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SPECIAL PROCEEDINGS | Bar Review Guide 2015 | Justice Magdangal M.

de Leon

1. Distinction between civil action and special proceedings

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

b. Special proceeding remedy by which a party seeks to establish a status, right or a particular
fact.

Under Section 3, Rule 1 of the 1997 Revised Rules of Court, a civil action is defined as one by
which a party sues another for the enforcement or protection of a right, or the prevention or
redress of a wrong while a special proceeding is a remedy by which a party seeks to establish a
status, a right, or a particular fact. It is then decisively clear that the declaration of heirship can be
made only in a special proceeding inasmuch as the petitioners here are seeking the establishment
of a status or right. (Ypon v Ricaforte, GR No. 198680, July 8, 2013)

2. Nature of special proceedings initially non-adversarial in nature; in the course of proceedings, there
may be oppositors.

GENERAL PROVISION

Rule 72 : Subject matter and Applicability of General Rules

Sec. 1. Subject matter of special proceedings.


1. Rules 73-75 )
2. Rules 76-81 ) Settlement of Estate of
3. Rules 82-86 ) Deceased Persons
4. Rules 87-90 )
5. A.M. No. 03-02-05-SC Guardianship of Minors
6. Rules 92-97 Guardianship of Incompetents
7. A.M. No. 02-06-02-SC Adoption and Custody of Minors
8. Rule 98 Trustees
9. Rule 101 Hospitalization of Insane Persons
10. Rule 102 Habeas Corpus
11. Rule 103 Change of Name
12. Rule 104 Voluntary Dissolution of Corporations
(Deemed repealed by the Corporation Code,
Title XIV, Secs. 117-122)
13. Rule 105 Judicial Approval of Voluntary
Recognition of Minor Natural Children
14. Rule 106 Constitution of Family Home
(Deemed repealed by the Family Code, Arts. 252-253)
15. Rule 107 Absentees
16. Rule 108 Cancellation or Correction of Entries
17. Rule 109 Appeals in Special Proceedings

Special Proceedings Under Various Laws

1. Summary proceedings under the Family Code


2. Actions mentioned in the Family Courts Act of 1997 (RA 8369)
- declaration of absolute nullity of void marriages and annulment of voidable marriages
- legal separation
- provisional orders on support, custody of minor children and administration of common property
- violence against women and their children and protection orders

3. Proceedings under: Child & Youth Welfare Code (PD 1083)


Child Abuse Act (RA 7610)
Child Employment Act (RA 7658)
- declaration of status as abandoned, dependent or neglected children
- voluntary or involuntary commitment of children
- suspension, termination or restoration of parental authority

4. Domestic and Inter-country adoption


5. Petition for corporate rehabilitation
6. Petition for writ of amparo
7. Petition for writ of habeas data
8. Arbitration
SPECIAL PROCEEDINGS | Bar Review Guide 2015 | Justice Magdangal M. de Leon | page 2

Rules in civil actions applicable to special proceedings

Sec. 2. Applicability of rules of civil actions.


In the absence of special rules, the rules provided for in ordinary actions shall be, as far as
practicable, applicable to special proceedings.

1. Rule 17 governing dismissal of actions by plaintiff in civil actions (Ventura vs. Ventura, Sept. 24, 1969)
2. Rules regarding:
- preparation, filing and service of applications, motions, and other papers
- omnibus motions
- subpoena
- computation of time
- motion for new trial
- discovery
- trial before commissioners
- procedure of appeal (Fernandez vs. Maravilla, 10 SCRA 589 [1964])

3. Rule 33 regarding judgment on demurrer to evidence


(Matute vs. CA, 26 SCRA 768 [1969])

Recent jurisprudence
In the absence of special provisions, rules in ordinary actions may be applied in special
proceedings as much as possible and where doing so would not pose an obstacle to said proceedings.
Nowhere in the Rules of Court does it categorically say that rules in ordinary actions are inapplicable or
merely suppletory to special proceedings. Provisions of the Rules of Court requiring a certification of non-
forum shopping for complaints and initiatory pleadings, a written explanation for non-personal service and
filing, and the payment of filing fees for money claims against an estate would not in any way obstruct
probate proceedings, thus, they are applicable to special proceedings such as the settlement of the estate
of a deceased person. (Sheker versus Estate of Alice Sheker, G.R. No. 157912 Dec 13, 2007)

A. Settlem ent of Estate of Deceased Persons, Venue and Process

Art. 777, Civil Code rights to succession are transmitted from the moment of death of the decedent.
This is only from the substantive aspect. From the PROCEDURAL aspect, there are certain procedures that
must be observed before actual transmission of the property, but rights of the heirs retroact from the moment of
death.

Recent jurisprudence
The right of respondents predecessors over the subject property is more than sufficient to uphold
respondents right to possession over the same. Respondents right to the property was vested in her along
with her siblings from the moment of their fathers death. As heir, respondent had the right to the
possession of the property, which is one of the attributes of ownership. Such rights are enforced and
protected from encroachments made or attempted before the judicial declaration since respondent acquired
hereditary rights even before judicial declaration in testate or intestate proceedings.(Bunyi versus Factor.
G.R. No. 172547, June 30, 2009)

Article 777 of the Civil Code declares that the successional rights are transmitted from the moment of death
of the decedent. Accordingly, upon Anastacias death, her children acquired legal title to her estate (which
title includes her shareholdings in Zenith), and they are, prior to the estates partition, deemed co-owners
thereof. This status as co-owners, however, does not immediately and necessarily make them stockholders
of the corporation. Unless and until there is compliance with Section 63 of the Corporation Code on the
manner of transferring shares, the heirs do not become registered stockholders of the corporation. (Reyes
v. RTC Makati Branch 142, GR No. 165744, Aug 11, 2008)

1. Which court has jurisdiction


Settlement of estate
The determination of which court exercises jurisdiction over matters of probate depends upon the
GROSS VALUE of the estate of the decedent. Rule 73, Sec. 1 is deemed amended by BP 129, as
amended by RA 7691 (Lim vs. CA, G.R. No. 124715, January 24, 2000, 323 SCRA 102]),
Hence, the court may be the MTC or RTC.

Kinds of settlement based on the FORM of settlement:


1. Extrajudicial settlement (Rule 74, Sec. 1)
2. Summary settlement of estates of small value (Rule 74, Sec. 2)
3. Judicial settlement through letters testamentary or letters of administration with or without the will annexed
(Rules 73, 75-90)
SPECIAL PROCEEDINGS | Bar Review Guide 2015 | Justice Magdangal M. de Leon | page 3

2. Venue in judicial settlement of estates



Rule 73: VENUE AND PROCESS

Sec. 1. Where estate of deceased persons settled.

1. If residing in Philippines at time of death, whether citizen or not, court of PLACE OF RESIDENCE.

2. If residing in a foreign country court of ANY PLACE WHERE HE HAD ESTATE.

3. Venue may be assailed only when the estate proceedings are brought up on appeal or if a plain
reading of the records of the case will immediately show that venue was improperly laid. However, the
fact that the estate proceedings are initiated neither in the decedents residence nor where the
decedents estate is located is not jurisdictional and may be waived if not raised (Uriate v. CFI, GR
Nos.L-21938-39; May 29, 1970)

4. Court first taking cognizance of settlement of estate of a decedent shall exercise jurisdiction TO THE
EXCLUSION of all other courts.
- subject to preferential jurisdiction of court where TESTATE proceedings are filed.

5. Jurisdiction assumed by a court depending on


- place of residence of decedent, or
- location of estate
shall NOT BE CONTESTED in a suit or proceeding,
except in an appeal from that court, or
when want of jurisdiction appears in the record

NOTES:

1. Term resides refers to actual or physical residence, as distinguished from legal residence or domicile.

There is a distinction between residence for purposes of election laws and residence for purposes of
fixing the venue of actions. In election cases, residence and domicile are treated as synonymous terms,
that is, the fixed permanent residence to which when absent, one has the intention of returning. However,
for purposes of fixing venue under the Rules of Court, the residence of a person is his personal, actual or
physical habitation, or actual residence or place of abode, which may not necessarily be his legal residence
or domicile provided he resides therein with continuity and consistency. Hence, it is possible that a person
may have his residence in one place and domicile in another. (San Luis vs. San Luis, G.R. No. 133743,
February 6, 2007)

2. Sec. 1, Rule 73 prescribing court where decedents estate shall be settled (a) place of residence or (b)
where his estate is located, relates to VENUE and not jurisdiction.

3. Where two proceedings filed, one intestate, the other testate illustrative cases on which courts should
have jurisdiction:

n ROBERTS VS. LEONIDAS (129 SCRA 33) intestate in CFI Manila Branch 20, testate
(reprobate) in CFI Manila, Branch 38. Ruling: priority to second branch of same court (CFI Manila). a.
Probate of will MANDATORY- anomalous that estate of person who died testate should be settled in
intestate proceedings. b. Intestate case should be CONSOLIDATED with testate proceeding - Judge
assigned to testate proceeding should continue hearing the two cases.

n URIARTE VS. CFI OF NEGROS OCC. (33 SCRA 252) intestate in Negros court, testate in
Manila court. Ruling: priority to first court. Petitioner in Manila court should have submitted will for
probate to Negros court, either in separate special proceeding or motion. Testate proceeding takes
precedence over intestate proceeding. If in the course of intestate proceeding, it is found that decedent
left a will, proceeding for probate of will should REPLACE intestate proceeding.

n CUENCO VS. CA (53 SCRA 360 [1973]) intestate in Cebu court, testate in QC court. Ruling:
priority to second court. First court, upon learning that petition for probate has been presented in
another court, may DECLINE TO TAKE COGNIZANCE of and HOLD IN ABEYANCE petition before it,
and instead DEFER to second court. If the will is admitted to probate, it will definitely DECLINE to take
cognizance.

Explain difference between Uriarte and Cuenco rulings In Uriarte, there was showing that petitioner in
probate proceeding knew before filing of petition in Manila that there was already intestate proceeding in
Negros.
SPECIAL PROCEEDINGS | Bar Review Guide 2015 | Justice Magdangal M. de Leon | page 4

Sec. 2. Where estate settled upon dissolution of marriage

A creditor cannot sue surviving spouse of a decedent in an ordinary proceeding for collection of sum of
money chargeable against the conjugal property. Proper remedy file a claim in the settlement of estate of
the decedent. Reason: upon death of one spouse, powers of administration of surviving spouse ceases
and is passed to administrator appointed by probate court in the settlement proceedings. (Alipio vs. CA, 341
SCRA 441 [2000])

PRESUMPTION OF DEATH

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

Under the Civil Code, absence of seven years, it being unknown whether or not the absentee lives, is sufficient for
the presumption of death to arise for all purposes except succession ( Art. 390, Civil Code)

General Rule - A person is dead for the purpose of settling his estate if he has been missing for ten years (Art. 390,
NCC)

Exception - However, if the absentee disappeared after the age of 75 years, an absence of five (5) years is
sufficient for opening of succession.

The following persons would be considered ABSENT EVEN FOR THE PURPOSES OF OPENING OF
SUCCESSION after FOUR (4) years (Art. 391, NCC):
(1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard
of for four years since the loss of the vessel or aeroplane;
(2) A person in the armed forces who has taken part in war, and has been missing for four years;
(3) A person who has been in danger of death under other circumstances and his existence has not been known for
four years.

General Rule - No independent action for a declaration of presumptive death is allowed.

Exception The need for declaration of presumptive death for purposes of remarriage (Art 41, Family Code)

3. Extent of jurisdiction of probate court

Probate court is of limited jurisdiction

1. Probate court cannot adjudicate or determine title to properties claimed to be a part of the estate and
equally claimed as belonging to outside parties.

2. It can only determine whether or not they should be included in the inventory or list of properties to be
administered by the administrator.

3. Probate court can only pass upon questions of title provisionally for the purpose of determining
whether a certain property should or should not be included in the inventory.

4. Parties have to resort to an ordinary action for final determination of conflicting claims of title.

CASES: Vda. de Rodriguez vs. CA, 91 SCRA 540; Pastor vs. CA, 122 SCRA 885; Pereira vs. CA, 174 SCRA 154 .
De Leon v. CA, GR No. 128781, August 6, 2002

Separate civil action for quieting of title - where issue or ownership of properties excluded from the inventory is finally
determined (Pobre vs. Gonong, 148 SCRA 553 [1987]).

EXCEPTION:
Although generally, a probate court may not decide on the question of ownership, yet if:
a. the interested parties are all heirs, OR
b. the question is one of coalition or advancement, OR
c. the parties consent to the assumption of jurisdiction of the probate court AND
d. the rights of third parties are not impaired.
SPECIAL PROCEEDINGS | Bar Review Guide 2015 | Justice Magdangal M. de Leon | page 5
The probate court can decide question of ownership ( Aranas v. Mercado, GR No. 156407, January 12,
2014, Coca vs. Pangilinan, 81 SCRA 278 [1987]).

With consent of all the parties, without prejudice to third persons (Trinidad vs. CA, 202 SCRA 106 [1991]).

4. Powers and duties of probate court

However, probate court has jurisdiction to (a) determine heirs separate action for declaration of heirs not
proper (Solivio vs. CA, 182 SCRA 119 [1990]) and (b) distribute estate.

It is within the jurisdiction of the probate court to approve the sale of properties of a deceased person by
his prospective heirs before final adjudication; to determine who are the heirs of the decedent; the
recognition of a natural child; the status of a woman claiming to be the legal wife of the decedent; the
legality of disinheritance of an heir by the testator; and to pass upon the validity of a waiver of hereditary
rights. (Romero v. CA, GR No. 188921, April 18, 2012)

Matters relating to the rights of filiation and heirship must be ventilated in the proper probate court in a
special proceeding instituted precisely for the purpose of determining such rights. (Joaquino v. Reyes
G.R. No. 154645. July 13, 2004)

Questions as to who are the heirs of the decedent, proof of filiation of illegitimate children and the
determination of the estate of the latter and claims thereto should be ventilated in the proper probate
court or in a special proceeding instituted for the purpose and cannot be adjudicated in the instant
ordinary civil action which is for recovery of ownership and possession. (Agapay v. Palang G.R. No.
116668 July 28, 1997)

There appears to be only one parcel of land being claimed by the contending parties as their inheritance
from Juan Gabatan. It would be more practical to dispense with a separate special proceeding for the
determination of the status of respondent as the sole heir of Juan Gabatan, specially in light of the fact
that the parties to Civil Case No. 89-092, had voluntarily submitted the issue to the RTC and already
presented their evidence regarding the issue of heirship in these proceeding. (Gabatan v. CA, GR No.
150206, March 13, 2009) TDC

The jurisdiction of the probate court extends to matters incidental or collateral to the settlement and
distribution of the estate, such as the determination of the status of each heir and whether the property in
the inventory is conjugal or exclusive property of the deceased spouse. (Agtarap v. Agtarap, GR No.
177099, June 8, 2011)

In the exercise of probate jurisdiction. the court may issue warrants and process necessary to compel the
attendance of witnesses or to carry into effect their orders and judgments, and all other powers granted
to them by law (Rule 73, Sec. 3).

B. Sum m ary Settlem ent of Estates


1. Extrajudicial settlement by agreement between heirs, when allowed

Rule 74, Sec. 1. Extrajudicial settlement by agreement between the heirs

REQUISITES OF EXTRAJUDICIAL SETTLEMENT


1. Decedent dies intestate
2. No outstanding debts at time of settlement*
3. Heirs all of legal age or minors represented by judicial guardians or legal representatives
4. Settlement made in public instrument duly filed with Register of Deeds
5. Publication in newspaper of general circulation in the province once a week for 3 consecutive
weeks
6. Bond equivalent to value of personal property posted with Register of Deeds**

* Presumed that decedent left no debts if no creditor filed petition for letters of administration within 2 years after
death of decedent.

** Bond required only when personality is involved in the extrajudicial settlement. Real estate is subject to lien in
favor of creditors, heirs or other persons for 2 years from distribution of estate, notwithstanding any transfers of real
estate that may have been made (Sec. 4, Rule 74).

RATIONALE for Sec. 1, Rule 74 when person dies without having obligations to be paid, his
heirs are not bound to submit property for judicial administration, which is always long and costly (Utulo vs.
Pasion, 66 Phil. 302).
SPECIAL PROCEEDINGS | Bar Review Guide 2015 | Justice Magdangal M. de Leon | page 6

IF HEIRS DISAGREE ordinary action for partition.

IF ONLY ONE HEIR affidavit of self-adjudication.

v FILING OF EXTRAJUDICIAL SETTLEMENT WITH REGISTER OF DEEDS REQUIRED


whether by public instrument, affidavit, stipulation in pending action for partition.

Lack of registration of extrajudicial settlement does not affect its validity when there are
no creditors or rights of creditors are not involved (Vda. de Reyes vs. CA, 199 SCRA 646 (1991).

v DESPITE ITS PUBLICATION, extrajudicial settlement NOT BINDING on any person who has
not participated therein or who had no notice thereof (Sec. 1, last par., Rule 74; Sampilo vs.
CA, 101 Phil. 71 [1958]).

