last will, proceedings for the probate of the latter should replace the intestate proceedings even if at that state, an administrator had already been appointed (Uriarte v. CFI, 33 SCRA 252, 1970.)

4. Mere discovery of a document purporting to be the last will and testament of decedent after appointment of an administrator does not ipso facto nullify the letters of administration already issued until the will has been proven and allowed (Advincula v. Teodoro, 99 Phil 413).

4. POWERS AND DUTIES OF PROBATE COURT

Q: What are the powers and duties of a Probate Court?

A: In probate proceedings, the court:

1. Orders the probate of the will of the decedent

2. Grants letters administration

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3. Supervises and controls all acts of administration

4. Hears and approves claims against the estate of the deceased

5. Orders payment of lawful debts 6. Authorizes sale, mortgage or any

encumbrance of real estate 7. Orders the payment of taxes and other

charges 8. Directs the delivery of the estate to those

entitled thereto. Note: The court acts as a trustee and as such must jealously guard the estate and see to it that it is wisely and economically administered, not dissipated.

Q: What are the powers and duties of a probate court?

A: To pass upon the issue regarding:

1. Validity of the will (i.e. formalities required by law)

2. Distribute shares 3. Determine who are the legal heirs 4. Issue warrants and processes to secure

attendance of witnesses 5. Determine and rule upon issues relating

to settlement of the estate, such as administration, liquidation, and distribution of the estate

6. Determine the following: a. Heirs of the decedent; b. Recognition of natural child; c. Validity of disinheritance effected by

testator; d. Status of a woman who claims to be

the lawful wife of the decedent ; e. Validity if waiver of hereditary heirs; f. Status of each heir; g. Whatever property in the inventory is

conjugal or exclusive property of deceased spouse; or

h. Matters incidental or collateral to the settlement and distribution of the estate.

B. SUMMARY SETTLEMENT OF ESTATES

1. EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN HEIRS, WHEN ALLOWED

EXTRA JUDICIAL SETTLEMENT BY

AGREEMENT BETWEEN HEIRS

SUMMARY SETTLEMENT OF ESTATE OF SMALL

VALUE

No court intervention Requires summary adjudication

The value of the estate is immaterial

Gross value of the estate must not exceed P10,000

Allowed only in intestate succession

Allowed in both testate and intestate succession

There must be no outstanding debts of the estate at the time of the settlement

Available even if there are debts, it is the court which will make provision for its payment

Resorted at the instance and by agreement of all heirs

May be instituted by any interested party even a creditor of the estate without the consent of all the heirs

Amount of bond is equal to the value of personal property

Amount of bond is to be determined by the court

Q: Distinguish the procedure in extrajudicial settlement from summary settlement

A:

A. EXTRAJUDICIAL SETTLEMENT BY

AGREEMENT BETWEEN THE HEIRS

Personal property- file a bond equivalent to its amount.

Real property- subject to a lien in favor of the creditors, heirs or other persons for the full period

of 2 years from such distribution and such lien cannot be substituted by a bond

Publication of notice of the fact of extrajudicial settlement once a week for three consecutive weeks in a newspaper of general circulation

Filing of the public instrument or affidavit of adjudication with the proper Register of Deeds

Division of estate made through a public instrument or affidavit of adjudication





B. SUMMARY SETTLEMENT OF ESTATE OF

SMALL VALUE

Q: When is extra judicial settlement by agreement between the heirs allowed? (Substantial Requisites)

A: When the decedent: 1. Left no will and no debts; and the heirs

are all of age; and 2. Of the minors are represented by their

judicial or legal representatives duly authorized for the purpose.

Q: What are the requisites before an extrajudicial settlement of estate could be resorted as evidence of its validity? (Procedural Requisites) A:

1. Settlement is made in a public instrument or by affidavit of adjudication in the case of a sole heir; Note: In case of disagreement of heirs, they may state their oppositions in an ordinary action of partition.

2. Filed with the Register of Deeds; 3. Fact of settlement must be published in a

newspaper of general circulation once a week for 3 consecutive weeks; and

4. Bond filed equivalent to the value of personal property. (Sec. 1, Rule 74)

Note: While the Rules of Court provide that the decedent must not have left any debts, it is sufficient if any debts he may have left have been paid at the time the extrajudicial settlement is entered into (Guico v. Bautista, G.R. No. L-14921, Dec. 31, 1960). It is a disputable presumption that the decedent left no debts if no creditor files a petition for letters of administration within two years after the death of the decedent.

Q: What is a bond?

A: It is the value of the personal property certified by the parties under oath and conditioned upon payment of just claims under Section 4, Rule 74.

Note: The amount of bond required under Section 2 is determined by the COURT whereas in Section 1 the amount is EQUAL TO THE VALUE OF THE PERSONAL PROPERTY as established by adjudication.

Q: When is a bond required to be filed in extrajudicial settlement of estate? A: When personal property is involved, a bond is required. On the other hand, if it is a real property, it is subject to a lien in favor of a creditor for 2 years from distribution and such lien cannot be substituted by a bond. (Sec. 1, Rule 74) Note: The same provision on the bond and lien also applies in summary settlement of estate. (Sec. 2, Rule 74)

Q: Is a public instrument necessary for the validity of the extrajudicial settlement?

A: No, the requirement of public instrument is not constitutive of the validity but is merely evidentiary in nature (Hernandez v. Andal, G.R. No. L-273, Mar. 23, 1947). Even a private instrument, oral agreement of partition or compromise agreement entered into without previous authority from the court is valid. However, reformation of the instrument may be compelled.

Note: Public instrument is required in transfer and registration of title to the heirs.

Q: What is the effect of an extra-judicial partition executed without the knowledge and consent of the other co-heirs?

A: It shall not prejudice the co-heir who had no knowledge nor consented to the same. He shall have the right to vindicate his inheritance. Such heir or such other person deprived of his lawful participation payable in money may compel the settlement of the estate in courts for the purpose

The court proceeds summarily without the necessity of appointing an executor or

administrator; and to make orders as may be necessary

The court may also require a bond in an amount fixed by the court (not value of personal property)

conditioned upon payment of just claims under Section 4

Hearing to be held not less than 1 month nor more than 3 months from the date of last publication of

notice

Publication of notice once a week for 3 consecutive weeks; court may likewise order that notice be

given to persons as the court may direct

Petition for summary settlement to be filed in the MTC with an allegation that the gross value of the estate, whether he died testate or intestate does

not exceed P10,000

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of satisfying such lawful participation. (Sec. 4, Rule 74)

Q: Why is publication of the extrajudicial settlement necessary?

A: To notify and bind the whole world of the extrajudicial settlement and give the concerned parties a chance to come forward and challenge the same (Sec. 1, Rule 74).

Note: Publication alone does not suffice to bind the excluded heirs to the extrajudicial settlement unless he did not participate in the proceedings.

Q: What is the effect if the provisions on notice or participation requirement under Sec. 1, Rule 74 have been strictly complied with?

A: It bars distributees or heirs from objecting to an extra-judicial partition after the two-year prescriptive period to question such partition. (Sec. 4, Rule 74)

2. TWO-YEAR PRESCRIPTIVE PERIOD Q: When does the two year period rule apply?

A: After the expiration of two years from the extrajudicial partition, distributees or heirs are barred from objecting to an extrajudicial partition. The two year prescriptive period applies only:

1. To persons who have participated or taken part or had notice of the extrajudicial partition; and

2. When all the persons or heirs of the decedent have taken part in the extrajudicial settlement or are represented by themselves or through their guardians.

Note: It is only a bar against the parties who had not taken part in the extrajudicial proceedings, but not against third persons not parties thereto. (Herrera, Remedial Law III-A, 39)

Q: Does the two year period apply for a claim of minor or incapacitated person? A: If on the date of the expiration of the period of two years prescribed, the person authorized to file a claim is a minor or mentally incapacitated, or is in prison or outside the Philippines, he may present his claim within one year after such disability is removed. (Sec. 5, Rule 74)

3. AFFIDAVIT OF SELF-ADJUDICATION BY SOLE HEIR

Q: What is an Affidavit of Self-Adjudication by sole heir? A: It is an affidavit required by Sec.1, Rule 74 to be executed by the sole heir or a deceased person in adjudicating to himself the entire estate left by the decedent. 4. SUMMARY SETTLEMENT OF ESTATES OF SMALL

VALUE

Q: What is summary settlement of estate?

A: It is a judicial proceeding, without appointment of executor or administrator, and without delay, the competent court summarily proceeds to estimate the value of estate of the decedent; allow his will if any; declare his heirs, devisees, and legatees; distribute his net estate among them, who shall thereupon be entitled to receive and enter into the possession of the parts of the estate so awarded to them, respectively.

Q: Summary settlement of estates of small value, when is it allowed?

A: Only when gross estate does not exceed P10,000. Amount is jurisdictional. (Sec. 2, Rule 74)

Notes: 1. Amount is jurisdictional; 2. Summary settlement of estate of small value

is allowed in both testate and intestate estates;

3. Available even if there are debts as the court will make provisions for the payment thereof.

4. In accordance with B.P. Blg. 129, the jurisdiction is vested to the Municipal Trial Courts.

5. Instituted by any interested party and even by a dredirtor of the estate, without the consent of all the heirs.

6. The date for hearing, shall be set by court not less than 1 month nor more than 3 months from date of publication of last notice and the order of hearing be published once a week for 3 consecutive weeks in a newspaper of general circulation.

7. Notice shall be served upon such interested persons as the court may direct.

8. Bond in an amount fixed by the court (not value of the personal property) conditioned upon payment of just claims under sec. 4.





Q: When can settlement of estates in courts be compelled?

A: 1. If there is undue deprivation of lawful

participation in the estate;

2. The existence of debts against the estate; 3. If there is undue deprivation of lawful

participation payable in money. (Sec. 4, Rule 74)

5. REMEDIES OF AGGRIEVED PARTIES AFTER EXTRA-JUDICIAL SETTLEMENT OF ESTATE

Q: What are the remedies of the aggrieved party in summary or extrajudicial settlement of the estate?

A: CLAIM AGAINST THE BOND OR REAL ESTATE

GROUNDS: (Section 4, Rule 74) a. If there is undue deprivation of lawful participation in the estate; b. Existence of debts against the estate.

Should be brought within 2 years after settlement and distribution of the estate

COMPEL THE SETTLEMENT OF ESTATE IN COURTS

Should be brought within 2 years after settlement and distribution of the estate

ACTION FOR RESCISSION It must be availed of within 5 years from the time the right of action accrues. (Art. 1149, NCC) Also applicable in judicial proceedings

ACTION FOR RECONVEYANCE OF REAL PROPERTY

GR: It is based on an implied or constructive trust which prescribes in 10 years from the date of registration or date of issuance of certificate of title or from actual discovery of fraud if the registration was made in bad faith. XPN: If the plaintiff is in possession of the property and did not pass to innocent purchaser for value and good faith, action is imprescriptible. (Marquez v. CA, G.R. No. 125715, Dec. 29, 1998) Also applicable in judicial proceedings.

REOPENING BY INTERVENTION IN SUMMARY SETTLEMENT

Upon motion of a person who either: a. Has a legal interest in the matter in litigation; b. Has such legal interest in the success of either of the parties, or an interest

against both; or c. Is so situated as to be adversely affected by the distribution of property in

the custody of the court or of an officer.

Note: May be availed of after judgment but before its finality or appeal by the aggrieved party.

PETITION FOR RELIEF (SUMMARY SETTLEMENT)

On grounds of fraud, accident, mistake, and excusable negligence within 60 days after petitioner learns of the judgment, final order or other proceeding to be set aside, and not more than 6 months after such judgment or final order was entered. (Rule 38.) Also applicable in judicial proceedings.

ACTION TO ANNUL A DEED OF EXTRAJUDICIAL SETTLEMENT OR JUDGMENT IN SUMMARY SETTLEMENT

On the ground of fraud which should be filed within 4 years from the discovery of fraud.

ORDINARY ACTION BUT NOT AGAINST THE BOND

If the order of closure has already become final and executory, the heir must file an independent civil action of accion reinvidicatoria to recover his deprived share. Note: It must be brought within 10 years from the time the right of action accrues. [Art. 1144(c)] Also applicable in judicial proceedings. After the lapse of two years an ordinary action may be instituted against the distributees within the statute of limitations but not against the bond.

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C. PRODUCTION AND PROBATE OF WILL

1. NATURE OF PROBATE PROCEEDING

Q: What is probate?

A: Probate is the act of proving before a competent court the due execution of a will by a person possessed of testamentary capacity, as well as the approval thereof by said court, (also known as Allowance of Will).

Q: Why is probate necessary?

A: To settle all questions concerning the capacity of the testator and the proper execution of his will, irrespective of whether its provisions are valid and enforceable. (Fernandez v. Dimagiba, G.R. No. L-23638, Oct. 12, 1967)

Q: What is the nature of a probate proceeding?

A: 1. IN REM- It is binding upon the whole world.

2. MANDATORY- No will shall pass either real or personal property unless it is proved and allowed in the proper court.

Note: However, a will may be sustained on the basis of Article 1080 of the NCC which states that, “if the testator should make a partition of his property by an act intervivos or by will, such partition shall stand in so far as it does not prejudice the legitime of the forced heir. (Mang- Oy v. CA, L-27421, 1986)

3. IMPRESCRIPTIBLE- because of the public policy to obey the will of the testator

4. DOCTRINE OF ESTOPPEL DOES NOT APPLY- the probate of the will is mandatory. The presentation and probate of the will is required by public policy. It involves public interest. (Fernandez v. Dimagiba, L- 23638, 1967)

Q: Does the probate court look into the intrinsic validity of the will?

A: GR: The jurisdiction of probate court is limited to the examination and resolution of the extrinsic validity of a will. XPNS: Principle of practical considerations wherein the court may pass upon the intrinsic validity of the will:

1. If the case where to be remanded for probate of the will, it will result to waste of time, effort, expense, plus added

anxiety; as in the case of absolute preterition (Nuguid v. Nuguid, G.R. No. L-23445, June 23, 1966).

2. Where the entire or all testamentary dispositions are void and where the defect is apparent on its face (Nepomuceno v. CA, G.R. No. L-62952, Oct. 9, 1985).

Note: Principle does not apply where the meat of the controversy is not the intrinsic validity of the will.

NOTE: The decree of probate is conclusive with respect to the due execution of the will and it cannot be impugned on any of the grounds authorized by law, except by fraud, in any separate or independent action or proceeding.

2. WHO MAY PETITION FOR PROBATE

Q: Who may file petition for allowance of will?

A: 1. Executor (Sec. 1, Rule 76); 2. Devisee or legatee named in the will (Sec.

1, Rule 76); 3. Person interested in the estate; e.g. heirs

Note: An interested party is one who would be benefited by the estate, such as an heir, or one who has a claim against the estate such as a creditor. (Sumilang v. Ramagosa, G.R. No. L-23135, Dec. 26, 1967)

4. Testator himself during his lifetime (Sec. 1, Rule 76); or

5. Any creditor – as preparatory step for filing of his claim therein.

Q: Who are the people entitled to notice in a probate hearing?

A: 1. Designated or known heirs, legatees and

devisees of the testator resident in the Philippines at their places of residence, at least 20 days before the hearing, if such places of residence be known.

2. Person named executor, if he not the petitioner.

3. To any person named as co-executor not petitioning, if their places of residence be known.

4. If the testator asks for the allowance of his own will, notice shall be sent only to his compulsory heirs. (Sec. 4, Rule 76)





D. ALLOWANCE OR DISALLOWANCE OF A WILL

1. CONTENTS OF PETITION FOR ALLOWANCE FOR WILL

Q: What are the contents of a petition for allowance of a will?