Extrajudicial settlement on whom binding


- ONLY TO THOSE WHO PARTICIPATED OR HAD NOTICE TO THE SETTLEMENT

The procedure outlined in Section 1 of Rule 74 is an ex parte proceeding. The rule plainly states, however,
that persons who do not participate or had no notice of an extrajudicial settlement will not be bound
thereby. The publication of the settlement does not constitute constructive notice to the heirs who had no
knowledge or did not take part in it because the same was notice after the fact of execution. (Cua vs. Vargas,
G.R. No. 156536, Oct 31, 2006)

The publication of the settlement does not constitute constructive notice to the heirs who had no
knowledge or did not take part in it because the same was notice after the fact of execution. The
requirement of publication is geared for the protection of creditors and was never intended to deprive heirs of their
lawful participation in the decedents estate. (Spouses Tiro vs. Heirs of Cuyos, G.R. No. 161220, July 30, 2008)

2. Two-year prescriptive period

Action to annul deed of extrajudicial settlement Sec. 4, Rule 74 provides a two year prescriptive
period (1) to persons who participated or taken part or had notice of the extrajudicial partition, and (2)
when the provisions of Sec. 1 of Rule 74 have been strictly complied with that all persons or heirs of the
decedent have taken part in the extrajudicial settlement or are represented by themselves or through
guardians (Pedrosa vs. CA, 353 SCRA 620 [2001]).

3. Affidavit of self-adjudication by sole heir

Adjudication by an heir of the decedents entire estate to himself by means of an affidavit is allowed only
if he is the sole heir to the estate (Delgado vda. de De la Rosa vs. Heirs of Marciana Rustia vda. de Damian,
480 SCRA 334 [2006]).

Respondent, believing rightly or wrongly that she was the sole heir to Portugals estate, executed on
February 15, 1988 the questioned Affidavit of Adjudication under the second sentence of Rule 74, Section 1 of
the Revised Rules of Court. Said rule is an exception to the general rule that when a person dies leaving a
property, it should be judicially administered and the competent court should appoint a qualified administrator, in
the order established in Sec. 6, Rule 78 in case the deceased left no will, or in case he did, he failed to name an
executor therein. (Portugal vs. Portugal-Beltran, G.R.No. 155555, August 16, 2005)

Since Josefa Delgado had heirs other than Guillermo Rustia, Guillermo could not have validly adjudicated
Josefas estate all to himself. Rule 74, Section 1 of the Rules of Court is clear. Adjudication by an heir of the
decedents entire estate to himself by means of an affidavit is allowed only if he is the sole heir to the estate. (In
the Matter of the Intestate Estate of Delgado, G.R. No. 155733, January 27, 2006

4. Summary settlement of estates of small value, when allowed


Distinction between extrajudicial settlement (ES) and summary settlement of estates of small value (SS):

1. ES-no court intervention


SS-judicial adjudication although summary

2. ES-value of estate immaterial


SS-applies only where gross value not more than P10,000.00

3. ES-allowed only in intestate succession


SS-both testate and intestate
SPECIAL PROCEEDINGS | Bar Review Guide 2015 | Justice Magdangal M. de Leon | page 7
4. ES-no outstanding debts of estate at time of settlement
SS-even if there are debts

5. Remedies of aggrieved parties after extrajudicial settlement of estate

The remedy of an heir who did not participate in, or had no knowledge of, the extrajudicial partition is to file
an action for reconveyance.

Prescriptive period for non-participants 10 years, because an action for reconveyance based on implied or
constructive trust, being an obligation created by law, prescribes in 10 years (Art. 1144, par. 2, Civil Code)

The period starts from issuance of title over the property (Marquez vs. CA, 300 SCRA 653 [1998]). Constructive
trusts under Art. 1456 are established to prevent unjust enrichment. In Marquez, husband executed affidavit of
self-adjudication without including the children

The ruling in Gerona vs. De Guzman, 11 SCRA 153 (1964), cited in Pedrosa vs. CA,, that prescriptive
period for non-participants is 4 years from discovery of fraud, i.e., when deed was filed with Register of Deeds
and new title issued, is not applicable, because the same was based on the old Code of Civil Procedure (Sec.
43, which governed prescription). The Gerona doctrine was abandoned in Amerol vs. Bagumbaran, 154 SCRA
396 (1987) and reiterated in Caro vs. CA, 180 SCRA 401 (1989) and Marquez vs. CA.

Remedy of annulment of extrajudicial settlement and title issued pursuant thereto


A deed of extrajudicial partition executed without including some of the heirs, who had no knowledge of and consent
to the same, is fraudulent and vicious. The deed of settlement made by petitioners was invalid because it excluded
respondents who were entitled to equal shares in the subject property. Under the rule, no extrajudicial settlement
shall be binding upon any person who has not participated therein or had no notice thereof.17 Thus, the RTC
correctly annulled the Deed of Extrajudicial Settlement of Estate Among Heirs with Waiver of Rights executed by
petitioners and the title issued in accordance therewith, the order of partition of the land subject of the settlement in
accordance with the laws on intestate succession is proper. (Reillo v. San Jose, GR No. 166393 June 18, 2009)

Imprescriptibility of action to annul fraudulent extrajudicial settlement


Unquestionably, the Deed of Extra-judicial Partition is invalid insofar as it affects the legitimate share pertaining to
the defendant-appellee in the property in question. There can be no question that the Deed of Extra-judicial Partition
was fraudulently obtained. Hence, an action to set it aside on the ground of fraud could be instituted.

The deed of extra-judicial partition in the case at bar being invalid, the action to have it annulled does not prescribe.
(Bautista v. Bautista, GR NO. 160556, August 3, 2007)

Bautista and earlier rulings were based on Article 1410 of the Civil Code:
Article 1410. The action or defense for the declaration of the inexistence of a contract does not prescribe.
(2) The contracts that are inexistent and void under 1409 are those which are absolutely stimulated or fictitious

Bautista was reiterated in the later case of Neri:


In the execution of the Extra-Judicial Settlement of the Estate with Absolute Deed of Sale in favor of spouses Uy, all
the heirs of Anunciacion should have participated. Considering that Eutropia and Victoria were admittedly excluded
and that then minors Rosa and Douglas were not properly represented therein, the settlement was not valid and
binding upon them and consequently, a total nullity.

On the issue of prescription, the Court agrees with petitioners that the present action has not prescribed in so far as
it seeks to annul the extrajudicial settlement of the estate. Contrary to the ruling of the CA, the prescriptive period of
2 years provided in Section 1 Rule 74 of the Rules of

Court reckoned from the execution of the extrajudicial settlement finds no application to petitioners Eutropia, Victoria
and Douglas, who were deprived of their lawful participation in the subject estate. Besides, an "action or defense for
the declaration of the inexistence of a contract does not prescribe" in accordance with Article 1410 of the Civil Code.
(Neri v. Heirs of Uy, G.R. No. 194366, October 10, 2012)

Action to recover property NOT IMPRESCRIPTIBLE


However, the action to recover property held in trust prescribes after 10 years from the time the cause of action
accrues, which is from the time of actual notice in case of unregistered deed. In this case, Eutropia, Victoria and
Douglas claimed to have knowledge of the extrajudicial settlement with sale after the death of their father, Enrique, in
1994 which spouses Uy failed to refute. Hence, the complaint filed in 1997 was well within the prescriptive period of
10 years. (Neri v. Heirs of Uy, G.R. No. 194366, October 10, 2012)

Different ruling action for reconveyance imprescriptible if conveyance complained of was NULL AND VOID
AB INITIO.
SPECIAL PROCEEDINGS | Bar Review Guide 2015 | Justice Magdangal M. de Leon | page 8
In actions for reconveyance of the property predicated on the fact that the conveyance complained of was null and
void ab initio, a claim of prescription of action would be unavailing. The action or defense for the declaration of the
inexistence of a contract does not prescribe. (Ingjug-Tiro v. Casals, GR No. 134718 , August 20,2001; Dumailang v.
Serban, GR No. 155133, February 21, 2007, Macababbad v. Masirag, GR No. 161237, January 14, 2009)

What then is the effect of the issuance of TCTs in the name of petitioners? In other words, does the issuance of the
certificates of titles convert the action to one of reconveyance of titled land which, under settled jurisprudence,
prescribes in ten (10) years? Precedents say it does not; the action remains imprescriptible, the issuance of the
certificates of titles notwithstanding. (Macababbad v. Masirag, GR No. 161237, January 14, 2009)

Additional Exception to prescription of actions when plaintiff, the legal owner, and not the defendant
registered owner, is in possession of the land to be reconveyed. Said action, when based on fraud, is imprescriptible
as long as the land has not passed to an innocent purchaser for value (Heirs of Saludares vs. CA, 420 SCRA 54).

Remedy of an excluded heir when land has passed to an innocent purchaser for value claim for damages against
the heirs responsible for the fraudulent exclusion. (PEZA v. Fernandez, GR No. 138971. June 6, 2001)

C. Production and Probate of W ill


Rule 75 : Production of will, Allowance of will necessary

1. Allowance of will is conclusive as to its due execution.

Art. 783, Civil Code defines a will as: an act whereby a person is permitted with the formalities
prescribed by law to control to a certain degree the disposition of his estate to take effect after his
death.

Petitioner should realize that the allowance of her husbands will is conclusive only as to its due
execution. The authority of the probate court is limited to ascertaining whether the testator, being of sound
mind, freely executed the will in accordance with the formalities prescribed by law. Thus, petitioners claim of
title to the properties forming part of her husbands estate should be settled in an ordinary action before the
regular courts. (Nittscher vs. Nittscher, G.R. No. 160530, November 20, 2007)

2. Probate of will (special proceeding to establish the validity of a will) is MANDATORY.


Probate of a will is mandatory (Sec. 1 Rule 75) and therefore takes precedence over intestate proceedings.

a. The law enjoins probate of the will and public policy requires it. Unless will is probated and notice given
to the whole world, right of a person to dispose of his property by will may be rendered nugatory
(Maninang vs. CA, 114 SCRA 478 [1982]).

The Deed of Donation which is one of mortis causa, not having followed the formalities of a will, is void and
transmitted no right to petitioners mother. But even assuming that the formalities were observed, since it was
not probated, no right to Lot Nos. 674 and 676 was transmitted to Maria. (Aluad vs. Aluad, G.R. No. 176943,
October 17, 2008

b. In intestate succession, no valid partition among heirs until after will has been probated (Ralla vs.
Judge Untalan, 172 SCRA 858 [1989]).

c. Presentation of will cannot be dispensed with on the ground of ESTOPPEL because public policy
requires that a will should be probated (Fernandez vs. Dimaguiba, 21 SCRA 428 [1967]).

1. Nature of probate proceeding

PROBATE COURT DOES NOT LOOK INTO INTRINSIC VALIDITY

GENERAL RULE: Probate courts authority is limited only to extrinsic validity of the will, i.e.:
a. due execution voluntariness
b. testators testamentary capacity sound mind
c. compliance with formal requisites or solemnities

1. Intrinsic validity of the will normally comes after court declares that will has been duly authenticated.

2. Court at this stage of the proceedings is not called upon to rule on intrinsic validity or legality of the
provisions of the will (Nuguid vs. Nuguid, 17 SCRA 449 [1966]; Maninang vs. CA, supra).
SPECIAL PROCEEDINGS | Bar Review Guide 2015 | Justice Magdangal M. de Leon | page 9

EXCEPTIONS:
1. In exceptional instances, courts not powerless to pass upon certain provisions of will which it may declare
invalid even as it upholds extrinsic validity of will (Ajero vs. Ca, 236 SCRA 488 [1994]).

2. Probate court may only disregard passing on extrinsic validity of will where intrinsic validity apparent on
face of will (Maninang vs. CA, supra)

3. Probate of will might become idle ceremony if on its face it appears intrinsically void.

4. In Nuguid, court ruled that will was intrinsically invalid as it completely preterited parents of the testator.
a. Preterition annuls institution of heirs
b. Disinheritance annuls institution of heirs as to portion of estate which disinherited heirs have been
illegally deprived

2. Who may petition for probate; persons entitled to notice


Rule 76 Allowance or Disallowance of Will

Sec. 1. Who may petition for allowance of will.

WHO
1. Executor
2. Legatee need not be a relative of decedent
3. Devisee need not be a relative of decedent
4. Other interested person - heir; creditor
5. Testator during his lifetime

WHEN at any time after death of testator not subject to bar by statute of limitations and does
not prescribe, since it is required by public policy.

WHERE court having jurisdiction

WHAT petition to have will allowed whether:


a. will in possession of petitioner or not
b. will lost
c. will destroyed

JURISDICTION HOW ACQUIRED

a. Attaching of mere copy of will sufficient annexing of original of will to the petition is not jurisdictional
requirement.
b. Delivery of will sufficient even if no petition filed under Sec. 3, Rule 76, when a will is delivered to the
court, court could motu proprio take steps to fix time and place for proving the will, issue corresponding
notices.

Only known heirs, legatees and devisees entitled to personal notice

Rule 76, Sec. 4. Heirs, devisees, legatees and executor to be notified by mail or personally.

1. Notice of time and place of hearing should be addressed to

a. designated or known heirs, legatees and devisees


b. person named as executor (if he is not petitioner)
c. person named as co-executor not petitioning

2. residing in the Philippines

3. at their places of residence, if known

4. Personal service at least 10 days before hearing

5. Mailed service at least 20 days before hearing

6. IF TESTATOR asks for allowance of his own will notice shall be sent only to his COMPULSORY
HEIRS.
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Notice to Designated Heirs, Legatees and Devisees Jurisdictional when they are known AND their
places of residence are known (De Arranz vs. Galing, 161 SCRA 628).

Notice is required to be personally given to known heirs, legatees, and devisees of the testator. [Sec. 4, Rule
76, Rules of Court]. A perusal of the will shows that respondent was instituted as the sole heir of the decedent.
Petitioners, as nephews and nieces of the decedent, are neither compulsory nor testate heirs who are entitled to
be notified of the probate proceedings under the Rules. Respondent had no legal obligation to mention
petitioners in the petition for probate, or to personally notify them of the same. (Alaban vs. CA, G.R. No. 156021,
September 23, 2005).

D. Allowance or Disalllowance of will


1. Contents of petition for allowance of will

Rule 76, Sec. 2. Contents of petition.

a. Jurisdictional facts:
1. that a person has died leaving a will; and
2. the testator at the time of death is a resident within the territorial jurisdiction of the court; or
3. the testator is a non-resident at the time of death but left property within the territorial jurisdiction of the
court
b. names, ages and residences of the heirs, legatees and devisees of the testator or decedent
c. probable value and character of the property of the estate
d. name of the person for whom letters are prayed
e. if the will has not been delivered to the court, the name of the person having custody thereof

Rule 76, Sec. 3. Court to appoint time for proving the will. Notice thereof to be published.

Notice and Hearing; Publication

1. After will delivered to, or petition for allowance of will filed in court having jurisdiction, court
a. shall fix time and place for proving will when all concerned may appear to contest allowance thereof.
b. cause notice of such time and place to be PUBLISHED 3 weeks successively in newspaper of general
circulation in the province.

2. NO NEWSPAPER PUBLICATION where petition for probate filed by TESTATOR himself.

Probate of Will is In Rem

Notice by publication as prerequisite to allowance of will is CONSTRUCTIVE NOTICE to the whole


world.

When probate is granted, the judgment is binding upon everybody, even against the state.

Probate JURISDICTIONAL

Without publication of petition, proceedings for settlement of estate is VOID and should be
ANNULLED.

Rule 76, Sec. 5. Proof of hearing. What sufficient in absence of contest.

EVIDENCE INTRODUCED AT PROBATE OF WILL

1. Publication

2. Notice of hearing served on known heirs, legatees, devisees, etc. if places of residence known

3. Testimony of subscribing witnesses


a. Uncontested one witness sufficient
b. Contested all subscribing witnesses and
notary (wills executed under Civil Code)
other witnesses (under certain conditions)

4. Holographic will
a. Uncontested at least one witness who knows handwriting and signature of testator; expert testimony
(in the absence of competent witness)
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b. Contested at least 3 witnesses who know handwriting of testator; expert testimony (in the absence of
competent witness)

5. Holographic will testator himself as petitioner


a. Contested contestant has burden of disproving genuineness and due execution
b. Uncontested testator must affirm that will and signature are in his own handwriting

Substantial Compliance Rule


If will executed in substantial compliance with formalities of law, and possibility of bad faith
obviated it should be admitted to probate (De Jesus vs. De Jesus, 134 SCRA 245).

2. Grounds for disallowing will

Rule 76, Sec. 9. Grounds for disallowing will.

1. Legal formalities
a. not executed and attested as required by law

2. Testamentary capacity
b. testator insane or otherwise mentally incapable to make will at time of execution

3. Due execution
c. executed under duress, or the influence of fear, or threats
d. procured by undue and improper pressure and influence on the part of the beneficiary, or some other
person, for his benefit.
e. signature of testator procured by fraud or trick and he did not intend that the instrument be his will at
time of fixing his signature
f. testator acted by mistake or did not intend that instrument be signed or should be his will at the time of
affixing his signature (Art. 389, Civil Code)

Grounds for Disallowance of Will Exclusive

Lists in Sec. 9, Rule 76 and Art. 389 are EXCLUSIVE NO OTHER GROUND can serve to disallow a will.

Example: If testator fails to sign and date some dispositions in holographic will, it affects only the validity of the
dispositions, but not the whole will. Exc. If unauthenticated alterations, cancellations or insertions are made on the
DATE of will of on testators SIGNATURE (Ajero vs. CA, supra).

Separate wills may be probated jointly (Vda. de Perez vs. Tolete, 232 SCRA 722 [1994]).