A: 1. Jurisdictional facts:

I. death of the testator and II. his residence at the time of his death

III. if non- resident, the province where the estate was left

2. The names, ages and residences of the heirs, legatees and devisees of the testator or decedent.

3. The probable value and character of the property of the estate.

4. The name of the persons for whom letters are prayed.

5. The name of the person having custody of the will if it has not been delivered to the court.

NOTE: 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.

Q: What is the effect of the allowance of a will?

A: The judgment or decree of the court allowing the will is:

1. Conclusive as to its extrinsic validity; 2. Not subject to collateral attack and it

stands as final, if not modified, set aside, or revoked by a direct proceeding, or reversed on appeal by a higher court; and

3. Conclusive on the whole world. (Yuseco v. CA, G.R. Nos. L-40719-21, Dec. 29, 1975)

Q: How should a will be proved?

A:

Uncontested Contested

Notarial will

The court may grant allowance thereof on the testimony of one of the subscribing witnesses only, if such witness testifies that the will was executed as is required by law. (Sec. 5, Rule 76)

All the subscribing witnesses and the notary public must testify as to due execution and attestation of the will. (Sec. 11, Rule 76)

Holographic will

At least one witness who knows the handwriting and signature of the testator explicitly declares that the will and signature are in the handwriting of the testator. (Sec. 5, Rule 76)

The will shall be allowed if at least three witnesses who know the handwriting of the testator explicitly declare that the will and signature are in the handwriting of the testator. (Sec. 11, Rule 76)

Note: At the hearing, compliance with publication and notice must first be shown before the introduction of testimony in support of the will.

In the absence of competent witness, and if the court deems it necessary, expert testimony may be resorted to. (Sec. 5, Rule 76)

Q: What is the remedy if none of the subscribing witnesses resides in the province where probate is being conducted?

A: A motion for taking of deposition of one or more of them. (Sec. 7, Rule 76)

Note: Court may also authorize photographic copy of the will to be made and to be presented to the witness on his examination, who may be asked questions with respect to matters pertaining to the will. (Sec. 7, Rule 76)

Q: What are the instances when the court may admit the testimony of witnesses other than the subscribing witnesses?

A: 1. The subscribing witnesses are dead or

insane; or 2. None of them resides in the Philippines.

(Sec. 8, Rule 76)

Q: What matters shall be testified on by the other witnesses?

A: 1. The sanity of the testator; and 2. Due execution of the will.

Note: The court may admit proof of handwriting of the testator and of the subscribing witnesses, or any of them. (Sec. 8, Rule 76)

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Q: What proof is necessary if the testator himself files the petition for probate of his holographic will and no contest is filed?

A: The fact that he affirms that the holographic will and the signature are in his own handwriting shall be sufficient evidence of the genuineness and due execution thereof. (Sec. 12, Rule 76)

Q: What if the holographic will is contested?

A: If the holographic will is contested, the burden of disproving the genuiness and due execution thereof shall be on the contestant. The testator may, in his turn, present such additional proof as may be necessary to rebut the evidence for the contestant. (Sec. 12, Rule 76)

Q: What is the rule on proof of lost or destroyed will?

A: If notarial will, it may be proven by a photostatic or xerox copy of the will coupled with the testimonies of the attesting witnesses.

If holographic will, a photostatic copy or exerox copy of the lost will would not suffice. But if there are no other copies available then a photostatic or xerox copy would suffice to serve as a comparison to the standard writings of the testator. No testimonies of witnesses is allowed because the will was made entirely by the testator himself. (Bonilla vs. Aranz, G.R. No. L-58509, Dec. 7, 1982)

Q: What are the requisites for allowance of a lost or destroyed will?

A: No will shall be proved as a lost or destroyed will unless:

1. Its execution and validity of the same must be established;

2. It must have been in existence at the time of the death of the testator, or is shown to have been fraudulently or accidentally destroyed during the lifetime of the testator without his knowledge; and

3. Its provisions must be clearly and distinctly proved by at least 2 credible witnesses (Sec. 6)

2. GROUNDS FOR DISALLOWING A WILL

Q: What are the grounds for disallowance of will?

A: 1. If not executed and attested as required

by law;

2. If the testator was insane, or otherwise mentally incapable to make a will, at the time of its execution;

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

4. If it was procured by undue and improper pressure or influence, on the part of the beneficiary, or of some other person for his benefit; or

5. 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)

Q: What is the Substantial Compliance Rule? A: If the will has been executed in substantial compliance with the formalities of the law, and the possibility of bad faith and farud is obviated, said will should be admitted to probate (Art. 809, New Civil Code). 3. REPROBATE; REQUISITES BEFORE WILL PROVED

OUTSIDE ALLOWED IN THE PHILIPPINES; EFFECT Q: What is reprobate?

A: It is a special proceeding to establish the validity of a will proved in a foreign country.

Q: What are the requisites before a will proven outside the Philippines be allowed here?

A: 1. The testator was domiciled in a foreign

country; 2. The will has been admitted to probate in

such country; 3. The foreign court is, under the laws of

said foreign country, a probate court with jurisdiction over the proceedings;

4. Proof of compliance with the law on probate procedure in said foreign country;

5. The legal requirements in said foreign country for the valid execution of the will have been complied with;

6. Filing a petition in the Philippines with copy of the will and of its decree of allowance; and

7. Notice and hearing. (PCIB v. Escolin, G.R. No. 76714, June 2, 1994)

Note: Under the doctrine of processual presumption, there must be evidence to prove the existence of foreign law, otherwise the court should presume that the law of the foreign country is the same as Philippine laws.





Q: What are the effects of probate?

A: 1. The will shall have the same effect as if

originally proved and allowed in the Philippines (Sec. 3, Rule 77);

2. Letters testamentary or administration with a will annexed shall extend to all estates of the testator in the Philippines (Sec. 4, Rule 77); and

3. Such estate, after the payment of just debts and expenses of administration, shall be disposed of according to the will, so far as such will, may operate upon it, and the residue, if any, shall be disposed of as provided by law in cases of estates in the Philippines belonging to persons who are inhabitants of another country (Sec. 4, Rule 77).

E. LETTERS TESTAMENTARY AND OF

ADMINISTRATION

1. WHEN AND TO WHOM THE LETTERS OF ADMINISTRATION GRANTED

Q: Who can administer the estate?

A: 1. Executor – named by the testator in his

will for the administration of his property after his death;

2. Administrator – appointed by the court in accordance with the Rules or governing statutes to administer and settle the intestate testate; or

3. Administrator with a will annexed – appointed by the court in cases when, although there is a will, the will does not appoint any executor, or if appointed, said person is either incapacitated or unwilling to serve as such.

Q: Who may serve as executor or administrator?

A: Any competent person may serve as executor or administrator. There may be several executors named in the will. Letters testamentary may issue to such of them as are competent, accept and give bond. (Sec. 4, Rule 78)

Note: If the named executor does not qualify, then an administrator may be appointed. (Sec. 6, Rule 78)

Q: Who are incompetent to serve as executor or administrator?

A: 1. Minor;

2. Non-resident of the Philippines; and 3. Those who, in the opinion of the court,

are unfit to execute the duties of the trust by reason of drunkenness, improvidence, want of understanding or integrity, or conviction of an offense involving moral turpitude (Sec. 1, Rule 78).

Q: What authority is issued to the person who administers the estate?

A: 1. Letters testamentary – authority issued to

an executor named in the will to administer the estate;

2. Letters of administration – authority issued by the court to a competent person to administer the estate of the deceased who died intestate; or

3. Letters of administration with a will annexed – authority issued by the court to a competent person to administer the estate of the deceased if the executor named in the will refused to accept the office, or is incompetent.

2. ORDER OF PREFERENCE

Q: State the order of preference in granting letters of administration. (to whom letters are granted)

A: If no executor is named in the will, or the executors are incompetent, refuse the trust, or fail to give the bond, or a person dies intestate, administration shall be granted to:

1. The surviving spouse or next of kin, or both, in the discretion of the court, or to such person as such surviving spouse or next of kin, requests to have appointed, if competent and willing to serve

2. The principal creditors, if competent and willing to serve, if the surviving spouse or next of kin, or the person selected by them be incompetent or unwilling or if the surviving spouse or next of kin neglects for 30 days after the death of the person to apply for administration or to request that administration be granted to some other person

3. Such other person as the court may select if there is no such creditor competent and willing to serve. (Sec. 6)

NOTE: Order of preference may be disregarded for a valid cause.

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Note: Co-administrators may be appointed for the benefit of the estate and those interested therein (Matute v. CA, G.R. No. 26751, Jan. 31, 1969).

Q: What is the rationale behind the order of preference in appointing an administrator?

A: The underlying assumption behind this rule is that those who will reap the benefits of a wise, speedy and economical administration of the estate or on the other hand, suffer the consequences of waste, improvidence or mismanagement, have the higher interest and most influential motive to administer the estate correctly (Gonzales v. Aguinaldo, G.R. No. 74769, Sept. 28, 1990).

Q: When may co-administrators be appointed?

A: 1. To have the benefit of their judgment and

perhaps at all times to have different interests represented;

2. Where justice and equity demand that opposing parties or factions be represented in the management of the estate of the deceased;

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

4. To have all interested persons satisfied and the representatives to work in harmony for the best interest of the estate; or

5. When a person entitled to the administration of an estate desires to have another competent person associated with him in the office. (Gabriel v. CA, G.R. No. 101512, Aug. 7, 1992)

3. OPPOSITION TO ISSUANCE OF LETTERS

TESTAMENTARY; SIMULTANEOUS FILING OF PETITION FOR ADMINISTRATION

Q: Who may oppose the issuance of letters testamentary or administration?

A: Any person interested in the will may file a written opposition.

Note: He may attach thereto a petition for letters of administration and pray that letters be issued to himself, or to any competent person named in the opposition (Sec. 1, Rule 79).

Q: What are the grounds for opposing a petition for administration?

A: Any interested person may by filing a written opposition, contest the petition on the ground of the:

1. Incompetency of the person for whom letters are prayed therein; or

2. Contestant's own right to the administration (Sec. 4, Rule 79).

Note: Letters of administration may be granted to any qualified applicant, though it appears that there are other competent persons having better right to the administration, if such persons fail to appear when notified and claim the issuance of letters to themselves (Sec. 6, Rule 79).

Q: Is the order of Appointment of Regular Administrator final?

A: No. The order of appointment of a regular administrator is appealable. Where no notice is required by Sec. 3, Rule 79 of the Rules of Court has been given to persons believed to have an interest in the estate of the deceased person; the proceeding for the settelement of the estate is void and should be annulled. The requirement as to notice is essential to the validity of the proceeding in order that no person may be deprived of his right to property without due process of law. (Herrera, Vol. III-A, p. 94, 2005 ed.)

4. POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS; RESTRICTIONS ON THE

POWERS

Q: What are the rights of the executor or administrator of the deceased partner’s estate?

A: 1. He shall at all times have access to, and

may examine and take copies of books and papers relating to the partnership;

2. He can make invoices of the property belonging to the partnership, and the surviving partner or partners on request; and

3. The books, papers, and property in the partnership’s hands or control shall be exhibited to such executor or administrator. (Sec. 1, Rule 84)

Note: To exercise these rights, the executor or administrator must file his application with the probate court which must grant the same.

Q: What should be done by the executor or administrator to freely exercise his rights and duties?

A: He shall submit a written application to the court having jurisdiction of the estate. (Sec. 1, Rule 84)





Q: What are the general powers of an administrator or an executor?

A: 1. To have access to, and examine and take

copies of books and papers relating to the partnership in case of a deceased partner

2. To examine and make invoices of the property belonging to the partnership in case of a deceased partner

3. To maintain in tenantable repairs, houses and other structures and fences and to deliver the same in such repair to the heirs or devisees when directed so to do by the court

4. To make improvements on the properties under administration with the necessary court approval except for necessary repairs

5. To possess and manage the estate when necessary: i) For the payment of debts; and ii) For the payment of expenses of

administration Q: Is the right of an executor/administrator to the possession and management of property of the deceased absolute?

A: No, it can only be exercised so long as it is necessary for the payment of debts and expenses of administration (Ruiz v. CA, G.R. No.118671, Jan. 29, 1996). Q: What are the restrictions on the powers of administrator or executor?

A: 1. He cannot acquire by purchase, even at

public or judicial action, either in person or mediation of another, the property under administration;

2. He cannot borrow money without authority from the court;

3. He cannot speculate with funds under administration;

4. He cannot lease the property under administration for more than 1 year; Note: The administrator has the power to enter into lease contracts involving the properties of the estate even without prior judicial authority and approval. (Mananquil v. Villegas, A.M. No. 2430, Aug. 30, 1990)

5. He cannot continue the business of the deceased unless authorized by the court; and

6. He cannot profit by the increase or decrease in the value of the property under administration;

7. He cannot exercise the right of legal redemption over a portion of the property owned in common sold by one of the other co-owners. (Herrera, Vol. III-A, pp. 116-117, 2005 ed.)

5. APPOINTMENT OF SPECIAL ADMINISTRATOR

REGULAR ADMINISTRATOR

SPECIAL ADMINISTRATOR

Order of Appointment may be the subject of an appeal

Order of Appointment is interlocutory and hence not appealable

One of the obligations is to pay the debts of the estate

Cannot pay the debts of the estate

Appointed when the deceased died intestate or did not appoint an executor in the will or the will was disallowed

Appointed when there is delay in granting letters testamentary or administration

Q: When are the grounds for the appointment of a special administrator?

A: 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 (Sec. 1, Rule 80); or

2. When the executor or administrator is a claimant against the estate he represents (Sec. 6, Rule 86).

Note: Only one special administrator at a time may be appointed, since the appointment is merely temporary.

Q: Why is there a need for appointing a special administrator?

A: The principal object is to preserve the estate until it can pass into the hands of persons fully authorized to administer it for the benefit of the creditors and heirs (De Guzman v. Guadiz, G.R. No. L-48585, Mar. 31, 1980).

Q: What are the qualifications of a special administrator?

A: These are not spelled out in the Rules of Court. Thus, the appointment should be within the sound discretion of the court. The fundamental and legal principles governing the choice of a regular administrator should also be taken into account in

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the appointment of a special administrator. (Herrera, Vol. III-A, p. 99, 2005 ed.)

Q: Does the order of preference in the appointment of regular administrators apply to the appointment of special administrators?

A: No, but such order of preference may be followed by the judge in the exercise of sound discretion (Matias v. Gonzales, G.R. No. L- 13391, May 25, 1960).

Q: Is the order appointing a special administrator appealable?

A: No, it is an interlocutory order. (Esler v. Tad-y, G.R. No. L-20902, Oct. 9, 1923)

Q: What are the powers and duties of a special administrator?

A: 1. Possess and take charge of the goods,

chattels, rights, credits and estate of the deceased;

2. Preserve the same; 3. Commence and maintain suit for the

estate; 4. Sell only:

a. Perishable property; and b. Other property ordered sold by the

court; 5. Pay debts only as may be ordered by the

court. (Sec. 2, Rule 80) Q: When do the powers of special administrator cease?

A: After the questions causing the delay are resolved and letters testamentary or administration are granted to executor or regular administrator. (Sec. 1)

Q: When can 2 special administrators be appointed?

A: 1. If a special administrator is appointed

pending determination of a contest of a will instituted before it is admitted to probate, or pending an appeal from an order appointing, suspending or removing an executor or administrator, the special administrator has the same powers, duties and obligations as an executor or administrator, and the letters of administration issued to the special administrator must recite that the special

administrator is appointed with those powers.

2. If a special administrator has been appointed, and thereafter a proceeding to contest a will before it is admitted to probate has been instituted, the court shall enter an order granting to the special administrator the additional powers, duties and obligations of an executor or administrator and requiring such additional bond as the court deems proper.