3. Reprobate; Requisites before will proved outside allowed in the Philippines; effects of
probate

Rule 77 Allowance of will proved outside of Philippines and Administration of estate thereunder

Sec. 1. Will proved outside of the Philippines may be allowed here.

EVIDENCE NECESSARY FOR REPROBATE OF WILL or will probated outside the Philippines:

1. due execution of will in accordance with foreign laws


2. testator has domicile in foreign country and not Philippines
3. will has been admitted to probate in such country
4. fact that foreign court is a probate court
5. law of the foreign country on procedure and allowance of wills
(Vda. de Perez vs. Tolete, supra)

Reprobate of will

While foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to take
judicial notice of them; however, petitioner, as ancillary administrator of Audreys estate, was duty-bound to
introduce in evidence the pertinent law of the State of Maryland. (Ancheta vs. Guersey-Dalaygon, G.R. No.
139868, June 8, 2006)

A person who seeks to reprobate a will executed in a foreign country must prove the laws and procedure of
that foreign country on wills. As foreign laws do not prove themselves and our courts do not take judicial notice
of them, the petitioner in the probate proceedings has the burden to prove/introduce evidence of such foreign
law. (Ancheta vs. Guersey-Dalaygon, G.R. No. 139868, June 8, 2006)
SPECIAL PROCEEDINGS | Bar Review Guide 2015 | Justice Magdangal M. de Leon | page 12

Courts will presume that a foreign law is the same as local law, under the International Law doctrine of
presumed-identity approach or processual presumption. Where a foreign law is not pleaded or, even if
pleaded, is not proved, the presumption is that foreign law is the same as ours. Thus, we apply Philippine labor
laws in determining the issues presented before us. (Atci Overseas Corporation v. Etching, GR No. 178551,
October 11, 2010)

PUBLICATION AND NOTICE REQUIRED


Compliance with Secs. 3 and 4 of Rule 76, re publication and notice by mail or personally to known heirs,
legatees and devisees of testator resident in the Philippines and to executor, if he is not the petitioner, required
also in wills for reprobate (Vda. de Perez vs. Tolete).

EFFECT OF PROBATE
When the will is allowed, it shall have the same effect as if originally proved and allowed in such court (Rule
77, Sec. 3).
The letters testamentary or of administration granted shall extend to all of the estate of the testator in the
Philippines. After payment of just debts and expenses of administration, the estate shall be disposed of
according to such will, so far as such will may operate upon it (Rule 77, Sec. 4).

E. Letters Testam entary and of Adm inistration

Rule 78 Letters testamentary and of administration, when and to whom issued

Sec. 1. Who are incompetent to serve as executors or administrators

EXECUTOR person named in the will to administer decedents estate to carry out provisions thereof
ADMINISTRATOR person appointed by the court to administer the estate
Administrator need not be an heir can be a stranger to the deceased, such as a creditor.

GROUNDS FOR INCOMPETENCE


1. Minority
2. Non-residence
3. Unfitness
a. drunkenness
b. incompetence
c. want of understanding
d. want of integrity
e. conviction of offense involving moral turpitude (anything done contrary to justice, honesty, good morals)

Courts may refuse to appoint a person as executor or administrator on ground of


UNSUITABLENESS adverse interest or hostile to those immediately interested in the estate (Lim
vs. Diaz-Maillares, 18 SCRA 371 [1966]).

Failure to file an income tax return is not a crime involving moral turpitude because the mere omission is
already a violation regardless of the fraudulent intent or willfulness of the individual. (Republic vs. Marcos, G.R. No.
130371, August 4, 2009)

LETTERS TESTAMENTARY ISSUED WHEN WILL ALLOWED (Rule 78, Sec. 4)


When the will is proved and allowed, the court shall issue LETTERS TESTAMENTARY thereon to the person
named as EXECUTOR therein, if he is --
a. competent
b. accepts the trust and
c. gives bond

1. When and to whom letters of administration granted

Rule 78, Sec. 6. When and to whom letters of administration granted


When administration granted
1. No executor named in will ) letters of administration
2. Executor/s (is/are): ) with will annexed
a. Incompetent
- Minor
- Non-resident
- Unfit
b. Refuse the trust
c. Fail to give bond
SPECIAL PROCEEDINGS | Bar Review Guide 2015 | Justice Magdangal M. de Leon | page 13
3. Person dies intestate ) letters of administration
4. Will void and not allowed )

2. Order of preference

Order of preference in appointment of administrator (Rule 78, Sec. 6)

1. surviving spouse partner in conjugal partnership and heir of deceased


2. next of kin

Meaning of next of kin


On the matter of appointment osf administrator of the estate of the deceased, the surviving spouse is
preferred over the next of kin of the decedent. When the law speaks of next of kin, the reference is to
those who are entitled, under the statute of distribution, to the decedents property; one whose
relationship is such that he is entitled to share in the estate as distributed, or, in short, an heir. In
resolving, therefore, the issue of whether an applicant for letters of administration is a next of kin or an
heir of the decedent, the probate court perforce has to determine and pass upon the issue of filiation. A
separate action will only result in a multiplicity of suits. (Angeles vs. Maglaya, G.R. No. 153798,
September 2, 2005)

3. person requested by spouse or next of kin


4. principal creditors
a. if spouse or next of kin is incompetent or unwilling or
b. neglects for 30 days after death of decedent to apply for administration, or to request that
administration be granted to some other person
5. other person selected by court if no creditor competent or willing

The order of preference in the appointment of a regular administrator as provided in the afore-quoted provision
does not apply to the selection of a special administrator. The preference under Section 6, Rule 78 of the Rules of
Court for the next of kin refers to the appointment of a regular administrator, and not of a special administrator, as
the appointment of the latter lies entirely in the discretion of the court, and is not appealable. Not being appealable,
the only remedy against the appointment of a special administrator is Certiorari under Rule 65 of the Rules of Court.
(Tan vs. Gedorio, Jr., G.R. No. 166520, March 14, 2008)

Court may reject order of preference

While surviving spouse is entitled to preference in the appointment, circumstances might warrant his
rejection and appointment of someone else, at the discretion of the court.

Interest in estate as principal consideration

In the appointment of an administrator, the principal consideration is the interest in the estate of the one to
be appointed.

Those who will reap benefit of a wise, speedy and economical administration or will suffer consequences of
waste, improvidence or mismanagement have the HIGHEST INTEREST and MOST INFLUENTIAL MOTIVE to
administer estate correctly (Gonzales vs. Aguinaldo, 190 SCRA 112 [1990]).

The order of preference does not rule out the appointment of co-administrators, especially in cases where
justice and equity demand that opposing parties or factions be represented in the management of the estate.

3. Opposition to issuance of letters testamentary; simultaneous filing of petition for


administration

Rule 79 Opposing issuance of letters testamentary, petition and contest for letters of administration

LETTERS TESTAMENTARY issued to executor

LETTERS OF ADMINISTRATION WITH WILL ANNEXED issued to administrator when there is no


executor named in will, or executor is incompetent, refuses trust or fails to give bond.

LETTERS OF ADMINISTRATION issued to administrator in intestate proceedings.

Sec. 1. Opposition to issuance of letters testamentary. Simultaneous petition for administration

Any person interested in a will may oppose in writing the issuance of letters testamentary to persons named as
executors, and at the same time file petition for letters of administration with will annexed.
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Meaning of interested person one who would be benefited by the estate (heir), or one who has a claim
against the estate (creditor). Interest must be MATERIAL and DIRECT, not merely indirect or contingent (Sagunsin
vs. Lindayag, 6 SCRA 874).

An interested person has been defined as 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. The interest must be material and direct, and not merely
indirect or contingent (San Luis vs. San Luis, G.R. No. 133743, February 6, 2007)

Where the right of the person filing a petition for the issuance of letters of administration is dependent on a fact which
has not been established or worse, can no longer be established, such contingent interest does not make her an
interested party. (Tayag ve. Tayag-Gallor, G.R. No. 174680, March 24, 2008

SEC. 2 CONTENTS OF PETITION FOR LETTERS OF ADMINISTRATION

The jurisdictional facts required in a petition for issuance of letters of administration are: (1) the death of the testator;
(2) residence at the time of death in the province where the probate court is located; and (3) if the decedent was a
non-resident, the fact of being a resident of a foreign country and that the decedent has left an estate in the province
where the court is sitting. (Garcia Vda de Chua v. CA G.R. No. 116835. March 5, 1998)

PUBLICATION AND NOTICE REQUIRED (Sec. 3, Rule 79)

Publication and notice of hearing (per Sec. 3, Rule 76) jurisdictional.

Also, notice to known heirs and creditors of the decedent, and to any other person believed to have an
interest in the estate (per Sec. 4, Rule 76) if names and addresses are known (De Arranz vs. Galing).

4. Powers and duties of executors and administrators; restrictions on their powers

Powers:
a. Possess and manage estate of the deceased to pay debts and expenses of administration. (Rule 84,
Sec. 2)
b. (Executor or administrator of estate of a deceased partner) Have access to, examine and take copies
of, books and papers relating to the partnership business, and examine and make invoices of the
property belonging to such partnership (Ibid., Sec. 1).
c. With the approval of the court, to compound or compromise with a debtor of the deceased (Rule 87, Sec.
4)

Duties
a. Maintain the estate in tenantable repair, and.
b. Deliver the same to the heirs or devisees when directed by the court. (Rule 84, Sec. 3)

The administrator may only deliver properties of the estate to the heirs after payment of the debts, funeral
charges and other expenses against the estate, except when authorized by the court (Silverio, Jr. vs. Court of
Appeals, G.R. No. 178933, September 16, 2009)

5. Appointment of special administrator

Rule 80 Special administrator

WHEN IS SPECIAL ADMINISTRATOR APPOINTED

1. When there is delay in granting letters testamentary or of administration by any cause


- including appeal from allowance or disallowance of will
2. court may appoint special administrator to take possession and charge of the estate of the deceased
3. until
a. questions causing delay decided or
b. executors or administrators appointed

The appointment of a special administrator is justified only when there is delay in granting letters, testamentary
(in case the decedent leaves behind a will) or administrative (in the event that the decedent leaves behind no will, as
in the Petition at bar) occasioned by any cause. The principal object of the appointment of a temporary administrator
is to preserve the estate until it can pass into the hands of a person fully authorized to administer it for the benefit of
creditors and heirs. (Tan vs. Gedorio, Jr., G.R. No. 166520, March 14, 2008)

PUBLICATION AND NOTICE REQUIRED

Even in the appointment of a special administrator, same jurisdictional requirements under Sec. 3, Rule 79.
SPECIAL PROCEEDINGS | Bar Review Guide 2015 | Justice Magdangal M. de Leon | page 15

ORDER APPOINTING SPECIAL ADMINISTRATOR NOT APPEALABLE

Order appointing special administrator interlocutory in nature and mere incident in the judicial proceedings,
hence not appealable (Samson vs. Samson, 102 Phil. 735)

6. Grounds for removal of administrator

Rule 82 Revocation of Administration,Death, Resignation and Removal of Executors and Administrators

Sec. 1. Administration revoked if will discovered. Proceedings thereon.

1. If after letters of administration have been granted as if decedent died intestate, his will is PROVED AND
ALLOWED by the court,
2. letters of administration shall be REVOKED and all powers thereunder cease.
3. Administrator shall forthwith
a. surrender letters to the court and
b. render his account within such time as the court directs
4. Proceedings for issuance of letters testamentary or of administration will follow.

Sec. 2. Court may remove or accept resignation of executor or administrator.


Proceedings upon death, resignation, or removal.

Concerning complaints against the general competence of the administrator, the proper remedy is to seek
the removal of the administrator in accordance with Section 2, Rule 82. While the provision is silent as to who may
seek with the court the removal of the administrator, a creditor, even a contingent one, would have the personality to
seek such relief. After all, the interest of the creditor in the estate relates to the preservation of sufficient assets to
answer for the debt, and the general competence or good faith of the administrator is necessary to fulfill such
purpose. (Hilado vs. Court of Appeals, G.R. No. 164108, May 8, 2009)

Sec. 3. Acts before revocation, resignation, or removal to be valid.

Effect of revocation, resignation or removal of executor or administrator on his previous acts lawful acts
shall have same validity as if no revocation, resignation or removal.

Rule on Precedence of Probate of Will

Sec. 1, Rule 82 was followed in Uriarte vs. CFI of Negros Occidental:

1. If in the course of intestate proceedings, it is found out that decedent left a last will,
2. probate proceedings should REPLACE intestate proceedings
3. even if at that stage an administrator had already been appointed.
4. Administrator is required to
a. render final account
b. turn over estate in his possession to executor subsequently appointed
5. Without prejudice that proceeding shall continue as intestacy should alleged will be rejected or
disapproved.

Probate of the will is mandatory (Sec. 1, Rule 75) and therefore takes precedence over intestate
proceedings.

WHAT TO DO WITH PROCEEDINGS DISCRETIONARY WITH COURT

Whether intestate proceedings already commenced should be discontinued and a new proceeding under a
separate number and title should be constituted entirely a MATTER OF FORM and lies within SOUND
DISCRETION of court. Does not prejudice substantial rights of heirs and creditors (Intestate Estate of Wolfson, 45
SCRA 381).

F. Claim s Against the Estate

Rule 86 Claims against Estate

Notice to creditors immediately after granting letters testamentary or of administration, court


shall issue
- NOTICE requiring all persons having MONEY CLAIMS against the estate
- to FILE them in the office of the clerk of court (Sec. 1).
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1. Time within which claims shall be filed; exception

Time for filing claims not more than 12 months nor less than 6 months after date of FIRST
PUBLICATION of the notice (Sec. 2).

New period allowed (Sec. 2, second sentence)

At any time before order of distribution is entered, creditor who failed to file his claim within the time set may
move to be allowed to file such claim. Court may for good cause shown and on such terms as are just allow such
claim to be filed within a period NOT EXCEEDING ONE MONTH.

One month does not commence from expiration of the original period for filing claims. It begins from the date
of the order of the court allowing said filing (Barredo vs. CA, 6 SCRA 620).

2. Statute of Non-Claims

Statute of Non-Claims (SNC) the period fixed for the filing of claims against the estate.

1. Period fixed by probate court must not be less than 6 months nor more than 12 months from the date
of first publication of the notice.
2. Such period once fixed by the court is MANDATORY it cannot be shortened.
ex. Period fixed within 6 months
3. SNC supersedes statute of limitations even if claim has not yet prescribed, it may be barred by
SNC.

Ruling spirit of our probate law SPEEDY SETTLEMENT of the estate of deceased persons for the
benefit of CREDITORS and those entitled to the RESIDUE by way of INHERITANCE or LEGACY after the
debts and expenses of administration have been PAID (Sikat vs. Villanueva, 57 Phil. 486).

Publication of notice to creditors (Sec. 3)


Immediately after notice to creditors is issued, executor or administrator shall cause -

1. publication of said notice 3 weeks successively in newspaper of general circulation in the province, and
2. posting for the same period in
a. 4 public places in the province and
b. 2 public places in the municipality where decedent last resided

PUBLICATION OF NOTICE TO CREDITORS CONSTRUCTIVE NOTICE TO THE WHOLE WORLD

Hence, creditor cannot be permitted to file his claim beyond the period fixed in the notice on the ground that
he had no knowledge of the administration proceedings (Villanueva vs. PNB, 9 SCRA 145).

Claims that must be filed (Sec. 5)

1. Claims for money against the decedent arising from contract, express or implied, whether due, not due
or contingent
2. Claims for funeral expenses and expenses for last sickness of decedent
3. Judgment for money against decedent
a. The judgment must be presented as a claim against the estate where the judgment debtor dies
before levy on execution of his properties (Evangelista vs. La Provedra, 38 SCRA 379).
b. When the action is for recovery of money arising from contract, and defendant dies before entry of
final judgment, it shall not be dismissed but shall be allowed to continue until entry of final judgment.
A favorable judgment obtained by plaintiff shall be enforced under Rule 86 (Rule 3, Sec. 20).

Money claims against a deceased debtor

1. Section 5 of Rule 86 of the Rules of Court expressly allows the prosecution of money claims arising from
a contract against the estate of a deceased debtor. Those claims are not actually extinguished. What is
extinguished is only the obligees action or suit filed before the court, which is not then acting as a
probate court. In the present case, whatever monetary liabilities or obligations Santos had under his
contracts with respondent were not intransmissible by their nature, by stipulation, or by provision of law.
Hence, his death did not result in the extinguishment of those obligations or liabilities, which merely
passed on to his estate. Death is not a defense that he or his estate can set up to wipe out the obligations
under the performance bond. (Stronghold Insurance Company, Inc. vs. Republic-Asahi Glass
Corporation, G.R. No. 147561, June, 2006)

2. The deceased Numeriano Bautista was a passenger in a public utility jeepney owned by the deceased
Rosendo de Guzman and whose driver was Eugenio Medrano. It was a vehicular accident involving the
SPECIAL PROCEEDINGS | Bar Review Guide 2015 | Justice Magdangal M. de Leon | page 17
jeep which caused the death of Numeriano. The civil liability adjudged in the criminal case, and for which
Rosendo de Guzman or his estate became subsidiary liable, is plainly a money claim. On the other hand,
any direct liability of Rosendo de Guzman or his estate, for damages for the death of the passenger
Numeriano, is not a claim for damages for injury to person, which should be filed under Section 1, Rule
87. Rosendo de Guzman was not personally responsible for the death of Numeriano.

The claim of plaintiff heirs of Numeriano should have been presented in the judicial proceedings for the
settlement of the estate of Rosendo de Guzman and, not having been so presented, has already been
barred. (Bautista v. De Guzman)

3. Respondents monetary claim shall be governed by Section 20 (then Section 21), Rule 3 In relation to
Section 5, Rule 86 of the Rules of Court. Thus, said money claims must be filed against the estate of
petitioner Melencio Gabriel. (Gabriel vs. Bilon, G.R. No. 146989, February 7, 2007)

Must be filed within the time limited in the notice, otherwise they are BARRED FOREVER.

Exception may be set forth as COUNTERCLAIMS in any action executor or administrator may bring
against the claimants.

Rationale: 1) to protect the estate of the deceased by informing the executor or administrator of the claims
against it, thus enabling him to examine each claim and to determine whether it is a proper one which
should be allowed; 2) speedy settlement of affairs of deceased; and 3) early delivery of property to
distributes, legatees, or heirs (Union Bank of the Philippines vs. Santibaez, G.R. No. 149926, February 23,
2005).

A money claim against an estate is more akin to a motion for creditors' claims to be recognized and taken
into consideration in the proper disposition of the properties of the estate.

A money claim is only an incidental matter in the main action for the settlement of the decedent's estate;
more so if the claim is contingent since the claimant cannot even institute a separate action for a mere
contingent claim. Hence, herein petitioner's contingent money claim, not being an initiatory pleading, does not
require a certification against non-forum shopping. (Sheker vs. Estate of Alice Sheker, G.R. No. 157912,
December 13, 2007)

Only MONEY CLAIMS may be presented in the testate or intestate proceedings.

NOT ALL MONEY CLAIMS but only those arising upon a liability contracted by decedent before his death.

Claims arising after his death cannot be presented EXCEPT


- funeral expenses
- expenses for last sickness

N.B. Claims arising after decedents death may be allowed as expenses of administration.

Enumeration exclusive refers only to contractual money claims

Only claims for money, debt or interest thereon, arising from contract can be presented in the testate or
intestate proceedings.

Claims which survive death of accused

Claim for civil liability survives notwithstanding death of accused if the same may also be based on a source
of obligation other than delict (contract, law, quasi-contract, quasi-delict)

Separate civil action may be enforced either against


a. Estate of accused (contract)
b. Executor/ administrator (law, quasi-contract, quasi-delict)
(People vs. Bayotas, 236 SCRA 239 [1994]).

Civil actions for tort or quasi-delict do not fall within the class of claims to be filed under the notice to creditors
required under Rule 86. These actions, being civil, survive the death of the decedent and may be commenced
against the administrator pursuant to Section 1, Rule 87.. (Hilado vs. Court of Appeals, G.R. No. 164108, May
8, 2009)

Execution of final judgment not proper remedy but filing of claim


SPECIAL PROCEEDINGS | Bar Review Guide 2015 | Justice Magdangal M. de Leon | page 18
When judgment in a civil case has become final and executory, execution not proper remedy to enforce
payment; claimant should PRESENT CLAIM before probate court (Domingo vs. Garlitos, June 29, 1963).

Mandamus not available immediate payment of claim by the administrator is NOT A MATTER OF
RIGHT (Echaus vs. Blanco, 179 SCRA 704 [1985]).

Ordinary action for collection not allowed (Nacar vs. Nistal, 119 SCRA 29)

Judgment appealable (Sec. 13) judgment of the court approving or disapproving a claim is
APPEALABLE as in ordinary actions

PROCEDURE FOR FILING CLAIMS:

1. Delivering the claim with the necessary vouchers to the clerk of court and by serving a copy on the
executor/administrator
2. An affidavit must support such claim, stating the amount justly due, that no payments have been made
thereon which are not credited and that there are no offsets to the same.

ANSWER OF EXECUTOR/ADMINISTRATOR
Within fifteen (15) days after service of a copy of the claim on the executor or administrator, he shall file his
answer admitting or denying the claim.

Upon the filing of an answer to a claim, or expiration of the time for such filing, the claim shall be set for trial with
notice to both parties.

3. Claim of executor or administrator against the estate

Rule 86, Sec. 8


1. If the executor or administrator has a claim against the estate he represents,
2. he shall give notice thereof, in writing, to the court
3. the court shall appoint a special administrator, and
4. the special administrator shall, in the adjustment of such claim, have the same power and be subject to the
same liability as the general administrator or executor in the settlement of the estate

From an estate proceeding perspective, the Special Administrators commission is no less a claim against the
estate than a claim that third parties may make. xxx The ruling on the extent of the Special Administrators
commission effectively, a claim by the special administrator against the estate is the lower courts last word on
the matter and one that is appealable. (Briones vs. Henson-Cruz, G.R. No. 159130, August 22, 2008)

SOLIDARY OBLIGATION OF DECEDENT AND MORTGAGE DEBT DUE FROM THE ESTATE
Where the obligation of the decedent is solidary with another debtor, the claim shall be filed against the decedent as
if he was the only debtor without prejudice to the right of the estate to recover contribution from the other debtor. In a
joint obligation of the decedent, the claim shall be confined to the portion belonging to him (Sec. 6)

Creditor holding a claim against the deceased secured by mortgage or other collateral security (Sec. 7) He
may:
1. abandon the security and prosecute his claim in the manner provided in this rule, and share in the general
distribution of the assets of the estate; or
2. he may foreclose his mortgage or realize upon his security, by action in court, making the executor or
administrator a party defendant, and if there is a judgment for a deficiency, after the sale of the mortgaged
premises, or the property pledged, in the foreclosure or other proceeding to realize upon the security, he may
claim his deficiency judgment in the manner provided in the preceding section or
3. he may rely upon his mortgage or other security alone, and foreclosure the same at any time within the period of
the statute of limitations, and in that event he shall not be admitted as a creditor, and shall receive no share in the
distribution of the other assets of estate

These remedies are distinct, independent and mutually exclusive from each other; thus, the election of one
effectively bars the exercise of the others. The plain result of adopting the last mode of foreclosure is that the creditor
waives his right to recover any deficiency from the estate. Section 7, Rule 86 governs the parameters and the extent
to which a claim may be advanced against the estate, whereas Act No. 3135sets out the specific procedure to be
followed when the creditor subsequently chooses the third option specifically, that of extra-judicially foreclosing real
property belonging to the estate. ( Maglasang v. Manila Banking Corporation, GR No. 171206, Sept. 23, 2013)
SPECIAL PROCEEDINGS | Bar Review Guide 2015 | Justice Magdangal M. de Leon | page 19
4. Payment of debts

Rule 88 Payment of debts of the estate

Sec. 1. Debts paid in full if estate sufficient

Sec. 2. Part of estate from which debt paid when provision made by will.

Sec. 7. Order of payment if estate insolvent

If assets which can be appropriated for payment of debts are not sufficient, the executor or administrator
shall pay the debts against the estate, observing preference of credits under Arts. 1059, 2239-2251 of Civil
Code.

If estate is sufficient:
GR: The payment of debts of the estate must be taken (by order of preference)
1. from the portion or property designated in the will
2. from the personal property, and
3. from the real property

If there is still a deficiency, it shall be met by contributions by devisees, legatees, or heirs who have been in the
possession of portions of the estate BEFORE debts and expenses have been settled and paid (Secs. 1-3, 6)

EXCEPTIONS:
1. When the personal property is not sufficient (Sec. 3, Rule 88)
2. Where the sale of personal property would be detrimental to the participants of the estate (Sec. 3, Rule 88)
3. When sale of the personal property may injure the business or interests of those interested in the estate
(Sec.2 Rule 89)
4. When the testator has not made sufficient provision for payment of such debts/expenses/legacies. (Sec. 2,
Rule 89)
5. When the decedent was, in his lifetime, under contract binding in law, to deed real property to beneficiary
(Sec. 8, Rule 89)
6. When the decedent during his lifetime held real property in trust for another person (Sec. 9, Rule 89)

Requisites for exceptions to ensue:


1. Application by executor/administrator
2. Written notice to persons interested
3. Hearing

*** the SAME principles apply if debt of the estate is in another country

TIME FOR PAYING DEBTS (Secs. 15 & 16)

1. Executor/administrator allowed to pay debts (and legacies) for a period not more than 1 year.
2. Extendible (on application of executor/ administrator and after notice and hearing) not exceeding 6 months for
a single extension.
3. Whole period allowed to original executor/administrator shall not exceed 2 years.
4. Successor of dead executor/administrator may have time extended on notice not exceeding 6 months at a time
and not exceeding 6 months beyond the time allowed to original executor/administrator.

Sec. 6. Court to fix contributive shares where devisees, legatees or heirs have been in possession.

1. Where devisees, legatees or heirs have entered into possession or the estate before debts and expenses
settled and paid, and
2. have become liable to contribute for payment of such debts and expenses,
3. Court may, after hearing, order settlement of their several liabilities and order how much and in what
manner each person shall contribute and may issue execution as circumstances require.

NOTE: This provision clearly authorizes execution to enforce payment of the debts of the estate. Legacy is not a
debt of the estate legatees are among those against whom execution is authorized to be issued (Pastor vs. CA,
122 SCRA 885 [1983]).

Compare to: Rule 88, Secs. 15 & 16


Rule 89, Secs. 1-5, 7 (a)
referring to payment of debts and/or legacies
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As ruled in Pastor, ordered payment of legacy violative of rule requiring prior liquidation of estate (determination of
assets of estate and payment of debts and expenses) before apportionment and distributed of residue among heirs;
legatees and devisees.

Correct rule: Sec. 1 of Rule 90 does not include legacies as among those that should be paid before order of
distribution only debts, funeral charges, expenses of administration, allowance to widow and inheritance tax.

After debts and expenses of administration paid, residue given to heirs and those entitled by way of inheritance or
legacy (Magbanua vs. Akol, 72 Phil. 567). Purpose of administration distribution of residue among heirs and
legatees after payment of debts and expenses (Luzon Surety vs. Quebrar, 127 SCRA 301).

Writ of execution not proper procedure for payment of debts and expenses of administration

Upon motion of the administrator with notice to all heirs, legatees and devisees residing in the Philippines,
court shall order sale of personal property or sale or mortgage of real property of the deceased to pay debts
and expenses of administration out of the proceeds of the sale or mortgage.

Exception: where devisees, legatees or heirs have entered into possession of their respective portions in
the estate prior to settlement and payment of debts and expenses (See Sec. 6, Rule 88 above).

G. Actions by and against Executors and Adm inistrators

Rule 87 Actions by and against executors and administrators

1. Actions that may be brought against executors and administrators

Sec. 1. Actions which may and which may not be brought against executor or administrator.

Sec. 2. Executor or administrator may bring or defend actions which survive.

1. NOT ALLOWED AGAINST EXECUTOR OR ADMINISTRATOR action upon claim for recovery of money
or debt or interest thereon.
- MUST BE AGAINST ESTATE (Secs. 1, 2 & 5, Rule 86)

2. ALLOWED actions which survive


a. Actions to recover real or personal property or interest thereon, or to enforce a lien thereon

Civil Case No. 2570 is an action for quieting of title with damages which is an action involving real
property. It is an action that survives pursuant to Section 1, Rule 87 as the claim is not extinguished by
the death of a party. (Saligumba vs. Palanog, G.R. No. 143365, December 4, 2008)

Civil Case No. 3488, which is an action for the recovery of Aa personal property, a motor vehicle, is an
action that survives pursuant to Section 1, Rule 87 of the Rules of Court. As such, it is not
extinguished by the death of a party. (Sarsaba vs. Vda. de Te, G.R. No. 175910, July 30, 2009)

b. Actions to recover damages for an injury to person or property, real or personal

Executor or administrator may sue upon any cause of action which accrued to the decedent during his
lifetime (Bayot vs. Sorbito, 39 Phil. 650).

Any action affecting the property rights of a deceased which may be brought by or against him if he were
alive, may be instituted and prosecuted by or against the administrator, unless by its very nature, it cannot
survive, because death extinguishes such right.

Sec. 3. Heir (and devisee) may not sue (executor or administrator to recover title or possession or for
damages to property) until share assigned.

Before distribution is made or before any residue known heirs and devisees have NO CAUSE OF ACTION
against the administrator for recovery of property left by the deceased (Lao vs. Dee, 90 Phil. 868).

When heirs may file action in court

General rule: heirs have no legal standing to sue for recovery or protection of property rights of the
deceased.
SPECIAL PROCEEDINGS | Bar Review Guide 2015 | Justice Magdangal M. de Leon | page 21
Exceptions:
1. Pending the filing of administration proceedings under Art, 777, rights to succession are
transmitted from the moment of death of the decedent.
2. Administration proceedings have already been commenced but administrator has not yet been
appointed.
3. Executor or administrator is unwilling or refuses to bring suit.
4. Administrator is alleged to have participated in the act complained of and he is made a party
defendant.

Sec. 8. Embezzlement before letters issued.

Double value rule


If before grant of letters testamentary or of administration, a person embezzles or alienates money or
property of the deceased liable to an action in favor of executor/administrator for DOUBLE THE VALUE of
the property sold, embezzled or alienated.

3. Requisites before creditor may bring an action for recovery of property fraudulently
conveyed by the deceased

Sec. 10. When creditor may bring action. Lien for costs.

When there is
1. Deficiency of assets
2. Deceased in his lifetime had made or attempted such a conveyance (with intent to defraud creditors or to
avoid any right, debt or duty) as stated in Sec. 9, and
3. Executor or administrator has not commenced the action provided in Sec. 9 (entitled Property fraudulently
conveyed by the deceased may be recovered. When executor or administrator must bring action)

Any creditor of the estate may, with the permission of the court, commence and prosecute to final judgment,
in the name of the executor or administrator, a like action for the recovery of the subject of the conveyance
or attempted reconveyance for the benefit of the creditors.

- Creditor should file a BOND executed to the executor or administrator, in an amount approved by
the judge, conditioned to indemnify the executor or administrator against the costs and expenses
incurred by reason of such action.
- Creditor shall have a LIEN upon any judgment recovered by him for reasonable costs and
expenses

When conveyance or attempted conveyance made by deceased in his lifetime in favor of the executor or
administrator, action shall be in the name of all the creditors and permission of the court and filing of bond
not necessary

H. Distribution and Partition

Rule 90 Distribution and partition of estate

Sec. 1. When order for distribution of residue made

General rule: distribution of the residue to persons entitled thereto after notice and hearing and after
payment of
a. debts
b. funeral charges
c. expenses of administration
d. allowance to widow
e. inheritance tax

Exception: distribution before payment of obligations provided distributees give BOND conditioned for
payment thereof within such time as court directs.

1. Liquidation

Requisites before distribution of estate


1. Liquidation - determination of all assets of the estate and payment of all debts and expenses
2. Declaration of heirs to determine to whom residue of the estate should be distributed. Separate action for
declaration of heirs not proper.
SPECIAL PROCEEDINGS | Bar Review Guide 2015 | Justice Magdangal M. de Leon | page 22
The Regional Trial Court in the instant case, acting in its general jurisdiction, is devoid of authority to render
an adjudication and resolve the issue of advancement of the real property in favor of herein petitioner
Natcher, inasmuch as Civil Case No. 71075 for reconveyance and annulment of title with damages is not, to
our mind, the proper vehicle to thresh out said question.

The net estate of the decedent must be ascertained, by deducting all payable obligations and charges from
the value of the property owned by the deceased at the time of his death; then, all donations subject to
collation would be added to it With the partible estate thus determined, the legitime of the compulsory heir or
heirs can be established; and only then can it be ascertained whether or not a donation had prejudiced the
legitimes. (Heirs of Doronio versus Heirs of Doronio, G.R. No. 169454, December 27, 2007)

2. Project of partition

WHEN PROBATE COURT LOSES JURISDICTION

Project of partition Towards the end of the proceedings in a settlement of estate petition, a project of partition is
usually prepared and presented to the court. The project of partition is a proposal for distribution of the hereditary
estimates and determines the persons entitled thereto (Moran, Comments on the Rules of Court, 1997 ed., Vol. 3,
pp. 688-689)

Finality of approval of project of partition by itself does NOT TERMINATE probate proceeding (Timbol vs. Cano, 1
SCRA 1271).
v Probate court loses jurisdiction of an estate under administration only AFTER payment of all debts and
remaining estate DELIVERED to heirs entitled to receive the same (Guilas vs. Judge of CFI of
Pampanga, 43 SCRA 111)

A judicial partition is not final and conclusive and does not prevent the heir from bringing an action to obtain his
share, provided the prescriptive period has not closed (Mari vs. Bonilla, 83 SCRA 1137).

The RTC of Makati, acting as a special commercial court, has no jurisdiction to settle, partition, and distribute the
estate of a deceased.

A probate court has the power to enforce an accounting as a necessary means to its authority to determine the
properties included in the inventory of the estate to be administered, divided up, and distributed. Beyond this, the
determination of title or ownership over the subject shares (whether belonging to Anastacia or Oscar) may be
conclusively settled by the probate court as a question of collation or advancement. (Reyes vs. RTC Makati, Branch
142, G.R. No. 165744, August 11, 2008)

Partial distribution of the estate should not have been allowed. There was no determination on sufficiency of assets
or absence of any outstanding obligations of the estate of the late Raymond Triviere made by the RTC in this case.
In fact, there is a pending claim by LCN against the estate, and the amount thereof exceeds the value of the entire
estate. (Quasha Ancheta Pena and Nolasco Law Office vs. LCN Construction Corp., G.R. No. 174873, August 26,
2008)

Although the right of an heir over the property of the decedent is inchoate as long as the estate has not been fully
settled and partitioned, the law allows a co-owner to exercise rights of ownership over such inchoate right.