6. GROUNDS FOR REMOVAL OF ADMINISTRATOR Q: What are the grounds for the removal of an executor or administrator?

A: 1. Neglect to render an account and settle

the estate according to law; 2. Neglect to perform an order or judgment

of the court, or a duty expressly provided by the Rules;

3. Absconds; 4. Becomes insane; or 5. Becomes incapable or unsuitable to

discharge the trust (Sec. 2, Rule 82).

Note: These grounds are not exclusive. False misrepresentation by an administrator in securing his appointment is a ground for his removal (Cobarrubias v. Dizon, G.R. No. L-225, Feb. 26, 1946).

Q: What are the other grounds for removal of an executor or administrator?

A: 1. Death; 2. Resignation; 3. An administrator who disbursed funds of

the estate without judicial approval. (Cotia vs. Jimenez, 104 Phil. 960);

4. False representation by an administrator in securing his appointment (Cabarubbias vs. Dizon, 76 Phil. 209);

5. An administrator who holds an interest adverse to that of the estate or by his conduct showing his unfitness to discharge the trust (Garcia vs. Vasquez, 32 SCRA 490);

6. An administrator who has the physical inability and consequent unsuitability to manage the estate (De Borja vs. Tan, 93 Phil. 167).





Q: Are the grounds for removal of executor or administrator the same for special administrator?

A: No. The grounds for the removal of regular administrator do not apply strictly to the special administrator as he may be removed by the court on other grounds upon its discretion.

Q: What is the rule on proceedings upon death, resignation or removal of an executor or administrator?

A: When an executor or administrator dies, resigns, or is removed the remaning executor or administrator may administer the trust alone, unless the court gransts letters to someone act with him. If there is no remaining executor or administrator, administration may be granted to any suitable person.

Q: Does the discovery of a will automatically terminate the letters of administration?

A: No, until the will has been proved and allowed pursuant to Section 1, Rule 82. (De Parreno v. Aranzanso, G.R. No. L- 27657, Aug. 30, 1982)

Q: What are the powers of a new executor or administrator after the first one resigns or is removed?

A: 1. To collect and settle the estate not

administered; 2. To prosecute or defend actions

commenced by or against the former executor or administrator; and

To recover execution on judgments in the name of former executor or administrator. (Sec. 4, Rule 82)

F. CLAIMS AGAINST THE ESTATE Q: What is a claim?

A: Claim refers to any debt or pecuniary demand against the decedent’s estate.

Q: What is absolute claim?

A: It is one which, if contested between living persons, would be the proper subject of immediate legal action and would supply a basis of judgment for a sum certain.

Q: What is contingent claim?

A: It is a conditional claim, which is subject to the happening of a future uncertain event. (Buan v. Laya, G.R. No. L-7840, Dec. 24, 1957)

Q: What is the duty of the court after granting letters testamentary or of administration?

A: The court shall issue a notice requiring all persons having money claims to file them in the office of the clerk of court. (Sec. 1, Rule 86)

1. TIME WHITIN WHICH CLAIMS SHALL BE FILED; EXCEPTIONS

Q: What is the time within which claims shall be filed?

A: It should not be less than six (6) months nor more than twelve (12) months from the day of the first publication of the notice thereof. Such period when fixed by the probate court becomes mandatory. 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, Rule 86)

The period prescribed in the notice to creditors is not exclusive; that money claims against the estate may be allowed at any time before an order of distribution is entered, at the discretion of the court for the cause and upon such terms as are equitable. (Quisumbing vs Guison, 76 Phil 730)

Note: The range of period specified in Sec.2 of Rule 86 is intended to give the court the discretion to fix the period for the filing of the claims. The probate court is permitted by the rule to set the period as long as it is within the limitation provided.

2. STATUTE OF NON-CLAIMS Q: What is the statute of non-claims?

A: It is a period fixed by the courts for the filing of claims against the estate for examination and allowance. (Herrera, Vol. III-A, p. 132, 2005 ed.)

Q: When should claims be filed?

A: GR: Within the time fixed in the notice which shall not be more than 12 months nor less than 6 months after the date of the first publication. Such period once fixed by the court is mandatory. Otherwise, the claims are barred forever.

Note: Where an executor or administrator commences an action, or prosecutes an action already commenced by the deceased in his lifetime, the debtor may set forth by answer the

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claims he has against the decedent, and mutual claims may be set off against each other in such action. (Sec. 5, Rule 86)

XPN: Belated claims.

Q: What is the rule on Belated Claims?

A: Belated claims may be filed even beyond the period fixed by the court:

1. On application of a creditor who has failed to file his claim within the time previously limited, at any time before an order of distribution is entered, the court may, for just causes, allow such claim to be filed not exceeding 1 month from the order allowing belated claims; or (Sec. 2 , Rule 86)

2. Where the estate filed a claim against the creditor or claimant who failed to present his claim against the estate within the period fixed by the probate court for the settlement of such claims, the creditor will be allowed to set up the same as a counterclaim to the action filed by the estate against him.

Note: Statute of non-claims supersedes the Statute of Limitations insofar as the debts of deceased persons are concerned because if a creditor fails to file his claim within the time fixed by the court in the notice, then the claim is barred forever. However, both statute of non-claims and statute of limitations must concur in order for a creditor to collect.

Q: What claims against the estate of the decedent must be presented in the probate court in the testate or intestate proceedings?

A: Only claims which survive such as: 1. All claims for money against the

decedent, arising from contract, express or implied, whether the same be due, not due, or contingent;

2. All claims for funeral expenses; 3. Expenses for the last sickness of the

decedent; or 4. Judgment for money against the

decedent. (Sec. 5, Rule 86) Note: Action on contractual claims such as favorable judgment obtained by the plaintiff in an action for recovery of money arising from contract, express or implied, and the defendant dies before entry of final judgment may be filed against the estate of the decedent. (Sec. 20, Rule 3)

Action which survives like an action to recover real or personal property or an interest therein from the

estate may be commenced against the executor or administrator under Rule 87.

Q: What if the effect of claims not filed?

A: As expressly provided by the rule, all claims not presented within the time herein provided are barred.

Q: The trial court admitted to probate the holographic will of Alice and thereafter issued an order for all the creditors to file their respective claims against the estate. Alan filed a contingent claim for agent's commission due him in the event of the sale of certain parcels of land belonging to the estate and reimbursement for expenses incurred. The executrix of the estate moved for the dismissal of said money claim against the estate on the grounds that Alan failed to attach a certification against non-forum shopping. The trial court dismissed the case. Is the trial court correct?

A: No. Under Sections 1 and 5, Rule 86 of the Rules of Court, after granting letters of testamentary or of administration, all persons having money claims against the decedent are mandated to file or notify the court and the estate administrator of their respective money claims; otherwise, they would be barred, subject to certain exceptions. A money claim is only an incidental matter in the main action for the settlement of the decedent's estate; more so if the claim is contingent since the claimant cannot even institute a separate action for a mere contingent claim. Hence, Alan’s contingent money claim, not being an initiatory pleading, does not require a certification against non-forum shopping. (Sheker v. Estate of Alice O. Sheker, G.R. No.157912, Dec. 13, 2007)

Q: Should taxes due and assessed after the death of the decedent be presented in the form of a claim?

A: No. The court in the exercise of its administrative control over the executor or administrator may direct him to pay such taxes. Moreover, heirs even after distribution are liable for such taxes. (Vera v. Fernandez, G.R. No. L-31364, Mar. 30, 1979)

3. CLAIM OF EXECUTOR OR ADMINISTRATOR AGAINST THE ESTATE

Q: What should be the action of the executor or administrator if he has a claim against the estate?

A: He shall give notice to the court in writing and the court shall thereafter appoint a special administrator (Sec. 8, Rule 86).





Q: What is the procedure in filing claims?

A:

Q: Jericho loaned P5 Million from Carina. Said loan was secured by a real estate mortgage over a parcel of land owned by Jericho. Thereafter, Jericho died without satisfying the loan secured by the said mortgage. What are the remedies available to Carina to enforce her mortgage credit?

A:

1. Waive the mortgage and claim the entire debt from the estate of the mortgagor as an ordinary claim;

2. Foreclose the mortgage judicially and prove any deficiency as an ordinary claim;

3. Rely on the mortgage exclusively, foreclosing the same at any time before it is barred by prescription without the right to claim for any deficiency (Sec. 7, Rule 86).

Note: The above remedies are alternative.

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4. PAYMENT OF DEBTS Q: Is execution the proper remedy to satisfy an approved claim?

A: No, because:

1. Payment approving a claim does not create a lien upon property of the estate

2. Special procedure is for the court to order the sale to satisfy the claim Note: A writ of execution is not the proper procedure to satisfy debts. The court must order the sale or mortgage of the properties of decedent, the proceeds of which will satisfy the debts and expenses.

Q: How should the debts of the estate be paid?

A: GR: The payment of the debts of the estate must be taken from the following order:

1. Portion or property designated in the will – The debts of the testator, expenses of administration, or family expenses, shall be paid according to the provisions of the will. If such are insufficient, the properties not disposed of by will, if any, shall be appropriated for that purpose.

2. Personal property; 3. Real property. (Sec. 2, Rule 88)

Note: If there is still a deficiency, it shall be met by contributions of devisees, legatees, or heirs who have entered into possession of portions of the estate before the debts and expenses have been settled and paid (Secs. 2, 3, and 6, Rule 88).

XPNS: On application by executor or administrator, with written notice to persons interested, and after hearing, real properties can be charged first even though the personal properties are not exhausted when:

1. The personal property is not sufficient to pay the debts, expenses of administration and legacies (Sec. 3, Rule 88);

2. The sale of such personal property would be detrimental to the participants of the estate (Sec. 3, Rule 88);

3. Sale of personal property may injure the business or other interests of those interested of the estate (Sec. 2, Rule 89);

4. The testator has not made sufficient provision for payment of such debts, expenses or legacies (Sec. 2, Rule 89);

5. The decedent was, in his lifetime, under contract, binding in law, to deed real property to beneficiary (Sec. 8, Rule 89);

6. The decedent during his lifetime held real property in trust for another person (Sec. 9, Rule 89).

Q: How shall the proceeds from sale of personal property be used?

A: 1. To pay the debts and expenses of

administration; 2. To pay legacies; and 3. To cover expenses for the preservation of

the estate. (Sec. 1, Rule 89) Q: How should contingent claims be paid?

A: If the court is satisfied that a contingent claim duly filed is valid, it may order the executor or administrator to retain in his hands sufficient estate to pay such contingent claim when the same becomes absolute, or if the estate is insolvent, sufficient estate to pay a portion equal to the dividend of the other creditors. (Sec. 4, Rule 88)

Q: What must be satisfied before a contingent claim may be allowed by the court?

A: 1. Duly filed within the 2 year period

allowed for the creditors to present claims;

2. The claim is valid; and 3. The claim became absolute. (Sec. 5, Rule

88) Q: What is the consequence if the contingent claim is not presented within the 2 year period after it becomes absolute?

A: The assets retained in the hands of the executor or administrator, not exhausted in the payment of claims, shall be distributed by the order of the court to the persons entitled to the same (Sec. 4, Rule 88). However, the assets so distributed may still be applied to the payment of the claim when established, and the creditor may maintain an action against the distributees to recover the debt, and such distributees and their estates shall be liable for the debt in proportion to the estate they have respectively received from the property of the deceased.

Note: If heirs have taken possession of portions of the estate before the debts have been settled, they shall become liable to contribute for the payment of debts and expenses, and the court may, after hearing, settle





the amount of their several liabilities, and order how much and in what manner each person shall contribute (Sec. 6, Rule 88).

Q: What is the order of payment if estate is insolvent or assets are insufficient?

A: The executor or administrator shall pay the debts according to the concurrence and preference of credits provided by Articles 1059 and 2239-2251 of the NCC (Sec. 7, Rule 88).

Q: How should the estate in the Philippines of an insolvent non-resident be disposed of?

A: It shall be disposed of that his creditors in and outside the Philippines may receive an equal share, in proportion to their respective credits (Sec. 9, Rule 88).

Q: When and how should claims proved outside the Philippines against insolvent resident’s estate be paid?

A: Claims proven outside the Philippines where the executor had knowledge and opportunity to contest its allowance may be added to the list of claims proved against the decedent in the Philippines and the estate will be distributed equally among those creditors (Sec. 10, Rule 88).

Note: The benefits in the above provision shall not be extended to the creditors in another country if the property of such deceased person there found is not equally apportioned to the creditors residing in the Philippines and the other creditors, according to their respective claims.

Q: When should the court authorize sale, mortgage or other encumbrance of estate to pay debts and legacies in other countries?

A: When it appears from records and proceedings of a probate court of another country that the estate of the deceased in foreign country is not sufficient to pay debts and expenses, the court here may authorize the executor or administrator to sell, mortgage or encumber the property in the same manner as for the payment of debts and legacies in the Philippines (Sec. 5, Rule 89).

G. ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS

1. ACTIONS THAT MAY BE BROUGHT AGAINST

EXECUTORS AND ADMINISTRATORS

Q: What actions may be brought against the executor or administrator?

A: Those claims which can proceed independently of the settlement proceeding such as:

1. Actions to recover real or personal property, or an interest therein, from the estate;

2. Enforcement of a lien; 3. Actions to recover damages for an injury

to person or property, real or personal. (Sec. 1, Rule 87)

Q: What action may be brought by the executor or administrator?

A: Recovery or protection of the property or rights of the deceased, action for causes which survive. (Sec. 2, Rule 87)

Note: When an executor or administrator is appointed and assumes the trust, no action to recover the title or possession of lands or for damages done shall be maintained against him by an heir or devisee until there is an order of the court assigning the lands to such heir or devisee or until the time allowed for

paying debts has expired. (Sec. 3, Rule 87)

Q: What is the concept of a superseades bond?

A: It partakes the form of a security posted by the appealing party (who has lost the case in the lower court) to compensate the opposing party for the legal expenses in case it wins also in the higher (appellate) court.

Q: What are the requisites in order that executor/administrator may commence and prosecute an action for the recovery of property, if the decedent fraudulently conveys property to defraud his creditors?

A: 1. Application of the creditors; 2. Payment of cost and expenses; and 3. Give security therefore to the executor or

administrator. (Sec. 9, Rule 87) 2. REQUISITES BEFORE CREDITOR MAY BRING AN

ACTION FOR RECOVERY OF FRAUDULENTLY CONVEYED BY THE DECEASED

Q: What are the requisites before a creditor may bring an action for recovery of property fraudulently conveyed by the deceased?

A: 1. There is a deficiency of assets in the

hands of an executor or administrator for the payment of debts and expenses of administration;

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2. In his lifetime, the deceased had made or attempted to make a fraudulent conveyance of his property or had so conveyed such property that by law, the conveyance would be void as against his creditors;

3. The subject of the attempted conveyance would be liable to attachment in his lifetime;

4. The executor or administrator has shown no desire to file the action or failed to institute the same within a reasonable time;

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

6. A bond is filed by the creditor; and 7. The action by the creditor is in the name

of the executor or administrator (Sec. 10).

Note: The creditor shall have a lien on the judgment recovered for costs and expenses. The last 3 requisites are unnecessary where the grantee is the executor or administrator himself, in which event, the action should be in the name of all the creditors. (Sec. 10; Herrera, Vol. III-A, p. 175, 2005 ed.)

H. DISTRIBUTION AND PARTITION

1. LIQUIDATION Q: What is liquidation? A: Liquidation is the determination of all assets of the estate and payment of all debts and expenses.

Q: Discuss the process for the distribution of the residue of the estate.

A:





Note: Even if the testator stated in his will that he owes a certain person and ordered that the same be paid, if the estate is insolvent, the creditor shall not enjoy priority over other claimants. The provision in the will should only establish the claim of the creditor against the estate. He must still file his claim according to Section 9, Rule 86 and must comply with the statute of non-claims.