Once an action for the settlement of an estate is filed with the court, the properties included therein are under the
control of the intestate court. And not even the administrator may take possession of any property that is part of the
estate without the prior authority of the Court. (Silverio, Jr. vs. Court of Appeals, G.R. No. 178933, September 16,
2009)

3. Remedy of heir entitled to residue but not given his share

To demand his share through -


a. a proper motion in the same probate or administration proceedings, OR
b. motion to reopen if it had already been closed, and not through an independent action which would
be tried by another court or judge which might reverse a decision or order of the probate court
already
c. final and executed and reshuffle properties long ago distributed and disposed of (Guilas vs. Judge
of CFI of Pampanga, infra).

Four cases illustrate the proper remedy: Vda de Lopez vs. Lopez, Divinagracia vs. Rovira, Guillas vs. Judge
of CFI of Pampanga and Heirs of Jesus Fran vs. Salas.

Lopez (35 SCRA 81 ) compared to Divinagracia (72 SCRA 307 ):


SPECIAL PROCEEDINGS | Bar Review Guide 2015 | Justice Magdangal M. de Leon | page 23
Both involved the issue of the reglementary period within which NON-PARTIES to the partition, heir,
devisee or any person interested in the estate, can reopen the case.

Conclusion if proceeding already closed, motion to reopen may be filed by a non-party deprived of his
lawful participation, as long as it is within 30 days (now 15 days) or before order closing the proceedings
becomes final.

Guilas (43 SCRA 111) compared to Fran (210 SCRA 303):

Both involved PARTIES who have not received their shares.

Conclusion parties to partition agreement who have not received their shares can file a motion for
execution within 5 YEARS. But if other grounds such as forgery of will are raised, final judgment cannot be
attacked except through a separate action. The validity of a final judgment can be assailed through a
petition for relief under Rule 38, annulment of judgment under Rule 47, and petition for certiorari under Rule
65, assuming the judgment is void for want of jurisdiction.

REMEDY OF PRETERITED HEIR


The intestate proceedings, although closed and terminated, can still be opened within the prescriptive
period upon petition by the preterited heir (Solivio vs. CA, 182 SCRA 1199)

Prescriptive period 10 years. Action upon an obligation created by law must be brought within 10 years
from the time the right of action accrues (Art. 1144, Civil Code).

Where judgment has become final, what is the remedy for inclusion of a party-heir?

After the decision became final and executory, the trial judge lost jurisdiction over the case. Any modification that he
would make, i.e., the inclusion of Mary Lyon Martin would be in excess of his authority. The remedy of Mary is to file
an INDEPENDENT SUIT against the parties and all other heirs for her share in the subject property, in order that all
the parties in interest can prove their respective claims (Nunal vs. CA, 221 SCRA 26 [1991]).

4. Instances when probate court may issue writ of execution


As a general rule, a probate court cannot issue a writ of execution.

Exceptions:
1. To satisfy the distributive shares of devisees, legatees and heirs in possession of the decedents assets
2. To enforce payment of the expenses of partition
3, To satisfy the costs when a person is cited for examination in probate proceedings

SEVEN STAGES IN SETTLEMENT OF ESTATE


1. Petition
2. Hearing
3. Court Order
4. Claims Against Estate
5. Payment of Debts of Estate
6. Distribution and Partition of Estate
7. Closing

SETTLEMENT OF ESTATE
STAGES

I - PETITION

Testate Intestate

Filing of petition Filing of petition


for allowance for issuance of
of will by executor, letters of
devisee, legatee, administration -
other interested person person
(Rule 76, Secs. 1 & 2) (Rule 79, Sec. 2)

Order setting petition for hearing

Notice of hearing
SPECIAL PROCEEDINGS | Bar Review Guide 2015 | Justice Magdangal M. de Leon | page 24
1. Publication of notice for three consecutive weeks
(Rule 76, Sec. 3)

2. Notice by mail or personally to designated or known heirs, legatees, devisees, executor


(Rule 76, Sec. 4);

known heirs, creditors, other interested persons


(Rule 79, Sec. 3)

II. HEARING

Proof of notice of hearing


(Rule 76, Sec. 5)
(Rule 79, Sec. 5)

Evidence for petitioner


1. Death of decedent
2. Residence at time of death

Testimony/ies of Decedent left no will or


subscribing there is no competent
witness/es and willing executor
(Rule 76 Secs. 5 & 11) (Rule 79, Sec. 5)

Petitioner is qualified for appointment


(Rule 78, Secs. 1 & 6)

Proof when testator is petitioner


(Rule 76, Sec. 12)

Evidence for Oppositor

File grounds for contest


(Rule 76, Sec. 10)

III. COURT ORDER

Order or decision allowing will or admitting it to probate

Certificate of allowance attached to prove will


(Rule 76, Sec. 13)

Order for issuance of letters testamentary


(Rule 78, Sec. 4)

Order for issuance of letters of administration


(Rule 79, Sec. 5)

Issuance of letters by clerk of court

Oath of executor or administrator

Filing of executor or administrators bond


(Rule 81, Sec. 1)

Filing of inventory within 3 mos.


(Rule 81, Sec. 1[a])

Accounting within 1 year


(Rule 81, Sec. 1 [c]; Rule 85, Sec. 8)

Actions by or against executor or administrator


(Rule 87)

IV. CLAIMS AGAINST ESTATE


SPECIAL PROCEEDINGS | Bar Review Guide 2015 | Justice Magdangal M. de Leon | page 25

Notice of filing of claims time for filing not more than


12 mos. nor less than 6 mos. from first publication
(Rule 86, Secs. 1 & 2)

Publication of notice for 3 consecutive weeks


and posting
(Rule 86, Secs. 3 & 4)

Filing of claim and answer thereto


(Rule 86, Secs. 9 & 10)

Trial of contested claim


(Rule 86, Sec. 12)

Judgment approving or disapproving claim


(Rule 86, Sec. 13)

V. PAYMENT OF DEBTS OF ESTATE

Debts paid in full if estate sufficient


(Rule 88, Sec. 1)

Order of payment if estate insolvent


(Rule 88, Sec. 7)

Order for payment of debts


(Rule 88, Sec. 11)

Time for payment not to exceed


1 year, extendible for 1 more year
(Rule 88, Sec. 15)

Sales, mortgages and other encumbrances


of property of decedent for paying debts. etc.
(Rule 89)

VI. DISTRIBUTION AND PARTITION OF ESTATE

Rule 90
Approval of final accounting and project of partition

Actual distribution or delivery to heirs of their respective shares

VII - CLOSING

Order declaring proceedings closed and terminated

-------------------------------------------------

I. Trustees
Rule 98 Trustees

Sec. 1. When trustee appointed

1. A trustee necessary to carry into effect the provisions of a


a. Will
b. Written instrument
2. shall be appointed by the RTC in which the will is allowed, or
3. RTC of the province in which the property or some portion thereof affected by the trust is situated
SPECIAL PROCEEDINGS | Bar Review Guide 2015 | Justice Magdangal M. de Leon | page 26

Trust defined
A trust is a confidence reposed in one person, called the trustee, for the benefit of another called the cestui
que trust, with respect to property held by the former for the benefit of the latter.

Exercise of sound judgment by the court in the appointment of a trustee

Although the will does not name a trustee, the probate court exercises sound judgment in appointing a
trustee to carry into effect the provisions of the will where a trust is actually created by the will by the
provision that certain of the property shall be kept together undisposed during a fixed period and for a
stated purpose (Lorenzo v. Posadas, 64 Phil. 353).

Acquiring the trust by prescription

A trustee may acquire the trust estate by prescription provided there is a repudiation of the trust, such
repudiation being open, clear and unequivocal, known to the cestui qui trust (Salinas vs. Tuazon, 55 Phil.
729).

Rule 98 applies only to express trust, one which is created by will or written instrument, and not to an
implied trust, which is deducible from the nature of the transaction as a matter of intent, or which are
superinduced on the transaction by operation of law as matters of equity, independent of the particular
intention of the parties (OLao vs Co Co Chit, 220 SCRA 656).

1. Distinguished from executor/administrator

A trustee, like an executor or administrator, holds an office of trust, particularly when the trustee acts as such
under judicial authority. Distinction: (1) duties of executors or administrators are fixed and/or limited by law while
those of the trustee of an express trust are usually governed by the intention of the trustor or the parties, if
established by contract; (2) duties of trustees may cover a wider range than those of executors or administrators of
the estate of deceased persons. (Araneta vs. Perez, G.R. Nos. L-16185-86, May 31, 1962).

2. Conditions of the bond

The trustee must file a bond in an amount fixed by the court payable to the Government of the Philippines. Failure
to do so shall be cosidered as declining or resigning the trust. Conditions of the bond:
1. Make and return to the court a true inventory of all real and personal estate that at the time of the inventory
shall have come to his possession or knowledge
2. Manage and dispose of all such estate according to law and the will of the testator or provisions of the
instrument or order under which he was appointed
3. Render a true account of the property in his hands
4. At the expiration of the trust, settle his accounts in court and pay over and deliver all the estate remaining in
his hands, or due from him on such settlement, to the person or persons entitled thereto

3. Grounds for removal and resignation of a trustee

The court may remove a trustee on the following grounds:


1. The removal appears essential in the interest of the petitioners
2. The trustee is insane
3. The trustee is otherwise incapable of discharging the trust or is evidently unsuitable to act as one

A trustee, whether appointed by the court or under a written instrument, may resign his trust if it appears to the court
proper so allow such resignation

4. Extent of authority of trustee

a. The powers of a trustee appointed by a Philippine court cannot extend beyond the confines of the territory of
the Republic of the Philippines. This is based on the principle that his authority cannot extend beyond the
jurisdiction of the country under whose courts he was appointed.
b. In the execution of trusts, the trustee is bound to comply with the directions contained in the trust instrument
defining the extent and limits of his authority, and the nature of his power and duties.

J. Escheat
Rule 91 Escheat

Escheat defined

Escheat is a proceeding whereby the real and personal property of a deceased person in the Philippines,
who died without leaving any will or legal heirs, become the property of the state upon his death.
SPECIAL PROCEEDINGS | Bar Review Guide 2015 | Justice Magdangal M. de Leon | page 27

Nature of Escheat Proceedings

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

Parties in Escheat Proceedings

An escheat proceeding is initiated by the government through the Solicitor General. All interested parties,
especially the
- actual occupants and
- adjacent lot owners

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

1. When to file

2. Requisites for filing of petition

Requisites for filing petition for escheat


1. person died intestate
2. he left properties in the Philippines
3. he left no heirs or persons entitled to the same.

Where to file
Regional Trial Court of the place where the deceased was resident, or in which he had estste, if he was a
nonresident.

Parties in a petition for escheat


Escheat proceeding must be initiated by the Solicitor General. All interested parties, especially the actual
occupant and the adjacent lot owners shall be personally notified of the proceedings and given the
opportunity to present their vaid claims, otherwise the property will be reverted to the State (Tan vs. City of
Davao, G.R. No. L-44347, September 26, 1988).

Notice and Publication (Sec. 2, Rule 91)

1. Date of hearing not more than 6 months after entry of order.


2. Publication of order at least once a week for 6 consecutive weeks in newspaper of general circulation
in the province.

Publication jurisdictional

Publication of the notice of hearing is a jurisdictional requisite, non-compliance with which affects the
validity of the proceedings (Divino v. Hilario, 62 Phil. 926).

Escheat of unclaimed balances

Unclaimed balances which include credits or deposits of money, bullion, security or other evidence of
indebtedness of any kind, and interest thereon with banks in favor of any person unheard from for a period
of ten (10) years of more, together with the interest and proceeds thereof shall be deposited with the Insular
Government of the Philippines as the Philippine Legislature may direct (Act No. 3936, Unclaimed Balances
Act, Sec. 1)
Action to recover unclaimed balances shall be commenced by the Solicitor General in an action for
escheat in the name of the People of the Philippines in the Regional Trial Court of the province where the
bank is located, in which shall be joined as parties the bank and such creditors or depositors. All or any
member of such creditors or depositors or banks, may be included in one action. (Id., Sec. 3; Republic vs.
Court of First Instance of Manila and Pres.. Roxas Rural Bank, Inc., G.R. No. L-30381, August 30, 1988)

3. Remedy of respondent against petition; period for filing a claim

Remedy of respondent against escheat petition

Motion to dismiss for failure to state a cause of action. where petition for escheat does not state facts which
entitle petitioner to the remedy prayed for (Go Poco Grocery vs. Pacific Biscuit Co., 65 Phil. 443; Rep. vs, PNB, G.R.
No. L-16016, Dec. 30, 1961); or other grounds for dismissal under the rules (Municipal Council of San Pedro,
Laguna vs. Colegio de San Jose, 65 Phil. 318).
SPECIAL PROCEEDINGS | Bar Review Guide 2015 | Justice Magdangal M. de Leon | page 28
Filing of claim to estate (Sec. 4, Rule 91)

1. Devisee, legatee, widow, widower or other person entitled to such estate who
2. appears and files claim thereto within 5 years from date of judgment
(Note: 5-year period is prescribed to encourage would-be claimants to be punctilious in asserting their
claims, otherwise they may lose them forever in a final judgment.)
3. shall have possession and title thereto or if sold, municipality or city accountable to him for proceeds, after
deducting reasonable charges of care of estate.
4. Claim not made within said time barred forever.

K. Guardianship

Guardianship a trust relation in which one person acts for another whom the law regards as incapable of
managing his own affairs. The person who acts is called the guardian and the incompetent is called the
ward.

Basis of Guardianship (Parens Patriae)

Where minors are involved, the State acts as parens patriae. It is the duty of protecting the rights of
persons or individuals who because of age or incapability are in an unfavorable position vis--vis other
parties.

Purpose of Guardianship

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

Guardian a person in whom the law has entrusted the custody and control of the person or estate or both
of an infant, insane, or other person incapable of managing his own affairs.

1. General powers and duties of guardians


a. Care and custody of person of the ward and
b. Management of his estate, or

c. Management of his estate only


d. The guardian of the estate of a non-resident shall have the management of his estate within the
Philippines, and no other court than that in which such guardian was appointed shall have jurisdiction over
the guardianship (Sec. 1, Rule 96)

KINDS OF GUARDIANS

1) Legal Guardian such by provision of law without the need for judicial appointment, as in the case of the parents
over the persons of their minor children, or in his absence the mother, with respect to the property of the minor
children not exceeding P50,000 in value;
(2) Guardian ad litem, who is a competent person appointed by the court for purposes of a particular action or
proceeding involving a minor;
(3) the Judicial guardian, or a person appointed by the court for the person and/or property of the ward to represent
the latter in all civil acts and litigation .

Parents as guardians

When the property of the child under parental authority is worth P2,000.00 or less, the father or the
mother, without the necessity of court appointment, shall be his legal guardian. When the property of the
child is worth more than P2,000.00, the father or the mother shall be considered guardian of the childs
property, with the duties and obligations of guardians under these Rules, and shall file the petition required
by Section 2 hereof. For good reasons, the court may, however, appoint another suitable person.(Sec. 7,
Rule 93)

Bond of parents as guardians of property of minor. -


If the market value of the property or the annual income of the child exceeds P50,000.00, the
parent concerned shall furnish a bond in such amount as the court may determine, but in no case less than
10% of the value of such property or annual income, to guarantee the performance of the obligations
prescribed for general guardians. ( Sec. 16, RGM)
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2. Conditions of the bond of the guardian
(a) Within 3 months after the issuance of letters of guardianship make inventory of all the property;
(b) faithfully execute the duties of the trust;
(c) render a true and just account of all the property of the ward; and
(d) perform all orders of the court (Sec. 1, Rule 94)

3. Rule on guardianship over minors

Governing rule on guardianship of minors

Guardianship of minors as distinguished from incompetents other than minority is now governed by the RULE
ON GUARDIANSHIP OF MINORS (A.M. No. 003-03-05-SC) effective May 1, 2003. This was promulgated by
Supreme Court pursuant to the Family Courts Act of 1997 ( RA 8369), which vested in the Family Courts
exclusive jurisdiction on guardianship of minors.

Sections 1 and 27 of the RGM make it clear that it shall apply only to petitions for guardianship over the
person, property or both, of a minor. Petitions for guardianship of incompetents who are not minors shall
continue to be governed by Rules 92-97 and heard and tried by regular Regional Trial Courts.

Rules 92-97 may therefore be deemed modified by the RGM.

Aside from RGM, the Supreme Court also issued the following rules pursuant to the Family Courts Act:
1. Rule on Examination of Child Witness (AM No. 00-4-07-SC), effective December 15, 2000.
2. Rule on Juveniles in Conflict with the Law (AM No. 02-1-18-SC) effective April 15, 2002
3. Rule on Commitment of Children (A.M. No. 02-1-19-SC), effective April 15, 2002
4. Rule on Domestic and Inter-Country Adoption (A.M. No. 02-6-02-SC), effective August 22, 2002
5. Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable (A.M. No. 02-11-
10-SC), effective March 15, 2003
6. Rule on Legal Separation (A.M. No. 02-11-11-SC), effective March 15, 2003 7. Rule on Provisional
Orders (A.M. No. 02-11-12-SC), effective March 15, 2003
7. Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Minors (A.M. No. 03-04-04-SC),
effective May 15, 2003
8. Rule on Violence Against Women and Their Children (A.M. No. 04-10-11-SC), effective November 15,
2004 (following the enactment of RA 9262, An Act Defining Violence against Women and their
Children, Providing for Protective Measures for Victims, Prescribing Penalties Therefor, and for Other
Purposes, or Anti-VAWCI Law, effective March 27, 2004)

Minors those below 18 years old.