Q: When is the order for distribution of residue made?

A: GR: Order of distribution shall be made after payments of all debts, funeral expenses, expenses for administration, allowance of widow and inheritance tax. (Sec. 1, Rule 90)

XPN: If the distributees or any of them gives a bond conditioned for the payment of said obligation, the order of distribution may be made even before the payment of all debts, etc. (par. 2, Sec. 1, Rule 90)

Note: The probate court loses jurisdiction over the settlement proceedings only upon payment of all debts and expenses of the obligor and delivery of the entire estate to all the heirs. (Guilas v. Judge of CFI of Pampanga, G.R. No. L- 26695, Jan. 31, 1972)

Q: When should declaration of heirship be made?

A: It is only after, and not before, the payment of all debts, funeral expenses, charges of administration, allowances to the widow, and inheritance tax shall have been effected that the court should make the declaration of heirs or of such person as are entitled by law to the residue.

It should however be made clear that what the court is enjoined from doing so is the distribution of the residue of the estate before its obligations are first paid, but the court is not enjoined from making the declaration of heirs prior to the satisfaction of these obligations.

Q: What should the executor or administrator do if all the claims are paid or settled?

A: The executor or administrator shall prepare the project of partition reflecting the residue of the estate and how it is to be distributed. However, this is not mandatory. (Herrera, Vol. III-A, p. 213, 2005 ed.)

2. PROJECT OF PARTITION

Q: What is project of partition?

A: It 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. (Solivio v. CA, G.R. No. 83308, Feb. 12, 1990)

It is merely a proposal for the distribution of the hereditary estate which the court may accept or reject. (Herrera, Remedial Law III-A, p 213)

Q: May an heir of the deceased sell his undivided share during the pendency of the estate proceedings without the prior approval of the probate court?

A: Yes. An heir has the right to sell his undivided or ideal share of the estate, he being the co-owner with other heirs of the estate. Court approval is necessary only if specific property of the estate is sold. (Heirs of Pedro Escanlar v. CA, G.R. No. 119777, Oct. 23, 1997)

Q: Does the finality of the approval of the project of partition by itself alone terminate the probate proceeding?

A: No. As long as the order of the distribution of the estate has not been complied with, the probate proceedings cannot be deemed closed and terminated. (Estate of Ruiz v. CA, G.R. No. 118671, Jan. 29, 1996)

3. REMEDY OF AN HEIR ENTITLED TO RESIDUE BUT NOT GIVEN HIS SHARE

Q: What is the remedy of an heir who is entitled to the residue but was not given his share?

A: 1. MOTION TO SET ASIDE THE

DISTRIBUTION- If an heir appears after the court approved the project of partition, the heir must file a Motion to set aside the distribution with the court so that the court will not proceed with the distribution of the residue. The probate court shall determine whether such heir has a right to participate in the distribution of the residue. If it is proven that the heir has a right, the court may order the revision of the project of partition for its adjustment.

2. MOTION FOR THE RE- OPENING OF THE SETTLEMENT PROCEEDINGS-If the distribution has already been made, a motion for closure has already been granted, the heir must file a Motion for the re-opening of the settlement proceedings within the 30 day

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reglementary period, provided the order of closure has not yet become final and executory.

3. ACCION REINVIDICATORIA- If the order of closure has already become final and executory, (Vda. de Lopez v. Lopez, G.R. No. L-28602, Sept. 29, 1970)

Q: When is title to property vested to the heirs?

A: It is vested from finality of order of distribution.

Q: Is the order that determines distributive share appealable?

A: Yes. Otherwise, it becomes final.

4. INSTANCES WHEN PROBATE COURT MAY ISSUE WRIT OF EXECUTION

Q: What are the instances when the probate court may issue writ of execution?

A: GR: A probate court cannot issue a writ of execution. In the case of Aldamiz vs. Judge of

CFI of Mindoro, 85 Phil. 228, a writ of execution is not the proper procedure allowed by the Rules of Court for the payment of debts and expenses of administration. The proper procedure is for the court to order the sale of personal estate or the sale or mortgage of real property of the deceased and all debts and expenses of the administration should be paid out of the proceeds of such sale or mortgage. The order for the sale or mortgage should be issued upon motion of the administrator and with the written notice to all the heirs, legatees and devisees residing in the Philippines. And when the sale or mortgage is to be made, the regulations contained in Rule 89, Sec. 7 should be complied with.

XPNS: 1. To satisfy the distributive shares of the

devisees, legatees and heirs in possession of the decedent’s assets;

2. To enforce payment of the expenses of partition; and

3. To satisfy the costs when a person is cited for examination in probate proceedings.

I. TRUSTEES

1. DISTINGUISHED FROM EXECUTOR/ADMINISTRATOR

EXECUTOR/ ADMINISTRATOR TRUSTEE

Accounts are NOT under oath and except for initial and final submission of accounts, they shall be filed only at such times as may be required by the court

Accounts must be UNDER OATH and filed ANNUALLY

Court that has jurisdiction may be MTC or RTC Court which has jurisdiction is the RTC if appointed to carry into effect provisions of a will; if trustee dies, resigns or is removed in a contractual trust, RTC has jurisdiction in the appointment of new trustee

May sell, encumber or mortgage property if it is necessary for the purpose of paying debts, expenses of administration or legacies or for the preservation of property or if sale will be beneficial to heirs, legatees or devisees (Upon application to the court with written notice to the heirs)

May sell or encumber property of the estate held in trust if necessary or expedient or upon order of the court

Order of sale has NO TIME LIMIT Order of sale has NO TIME LIMIT

Approved by the court to settle estate of the decedent Appointed to carry into effect the provisions of a will or written instrument (contractual trust)

NOT EXEMPTED from filing a bond even if such exemption is provided in the will (ratio: bond is only conditioned upon payment of debts)

May be EXEMPTED from filing a bond if provided in the will or if beneficiaries requested such exemption

Services of executors or administrator is terminated UPON PAYMENT OF DEBTS of the estate and DISTRIBUTION of property to the heirs

Trusteeship is terminated upon TURNING OVER THE PROPERTY to beneficiary after expiration of the trust (period may be provided for in the will or trust contract)

MUST PAY the debts of the estate NO OBLIGATION TO PAY the debts of the beneficiaries or trustor





Q: What is a trust?

A: A legal relationship between one person having an equitable ownership in property and another person owning the legal title to such property.

Q: Who is a trustee?

A: A trustee is one who is appointed to carry out the provision of the will or any written instrument executed by the trustor.

2. CONDITIONS OF THE BOND Q: What are the conditions of the bond?

A: 1. That the trustee will make and return to

the court, at such time as it may order, a true inventory of all the estate belonging to him as trustee, which at the time of the making of such inventory shall have come to his possession or knowledge; Note: 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.

2. That he will manage and dispose of all such estate, and faithfully discharge his trust in relation thereto, according to law

3. and the will of the testator or the provisions of the instrument or order under which he is appointed;

4. That he will render upon oath at least once a year until his trust is fulfilled a true account of the property in his hands and of the management and disposition thereof, and such other accounts as the court may order; and

5. 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 persons entitled thereto (Sec. 6, Rule 98).

Q: Is the trustee required to file a bond?

A: GR: Yes. Neglect of trustees to file a bond will be interpreted by the court as resignation or decline to accept the trust.

XPN: If requested by the testator or by all persons beneficially interested in the trust, the trustee may be exempted from filing a bond. But the court may cancel such exemption anytime. (Sec. 5, Rule 98)

3. REQUISITES FOR THE REMOVAL AND RESIGNATION OF A TRUSTEE

Q: What are the requisites for the removal or resignation of a trustee?

A: 1. Petition filed by parties beneficially

interested; 2. Notice to trustee; and 3. Hearing (Sec. 8, Rule 98).

4. GROUNDS FOR REMOVAL AND RESIGNATION OF

A TRUSTEE Q: What are the grounds for removal or resignation of a trustee?

A: 1. Removal appears essential in the interest

of petitioners; 2. Insanity; 3. Incapability of discharging the trust; or 4. Unsuitability (Sec. 8, Rule 98).

Note: A trustee may resign his trust if it appears to the court proper to allow such resignation (Sec. 8, Rule 98).

5. EXTENT OF AUTHORITY OF TRUSTEE

Q: What is the extent of authority of a trustee? A: Rule 98, applies only to express trust, one which is created by a will or a written instrument. Q: When is there a testamentary trust? A: If a testator has omitted in will to appoint a trustee in the Philippines, and if such appointment is necessary to carry into effect the provisions of the will. After notice to all persons interested, the proper RTC may appoint a trustee who shall have the same rights, powers, and duties, and in whom the estate shall vest, as if he had been appointed by the testator. Q: When is there a contractual trust? A: When a trustee under a written instrument declines, resigns, dies, or is removed before the objects of the trust are accomplished, and no adequate provision is made in such instrument for supplying the vacancy after due notice to all persons interested, the proper RTC may appoint a new trustee to act alone or jointly with the others, as the case may be.

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Q: Can the possession of the trustee of the property ripen into ownership? A:

GR: An action to compel a trustee to convey property registered in his name in trust for the benefit of the cestui qui trust does not prescribe. The trustee’s possession is not adverse and therefore cannot ripen into title by prescription.

XPN: Prescription may arise where there is adverse possession of the property. To constitute adverse possession, the following must be present:

1. That the trustee has performed

unequivocal acts amounting to an ouster of the cestui qui trust;

2. That such positive acts of repudiation had been made known to the cestui qui trust; and

3. That the evidence thereon should be clear and conclusive. (Ceniza vs. CA, 181 SCRA 552)

J. ESCHEAT

Q: What is escheat?

A: It is a French or Norman term meaning chance or accident. It is the reversion of property to the State in consequence of want of any individual competent to inherit.

1. WHEN TO FILE

Q: What are the three instances of escheat?

A: 1. When a person dies intestate leaving no

heir but leaving property in the Philippines (Sec. 1, Rule 91);

2. Reversion proceedings where sale of property is made in violation of the Constitutional provision; and

3. Dormant accounts for 10 years (Unclaimed Balance Act of Banking Laws).

2. REQUISITES FOR FILING OF PETITION

Q: What are the requisites for filing a petition?

A: 1. A person died intestate; 2. He left no heirs or persons by law entitled

to the same; and 3. The deceased left properties in the

Philippines. (Sec. 1, Rule 91)

Q: Can the court convert escheat proceedings into settlement of the estate?

A: No, once the court acquires jurisdiction to hear the petition for escheat by virtue of the publication of the petition for escheat, this jurisdiction cannot be converted into one for the distribution of the properties of the decedent.

Note: For the distribution of the estate to be instituted, the proper petitions must be presented and the proceedings should comply with the requirements of the Rules of Court. (Municipality of Magallon v. Bezore, G.R. No. L-14157, Oct. 26, 1960)

3. REMEDY OF RESPONDENT AGAINST PETITION; PERIOD FOR FILING A CLAIM

Q: What is the remedy of the respondent against the petition for escheat?

A: When the petition does not state the facts which entitle the petitioner to the remedy prayed for, or even admitting them hypothetically, the respondent may file a MOTION TO DISMISS, in such case the Motion to dismiss plays the role of a demurrer to evidence (Herrera, Remedial Law III-A, p 227-228)

K. GUARDIANSHIP Q: What is guardianship?

A: It is a trust relation in which one person acts for another whom the law regards as incapable of managing his own affairs.

Note: Guardianship of minors is now governed by the Rule on Guardianship of Minors (AM No. 03-02-05-SC) which took effect on May 1, 2003. While guardianship of incompetents who are not minors is still governed by the provisions of the Rules of Court on Guardianship. (Rule 92- 97)

Q: What is ancillary guardianship?

A: It refers to the guardianship in a state other than that in which guardianship is originally granted.

1. GENERAL POWERS AND DUTIES OF GUARDIANS Q: To what extent does guardianship extend?

A: Conflicts regarding ownership or title to the property in the hands of the guardian in his capacity as such should be litigated in a separate proceeding, the court in guardianship proceeding is concerned solely with the ward’s care and custody and proper administration of his properties (Villoria





v. Administrator of Veteran Affairs, L-9620, June 1957)

Q: What are the general powers and duties of guardians?

A: 1. To have the care and custody of the

person of the ward, and/or the management of his estate;

2. Pay the debts of the ward; 3. To settle accounts, collect debts, and

appear in actions for the ward; 4. Manage the estate of the ward frugally,

and apply the proceeds to the maintenance of the ward;

5. Render verified inventory within 3 months after his appointment and annually thereafter, and upon application of interested persons;

6. Render to court for its approval an accounting of the property for 1 year from his appointment and as often thereafter as may be required, and upon application of interested persons

7. Consent to a partition of real or personal property owned by ward jointly or in common with others. (Secs. 1-8, Rule 96; Sec. 17, A.M. No. 03-02-05-SC)

Q: What is the order of liability of the ward’s property?

A: 1. Personal estate and income of real estate 2. Real estate

Q: What are the requisites to authorize the guardian to join in the partition proceedings after hearing? A:

1. Hearing 2. Notice to relatives of the ward; and 3. Careful investigation as to the necessity

and propriety of the proposed action (Section 5)

2. CONDITIONS OF THE BOND OF THE GUARDIAN Q: What are the conditions of the bond of the guardian?

A: 1. To make and return to the court, within 3

months, a true and complete inventory of all the estate of his ward which shall come to his possession or knowledge or

to the possession or knowledge of any other person for him;

2. To faithfully execute the duties of his trust, manage and dispose of the estate according to the rules for the best interests of the ward, and to provide for the proper care, custody, and education of the ward;

3. To render a true and just account of all the estate of the ward in his hands, and of all proceeds or interest derived there from, and of the management and disposition of the same, at the time designated by the rules and such other times as the court directs; and at the expiration of his trust, settle his accounts with the court and deliver and pay over all the estate, effects, and moneys remaining in his hands, or due from him on such settlement, to the person lawfully entitled thereto; and

4. To perform all orders required by the court (Sec. 1, Rule 94; Sec.14, A.M. No. 03-02-05-SC).

Q: What is the purpose of the bond?

A: It is for the protection of the property of the minor or incompetent to the end that he may be assured of an honest administration of his funds (Herrera, Vol. III-A, p. 282, 2005 ed.)

Note: The bond of the guardian is a continuing one against the obligors and their estates until all of its conditions are fulfilled. The mere fact that defendant was removed as guardian did not relieve her or her bondsmen from liability during the time she was duly acting as such guardian. (Guerrero v. Teran, G.R. No. L-4898, Mar. 19, 1909)

Q: Does the requirement of posting a bond extend to parents who are the legal guardians of their minor children? Explain.

A: GR: No, if the market value or annual income of the child is P 50,000 or below.

XPN: If the market value of the property or the annual income of the child exceeds P50,000, the parent concerned shall furnish a bond in such amount as the court may determine, but in no case less than 10% of the value of such property or annual income, to guarantee the performance of the obligations prescribed for general guardians (Sec. 16, A.M. No. 03-02-05-SC).

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3. RULE ON GUARDIANSHIP OVER MINOR Q: Who may petition for appointment of guardian for resident?

A: 1. Any relative; 2. Other person on behalf of the minor; 3. Minor himself is 14 years of age; or 4. Secretary of Social Welfare and Development AND by the Secretary of Health in case of insane minor who needs to be hospitalized. (Section 2, AM-03-02-05-SC)

Q: Is court appointment necessary to enable the father and the mother to exercise joint legal guardianship over the person and property of minor?

A: No. The father and the mother shall jointly exercise legal guardianship over the person and property of their minor without the necessity of a court appointment. In such case, this Rule shall be suppletory to the provisions of the Family Code on Guardianship (Section 1, AM -03-02-05-SC)

Q: What would the court do if an issue arises as to who has the better right or title to the properties conveyed in the guardianship proceeding?

A: GR: The issue should be threshed out in a separate ordinary action as it is beyond the jurisdiction of the guardianship court. XPN: When the ward’s right or title to the property is clear and undisputable, the guardianship court may issue an order directing its delivery or return.

Q: What are the grounds for the appointment of a guardian over the person or property, or both, of a minor? A:

1. Death, continued absence, or incapacity of his parents;

2. Suspension, deprivation or termination of parental authority;

3. Remarriage of surviving parent, if the latter is found unsuitable to exercise parental authority; or

4. When the best interests of the minor so require (Sec. 4, A.M. No. 03-02-05-SC).

Q: What are the factors to be considered for the appointment of guardian of minors?

A: 1. Moral character; 2. Physical, mental, and psychological

condition; 3. Financial status; 4. Relationship of trust with the minor; 5. Availability to exercise the powers and

duties of a guardian for the full period of the guardianship;

6. Lack of conflict of interest with the minor; and

7. Ability to manage the property of the minor (Sec. 5, A.M. No. 03-02-05-SC).

Note: 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. (Sec.9, A.M. No. 03-02-05-SC).

Q: Who may be appointed as guardian of a minor? A: In default of parents or a court-appointed guardian, the court may appoint a guardian of the person or property, or both, of a minor, observing, as far as practicable, the following order of preference:

1. Surviving grandparent and, in case several grandparents survive, the court shall select any of them taking into account all relevant considerations;

2. Oldest brother or sister of the minor over 21 years of age, unless unfit or disqualified;

3. Actual custodian of the minor over 21 years of age, unless unfit or disqualified;

4. Any other person, who in the sound discretion of the court would serve the best interests of the minor (Sec. 6, A.M. No. 03-02-05-SC).

Q: What are the grounds for opposition to petition of guardianship of minors? A:

1. Majority of the alleged minor; or 2. Unsuitability of the person for whom

letters are prayed for (Sec. 10, A.M. No. 03-02-05-SC).

Q: How may a petition for guardianship of minors or incompetents be opposed? A: Any interested person may contest the petition by filing a written opposition and pray that the petition be denied, or that letters of guardianship issue to himself, or to any suitable person named in the opposition (Sec. 10, A.M. No. 03-02-05-SC; Sec. 4, Rule 9).





L. ADOPTION Q: What is adoption? A: It is a juridical act, a proceeding in rem, which creates between two persons a relationship similar to that which results from legitimate paternity and filiation. Q: What is the State policy on adoption? A: It is the policy of the State to ensure that every child remains under the care of his or her parent/s and be provided with love, care, understanding and security towards the full and harmonious development of his personality. Q: What is a Child Legally Available for Adoption? A: A Child Legally Available for Adoption refers to a child in whose favor a certification was issued by the DSWD that he/she is legally available for adoption after the fact of abandonment or neglect has been proven through the submission of pertinent documents, or one who was voluntarily committed by his/her parent(s) or legal guardian. (Sec. 2(5), R.A. 9523). Q: What is the requirement in order that the child may be declared legally available for adoption? A: There must be a certification which shall be issued by the DSWD in lieu of a judicial order, thus making the entire process administrative in nature. The certification, shall be, for all intents and purposes, the primary evidence that the child is legally available in a domestic adoption and in an inter-country adoption proceeding (Sec. 8, Ibid.). Q: Can minor children be legally adopted without the written consent of a natural parent on the ground that the latter has abandoned them?

A: No. Adoption cannot be had without the written consent of a natural parent who has allegedly abandoned them. Abandonment cannot be merely presumed, it must be duly proven. Moreover, there should be proof of emotional abandonment. (Cang v. CA, GR No. 105308, Sept. 25, 1998). Q: Is publication of the hearing for adoption necessary for the adoption to be valid? A: Indeed, publication of the scheduled hearing for the petition for adoption is necessary for the validity of a decree of adoption but not for the purpose merely of taking a deposition. In taking a deposition, no substantial rights are affected since depositions may or may not be presented or may even be objected to when formally offered as evidence at the trial of the main case later on. the philosophy behind adoption statutes is to promote the welfare of the child and every reasonable intendment should be sustained to promote that objective. (Republic v. Elepano, G.R. No. 92542, Oct. 15, 1991). Note: The necessary consequence of the failure to implead the civil registrar as an indispensable party and to give notice by publication of the petition for correction of entry was to render the proceeding of the trial court, so far as the correction of entry was concerned, null and void for lack of jurisdiction both as to party and as to the subject matter. (Republic v. CA, G.R. No. 103695, Mar. 15, 1996).

Q: What is the effect of adoption created under the law of a foreign country? A: It is entitled to registration in the corresponding civil register of the Philippines. It is to be understood, however, that the effects of such adoption shall be governed by laws of the Philippines. (Marcaida v. Aglubat, G.R. No. L-24006, Nov. 25, 1967)

1. DISTINGUISH DOMESTIC ADOPTION FROM INTER-COUNTRY ADOPTION

DOMESTIC INTER-COUNTRY

Jurisdiction Family Court where adopter resides Inter-Country Adoption Board (Petition may also be filed with Family Court where adoptee resides; FC to endorse petition to ICAB)

Who May adopt 1) Any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of good moral character, has not been convicted of any crime involving moral turpitude; who is emotionally and psychologically capable of caring for children, at least sixteen (16) years older than the adoptee, and who is in a position to support and care for

A foreigner must meet the following requirements in order to be qualified to adopt in the Philippines under the Inter-Country Adoption Act:

a) GR: at least twenty-seven (27) years of age and at least sixteen (16) years older than the child to be adopted, at the time

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his children in keeping with the means of the family. The requirement of a 16-year difference between the age of the adopter and adoptee may be waived when the adopter is the biological parent of the adoptee or is the spouse of the adoptee’s parent; 2) Any alien possessing the same qualifications as above-stated for Filipino nationals: Provided, That his country has diplomatic relations with the Republic of the Philippines, that he has been living in the Philippines for at least three (3) continuous years prior to the filing of the petition for adoption and maintains such residence until the adoption decree is entered, that he has been certified by his diplomatic or consular office or any appropriate government agency to have the legal capacity to adopt in his country, and that his government allows the adoptee to enter his country as his adopted child. Provided, further, That the requirements on residency and certification of the alien’s qualification to adopt in his country may be waived for the following:

(i) A former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity;

(ii) One who seeks to adopt the legitimate child of his Filipino spouse;

(iii) One who is married to a Filipino citizen and seeks to adopt jointly with his spouse a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouse.

(3) The guardian with respect to the ward after the termination of the guardianship and clearance of his financial accountabilities. Husband and wife shall jointly adopt, except in the following cases:

(i) Iif one spouse seeks to adopt the legitimate child of one spouse by the other spouse; or

(ii) If one spouse seeks to adopt his own illegitimate child: Provided, however, That the other spouse has signified his consent thereto; or

(iii) If the spouses are legally separated from each other.

In case husband and wife jointly adopt or one spouse adopts the illegitimate child of the other, joint parental authority shall be exercised by the spouses.

of application; XPN: if the adopter is the parent by nature of the child to be adopted or the spouse of such parent, he/she is not required to meet the above age requirement;

b) If married, his/her spouse must jointly file for the adoption;

c) With capacity to act and assume all rights and responsibilities of parental authority under his national laws, and has undergone the appropriate counseling from an accredited counselor in his/her country;

d) Not convicted of a crime involving moral turpitude;

e) Eligible to adopt under his/her national law;

f) In a position to provide the proper care and support and to give the necessary moral values and example to all his children, including the child to be adopted;

g) Agrees to uphold the basic rights of the child as embodied under Philippine family laws, the U.N. Convention on the Rights of the Child, and to abide by the rules and regulations issued to implement the provisions of this Act;

h) Comes from a country with whom the Philippines has diplomatic relations and whose government maintains a similarly authorized and accredited agency and that adoption is allowed under his/her national laws; and

i) Possesses all the qualifications and none of the disqualifications provided herein and in other applicable Philippine laws.

Supervised Trial Custody

Within the Philippines (6 month period discretionary upon the court to shorten period or exempt parties from trial custody)

Within the country of the adopter (Mandatory; all expenses borne by adopter)





Petition for adoption

May include 1. Prayer for change of name 2. Rectification of simulated birth 3. Declaration that child is abandoned,

dependent or neglected child or foundling

N/A

Who may be adopted

1. Any child legally declared available for adoption

2. Legitimate or illegitimate child of a spouse 3. Person of legal age

Child legally available for adoption

Supporting Documents

1. Income Tax Returns 2. Police Clearance 3. Character Reference 4. Family Picture 5. Birth Certificate of adopter

Publication 3 successive weeks in a newspaper of general circulation in the province or city where the court is situated

N/A

Where to file application

Family Court which has jurisdiction May be made through foreign placement agency which will then submit application to the ICAB

2. DOMESTIC ADOPTION

a. EFFECTS OF ADOPTION Q: What are the effects of adoption? A:

1. All legal ties between the biological parents and the adoptee shall be severed and the same shall then be vested on the adopter/s, except where the biological parent is the spouse of the adopter;

2. The adoptee shall be considered the legitimate child of the adopter/s for all intents and purposes and shall be entitled to all the rights and obligations provided by law to legitimate children born to them without discrimination of any kind; and

3. In legal and intestate succession, the adopter/s and the adoptee shall have reciprocal rights of succession without distinction from legitimate filiation. However, if the adoptee and his biological parent/s had left a will, the law on testamentary succession shall govern. (Secs. 16-18, R.A. 8552)

Note: The decree of adoption shall order the Civil Registrar where the adoption was registered to issue a certificate of birth which shall not bear that it is a new or amended certificate and shall state among others, the following: registry number, registration date, name of child, sex, date of birth, place of birth, name and citizenship of adoptive mother and father, and the date and place of their marriage, when applicable. [Sec. 16, 3(b)]

Q: What is the effect of the petition for adoption in relation to use of surnames? A: Pursuant to Art. 189 of the Family Code which states that the adopted child shall acquire the reciprocal rights and obligations arising from the relationship of a parent and child, including the right of the adopted to use the surname of the adopter, the adoptee has both the right and obligation to use the surname of the adopter, and that upon reaching the age of majority, he may file a petition for a change of surname, as the use by the adoptee of the surname of the adopter is more an incident rather than the object of adoption proceedings. (Republic v. CA, G.R. No. 97906, May 21, 1992) Note: This ruling may imply that what may be included in a petition for adoption is only the first or given name of the adoptee and not the surname, for he has the right and obligation, at least initially to use the surname of the adopter. (Agpalo, Handbook on Special Proceedings, p. 193, 2003 ed.) While the right of a natural parent to name the child is recognized, guaranteed and protected under the law, the so-called right of an adoptive parent to re-name an adopted child by virtue or as a consequence of adoption, even for the most noble intentions and moving supplications, is unheard of in law and consequently cannot be favorably considered. To repeat, the change of the surname of the adoptee as a result of the adoption and to follow that of the adopter does not lawfully extend to or include the proper or given name. (Republic vs. Hernandez, G.R. No. 117209, Feb. 9, 1996).

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b. INSTANCES WHEN ADOPTION MAY BE RESCINDED

Q: What are the grounds for rescission of adoption? A: Upon the petition of the adoptee, with the assistance of the DSWD if a minor or though over 18 is incapacitated, on any of the following grounds committed by the adopter/s:

1. Repeated physical and verbal maltreatment by the adopter/s despite having undergone counseling;

2. Attempt on the life of the adoptee; 3. Sexual assault or violence; or 4. Abandonment and failure to comply with

parental obligations (Sec. 19, Ibid.).

Note: Only the adoptee can rescind the decree of adoption. However, the adopter is not left without any remedy as he may deny to an adopted child his legitime and by will, may freely exclude him from having a share in the disposable portion of his estate. The new law had already abrogated or repealed the right of an adopter under the Civil and Family Codes to rescind a decree of adoption (Lahom v. Sibulo, G.R. No. 1439889, July 14, 2003).

c. EFFECTS OF RESCISSION OF ADOPTION

Q: What are the effects of rescission of adoption? A:

1. The parental authority of the adoptee's 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. The reciprocal rights and obligations of the adopter/s and the adoptee to each other shall be extinguished;

3. The court shall order the Civil Registrar to cancel the amended certificate of birth of the adoptee and restore his or her original birth certificate;

4. The successional rights shall revert to its status prior to adoption, but only as of the date of judgment of judicial rescission; and

5. The vested rights acquired prior to judicial rescission shall be respected (Sec. 23, Ibid.).

3. INTER-COUNTRY ADOPTION (R.A. 8043)

Q: What is inter-country adoption? A: It 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 taken, and the decree of adoption is issued outside of the Philippines. [Sec. 3(a)]

a. WHEN ALLOWED Q: When may inter-country adoption be allowed? A: It shall only be allowed when all the possibilities for domestic adoption of the child have been exhausted and that inter-country adoption is in the best interest of the child. (Sec. 27a) It is allowed when the adopter is an alien or a Filipino citizen permanently residing abroad. Moreover, his qualifications include:

1. At least twenty-seven (27) years of age and at least sixteen (16) years older than the child to be adopted, at the time of application unless the adopter is the parent by nature of the child to be adopted or the spouse of such parent;

2. If married, his/her spouse must jointly file for adoption;

3. Has the capacity to act and assume all rights and responsibilities of parental authority under his national laws and has undergone the appropriate counseling from an accredited counselor in his/her country;

4. Has not been convicted of a crime involving moral turpitude;

5. Is eligible to adopt under his/her national law;

6. Is in a position to provide proper care and support and to give the necessary moral values and example to all his children, including the child to be adopted;

7. Agrees to uphold the basic rights of the child as embodied under the Philippine laws, the U.N. Convention of the Rights of the Child, and to abide by the rules and regulations issued to implement the provisions of this Act;

8. Comes from another country with whom the Philippines has diplomatic relations and whose government maintains a similarly authorized and accredited agency and that adoption is allowed under his/her national laws; and

9. Possesses all the qualifications and none of the disqualifications provided herein and other applicable laws. (Sec. 9, R.A. 8043).





b. FUNCTIONS OF THE RTC Q: What is the function of the RTC in inter-country adoption? A: The Court, after finding that the petition is sufficient in form and substance and a proper case for inter-country adoption, shall immediately transmit the petition to the ICAB for appropriate action. (Sec. 32, Rule on Adoption). The application for adoption shall be filed with the RTC having jurisdiction over the child, or the Inter-Country Adoption Board, through an intermediate agency, whether governmental or an authorized and accredited agency, in the country of the prospective adoptive parents.

c. “BEST INTEREST OF THE MINOR” STANDARD Q: What is the Best Interest Standard? A: It refers to 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. (Sec. 14)

M. WRIT OF HABEAS CORPUS Q: What is writ of habeas corpus? A: It is a writ directed to the person detaining another and commanding him to produce the body of the prisoner at a certain time and place with the day and the cause of his caption and detention to do, submit to and receive whatsoever, the court or judge awarding the writ shall consider in that behalf. Note: It is regarded as “palladium of liberty”, a prerogative writ which does not issue as a matter of right but in the sound discretion of the court or judge.

Q: To what instances may habeas corpus extend? A:

1. Cases of illegal confinement or detention by which a person is deprived of his liberty; and

2. Cases by which the rightful custody of the person is withheld from the person entitled thereto. (Sec. 1, Rule 102)

Note: To justify the grant of the petition, the restraint of liberty must be an illegal and involuntary deprivation of freedom of action. The illegal restraint

of liberty must be actual and effective, not merely nominal or moral. (Ilusorio v. Bildner, G.R. Nos.135789-90, May 16, 2000)

Q: What is the nature of the petition? A: It is an inquisition by the government at the suggestion and instance of an individual, most probably, but still in the name and capacity of the sovereign is a proceeding in rem. It is also instituted for the purpose of fixing the status of a person and that there can be no judgment entered against anybody since there is no real plaintiff and defendant. (Alimpoos v. CA, G.R. No. L-27331, July 30, 1981) Note: In habeas corpus cases, the judgment in favor of the applicant cannot contain a provision for damages.