Incompetents include
a. persons suffering under the penalty of civil interdiction
b. hospitalized lepers
c. prodigals
d. deaf and dumb who are unable to read and write
e. those of unsound mind, even though they have lucid intervals
f. persons not being of unsound mind, but by reason of age, disease, weak mind, and other similar causes,
cannot, without outside aid, take care of themselves and manage their property

Who may petition for appointment of guardian of incompetent ? (Sec. 1, Rule 93)

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

Who may petition for appointment of guardian of minor? (Sec. 2, RGM)

1. Relative or other person on behalf of the minor


2. Minor himself if 14 years of age or over
for the appointment of a general guardian over the person or property, or both, of such minor.

The petition may also be filed by the Secretary of Social Welfare and Development and Secretary of Health
in the case of an insane minor person who needs to be hospitalized.

Jurisdictional facts (Sec. 2, Rule 93)


1. incompetency of person for whom guardianship is sought;
2. domicile
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Notice of application and hearing (Sec. 3) NO PUBLICATION REQUIRED

Notice of hearing of the petition shall be served on


1. persons mentioned in the petition residing in the Philippines;
2. incompetent himself
* minor if 14 years of age or over (Sec. 8, RGM)

NOTICE IS JURISDICTIONAL

Service of notice upon the minor if 14 years of age or over or upon the incompetent is jurisdictional. Without such
notice, the court acquired no jurisdiction to appoint a guardian (Nery vs. Lorenzo, 44 SCRA 431 [1972]).

The rules do not necessitate that creditors of the minor or incompetent be likewise identified and notified. The
reason is simple: because their presence is not essential to the proceedings for appointment of a guardian. They will
only insist that the supposed minor or incompetent is actually capacitated to enter into contracts, so as to preserve
the validity of said contracts and keep the supposed minor or incompetent obligated to comply therewith. (Alamayri
vs. Pabale, G.R. No. 151243, April 30, 2008)

Grounds of petition (Sec. 4, RGM)


1. death, continued absence, or incapacity of his parents
2. suspension, deprivation or termination of parental authority
3. remarriage of his surviving parent, if the latter is found unsuitable to exercise parental
authority
4. when the best interests of the minor so require

Qualifications of a guardian (Sec. 5, RGM)


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
7. ability to manage the property of the ward

Rules 92-97 do not contain a provision on the qualifications which the court may consider in appointing a guardian

Who may be appointed guardian of the ward, or order of preference (Sec. 6. RGM)
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 disqualitied
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

Opposition to petition (Sec, 10, RGM)


1. majority of the minor
2. unsuitability of person for whom letters are prayed

L. Adoption
Nature and concept of adoption
Adoption is a juridical act, a proceeding in rem which creates between two persons a relationship similar to that
which results from legitimate paternity and filiation.

Purpose of Adoption
Adoption used to be for the benefit of the adoptor. It was intended to afford persons who have no child of their own
the consolation of having one by creating thru legal fiction the relation of paternity and filiation where none exists by
blood relationship.

Present tendency more toward the promotion of the welfare of the child, and enhancement of his opportunities for
a useful and happy life.

Under the law now in force, having legitimate, legitimated, acknowledged natural children or children by legal
fiction is no longer a ground for disqualification to adopt.

Objectives of Rule on Adoption


a. Best interests of child paramount consideration in all matters relating to his care, custody and adoption.
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b. The state shall provide alternative protection and assistance thru foster care or adoption for every child who
is foundling, neglected, orphaned, or abandoned.

Laws on adoption
The prevailing laws on adoption are RA 8552 ( Domestic Adoption Act of 1998) and RA 8043 (Inter-Country
Adoption Act of 1995). ). Relevant also is the Family Code (EO 209, effective August 3, 1988, which repealed the
substantive provisions of PD 603 and EO 91 on adoption).

Rule on Adoption (A.M. No. 02-6-02-SC), August 22, 2002 Guidelines issued by the Supreme Court in petitions
for adoption. The Rule repealed Rules 99-100. It covers domestic adoption (Secs. 1-25) and inter-country
adoption (Secs. 26-32).

1. Distinguish domestic adoption from inter-country adoption

KIND Domestic Adoption Inter-country Adoption


Type of Proceeding Judicial Adoption Extrajudicial Adoption
Who may adopt The following may adopt: An alien or a Filipino citizen permanently
(a) Any Filipino citizen; residing abroad may file an application for
(b) Any alien possessing the same qualifications inter-country adoption of a Filipino child.
as above stated for Filipino nationals;
(c)The guardian with respect to the ward.
Who may be adopted The following may be adopted: Only a legally free child may
(a) Any person below eighteen (18) years of age be the subject of inter-country
who has been administratively or judicially adoption
declared available for adoption;
(b) The legitimate son/daughter of one spouse by
the other spouse;
(c) An illegitimate son/daughter by a qualified
adopter to improve his/her status to that of
legitimacy;
(d) A person of legal age if, prior to the adoption,
said person has been consistently considered
and treated by the adopter(s) as his/her own
child since minority;
(e) A child whose adoption has been previously
rescinded; or
(f) A child whose biological or adoptive parent(s)
has died; Provided, That no proceedings shall
be initiated within six (6) months from the
time of death of said parent(s) (Section 8)

Where to file Family Court of the place where the adopter RTC having jurisdiction over the child, or
application resides with 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. (Section 10)
What petition for May include prayer for change of name, Only petition for adoption.
adoption may include rectification of simulated birth or declaration that
the child is a foundling, abandoned, dependent or
neglected child.
Supervised trial Supervised trial custody period in the Philippines Supervised trial custody period in the
custody for at least six (6) months (Court may reduce Philippines for at least six (6) months.
period or exempt parties from trial custody) (Section 14)
(Section 12)

2. Domestic Adoption
Who may adopt
1. Any FILIPINO
- of legal age
- in possession of full civil capacity and legal rights
- of good moral character
- has not been convicted of any crime involving moral turpitude
- emotionally and psychologically capable of caring for children
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- at least 16 yrs. older than the adoptee
* may be waived when adopter is biological parent of adoptee or is spouse of adoptees parent
- in a position to support and care for his children in keeping with means of the family.

3. Any ALIEN possessing same qualifications, subject to certain conditions.

HUSBAND AND WIFE MUST JOINTLY ADOPT


EXCEPTIONS:
a) if one spouse seeks to adopt legitimate child of the other;
b) if one spouse seeks to adopt his own illegitimate child (provided the other spouses signified his consent
thereto)
c) 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.

VENUE (Sec. 6, ROA)


Family court of province or city where prospective adoptive parents reside

Whose consent necessary

1. biological parents of adoptee, if known


*However, consent of biological parents, even if they are known, is not necessary if they have
ABANDONED the child (Lang vs. CA, 298 SCRA 128 [1998]).
2. adoptee, if 10 years of age or older
3. legitimate or adopted children of adopter or adoptee, if 10 years of age or older
4. illegitimate children of adopter, if living with him, if 10 years of age or older
5. spouse of adopter or adoptee

Change of name

In case petition also prays for change of name, title or caption must contain:
1. registered name of child
2. aliases of other names by which child has been known
3. full name by which child is to be known

PUBLICATION JURISDICTIONAL
Adoption is action in rem involves the status of persons.

Decree of Adoption
If supervised trial custody SATISFACTORY and
- court CONVINCED from trial custody report and evidence adduced that
- adoption shall redound to BEST INTERESTS of adoptee
- DECREE OF ADOPTION issued which shall take effect as of date original petition filed even if
petitioners DIE before issuance

a. effects of adoption

(1) For civil purposes the adopted shall be deemed to be a legitimate child of the adoptioners and both
shall acquire the reciprocal rights and obligations arising from the relationship of parents and child, including
the right of the adopted to use the surname of the adopters;
(2) The parental authority of the parents by nature over the adoped shall terminate and be vested in the
adopters, except that if the adopter is the spouse of the parents by nature of the adopted, the parental
authority over the adopted shall be exercised jointely by both spouses; and
(3) The adopted shall remain an intestate heir of his parents and other blood relatives. (Art. 189, Family
Code)

Adoption strictly between adopter and adopted

If adopting parent should die before adopted child, latter cannot represent the adopter in the inheritance
from the parents and ascendants of the adopter. Adopted child is not related to the deceased in that case
because filiation created by fiction of law is exclusive between adopted and adopter. By adoption, the
adopters can make for themselves an heir but they cannot make one for their relatives.(Republic vs. Valencia,
G.R. No. L-32181, March 5, 1986)

An illegitimate child, upon adoption by her natural father, may use the surname of her natural
mother as her middle name. (In the Matter of the Adoption of Stephanie Nathy Astorga Garcia, G.R. No. 148311,
Mar. 31, 2005.)
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b. instances when adoption may be rescinded

RESCISSION OF ADOPTION BY ADOPTEE

Petition VERIFIED

Filed by adoptee
- over 18 years of age
- with assistance of DSWD, if minor
- by guardian or counsel, if over 18 but incapacitated

Grounds committed by ADOPTER:


1. repeated physical and verbal maltreatment by adopter despite having undergone counseling
2. attempt on life of adoptee
3. sexual assault or violence
4. abandonment or failure to comply with parental obligations

Adoption, being for best interests of child, not subject to rescission by ADOPTER

Venue - Family Court of province where adoptee resides (Sec. 20, ROA)

Time within which to file petition


If MINOR within 5 yrs. after reaching age of majority
If INCOMPETENT within 5 yrs. after recovery from incompetency.

c. Effects of rescission of adoption (Rule on Adoption, Sec. 23)

(a) parental authority of the biological parent of the adoptee, if known, or the legal custody of DSWD is restored
if the adoptee is still a minor or incapacitated;
(b) reciprocal rights and obligations of the adopter and adoptee to each other are extinguished;
(c) succession rights revert to their status prior to adoption, as of the date of judgment of rescission, but vested
rights acquired prior to rescission are to be respected
(d) court shall order adoptee to use the name stated In the original birth or foundling certificate
(e) court shall order the Civil Registrar where the adoption decree was registered to cancel the new birth
certificate of the adoptee and reinstate the original birth or foundling certificate

3. Inter-country Adoption
a. when allowed

Inter-country adoption of Filipino children by foreign nationals and Filipino citizens permanently residing
abroad is allowed by law if such children cannot be adopted by qualified Filipino citizens or aliens.

b. functions of the RTC (Family Court )

A verified petition for inter-country adoption may be filed by a foreign national or Filipino citizen
permanently residing abroad with the Family Court having jurisdiction over the place where the child resides
or may be found. Its functions are
(1) receive the application,
(2) assess the qualification of the prospective adopter and
(3) refer its findings, if favorable, to the Inter-Country Adoption Board.

The latter, on its own, however, can receive the original application (RA 8043, Sec. 10; ROA, Secs. 28 &
32))

The Inter-Country Adoption Board is the central authority in matters relating to inter-country adoption. It is
the policy-making body for purposes of carrying out the provisions of the law, in consultation and
coordination with the DSWD, the different child-care and placement agencies, adoptive agencies as well as
non-governmental organizations engaged in child care and placement activities (RA 8043, Sec. 4).

c. best interest of the minor standard

Inter-country adoption is allowed only when the same shall prove beneficial to the childs best interests, and
shall serve and protect his/her fundamental rights (RA 8043, Sec. 2)
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Only a child legally available for domestic adoption may be the subject of inter-country adoption (Rule on
Adoption, Sec. 29).

Financial qualification in adoption

Since the primary consideration in adoption is the best interest of the child, it follows that the financial
capacity of prospective parents should also be carefully evaluated and considered. Certainly, the adopter
should be in a position to support the would-be adopted child or children, in keeping with the means of the
family..(Landingin vs. Republic, G.R. No. 164948, June 27, 2006)

M. W rit of Habeas Corpus

Rule 102 Habeas Corpus

To what habeas corpus extends (Sec. 1)


1. All cases of illegal confinement of detention
2. by which any person is deprived of his liberty, or
3. by which the rightful custody of any person is withheld from the person entitled thereto

Purpose of habeas corpus relieve a person from unlawful restraint.

Specifically:
1. to obtain immediate relief from illegal confinement
2. to liberate those who may be imprisoned without sufficient cause
3. to deliver them from unlawful custody

Essentially a writ of inquiry and is granted to test the right under which a person is detained (Velasco v. CA,
245 SCRA 677).

It is a remedy intended to determine whether the person under detention is held under lawful authority

In the second part of the same provision, however, Habeas Corpus may be resorted to in cases where "the
rightful custody of any person is withheld from the person entitled thereto." It may even be said that in
custody cases involving minors, the question of illegal and involuntary restraint of liberty is not the
underlying rationale for the availability of the writ as a remedy; rather, the writ of habeas corpus is
prosecuted for the purpose of determining the right of custody over a child. (Sombong v. CA, G.R. No.
111876, January 31, 1996)

Habeas corpus is a summary remedy. It is analogous to a proceeding in rem when instituted for the sole
purpose of having the person of restraint presented before the judge in order that the cause of his detention
may be inquired into and his statements final.The writ of habeas corpus does not act upon the prisoner who
seeks relief, but upon the person who holds him in what is alleged to be the unlawful authority.Hence, the
only parties before the court are the petitioner (prisoner) and the person holding the petitioner in custody,
and the only question to be resolved is whether the custodian has authority to deprive the petitioner of his
liberty (Caballes vs. CA, G.R. No. 163108, February 23, 2005)

When constitutional rights disregarded writ may issue Exceptional remedy to release a person
whose liberty is illegally restrained such as when the constitutional rights of the accused are disregarded.
Such defect results in the absence or loss of jurisdiction and therefore invalidates the trial and consequent
conviction of the accused. That void judgment may be challenged by collateral attack which precisely is
the function of habeas corpus.

This writ may issue even if another remedy which is less effective may be availed of failure by accused
to perfect his appeal before the CA does not preclude recourse to the writ.

The writ may be granted upon a judgment already final (Chavez v. CA, 24 SCRA 663 [1968]).

1. Contents of the petition


a. That the person in whose behalf the application is made is imprisoned or restrained of his liberty;
b. The officer or name of the person by whom he is so imprisoned or restrained;
c. The place where he is so imprisoned or restrained, if known;
d. Copy of the commitment or caue of detention of such person. If it can be procured without any legal
authority, such fact shall appear. (Sec. 3)

2. Contents of the Return


a. Whether he has or has not the party in his custody or power, or under restraint;
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b. If the party is in his custody or power, or under restraint -- the authority and the true and whole cause
thereof, with a copy of the writ, order, execution, or other processes upon which the party is held
c. If the party, etc. , and is not produced nature and gravity of sickness or infirmity
d. If the party was in his custody, etc. and has transferred such custody or restraint to another to whom,
at what time, for what cause and by what authority such transfer was made. (Sec. 10)

3. Distinguish peremptory writ from preliminary citation

Peremptory writ of habeas corpus unconditionally commanding the respondent to have the body of the
detained person before the court at a time and place therein specified.

Preliminary citation requiring the respondent to appear and show cause why the peremptory writ should
not be granted.

Order to produce body not a grant of the remedy of habeas corpus

In a habeas corpus petition, the order to present an individual before the court is a preliminary step in the
hearing of the petition. The respondent must produce the person and explain the cause of his detention.
However, this order is not a ruling on the propriety of the remedy or on the substantive matters covered by
the remedy. Thus, the Courts order to the Court of Appeals to conduct a factual hearing was not an
affirmation of the propriety of the remedy of habeas corpus. (In the Matter of the Petition for Habeas Corpus
of Alejano vs. Cabuay, G.R. No. 160792, August 25, 2005

4. When not proper/applicable


a. For asserting or vindicating denial of right to bail (Enrile vs. Salazar, 186 SCRA 217 [1990])
b. For correcting errors in appreciation of facts and/or in the application of law. It is not a writ of error. (Sotto vs.
Director of Prisons, May 30, 1962).