1. CONTENTS OF THE PETITION

Q: What should a verified petition for a writ of habeas corpus contain? A:

1. That the person in whose behalf the application is made is imprisoned or restrained of his liberty;

2. 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;

3. The place where he is so imprisoned or restrained, if known;

4. 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, Rule 102)

2. CONTENTS OF THE RETURN

Q: What are the contents of the return? A: 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:

1. Whether he has or has not the party in his custody or power, or under restraint;

2. If he has the party in his custody or power, or under restraint, the authority

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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;

3. 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;

4. 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, Rule 102)

3. DISTINGUISH PEREMPTORY WRIT FROM

PRELIMINARY CITATION Q: What is the difference between a preliminary citation and a peremptory writ? A:

1. Preliminary citation is issued when a government officer has the person in his custody, the illegality of which is not patent, to show cause why the writ of habeas corpus should issue.

2. Peremptory writ is issued when the cause of the detention appears to be patently illegal and the non-compliance therewith is punishable. (Lee Yick Hon v. Collector of Customs, G.R. No. 16779, Mar. 30, 1921).

4. WHEN NOT PROPER/APPLICABLE

Q: When is habeas corpus not applicable? A:

1. When detained under a lawful cause. 2. In case of invasion or rebellion or when

public safety requires it, under Art. III, Sec. 15, 1987 Constitution.

3. When in case of invasion or rebellion or when public safety requires it, for a period not exceeding 60 days, under Art. 7, Sec. 18, 1987 Constitution.

4. If the jurisdiction of the court to try the person detained appears after the writ is allowed. (Sec. 4, Rule 102).

5. If the person is in custody of an officer under process issued by a court or by virtue of a judgment or order of a court of record which has jurisdiction to issue the

process, render the judgment, or make the order. (Sec. 4, Rule 102).

6. If the person is charged or convicted of an offense in the Philippines. (Sec. 4, Rule 102).

7. If the person is suffering imprisonment under lawful judgment. (Sec. 4, Rule 102).

8. In case of three-day retention of a suspect for three days without charge, pursuant to Sec. 18 of the Human Security Act.

9. When person is serving final sentence imposed by court.

10. For asserting or vindicating a denial of right to bail.

11. For correcting errors in appreciation of facts or of law.

Note: Issuance of a writ of habeas corpus may not lie in order to revive a settled issue of the validity of the writ of preliminary injunction issued in an agrarian case allegedly on the ground of the existence of a tenancy relationship between the parties arising from their arrest for having assaulted persons in authority. (Bernarte v. CA, G.R. No. 107741, Oct. 18, 1996). Loss of the records of the case after petitioner, by his own admission, was already convicted by the trial court of the offense charged will bar the issuance of a writ of habeas corpus. The loss must have occurred prior to the filing of the information against him. (Feria v. CA, G.R. No. 122954, Feb. 15, 2000). It has been noted that the ORDER contains a provision enjoining the prosecution of the Accused in the Criminal Case. That is error. If the Accused was illegally detained because he was arrested without a preliminary examination, what should have been done was to set aside the warrant of arrest and order the discharge of the Accused, but without enjoining the Municipal Judge from conducting a preliminary examination and afterwards properly issuing a warrant of arrest. Habeas Corpus proceedings are not meant to determine criminal responsibility. (Alimpoos v. CA, G.R. No. L-27331, July 30, 1981). In case of an illegal arrest, the petition for a writ of habeas corpus will still not prosper if the detention has become legal by virtue of the filing before the trial court of the complaint against him and by the issuance of an order denying bail. (Velasco v. CA, G.R. No. 118644, July 7, 1995). Habeas Corpus may be had to give retroactive effect to a previous ruling of the Supreme Court favorable to the accused when the accused has already served the full term for a crime which the Court has declared non-existent. (Gumabon v. Director of the Bureau of Prisons, G.R. No. L-30026, Jan. 30, 1971). However, it will not lie if the penalty of imprisonment imposed by the court is longer than that allowed by law. Such error of judgment may be corrected by appeal or by the





President. (Pomeroy v. Director of Prisons, G.R. No. L-14284, Feb. 24, 1960). The writ of habeas corpus cannot be issued in cases in which the Bureau of Immigration has duly ordered the deportation of undocumented aliens, specifically those found guilty of illegally entering the Philippines with the use of tampered and previously cancelled passports. (Tung Chin Hui v. Rodriguez, G.R. No. 141938, April 2, 2001).

Q: May a wife secure a writ of habeas corpus to compel her husband to live with her in the conjugal home? A: No. Marital rights including coverture and living in conjugal dwelling may not be enforced by the extra-ordinary writ of habeas corpus. In case the husband refuses to see his wife for private reasons, he is at liberty to do so without threat of any penalty attached to the exercise of his right. That is a matter beyond judicial authority and is best left to the man and woman’s free choice. (Ilusorio v. Bildner, G.R. No. 139789, May 12, 2000).

5. WHEN WRIT DISALLOWED/DISCHARGED

Q: In what instances shall a writ be disallowed or discharged? A:

1. In cases of supervening events such as issuance of a process and filing of an information (Velasco v. CA, G.R. No. 118844, July 7, 1995);

2. In cases of improper arrest or lack of preliminary investigation (Paredes v. Sandiganbayan, G.R. No. 89989, Jan. 28, 1991); and

3. In cases of invalid arrest due to deportation cases cured by filing of deportation proceedings (Santos v. Commissioner of Immigration, G.R. No.L-25694, Nov. 29, 1976).

Note: In all petitions for habeas corpus, the court must inquire into every phase and aspect of petitioner’s detention- from the moment petitioner was taken into custody up to the moment the court passes upon the merits of the petition and only after such a scrutiny can the court satisfy itself that the due process clause of the Constitution has been satisfied. (Bernarte v. CA, G.R. No. 107741, Nov. 18, 1996)

When the court or judge has examined into the cause of caption and restraint of the prisoner, and is satisfied that he is unlawfully imprisoned or restrained, he shall order his discharge from confinement, but such discharge shall not be

effective until a copy of the order has been served on the officer or person detaining the prisoner. If the officer or person detaining the prisoner does not desire to appeal, the prisoner shall be released.

6. DISTINGUISH FROM WRIT OF AMPARO AND HABEAS DATA

Q: Distinguish Writ of Habeas Corpus from Writ of Amparo and Writ of Habeas Data. A: Refer to page 205. 7. RULES ON CUSTODY OF MINORS AND WRIT OF

HABEAS CORPUS IN RELATION TO CUSTODY OF MINORS (AM No. 03-04-04-SC)

Q: Who may file a petition for custody of minor? A: Any person may file a verified petition for the rightful custody of a minor. The party against whom it may be filed shall be designated as the respondent. (Sec. 2, AM No. 03-04-04-SC). Q: Where should a petition for custody of minor be filed? A: Family courts in the province or city where the petitioner resides or where the minor may be found. (Sec. 3, AM No. 03-04-04-SC) Q: Whether Family Courts have concurrent jurisdiction with the Supreme Court and the Court of Appeals in petitions where the custody of minors is at issue? A: Yes. The Court of Appeals and Supreme Court have concurrent jurisdiction with family courts in habeas corpus cases where the custody of minors is involved. The provisions of RA 8369 must be read in harmony with RA 7029 and BP 129 ― that family courts have concurrent jurisdiction with the Court of Appeals and the Supreme Court in petitions for habeas corpus where the custody of minors is at issue. (Thornton v. Thornton, G.R. No. 154598, Aug. 16, 2004). Q: What are the contents of the verified petition? A:

1. The personal circumstances of the petitioner and of the respondent.

2. The name, age and present whereabouts of the minor and his or her relationship to the petitioner and the respondent.

3. The material operative facts constituting deprivation of custody.

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4. Such other matters which are relevant to the custody of the minor.

5. Certificate of Non-Forum Shopping signed personally by the petitioner. (Sec. 4, AM No. 03-04-04-SC)

Q: When is a child not allowed to be separated from the mother? A: Under Article 213 (2) of the Family Code, no child under 7 years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise. Q: When will the court take into consideration the choice of the child? A: The child, who is over 7 years of age, may choose which parent he prefers to live with, unless the parent so chosen is unfit to take charge of the child by reason of moral depravity, habitual drunkenness, incapacity, or poverty. (Art. 213, Family Code) Note: If both parents are unfit, the court may designate other persons or an institution to take charge of the child, such as the paternal or maternal grandparent of the child, or his oldest brother or sister, or some reputable and discreet person.

Q: What should be considered in awarding the custody of minor? A: The court shall consider the best interests of the minor and shall give paramount consideration to his material and moral welfare. (Sec. 14, AM No. 03-04-04-SC). Q: What is the Best Interest Standard? A: It refers to 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. (Sec. 14, AM No. 03-04-04-SC) Q: What are the other factors that the court may consider in awarding custody? A:

1. 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;

2. The desire and ability of one parent to foster an open and loving relationship between the minor and the other parent;

3. The health, safety and welfare of the minor;

4. 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;

5. The nature and frequency of contact with both parents;

6. Habitual use of alcohol, dangerous drugs or regulated substances;

7. Marital misconduct; 8. The most suitable physical, emotional,

spiritual, psychological and educational environment for the holistic development and growth of the minor; and

9. The preference of the minor over seven years of age and of sufficient discernment, unless the parent chosen is unfit. (Sec. 14, AM No. 03-04-04-SC)

Q: Would a decision rendering judgment on the issue of custody of a child in a nullity of marriage case constitute as res judicata on a pending habeas corpus case on the same matter? A: Yes. By filing the case for declaration of nullity of marriage petitioner automatically submitted the issue of the custody of the child as an incident thereof. Section 21 of the "Rule on Declaration Of Absolute Nullity Of Void Marriages and Annulment of Voidable Marriages" directs the court taking jurisdiction over a petition for declaration of nullity of marriage to resolve the custody of common children, by mere motion of either party, it could only mean that the filing of a new action is not necessary for the court to consider the issue of custody of a minor. (Yu v. Yu, G.R. No. 164915, March 10, 2006). Q: What are the stages in the pre-trial? A:

1. First stage – the parties may agree on the custody of the minor.

2. Second stage – the trial court will direct the parties to secure the services of a mediator if the parties do not agree on the custody of the minor. (Sec. 12, AM No. 03-04-04-SC)

Note: If the second stage does not produce an amicable settlement, the court will proceed with the pre-trial conference. Pre-trial is mandatory. (Sec. 12, AM No. 03-04-04-SC)





Q: What is the order of preference in awarding provisional custody? A: As far as practicable, the order of preference shall be observed:

1. Both parents jointly; 2. Either parent, taking into account all

relevant considerations, especially the choice of the minor over seven years of age and of sufficient discernment, unless the parent chosen is unfit;

3. The grandparent, or if there are several grandparents, the grandparent chosen by the minor over seven years of age and of sufficient discernment, unless the grandparent chosen is unfit or disqualified;

4. The eldest brother or sister over twenty-one years of age, unless he or she is unfit or disqualified;

5. The actual custodian of the minor over twenty-one years of age, unless the former is unfit or disqualified; or

6. Any other person or institution the court may deem suitable to provide proper care and guidance for the minor.

Q: May the court award temporary visitation rights in the provisional custody order? A: Yes, the court shall provide in its order awarding provisional custody appropriate visitation rights to the non-custodial parent or parents, unless the court finds said parent or parents unfit or disqualified. Q: What should the court award after the hearing? A:

1. Care, custody and control of each child as will be for its best interest.

2. Court may order either or both parents to support or help support the child, irrespective of who may be its custodian. The fact that the father has recognized the child may be a ground for ordering him to give support, but not for giving him custody of the child.

3. Court may permit the parent who is deprived of care and custody to visit the child or have temporary custody thereof in an order that is just and reasonable. (Sec. 18, AM No. 03-04-04-SC)

Q: May the court award the custody of the minors based merely on psychiatric report and agreement of the parties?

A: No, the court should conduct thorough trial on all matters relevant to the welfare and interests of the child. (Laxamana v. Laxamana, G.R. No. 144763, Sept. 3, 2002) Q: Can the minor child be brought out of the country without leave from court while the petition is pending? A: 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 proprio or upon application under oath, may issue ex parte a hold departure order, addressed to the Bureau of Immigration and Deportation, directing it not to allow the departure of the minor from the Philippines without the permission of the court. (Sec. 16, AM No. 03-04-04-SC)

N. WRIT OF AMPARO (AM No. 07-9-12-SC) Q: What is writ of amparo? A: It is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ shall cover extralegal killings and enforced disappearances or threats thereof. (Sec. 1) Note: The remedy provides rapid judicial relief as it partakes of a summary proceeding that requires only substantial evidence to make the appropriate reliefs available to the petitioner; it is not an action to determine criminal guilt requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of evidence, or administrative responsibility requiring substantial evidence that will require full and exhaustive proceedings. (Deliberations of the Committee on the Revision of the Rules of Court, Aug. 10, 2007, Aug. 24, 2007, Aug. 31, 2007 and Sept. 20, 2008)

Q: What are extralegal killings? A: Killings committed without due process of law, legal safeguards or judicial proceedings. (Secretary of National Defense v. Manalo, G.R. No. 180906, Oct. 7, 2008) These include the illegal taking of life regardless of the motive, summary and arbitrary executions, salvaging even of suspected criminals, and threats to take the life of persons who are openly critical of erring government officials and the like.

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Q: What are enforced disappearances? A: An arrest, detention or abduction of a person by a government official or organized groups or private individual acting with the direct or indirect acquiescence of the government; the refusal of the State to disclose the fate or whereabouts of the person concerned or a refusal to acknowledge the deprivation of liberty which places such persons outside the protection of law. (Secretary of National Defense v. Manalo, G.R. No. 180906, Oct. 7, 2008)

1. COVERAGE Q: What is the scope of the Writ of amparo? A: It covers extralegal killings and enforced disappearances or threats thereof. It is available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ shall cover extralegal killings and enforced disappearances or threats thereof.

2. DISTINGUISH FROM HABEAS CORPUS AND HABEAS DATA

Q: Distinguish Writ of Habeas Corpus from Writ of Amparo and Writ of Habeas Data. A: Refer to page 205. 3. DIFFERENCES BETWEEN WRIT OF AMPARO AND

SEARCH WARRANT Q: What is the difference between a Writ of Amparo from a Search Warrant? A: In the October 7, 2008 decision of the Supreme Court in the case of The Secretary of National Defense vs. Manalo, the Court said that “the production order under the Amparo Rule should not be confused with a search warrant for law enforcement under Article III, Section 2 of the 1987 Constitution. This Constitutional provision is a protection of the people from the unreasonable intrusion of the government, not a protection of the government from the demand of the people such as respondents. Instead, the Amparo production order may be likened to the production of documents or things

under Section 1, Rule 27 of the Rules of Civil Procedure which provides in relevant part, viz:

Section 1. Motion for production or inspection order. Upon motion of any party showing good cause therefor, the court in which an action is pending may (a) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books of accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody or control.”

A search warrant is a court order issued by a judge or magistrate judge that authorizes the law enforcement officers to conduct a search of a person or location for evidence of a crime and to confiscate evidence if it is found. A writ of amparo is a form of constitutional relief.

4. WHO MAY FILE Q: Who may file the petition? A: Any aggrieved party may file the petition. It may also be filed by any qualified person or entity in the following order:

1. Any member of the immediate family, namely: the spouse, children and parents of the aggrieved party;

2. Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph; or

3. Any concerned citizen, organization, association or institution, if there is no known member of the immediate family or relative of the aggrieved party.

NOTE: The filing of a petition by the aggrieved party suspends the right of all other authorized parties to file similar petitions. Likewise, the filing of the petition by an authorized party on behalf of the aggrieved party suspends the right of all others, observing the order established herein. (Sec. 2).

5. CONTENTS OF RETURN

Q: What is the content of the verified return? A: Within seventy-two (72) hours after service of the writ, the respondent shall file a verified written return together with supporting affidavits which shall, among other things, contain the following:





1. The lawful defenses to show that the respondent did not violate or threaten with violation the right to life, liberty and security of the aggrieved party, through any act or omission;

2. The steps or actions taken by the respondent to determine the fate or whereabouts of the aggrieved party and the person or persons responsible for the threat, act or omission;

3. All relevant information in the possession of the respondent pertaining to the threat, act or omission against the aggrieved party; and

4. If the respondent is a public official or employee, the return shall further state the actions that have been or will still be taken: a. to verify the identity of the aggrieved

party; b. to recover and preserve evidence

related to the death or disappearance of the person identified in the petition which may aid in the prosecution of the person or persons responsible;

c. to identify witnesses and obtain statements from them concerning the death or disappearance;

d. to determine the cause, manner, location and time of death or disappearance as well as any pattern or practice that may have brought about the death or disappearance;

e. to identify and apprehend the person or persons involved in the death or disappearance; and

f. to bring the suspected offenders before a competent court.

5. Other matters relevant to the investigation, its resolution and the prosecution of the case.

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

6. EFFECTS OF FAILURE TO FILE A RETURN Q: What happens when the respondent fails to file a return? A: The court, justice or judge shall proceed to hear the petition ex parte. (Sec. 9)

7. OMNIBUS WAIVER RULE Q: What is the Omnibus Waiver Rule?

A: The omnibus waiver rules states that all defenses not raised in the return are deemed waived. (Sec. 10).

8. PROCEDURE FOR HEARING Q: What is the nature of the hearing? A: The hearing on the petition shall be summary. However, the court, justice or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties. (Sec. 12). Q: How long should the hearing last? A: The hearing shall be from day to day until completed and given the same priority as petitions for habeas corpus. (Sec. 13)

9. INSTITUTION OF SEPARATE ACTION Q: May a separate action be filed after filing a petition for a writ of amparo? A: Yes. It does not preclude the filing of separate criminal, civil or administrative actions. (Sec. 21)

10. EFFECT OF FILING A CRIMINAL ACTION Q: What is the effect if a prior criminal action has been filed? A: No petition for a writ of amparo shall be filed. The reliefs under the writ shall be available by motion in the criminal case. (Sec. 22) The procedure under this Rule shall govern the disposition of the reliefs available under the writ of amparo.

11. CONSOLIDATION Q: What happens if criminal action is filed subsequent to a petition for writ of amparo? A: The petition for the writ shall be consolidated with criminal action. (Sec. 23) Q: What happens if a criminal action and a separate civil action are filed subsequent to a petition for writ of amparo? A: The petition for writ of amparo shall be consolidated with the criminal action. Note: After consolidation, the procedure under this Rule shall continue to apply to the disposition of the reliefs in the petition.

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12. INTERIM RELIEFS AVAILABLE TO PETITIONER AND RESPONDENT Q: What are interim reliefs available? A:

PETITIONER RESPONDENT 1. Temporary protection order; 2. Inspection order; 3. Production order; 4. Witness protection order. (Sec. 14)

1. Inspection order; 2. Production order. (Sec. 15)

HOW INITIATED THE COURT SHALL

Temporary Protection Order

Upon motion or motu proprio Order the petitioner or the aggrieved party and any member of the immediate family be protected in a government agency or by an accredited person or private institution capable of keeping and securing their safety. If the petitioner is an organization, association or institution referred to in Section 3(c) of this Rule, the protection may be extended to the officers involved.

Inspection Order Upon verified motion and after due hearing

Order any person in possession or control of a designated land or other property, to permit entry for the purpose of inspecting, measuring, surveying, or photographing the property or any relevant object or operation thereon.

Production Order Upon verified motion and after due hearing

order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form, which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant.

Witness Protection Order

Upon Motion or Motu Proprio refer the witnesses to the Department of Justice for admission to the Witness Protection, Security and Benefit Program, pursuant to Republic Act No. 6981. The court, justice or judge may also refer the witnesses to other government agencies, or to accredited persons or private institutions capable of keeping and securing their safety.

13. QUANTUM OF PROOF IN APPLICATION FOR

ISSUANCE OF WRIT OF AMPARO

Q: What is the quantum of evidence required in a petition for a writ of amparo? A: The parties shall establish their claims by substantial evidence. (Sec. 17) The respondent who is a private individual or entity must prove that ordinary diligence as required by the applicable laws, rules and regulations was observed in the performance of duty. The respondent who is a public official or employee must prove that extraordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. The respondent public official or employee cannot invoke the presumption that official duty has been

regularly performed to evade responsibility or liability. Note: No writ of amparo may be issued unless there is a clear allegation of the supposed factual and legal basis of the right sought to be protected. A threatened demolition of a dwelling by virtue of a final judgment of the court is not included among the enumeration of rights as stated in the above-quoted Section 1 for which the remedy of a writ of amparo is made available. Their claim to their dwelling, assuming they still have any despite the final and executory judgment adverse to them, does not constitute right to life, liberty and security. There is, therefore, no legal basis for the issuance of the writ of amparo. (Canlas v. Napico Homeowners Association, G.R. No. 182795, June 5, 2008).

Q: Raymond and Reynaldo Manalo escaped from captivity and surfaced of the armed forces. But while the two admit that they are no longer in





detention and are physically free, they assert, that they are not free in every sense of the word as their movements continue to be restricted for fear that the people they have named in their judicial affidavits and testified against are still at large and have not held accountable. The Manalo brothers claim that they are under the threat of being once again abducted, kept captive or even killed, which constitute a direct violation of their right to security of person. They filed a petition for writ of amparo. Should the court granted the petition? A: Yes, the Manalo brothers’ right to security as freedom from threat is violated by the apparent threat to their life, liberty and security of person. Their right to security as a guarantee of protection by the government is likewise violated by the ineffective investigation and protection on the part of the military. In blatant violation of guarantees to life, liberty and security, these rights are snuffed out from victims of extralegal killings and enforced disappearances. The writ of amparo is a tool that gives voice to preys of silent guns and prisoners behind secret walls. (Secretary of National Defense v. Manalo, G.R. No. 180906, Oct. 7, 2008)

O. WRIT OF HABEAS DATA (AM No. 08-1-16-SC)

1. SCOPE OF WRIT Q: What is the scope of the writ? A: The writ covers instances wherein a person’s right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party.

2. AVAILABILITY OF WRIT Q: What is writ of habeas data? A: It is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. It is a procedure designed to safeguard individual freedom from abuse in the information age. (Sec. 1) Information or data written, tends to threaten violation of constitutional right to life, liberty or

property, and may be ordered destroyed by the court. 3. DISTINGUISH FROM HABEAS CORPUS AND WRIT

OF AMPARO Q: Distinguish Writ of Habeas Corpus from Writ of Amparo and Writ of Habeas Data. A: Refer to page 205.

4. WHO MAY FILE Q: Who may file the petition? A: Any aggrieved party may file a petition for the writ of habeas data. However, in cases of extralegal killings and enforced disappearances, the petition may be filed by:

1. Any member of the immediate family of the aggrieved party, namely: the spouse, children and parents; or

2. In default thereof, any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity. (Sec. 2)

5. CONTENTS OF PETITION

Q: What are the contents of the verified petition? A:

1. The personal circumstances of the petitioner and the respondent

2. The manner the right to privacy is violated or threatened and how it affects the right to life, liberty or security of the aggrieved party

3. The actions and recourses taken by the petitioner to secure the data or information

4. The location of the files, registers or databases, the government office, and the person in charge, in possession or in control of the data or information, if known

5. The reliefs prayed for, which may include the updating, rectification, suppression or destruction of the database or information or files kept by the respondent. In case of threats, the relief may include a prayer for an order enjoining the act complained of.

6. Such other relevant reliefs as are just and equitable. (Sec. 6)

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6. CONTENTS OF RETURN Q: What should the respondent allege in his verified return? A: The respondent, within 5 working days from the service of the writ, unless reasonably extended by the Court, shall allege:

1. The lawful defenses such as national security, state secrets, privileged communication, confidentiality of the source of information of media and others;

2. In case of respondent in charge, in possession or in control of the data or information subject of the petition: a. A disclosure of the data or

information about the petitioner, the nature of such data or information, and the purpose for its collection;

b. The steps or actions taken by the respondent to ensure the security and confidentiality of the data or information; and

c. The currency and accuracy of the data or information held; and

3. Other allegations relevant to the resolution of the proceeding.

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

7. INSTANCES WHEN PETITION BE HEARD IN

CHAMBERS Q: What are the instances when a petition for a writ of habeas data may be heard in chambers? A: It 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 security and that it cannot be divulged to the public due to its nature or privileged character. (Sec. 12)

8. CONSOLIDATION Q: What happens when a criminal and/or civil action is filed after the filing of the petition for writ of habeas data?

A: 1. When a subsequent criminal action is

filed, the Petition for the writ of Habeas Data shall be consolidated with the criminal action.

2. When a criminal action and a separate civil action are filed subsequent to a petition for a writ of habeas data, the petition shall be consolidated with the criminal action.

Note: After consolidation, the procedure under the Rule shall continue to govern the disposition of the reliefs in the petition. (Sec. 21)

9. EFFECT OF FILING A CRIMINAL ACTION

Q: What is the effect of an institution of a criminal action? A: No separate petition for the writ shall be filed. The reliefs under the writ shall be available to an aggrieved party by motion in the criminal case. (Sec. 22).

10. INSTITUTION OF SEPARATE ACTION Q: Does the filing of a petition for the writ of habeas data prohibit the filing of separate criminal, civil or administrative actions? A: The filing of a petition for the writ of habeas data shall not preclude the filing of separate criminal, civil or administrative actions. (Sec. 20).

11. QUANTUM OF PROOF IN APPLICATION FOR WRIT OF HABEAS DATA

Q: What is the quantum of evidence required in a petition for a writ of habeas data? A: The court shall render judgment within (10) days from the time the petition is submitted for decision. If the allegations in the petition are proven by substantial evidence, the court shall enjoin the act complained of, or order the deletion, destruction, or rectification of the erroneous data or information and grant other relevant reliefs as may be just and equitable; otherwise, the privilege of the writ shall be denied. (Sec. 16.).

Q: What are the differences between the writs? A:

HABEAS CORPUS AMPARO HABEAS DATA KALIKASAN Literal interpretation

You have the body To protect You have the data It is a Filipino word which means “nature” in English





Governing rule Rule 102 A.M. No. 07-9-12-SC A.M. No. 08-1-16-SC A.M. No. 09-6-8-SC

Description Writ directed to the person detaining another, commanding him to produce the body of the prisoner at a designated time and place, with the day and cause of his capture and detention, to do, submit to, and receive whatsoever the court or judge awarding the writ shall consider in that behalf.

Remedy available to any person whose right to life, liberty, and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity.

Remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting, or storing of data or information regarding the person, family, home and correspondence of the aggrieved party.

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

Coverage

Involves the right to liberty of and

rightful custody by the aggrieved

party.

Involves the right to life, liberty, and security of

the aggrieved party and covers extralegal killings

and enforced disappearances.

Involves the right to privacy in life, liberty, and security of the aggrieved party and covers

extralegal killings and enforced disappearances.

Constitutional right to a balanced and healthful

ecology.

Rights violated

There is an actual violation of the

aggrieved party’s right.

There is an actual or threatened violation of the aggrieved party’s

right.

There is an actual or threatened violation of the aggrieved party’s

right.

There is an actual or threatened violation of one’s

right to a healthful and balanced ecology involving

environmental damage. Where to file

RTC or any judge thereof, CA or any member thereof in

instances authorized by law;

or SC or any member thereof.

RTC of the place where the threat, act or

omission was committed or any of its elements occurred; SB or any

justice thereof; CA or any justice thereof; SC or any

justice thereof.

RTC where the petitioner or respondent resides, or that which has jurisdiction over the place where the

data or information is gathered, collected or stored, at the option of the petitioner; or with SC, CA or SB

when the action concerns public data files or government offices.

In SC or any stations of the CA.

Habeas Corpus Amparo Habeas Data Kalikasan Who may file a petition

1. Party for whose relief it is intended; or

2. Any person on his behalf

In the following order: 1. Any member of the

immediate family 2. Any ascendant,

descendant, or collateral relative of the aggrieved party within the 4th civil degree of consanguinity or affinity

3. Any concerned citizen, organization,

1. Any aggrieved party; 2. However, in cases of extralegal

killings and enforced disappearances: a. Any member of the

immediate family b. Any ascendant,

descendant, or collateral relative of the aggrieved party within the 4th civil degree of consanguinity or affinity

A natural or juridical person, entity authorized by law, people’s organization, non-governmental organization, or any public interest group accredited by or registered with any government agency.

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association or institution

Respondent

May or may not be an officer.

Public official or employee or a private individual or

entity.

Public official or employee or a private individual or entity engaged

in the gathering, collecting or storing of data or information regarding the

person, family, home and correspondence of the aggrieved

party.

Public official or employee, private

individual or entity.

Enforceability of the writ If granted by SC or CA:

enforceable anywhere In the Philippines;

If granted by RTC:

enforceable only within the judicial district

Enforceable anywhere in the Philippines regardless of who issued the same

Enforceable anywhere in the

Philippines

Docket fees Payment is required

Note: Rule on indigent

petitioner applies.

Petitioner is exempted from payment

Payment is required.

Note: Rule on indigent petitioner applies.

Petitioner is exempted from

payment

Service of writ Served upon the person to whom it is directed, and if not found or has not the

prisoner in his custody, to the other person having or

exercising such custody

Served upon the respondent personally; or

substituted service

Served upon the respondent personally; or substituted service

Served upon the respondent

personally; or substituted service.

Person who makes the return Officer by whom the

prisoner is imprisoned or the person in whose

custody the prisoner is found

Respondent Respondent Respondent

When to file a return

On the day specified in the writ

Within 5 working days after service of the writ,

the respondent shall file a verified written return

together with supporting affidavits.

The respondent shall file a verified written return together with supporting affidavits within 5

working days from service of the writ, which period may be

reasonably extended by the Court for justifiable reasons.

Within non- extendible period

of 10 days after the service of writ.

Habeas Corpus Amparo Habeas Data Kalikasan

Return

If granted by the SC or CA: returnable before

the court or any member or before RTC or any judge thereof;

If granted by RTC:

returnable before such court

If issued by RTC: returnable before such court;

If issued by SB or CA or any

of their justices: returnable before such

court or to any RTC of the place where the threat, act

or omission was committed or any of its

elements occurred;

If issued by SC or any of its justices: returnable before such court, or before SB,

If issued by RTC: returnable before such court;

If issued by SB or CA or any of

their justices: returnable before such court or to any RTC of the place where the petitioner or respondent resides or that which has jurisdiction over the place

where the data or information is gathered,

collected or stored;

If issued by SC or any of its

If issued by SC, returnable before such court or CA.





CA, or to any RTC of the place where the threat, act

or omission was committed or any of its

elements occurred

justices: returnable before such court, or before SB, CA,

or to any RTC of the place where the petitioner or

respondent resides or that which has jurisdiction over the place where the data or

information is gathered, collected or stored

General denial Not prohibited. Not allowed. Not allowed. Not allowed.