5. When writ disallowed/discharged authorized (Sec. 4)


a. When the person alleged to be restrained of his liberty is in the custody of an officer
1. under process issued by a court or judge or
2. by virtue of a judgment or order of a court of record and
3. the court or judge had jurisdiction to issue the process, render the judgment
or make the order
the writ shall not be allowed
b. When a person is
1. charged with or
2. convicted of an offense or
3. suffering imprisonment under lawful judgment
his discharge shall not be authorized

6. Distinguish from writ of amparo and habeas data (See Table)

WRIT OF HABEAS CORPUS AMPARO HABEAS DATA


DEFINITION Habeas corpus is a Latin It is a remedy available to any It is a remedy available to any
phrase which literally means person whose right to life, person whose right to privacy
you have the body. It is a writ liberty, and security has been in life, liberty or security is
directed to the person violated or is threatened with violated or threatened by an
detaining another, violation by an unlawful act or unlawful act or omission of a
commanding him to produce omission of a public official or public official or employee, or
the body of the prisoner at a employee, or of a private of a private individual or entity
designated time and place, individual or entity. The writ engaged in the gathering,
with the day and cause of his covers extralegal killings and collecting or storing data or
capture and detention, to do, enforced disappearances or information regarding the
submit to, and receive threats thereof. person, family, home and
whatsoever the court or judge correspondence of the
awarding the writ shall aggrieved party.
consider in that behalf.
AVAILABILITY Sec. 1 Sec. 1 Sec. 1

To all cases of illegal To any person whose right to To any person whose right to
confinement or detention: life, liberty and security is privacy in life, liberty and
violated or threatened with security is violated or
1. By which any person is violation by an unlawful act or threatened with violation by an
deprived of his liberty; or omission of a public official or unlawful act or omission of a
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employee, or of a private public official or employee, or


2. By which the rightful custody individual or entity. of a private individual or entity
of any person is withheld from engaged in:
the person entitled thereto.
1. Gathering
2. Collecting
3. Storing

Of data or information
regarding the person family,
home and correspondence of
the aggrieved party.
PETITIONER Sec. 3 Sec. 2 Sec. 2

By the party for whose relief it By the aggrieved party, or by General rule:
is intended, or by some other any qualified person or entity in
person in his behalf the order provided in Sec. 2 The aggrieved party

Except:
In cases of extralegal killings
and enforced disappearances:

1. Immediate family;
2. In default of no. 1,
ascendant, descendant or
th
collateral relative within the 4
civil degree of consanguinity
or affinity.
VENUE If filed with RTC, where Sec. 3 Sec. 3
detainee is detained
SC, CA and SB SC, CA and SB
.
RTC of the place where the RTC:
threat, act or omission was
committed or any of its 1. Where petitioner resides;
elements occurred. or
2. Where respondent resides;
or
3. Which has jurisdiction over
the place where data or
information is gathered, etc.

All at the option of petitioner.


EXTENT OF SC, CA and SB: Anywhere in the Philippines Anywhere in the Philippines
ENFORCEABILITY anywhere in the Philippines

RTC: only within its judicial


district
WHEN TO FILE/ Sec. 2 Sec. 3
EXEMPTION
FROM On any day and at any time On any day and at any
DOCKET FEES time. Petitioner exempt from Indigent petitioner exempt
docket fees from docket fees

SETTING OF Sec. 12 Sec. 6 Sec. 7


HEARING
Hearing on return Not later than 7 days from date Not later than 10 days from
of issuance of writ date of issuance of writ
HOW SERVED Sec. 7 Sec. 8 Sec. 9

Service of the writ shall be If the writ cannot be served If the writ cannot be served
made by leaving the original personally on respondent, the personally on respondent, the
with the person to whom it is rules on substituted service rules on substituted service
directed and preserving a copy shall apply shall apply
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on which to make return of


service. If that person cannot
be found, or has not the
prisoner in custody then the
service shall be made on any
person having or exercising
such custody
FILING OF Sec. 10 Sec. 9 Sec. 9
RETURN
Signed and shall also be sworn Verified written return within 5 Verified written return within 5
to if the prisoner is not work days from service of writ days from service of writ
produced
- cannot be extended except on -may be reasonably extended
highly meritorious grounds by the court for justifiable
grounds
EFFECT OF Sec. 12 Sec. 14
FAILURE TO FILE
RETURN In case respondent fails to file a In case respondent fails to
return, the court, justice or judge return, the court, justice or
shall proceed to hear the judge shall proceed to hear
petition ex parte the petition ex parte, granting
petitioner such relief as the
petition may warrant unless
the court in its discretion
requires petitioner to submit
evidence.
PROHIBITED Sec. 11 Sec. 13
PLEADINGS AND
MOTIONS (a) Motion to dismiss; (a) Motion to dismiss;
(b) Motion for extension of time (b) Motion for extension of
to file return, opposition, time to file return, opposition,
affidavit, position paper and affidavit, position paper and
other pleadings; other pleadings;
(c) Dilatory motion for (c) Dilatory motion for
postponement; postponement;
(d) Motion for a bill of (d) Motion for a bill of
particulars; particulars;
(e) Counterclaim or cross-claim; (e) Counterclaim or cross-
(f)Third-party complaint; claim;
(g)Reply; (f) Third-party complaint;
(h) Motion to declare (g) Reply;
respondent in default; (h) Motion to declare
(i)Intervention; respondent in default;
(j)Memorandum; (i) Intervention;
(k)Motion for reconsideration of (j) Memorandum;
interlocutory orders or interim (k) Motion for reconsideration
relief orders; and of interlocutory orders or
(l) Petition for certiorari, interim relief orders; and
mandamus or prohibition (l) Petition for certiorari,
against any interlocutory order. mandamus or prohibition
against any interlocutory
order.
SUMMARY Sec. 13 Sec. 15
HEARING
The hearing on the petition shall Same as WOA
be summary. However, the
court, justice or judge may call
for a preliminary conference to
simplify the issues and
determine the possibility of
obtaining stipulations and
admissions from the parties.

The hearing shall be from day to


day until completed and given
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the same priority as petitions for


habeas corpus.
INTERIM RELIEFS SEC. 12 Sec. 14

1. Unless for good cause (a) Temporary Protection Order.


shown, the hearing is
adjourned, in which event the (b) Inspection Order.
court shall make an order for
the safekeeping of the person (c) Production Order.
imprisoned or restrained as the
nature of the case requires; (d) Witness Protection Order.

2. The court or judge must be


satisfied that the person's
illness is so grave that he
cannot be produced without
any danger.
JUDGMENT Sec. 15 Sec. 18 Sec. 16

When the court or judge has The court shall render judgment Same with WOA with an
examined into the cause of within ten (10) days from the addition that upon finality, the
caption and restraint of the time the petition is submitted for judgment shall be enforced by
prisoner, and is satisfied that decision. If the allegations in the the sheriff or any lawful
he is unlawfully imprisoned or petition are proven by officers as may be designated
restrained, he shall forthwith substantial evidence, the court by the court, justice or judge
order his discharge from shall grant the privilege of the within 5 working days.
confinement, but such writ and such reliefs as may be
discharge shall not be effective proper and appropriate;
until a copy of the order has otherwise, the privilege shall be
been served on the officer or denied.
person detaining the prisoner.
If the officer or person
detaining the prisoner does not
desire to appeal, the prisoner
shall be forthwith released.
APPEAL Sec. 15 in relation to Sec. 3 Sec. 19 Sec. 19
Rule 41 and Sec. 39 of BP
129: Rule 45 by petition for review on Same as WOA
certiorari with peculiar features:
48 hours from notice of
judgment appealed from by 1. Appeal may raise questions
ordinary appeal of fact or law or both;

2. Period of appeal shall be 5


working days from the date of
notice of the adverse judgment;

3. Same priority as habeas


corpus cases

INSTITUTION OF Sec. 21 Sec. 20


SEPARATE
ACTIONS This Rule shall not preclude the Same as WOA
filing of separate criminal, civil
or administrative actions.
EFFECT OF Sec. 2 Sec. 21
FILING CRIMINAL
ACTION When a criminal action has Same as WOA
been commenced, no separate
petition for the writ shall be filed.
The reliefs under the writ shall
be available by motion in the
criminal case.
CONSOLIDATION Sec. 23 Sec. 22
SPECIAL PROCEEDINGS | Bar Review Guide 2015 | Justice Magdangal M. de Leon | page 39

When a criminal action is filed Same as WOA


subsequent to the filing of a
petition for the writ, the latter
shall be consolidated with the
criminal action.

When a criminal action and a


separate civil action are filed
subsequent to a petition for a
writ of amparo, the latter shall
be consolidated with the
criminal action.

Grant of writ

When court is satisfied that prisoner does not desire to appeal, the prisoner shall be forthwith released
(Sec. 15, Rule 102)

Period to appeal within 48 hours from notice of judgment or final order appealed from (A.M.N.
01-1-03-SC, July 19, 2001).

Habeas corpus as a post-conviction remedy

The writ of habeas corpus applies to all cases of illegal confinement or detention in which individuals are
deprived of liberty. The writ may not be availed of when the person in custody is under a judicial process or by virtue
of a valid judgment.

However, as a post-conviction remedy, it may be allowed when, as a consequence of a judicial proceeding,


any of the following exceptional circumstances is attendant: (1) there has been a deprivation of a constitutional right
resulting in the restraint of a person; (2) the court had no jurisdiction to impose the sentence; or (3) the imposed
penalty has been excessive, thus voiding the sentence as to such excess. (Go vs. Dimagiba, G.R. No. 151876, June
21, 2005; Andal v. People, 307 SCRA 605 [1999])

In Evangelista v. Sistoza [G.R. No. 143881. August 9, 2001], the accused filed a petition for habeas corpus
to secure his release from prison, due to the amendment of PD 1866 by RA 8249, reducing the penalty for illegal
possession of low powered firearms from reclusion temporal in its maximum period to reclusion perpetua, to prision
correccional in its maximum period. The court granted the petition, as he has already served 9 years in prison,
more than the maximum term of his imprisonment for robbery. He need not serve anymore is sentence of 18
years reclusion temporal as minimum to reclusion perpetual as maximum for illegal possession of firearm, in view of
said amendment and the ruling in People v. Ladjaalam (GR Nos 16649-51, September 19, 2000)

When constitutional rights disregarded writ may issue

Exceptional remedy to release a person whose liberty is illegally restrained such as when the constitutional
rights of the accused are disregarded. Such defect results in the absence or loss of jurisdiction and
therefore invalidates the trial and consequent conviction of the accused. The void judgment may be
challenged by collateral attack which is precisely the function of habeas corpus.

No right to bail where applicant is serving sentence by reason of final judgment

Respondent judge contends that under Section 14, Rule 102 of the Rules of Court, he has the discretion to
allow Te to be released on bail. However, the Court reiterates its pronouncement in its Resolution of February 19,
2001 in G.R. Nos. 145715-18 that Section 14, Rule 102 of the Rules of Court applies only to cases where the
applicant for the writ of habeas corpus is restrained by virtue of a criminal charge against him and not in an instance,
as in the case involved in the present controversy, where the applicant is serving sentence by reason of a final
judgment. (Vicente vs. Majaducon, A.M. No. RTJ-02-1698 (Formerly OCA IPI No. 00-1024-RTJ), June 23, 2005)

Marital rights including co-venture and living in conjugal dwelling may not be enforced by the
extraordinary writ of habeas corpus. (Ilusorio vs. Bildner, et.al., G.R. No. 139808, May 12, 2000)

Writ of habeas corpus cannot be issued once person is charged with a criminal offense
SPECIAL PROCEEDINGS | Bar Review Guide 2015 | Justice Magdangal M. de Leon | page 40
Under Section 1, Rule 102 of the Rules of Court, the writ of habeas corpus extends to all case of illegal
confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any
person is withheld from the person entitled thereto. The remedy of habeas corpus has one objective: to inquire into
the cause of detention of a person, and if found illegal, the court orders the release of the detainee. If, however, the
detention is proven lawful, then the habeas corpus proceedings terminate. (In the Matter of the Petition for Habeas
Corpus of Kunting, G.R. No. 167193, April 19, 2006)

Habeas corpus in custody cases

Habeas corpus may be resorted to in cases where rightful custody is withheld from a person entitled
thereto. Under Article 211 of the Family Code, respondent Loran and petitioner Marie Antonette have joint parental
authority over their son and consequently joint custody. Further, although the couple is separated de facto, the issue
of custody has yet to be adjudicated by the court. In the absence of a judicial grant of custody to one parent, both
parents are still entitled to the custody of their child. In the present case, private respondents cause of action is the
deprivation of his right to see his child as alleged in his petition. Hence, the remedy of habeas corpus is available to
him.

In a petition for habeas corpus, the childs welfare is the supreme consideration. The Child and Youth
Welfare Code unequivocally provides that in all questions regarding the care and custody, among others, of the
child, his welfare shall be the paramount consideration. (Salientes vs. Abanilla, G.R. No. 162734, August 29, 2006)

Retroactive effect of favorable law - People vs. Caco, 269 SCRA 271 (1997)

1. Caco sentenced to life imprisonment for violation of Dangerous Drugs Act (RA 6425)
2. Filed motion for modification of sentence pursuant to RA 7659 and People v. Simon that where marijuana
less than 200 grams penalty is prision correccional
3. Petition granted provisions of RA 7659 favorable to accused should be given retroactive effect.
4. Where decision already final, appropriate remedy of accused to secure release from prison is petition for
habeas corpus

Bernarte vs. CA, 263 SCRA 323 (1996)

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


question his detention by petition for habeas corpus
2. Remedy: motion to quash the information and/or warrant of arrest
3. Filing of bond for temporary release is waiver of illegality of detention

OFFICE OF THE SOLICITOR GENERAL v. JUDGE ANTONIO I. DE CASTRO [A.M. NO. RTJ-06-2018 :
August 3, 2007] (Formerly Adm. Matter OCA-IPI No. 05-2360-RTJ)

Once a person detained is duly charged in court, he may no longer question his detention through a petition for
issuance of a writ of habeas corpus. His remedy would be to quash the information and/or the warrant of arrest
duly issued. The writ of habeas corpus should not be allowed after the party sought to be released had been
charged before any court. The term "court" includes quasi-judicial bodies or governmental agencies authorized
to order the person's confinement, like the Deportation Board of the Bureau of Immigration.

The provisional or temporary release of Gao Yuan also effectively granted the petition for habeas corpus insofar
as the discharge of the detainee is concerned, since the main prayer in a petition for habeas corpus relates to
the release or discharge of the detainee. The general rule is that the release, whether permanent or temporary,
of a detained person renders the petition for habeas corpus moot and academic.

Larraaga vs. CA, 287 SCRA 581 (1998) Kidnapping & serious illegal detention

1. Filing of charges and issuance of warrant of arrest cures defect of


invalid detention
2. Absence of preliminary investigation will not nullify information and warrant of arrest

Velasco v. CA 245 SCRA 667 (1995)

Even if arrest is illegal, supervening events may bar his release or discharge from custody such as filing of
complaint and issuance of order denying petition to bail

Go, Sr. vs Ramos GR No. 167569 Sept 4, 2009

The writ of habeas corpus should not be allowed after the party sought to be released had been charged before
any court. The term court in this context includes quasi-judicial bodies of governmental agencies authorized to
order the persons confinement, like the Deportation Board of the Bureau of Immigration. Likewise, the
cancellation of his bail cannot be assailed via a petition for habeas corpus. When an alien is detained by the
SPECIAL PROCEEDINGS | Bar Review Guide 2015 | Justice Magdangal M. de Leon | page 41
Bureau of Immigration for deportation pursuant to an order of deportation by the Deportation Board, the
Regional Trial Courts have no power to release such alien on bail even in habeas corpus proceedings because
there is no law authorizing it.

Absence of preliminary investigation not ground for habeas corpus


Paredes vs. SB, 193 SCRA 464: absence of preliminary investigation not a ground for habeas corpus. Remedy:
motion to quash warrant of arrest and/or information, or ask for investigation/reinvestigation

Note: Rule 114, Sec. 26 of 2000 Revised Rules of Criminal Procedure: Bail not a bar to objections on illegal
arrest, lack of or irregular preliminary investigation, provided he raises them BEFORE entering his plea

Habeas Corpus and certiorari


Galvez vs. CA, 237 SCRA 685

1. Habeas corpus and certiorari may be ancillary where necessary to give effect to supervisory power of
higher courts
2. Habeas corpus reaches body and jurisdictional matters but not the records
3. Certiorari reaches record but not the body
4. Not appropriate for asserting right to bail file petition to be admitted to bail

Recent Jurisprudence

Section 1, Rule 102 of the Rules of Court provides that a petition for the issuance of a writ of habeas corpus may
be availed of in cases of illegal confinement by which any person is deprived of his liberty, or by which the rightful
custody of any person is withheld from the person entitled thereto. The writ may also be issued where, as a
consequence of a judicial proceeding,
(a) there has been a deprivation of a constitutional right resulting in the restraint of a person;
(b) the court had no jurisdiction to impose the sentence; or
(c) an excessive penalty has been imposed, as such sentence is void as to such excess.

(In the Matter of the Application for the Writ of Habeas Corpus Reclassifying Sentence to R.A. NO. 8353 in Behalf of
Rogelio Ormilla, et al. vs, The Director, Bureau of Corrections, G.R. No. 170497, January 22, 2007)

Petitioner was detained pursuant to a final judgment of the Quezon City RTC convicting him for the crimes of
carnapping and illegal possession of firearms. He is therefore not entitled to the writ of habeas corpus.

The rule is that if a person alleged to be restrained of his liberty is in custody of an officer under process
issued by a court or judge or by virtue of a judgment or order of a court of record the writ of habeas corpus will
not be allowed. (Barredo vs. Vinarao,. G.R. No. 168728, August 2, 2007)

In general, the purpose of the writ of habeas corpus is to determine whether or not a particular person is legally
held. A prime specification of an application for a writ of habeas corpus, in fact, is an actual and effective, and not
merely nominal or moral, illegal restraint of liberty. (In the Matter of the Petition of Habeas Corpus of Eufemia
Rodriguez vs. Luisa Villanueva, G.R. No. 169482, January 29, 2008)

Notably, the record shows that Judge Perello granted the writs of habeas corpus even without the pertinent
copies of detention and judgment of conviction. This is contrary to the provisions of Section 3(d) of Rule 102 of the
Rules of Court. The Rules clearly require that a copy of the commitment or cause of detention must accompany the
application for the writ of habeas corpus. (Office of the Court Administrator vs. Judge Perello, A.M. No. RTJ-05-1952,
December 24, 2008)

Strict compliance with the technical requirements for a habeas corpus petition as provided in the Rules of Court
may be dispensed with where the allegations in the application are sufficient to make out a case for habeas corpus.