Liability of the person to whom the writ is directed if he refuses to make a return Forfeit to the aggrieved

party the sum of P1000, and may also be punished for contempt.

Imprisonment or fine for committing contempt.

Imprisonment or fine for committing contempt.

Indirect contempt.

Hearing

Date and time of hearing is specified in

the writ.

Summary hearing shall be conducted not later than 7

days from the date of issuance of the writ.

Summary hearing shall be conducted not later than 10 working days from the date

of issuance of the writ.

The hearing including the preliminary conference shall not extend beyond sixty (60) days and shall be given the

same priority as petitions for the writs of habeas corpus, amparo and habeas data.

Period of appeal

Within 48 hours from notice of the judgment or final order appealed

from.

5 working days from the date of notice of the adverse judgment.

5 working days from the date of notice of the judgment or

final order.

Within fifteen (15) days from the date of notice of the

adverse judgment or denial of motion for

reconsideration.

Habeas Corpus Amparo Habeas Data Kalikasan

Prohibited pleadings

None

1. Motion to dismiss; 2. Motion for extension of time to file opposition,

affidavit, position paper and other pleadings; 3. Dilatory motion for postponement; 4. Motion for a bill of particulars; 5. Counterclaim or cross - claim; 6. Third - party complaint; 7. Reply; 8. Motion to declare respondent in default; 9. Intervention; 10. Memorandum; 11. Motion for reconsideration of interlocutory orders or

interim relief orders; and 12. Petition for certiorari, mandamus or prohibition

against any interlocutory order.

1. Motion to dismiss; 2. Motion for extension of

time to file return; 3. Motion for

postponement; 4. Motion for a bill of

particulars; 5. Counterclaim or cross-

claim; 6. Third-party complaint; 7. Reply; and 8. Motion to declare

respondent in default.

Note: In writ of amparo, one rare instance where the SB, notwithstanding its status as a special court, is vested with jurisdiction co-equal with SC, CA and RTC. Take note that CTA, albeit acting as a special court being in the same rank of CA and SB, is not vested with jurisdiction to issue writ of amparo.

P. CHANGE OF NAME

1. DIFFERENCES UNDER RULE 103, R.A. 9048 AND RULE 108

Discuss the differences among Rule 103 (Change of Name), R.A. 9048 (Administrative Correction of Clerical or Typographical Error/Change of first name or nickname) and Rule 108 (Cancellation or Correction of Clerical or Typographical Error).

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A: Rule 103 R.A. 9048 Rule 108

Scope

Change of first name or surname.

Change of first name or nickname/ correction of clerical errors of entries in the Civil Registry.

Correction of or substantial errors of entries in the Civil Registry/

cancellation of entries.

Nature

Judicial; hearing is necessary. Administrative; hearing is not necessary.

Judicial; hearing is necessary Summary if it involves clerical

errors Adversarial if it involves substantial

errors.

Initiated by

Verified petition. Sworn affidavit. Verified petition.

Where to file

RTC of the province where the petitioner resides at least 3

months.

1. Local Civil Registry office where the record is kept;

2. Consul general.

RTC where the corresponding civil registry is located.

Where to appeal , in case of adverse decision

CA under Rule 41 Civil Registrar General under Sec. 7 or CA

under Rule 43 CA under Rule 41

Who may file

Filed by the person desiring to change his name.

Petition is filed by the person of legal age who must have a direct and personal interest in the

correction: 1. Owner of the record; 2. Owner’s spouse, children, parents,

brothers, sisters, grandparents, guardian; or

3. Anyone authorized by law or owner of the record.

Any person interested in the act, event, decree or order concerning

the civil status of persons.

Who must be notified Solicitor General/ Interested

parties. Interested parties/Solicitor General need not be

notified. Civil registrar as respondent; Solicitor

General/ Interested parties.

Publication

Order for hearing shall be published once a week for 3

consecutive weeks.

Order for hearing in case of change of first name/nickname shall be published once a week

for 2 consecutive weeks.

Order for hearing shall be published once a week for 3 consecutive weeks.

Grounds

1. Name is ridiculous, tainted with dishonor or extremely difficult to write or pronounce;

2. Habitual and continuous used and been known since childhood by a Filipino name, unaware of her alien parentage;

3. Consequence of a change of status;

4. A sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith and without prejudicing anybody;

5. The change will avoid confusion; or

6. 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 should

1. The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce.

2. The new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by that by that first name or nickname in the community: or

3. The change will avoid confusion.

N/A





prejudice public interest. (Republic v. CA, G.R. No. 88202, Dec. 14, 1998).

Entries subject to correction

1. Correction of clerical or typographical errors in any entry in civil registry documents, except corrections involving the change in sex, age, nationality and status of a person; and

2. Change of a person's first name or nickname in his or her civil registry.

1. Correction of clerical or typographical errors in the civil registry

2. change of first name or nickname in the civil registry

1. Births; 2. Marriages; 3. Deaths; 4. Legal separations; 5. Judgments of annulments of

marriage; 6. Judgments declaring marriages

void from the beginning; 7. Legitimations; 8. Adoptions; 9. Acknowledgments of natural

children; 10. Naturalization; 11. Election, loss or recovery of

citizenship; 12. Civil interdiction; 13. Judicial determination of

filiation; and 14. Change of name. (Sec. 2)

NOTE: Clerical/typographical error refer to an obvious mistake committed in clerical work, either in writing, copying, transcribing, or typing an entry in the civil register that is harmless and innocuous, such as a misspelled name or place of birth and the like, and can be corrected or changed only by reference to other existing record or records. [Sec. 2(3) of RA 9048]

2. GROUNDS FOR CHANGE OF NAME Q: What are the grounds for change of name under Rule 103? A:

1. Name is ridiculous, tainted with dishonor or extremely difficult to write or pronounce;

2. Habitual and continuous used and been known since childhood by a Filipino name, unaware of her alien parentage;

3. Consequence of a change of status;

4. A sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith and without prejudicing anybody;

5. The change will avoid confusion; or

6. 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 should prejudice public interest. (Republic v. CA, G.R. No. 88202, Dec. 14, 1998).

Note: Under Rule 108, change of name may either be summary or adversary in nature. If the correction sought to be made in the civil registrar is clerical, then the procedure to be adopted is summary. If the rectification affects the civil status, citizenship or

nationality of a party, it is deemed substantial, and the procedure to be adopted is adversary. (Republic v.

Bautista, 155 SCRA 1, Oct. 26, 1987).

Q. ABSENTEES

1. PURPOSE OF THE RULE

Q: What is the purpose of this Rule? A: It is to appoint an administrator over the properties of the absentee. This is proper only where the absentee has properties to be administered. 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 RTC 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. Note: If the absentee left no properties, such petition is not necessary. (Reyes v. Alejandro, G.R. No. L-46187, Jan. 16, 1986)

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2. WHO MAY FILE A PETITION; WHEN TO FILE Q: Who may file a petition for declaration of absence and appointment of administrator or trustee? A:

1. Spouse present; 2. Heirs instituted in the will; 3. Relatives who will succeed by intestacy; 4. Those who have over the property of the

absentee some right subordinated to the condition of his death. (Sec. 2, Rule 107)

Q: When should a petition for declaration of absence and appointment of administrator or trustee be filed? A:

1. After 2 years: a. From his disappearance and without

any news about the absentee; or b. of the last news about the absentee.

2. After 5 years – If he left an administrator of his property. (Sec. 2, Rule 107)

R. CANCELLATION OR CORRECTION OF ENTRIES IN

THE CIVIL REGISTRY Q: Who may file a petition for cancellation or correction of entries? A: Any person interested in any act, event, order or decree concerning the civil status of persons which has been recorded in the civil register, may file a verified petition for the cancellation or correction of any entry relating thereto, with the RTC of the province where the corresponding civil registry is located (Sec. 1). Q: What is the nature of proceedings in Rule 108? A: It is summary if the entries in the civil register sought to be corrected are clerical or innocuous in nature. However, where such entries sought to be corrected or changed are substantial, the proceedings are adversarial in nature. (Republic v. Valencia, G.R. No. L-32181, Mar. 5, 1986) Q: What is meant by appropriate adversarial proceeding? A: One which has opposing parties; contested as distinguished from an ex parte application, one of which the party seeking relief has given legal warning to the other party, and afforded the latter an opportunity to contest it. (Republic v. Valencia, Ibid.)

Note: Rule 108, when all the procedural requirements thereunder are followed, is the appropriate adversary proceeding to effect substantial correction and changes in the entries of civil register (Lee v. CA, G.R. No. L-118387, Oct. 11, 2001).

Q: What are the requisites of adversarial proceedings? A:

1. Proper petition is filed where the Civil Registrar and all parties interested are impleaded;

2. The order of hearing must be published once a week for three consecutive weeks;

3. Notice must be given to the Civil Registrar and all parties affected thereby;

4. The civil registrar and any person interested, may within 15 days from notice or from the last date of publication, files his opposition thereto; and

5. Full blown trial. (Republic v. Valencia, supra.)

1. ENTRIES SUBJECT TO CANCELLATION OR

CORRECTION UNDER RULE 108, IN RELATION TO RA 9048

Q: What are the entries subject to cancellation or correction under Rule 108? A:

1. Births; 2. Marriages; 3. Deaths; 4. Legal separations; 5. Judgments of annulments of marriage; 6. Judgments declaring marriages void from

the beginning; 7. Legitimations; 8. Adoptions; 9. Acknowledgments of natural children; 10. Naturalization; 11. Election, loss or recovery of citizenship; 12. Civil interdiction; 13. Judicial determination of filiation; and 14. Change of name. (Sec. 2)

Q: May the trial court issued an order declaring the nullity of marriage under Rule 108 and change the status from married to single? A: No, it is proper only in ordinary adversarial proceedings. (Lim v. Republic, G.R. No. 8932, May 31, 1957)





Q: Within what period may a petition for correction or cancellation of entries be filed? A: The law did not fix a period within which the petition for correction under Rule 108 in relation to Art. 412 of Civil Code may be filed. Accordingly, such petition may be filed within 5 years from time the petitioner discovered the error or mistake in the civil registry, and not from the date the birth certificate was registered in the civil registry. (Lee v. CA, supra.) Q: Celine files a petition for cancellation of the birth certificate of her daughter Jeanie on the ground of falsified material entries therein made by Celine’s husband as the informant. The RTC sets the case for hearing and directs the publication of the order once a week for 3 consecutive weeks in a newspaper of general circulation. Summons was served on the Civil Registrar but there was no appearance during the hearing. The RTC granted the petition. Jeanie filed a petition for annulment of judgment before the CA, saying that she was not notified of the petition and hence, the decision was issued in violation of due process. Celine opposed saying that the publication of the court order was sufficient compliance with due process. Rule. A: The petition for annulment of judgment before the CA should be granted. Jurisdiction of the court over a petition for cancellation of a birth certificate requires reasonable notice to all interested parties and also publication of the order once a week for 3 consecutive weeks in a newspaper of general circulation. In this case, publication of the order is insufficient because Jeanie, a directly concerned party, was not given reasonable notice, hence, denied due process. The lower court, therefore, did not acquire jurisdiction. (Ceruila v. Delantar, G.R. No. 140305, Dec. 9, 2005). Alternative Answer: It should not be granted. The publication of an order of hearing under Section 4 of Rule 108 cured the failure to implead an indispensable party. A petition for correction is an action in rem, an action against a thing and not against a person. The decision on the petition binds not only the parties thereto but the whole world. An in rem proceeding is validated essentially through publication. Publication is notice to the whole world that the proceeding has for its object to bar indefinitely all who might be minded to make an objection of any sort against the right sought to be established. It is the publication of such notice that brings in the whole as a party in the case and vests the court with jurisdiction to hear and decide it (Republic v.

Kho, G.R. No. 170340, June 29, 2007; Alba v. CA, G.R. No. 164041, July 29, 2005; Barco v. CA, G.R. No. 120587, Jan. 20, 2004). (2007 Bar Question) Q: Helen is the daughter of Eliza, a Filipina, and Tony, a Chinese, who is married to another woman living in China. Her birth certificate indicates that Helen is the legitimate child of Tony and Eliza and that she is a Chinese citizen. Helen wants her birth certificate corrected by changing her filiation from "legitimate" to "illegitimate" and her citizenship from “Chinese" to "Filipino" because her parents were not married. What petition should Helen file and what procedural requirements must be observed? Explain. A: A petition has to be filed in a proceeding under Rule 108 of the Rules of Court. A petition to change the record of birth by changing the filiation from “legitimate” to “illegitimate” and petitioner’s citizenship from “Chinese” to “Filipino” does not involve a simple summary correction which could otherwise be done under the authority of R.A. 9048. Procedural requirements include: (a) filing a verified petition; (b) naming as parties all persons who have or claim any interest which would be affected; (c) issuance of an order fixing the time and place of hearing; (d) giving reasonable notice to the parties named in the petition; and (e) publication of the order once a week for 3 consecutive weeks in a newspaper of general circulation. (2005 Bar Question)

S. APPEALS IN SPECIAL PROCEEDINGS 1. JUDGMENTS AND ORDERS FOR WHICH APPEAL

MAY BE TAKEN Q: What are the orders or judgments from which appeal may be taken? A: An interested person may appeal when such order or judgment:

1. Allows or disallows a will; 2. Determines who are the lawful heirs of a

deceased person, or the distributive share of the estate to which such person is entitled;

3. 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;

4. Settles the account of an executor, administrator, trustee or guardian;

5. Constitutes, in the proceedings relating to the settlement of the estate of a deceased person, or the administration of

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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;

6. Is the final order or judgment rendered in the case, and affects the substantial rights of the person appealing, except orders granting or denying a motion for new trial or for reconsideration (Sec. 1, Rule 109).

Note: A stranger having neither material nor direct interest in a testate or intestate estate has no right to appeal from any order issued therein. (Panis v. Yangco, G.R. No. L-29460, Dec. 22, 1928)

2. WHEN TO APPEAL

Q: When should the appeal in special proceedings be filed? A: PERIOD FOR APPEAL

Special Proceedings 30 days (Record on Appeal required)

Habeas Corpus 48 hours from service of judgment

Writ of Amparo 5 working days from date of notice of judgment

Writ of Habeas Data 5 working days from date of notice of judgment

Writ of Kalikasan 15 days from notice of judgment or denial of motion for reconsideration

Q: What are the orders that are not appealable? A:

1. Order directing the administrator to take action to recover an amount due to the estate.

2. Order made in administration proceedings relating to the inclusion or exclusion of items of property in the inventory of executor or administrator.

3. Order appointing a special administrator.

4. Order granting or denying a motion for new trial or for reconsideration.

3. MODES OF APPEAL

Q: What are the modes of appeal, how perfected and their grounds?

A: 1. Rule 40 (Appeal from MTC to RTC) – By

filing a notice of appeal, record on appeal and payment of appeal fees on questions of law or fact or both;

2. Rule 41 (Appeal from the RTC to CA in exercise of its original jurisdiction) – By ordinary appeal by filing a notice of appeal, record on appeal and payment of appeal fees on questions of law or fact or both;

3. Rule 42 (Petition for review from the RTC

to the CA in exercise of its appellate jurisdiction) – By filing a notice of appeal, record on appeal and payment of appeal fees on questions of law or fact or both;

4. Rule 45 (Appeal by certiorari to the SC) –

By filing of verified petition for review on certiorari and payment of fees which shall raise questions of law only

XPN: Any party may raise questions of fact in their appeal in cases of writ of amparo, habeas data and kalikasan.

5. Rule 65 (Petition for certiorari) – By filing of verified petition for certiorari on the ground that the court acted without or in excess of jurisdiction or with grave abuse of discretion.

4. RULE ON ADVANCE DISTRIBUTION

Q: When can an advance distribution be made despite a pending controversy in the settlement of an estate? A: 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)