Nonetheless, we agree with the OSG that petitioner is not entitled to the issuance of the writ. A convict may be
released on parole after serving the minimum period of his sentence. However, the pendency of another criminal
case is a ground for the disqualification of such convict from being released on parole. (Fletcher vs. The Director of
Bureau of Corrections, UDK-14071, July 17, 2009)

A writ of habeas corpus extends to all cases of illegal confinement or detention or by which the rightful custody
of person is withheld from the one entitled thereto. Respondent, as the judicial guardian of Lulu, was duty-bound to
care for and protect her ward. For her to perform her obligation, respondent must have custody of Lulu. Thus, she
was entitled to a writ of habeas corpus after she was unduly deprived of the custody of her ward. (Hernandez vs.
San Juan-Santos, G.R. No. 166470, August 7, 2009)
SPECIAL PROCEEDINGS | Bar Review Guide 2015 | Justice Magdangal M. de Leon | page 42
7. Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of
Minors (A.M. No. 03-04-04-SC) took effect May 15, 2003

a. A verified petition for the rightful custody of a minor may be filed by any person claiming such right. The petition
shall be filed with the Family Court of the province or city where the petitioner resides or where the minor may
be found.
b. After trial, the court shall render judgment awarding custody of the minor to the proper party considering the
best interests of the minor.
c. However, if it appears that both parties are unfit to have the care and custody of the minor, the court may
designate either the paternal or maternal grandparent of the minor or his oldest brother or sister, or any
reputable person to take charge of such minor, or commit him to any suitable home for children.
d. The court may issue any order that is just and reasonable permitting the parent who is deprived of the care and
custody of the minor to visit or have temporary custody.

Court of Appeals has jurisdiction to issue writs of habeas corpus in cases involving custody of
minors

There is nothing in RA 8369 which revoked the Court of Appeals jurisdiction to issue writs of habeas corpus
involving the custody of minors. (In the Matter of Application for the Issuance of a Writ of Habeas Corpus:
Thornton vs. Thornton, G.R. No. 154598, August 16, 2004) In fact, the Court of Appeals and Supreme Court
have concurrent jurisdiction with family courts in habeas corpus cases where the custody of minors is involved.
(Madrian vs. Madrian, G.R. No. 159374, July 12, 2007)

N. Writ of Am paro ( A.M. No. 07-9-12-SC ) - October 24, 2007

1. Coverage (See Table under Definition)

Extralegal killings killings committed without due process of law, i.e., without legal safeguards or
judicial proceedings.

Enforced disappearances attended by the following characteristics: an arrest, detention or abduction


of a person by a government official or organized groups or private individuals acting with the direct or
indirect acquiescence of the government; the refusal of the State to disclose the fate or whereabouts of the
person concerned or a refusal to acknowledge the deprivation of liberty which places such persons outside
the protection of law.

2. Distinguish from habeas corpus and habeas data (See Table)

3. Differences between Amparo and search warrant

The production order under the Amparo Rule should not be confused with a search warrant or law enforcement
under Art. III, Sec. 2 of the Constitution. The Constitutional provision is a protection of the people from the
unreasonable intrusion of the government, not a protection of the government from the demand of the people as
such respondents. Instead, the amparo production order may be limited to the production of documents or things
under Sec. 1, Rule 27 of the Rules of Civil Procedure (Secretary of National Defense vs. Manalo, G.R. No. 180906,
October 7, 2008).

4. Who may file (See Table)

5. Contents of return

(a) Lawful defenses to show that respondent did not violate or thereaten with violation the right to life, liberty or
security of the aggrieved party, through any act or omisson .
(b) Steps or actions taken by the respondent to determine the facts or whereabouts of the aggrieved party and
person /s responsible for the threat, act or omission;
(c) All relevant information in the possession of respondent pertaining to the threat, act or omission against the
aggrieved party;
(d) If respondent is a public official or employee, the return shall further state the actions that have been or will
be taken:
(i) to verify the identity of the aggrieved party;
(ii) to recover and preserve evidence related to the death or disappearance of the person identified in the
petition which may aid in the prosecution of the person or persons responsible;
(iii) to identify witnesses and obtain statements from them concerning the death or disappearance
SPECIAL PROCEEDINGS | Bar Review Guide 2015 | Justice Magdangal M. de Leon | page 43
(iv) to determine the cause, manner, location and time of death or disappearance as well as any pattern or
practice that may have brought about the death or disappearance;
(v) to identify and apprehend the person or persons involved in the death or disappearance; and
(vi) to bring the suspected offenders before a competent court.

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

6. Effects of failure to file return (See Table)

7. Omnibus waiver rule


Defenses Not Pleaded Deemed Waived. --All defenses shall be raised in the return, otherwise, they shall be
deemed waived (Sec. 10).

8. Procedure for hearing (See Table on Summary Hearing)

9. Institution of separate action (See Table)

10. Effect of filing of a criminal action (See Table)

11. Consolidation (See Table)

12. Interim reliefs available to petitioner and respondent (See Table)

13. Quantum of proof in application for issuance of Writ of Amparo

Burden of proof and standard of dilligence required The parties shall establish their claims by substantial
evidence.
Respondent private individual or entity prove that ordinary diligence as required by applicable laws, rules
and regulations was observed in the performance of duty.
Respondent public official or employee
prove that extraordinary diligence as required, etc. was observed in the performance of duty.
- cannot invoke presumption that official duty has been regularly performed to evade ressponsibility or
liability (Sec. 17)

Writ of Amparo provides rapid judicial relief as it partakes of a summary proceeding that requires only
substantial evidence to make the appropriate reliefs available to the petitioner; not an action to determine
criminal guilt requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of
evidence, or administrative responsibility requiring substantial evidence that will require full and exhaustive
proceedings

Both preventive and curative

It is preventive in that it breaks the expectation of impunity in the commission of these offenses; it
is curative in that it facilitates the subsequent punishment of perpetrators as it will inevitably yield leads to
subsequent investigation and action.

Jurisprudence

The threatened demolition of a dwelling by virtue of a final judgment of the court is not included
among the enumeration of rights for which the remedy of a writ of amparo is made available. Their claim to
their dwelling, assuming they still have any despite the final and executory judgment adverse to them, does
not constitute right to life, liberty and security. There is, therefore, no legal basis for the issuance of the writ
of amparo. (Canlas vs. Napico Homeowners Association I XIII, Inc.,. G.R. No. 182795, June 5, 2008)

Under these legal and factual situations, we are far from satisfied with the prima facie existence of
the ultimate facts that would justify the issuance of a writ of amparo. Rather than acts of terrorism that pose
a continuing threat to the persons of the petitioners, the violent incidents alleged appear to us to be purely
property-related and focused on the disputed land. Thus, if the petitioners wish to seek redress and hold
the alleged perpetrators criminally accountable, the remedy may lie more in the realm of ordinary criminal
prosecution rather than on the use of the extraordinary remedy of the writ of amparo. (Tapuz vs. Judge del
Rosario, G.R. No.182484, June 17, 2008)

While the right to life under Article III, Section 1 guarantees essentially the right to be alive - upon
which the enjoyment of all other rights is preconditioned - the right to security of person is a guarantee of
the secure quality of this life.
SPECIAL PROCEEDINGS | Bar Review Guide 2015 | Justice Magdangal M. de Leon | page 44
First, the right to security of person is freedom from fear. (Universal Declaration of Human Rights
[UDHR] and International Covenant on Civil and Political Rights [ICCPR]) The Philippines is a signatory to
both the UDHR and the ICCPR.

Second, the right to security of person is a guarantee of bodily and psychological integrity or
security. (Article III, Section 12 of the 1987 Constitution)

Third, the right to security of person is a guarantee of protection of ones rights by the government.
Protection includes conducting effective investigations, organization of the government apparatus to extend
protection to victims of extralegal killings or enforced disappearances (or threats thereof) and/or their
families, and bringing offenders to the bar of justice. (The Secretary of National Defense vs. Manalo, G.R.
No. 180906, October 7, 2008)

O. Writ of Habeas Data (A.M. No. 08-1-16-SC) February 2, 2008


1. Scope of writ (See Table under Definition)

2. Availability of writ (See Table under Availability)

3. Distinguish from Habeas Corpus and Amparo (See Table)

4. Who may file (See Table)


5. Contents of petition
(a) The personal circumstances of the petitioner and the respondent;
(b) The manner the right to privacy is violated or threatened and how it affects the right to life,
liberty or security of the aggrieved party;
(c) The actions and recourses taken by the petitioner to secure the data or information;
(d) The location of the files, registers or databases, the government office, and the person in
charge, in possession or in control of the data or information, if known;
(e) The reliefs prayed for, which may include the updating, rectification, suppression or
destruction of the database or information or files kept by the respondent. In case of threats,
the relief may include a prayer for an order enjoining the act complained of; and
(f) Such other relevant reliefs as are just and equitable (Sec. 6).

6. Contents of return

(a) Lawful defenses such as national security, state secrets, priviliged communication,
confidentiality of the source of information of media and others;
(b) If respondent in charge, in possession or in control of the data or information subject of the
petition -
(i) a disclosure of the data or information about petitioner, nature of such data or information, and
purpose of its collection;
(ii) steps or actions taken by respondent to ensure the security and confidentiality of the data or
information;
(iii) currency and accuracy of the data and information held; and
(c) other allegations relevant to the resolution of the proceeding;

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

7. Instances when petition heard in chambers


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

8. Consolidation (SeeTable)

9. Effect of filing a criminal action (See Table)

10. Institution of separate action (See Table)

Jurisprudence

Section 6 of the Rule on the Writ of Habeas Data requires material allegations of ultimate facts in
a petition for the issuance of a writ of habeas data:
SPECIAL PROCEEDINGS | Bar Review Guide 2015 | Justice Magdangal M. de Leon | page 45
Specifically, we see no concrete allegations of unjustified or unlawful violation of the right to
privacy related to the right to life, liberty or security. The petition likewise has not alleged, much less
demonstrated, any need for information under the control of police authorities other than those it has
already set forth as integral annexes. The necessity or justification for the issuance of the writ, based on
the insufficiency of previous efforts made to secure information, has not also been shown. In sum, the
prayer for the issuance of a writ of habeas data is nothing more than the fishing expedition that this Court
- in the course of drafting the Rule on habeas data - had in mind in defining what the purpose of a writ of
habeas data is not. In these lights, the outright denial of the petition for the issuance of the writ of habeas
data is fully in order. (Tapuz vs. Judge Rosario, G.R. No.182484, June 17, 2008)

P. Change of Nam e
Rule 103 Change of Name

Purpose of Rule

Under Art. 376, Civil Code no person can change his name or surname without juridical authority

Involving substantial changes, objective is the prevention of fraud.

Nature of proceeding

To establish the status of a person involving his relation with others, that is, his legal position in, or, with
regard to the rest of the community

Who may file petition

Person all natural persons regardless of status


1. Adopted child (Rep. v. Wong, 209 SCRA 189)
2. Alien - domiciled in the Philippines, not one temporarily staying (Ong Huan Ting v. Rep. GR L-20997,
1967)

Venue Sec 1
Regional Trial Court of place in which petitioner resides.

Order for Hearing Sec 3


1. If petition sufficient in form and substance,
2. The court, by an order reciting the purpose of the petition, shall:
a. fix a date and place for the hearing thereof
b. direct that a copy of the order be published at least once a week for 3 consecutive weeks in a newspaper
of general circulation
3. The date set for hearing shall NOT be
a. within 30 days prior to an election NOR
b. within 4 months after the publication of the notice

Jurisdictional requirements
1. Publication of petition for 3 consecutive weeks in newspaper, etc.
2. Both title or caption and body shall recite
a. name or names or alias of applicant
b. cause for which change of name is sought
c. new name asked for

Reason: change of name a matter of public interest


- petitioner might be in rogues gallery or hiding to avoid service of sentence or escaped from prison
- if alien might have given case for deportation, or subject of deportation order

1. Differences under Rule 103, RA 9048 and Rule 108

Rule 103 Rule 108 R.A. 9048


Rule or Law Change of Name Cancellation/ Correction of Clerical Error Act
Entries in the Civil Registry
Subject Matter Change of full name or Cancellation or correction of Change of first name or nickname and
family name (substantial civil registry entries corrrection of civil registry entries (only
corrections) (substantial corrections) typographical or clerical errors)
SPECIAL PROCEEDINGS | Bar Review Guide 2015 | Justice Magdangal M. de Leon | page 46

Who may File A person desiring to change Any person interested in any Any person having direct and personal
his name. (Section 1) act, event, order or decree interest in the correction of a clerical or
concerning the civil status of typographical error in an entry and/or
persons which has been change of first name or nickname.
recorded in the civil register. (Section 3)
(Section 1)
Venue RTC of the province in which RTC of city or province where 1. Local civil registry office of the city or
petitioner resided for 3 years the corresponding civil municipality where the record being
prior to filing. registry is located. sought to be corrected or changed is
kept;

2. Local civil registrar of the place where


the interested party is presently residing
or domiciled;

3. Philippine Consulate
Contents of petition (a) That petitioner has been (a) Facts necessary to establish the
a bona fide resident of the merits of petition;
province where the petition
is filed for at least three (3) (b) Particular erroneous entry or entries,
years prior to the date of which are sought to be corrected and/or
such filing; the change sought to be made.

(b) The cause for which the Petition shall be supported by the
change of petitioner's name following documents:
is sought;
(1) A certified true machine copy of the
(c) The name asked for. certificate or of the page of the registry
(Section 2) book containing the entry or entries
sought to be corrected or changed;

(2) At least two (2) public or private


documents showing the correct entry or
entries upon which the correction or
change shall be based; and

(3) Other documents which petitioner or


the city or municipal civil registrar or the
consul general may consider relevant
and necessary for the approval of
petition. (Section 5)

Grounds 1. Name is ridiculous, tainted Upon good and valid grounds. 1. Petitioner finds the first name or
with dishonor and extremely nickname to be ridiculous, tainted with
difficult to write of dishonor or extremely difficult to write or
pronounce; pronounce;

2. Consequence of change 2. The new first name or nickname has


of status; been habitually and continuously used
by petitioner and he has been publicly
3. Necessity to avoid known by that first name or nickname in
confusion; the community; or

4. Having continuously used 3. The change will avoid confusion.


and been known since (Section 4)
childhood by a Filipino
name, unaware of her alien
parentage;

6. A sincere desire to adopt a


Filipino name to erase signs
of former alienage all in
good faith and without
prejudicing anybody.
7.
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Kind of proceeding Judicial Proceeding Judicial Proceeding Administrative Proceeding

Adversarial in nature
because involves substantial
changes and affects the
status of an individual
What to file File a signed and verified File a verified petition for the File an affidavit.
petition. cancellation or correction of
any entry.
.
Notice and At least once a week for At least once a week for three At least once a week for two
Publication three consecutive weeks in a consecutive weeks in a consecutive weeks (publish the whole
newspaper circulation newspaper of general affidavit) in change of first name or
(notice of hearing) circulation (notice of hearing) nickname
Posting No posting No posting Duty of the civil registrar or Consul to
post petition in a conspicuous place for
10 consecutive days
Who participates on The Solicitor General or the The Civil Registrar. The Civil Registrar or Consul.
the part of the proper provincial or city
Government fiscal shall appear on behalf
of the Government of the
Republic.
Where to appeal: Appeal decision to the Court Appeal decision to the Court Appeal decision to the Civil Registrar
of Appeals. of Appeals. General (head of NCSO).

2. Grounds for change of name

The State has an interest in the names borne by individuals and entities for purposes of identification. A
change of name is a privilege and not a right, so that before a person can be authorized to change his name, he
must show proper or reasonable cause, or any compelling reason which may justify such change.

Grounds for change of name which have been held valid:


1) Name is ridiculous, dishonorable, or extremely difficult to write or pronounce;
2) Change results as a legal consequence, as in legitimation;
3) Change will avoid confusion;
4) When one has continuously used and been known since childhood by a Filipino name, and was
unaware of alien parentage;
5) Sincere desire to adopt Filipino name to erase signs of former alienage, all in good faith and without
prejudicing anybody;
6) Surname causes embarrassment and there is no showing that the desired change of name was for a
fraudulent purpose or that the change of name would prejudice public interest.

Illegitimate child now allowed to use surname of the father

N.B. RA 9255 amended Art. 176 of the Family Code, allowing the Illegitimate Child to Use the Surname of
the Father if the Latter Expressly Recognized Filiation in a Record of Birth (approved Feb 24, 2004). This
modifies Leonardo v. CA (GR No. 125329 Sept. 10, 2003) disallowing an illegitimate child the right to use
his/her fathers name.

Other cases

Under Art. 176 of the Civil Code, Giovanni is entitled to change his name as he was never recognized by
his father while his mother has always recognized him as her child. A change of name will erase the
impression that he was ever recognized by his father. It is also his best interest as it will facilitate his
mothers intended petition to have him join her in the United States. The Court will not stand in the way of
the reunification of moter and son. (Republic of the Philippines vs. Capote, G.R. No. 157043, February 2,
2007)

Middle names serve to identify the maternal lineage or filiation of a person as well as further
distinguish him from others who may have the same given name and surname as he has. In the case at
bar, the only reason advanced by petitioner for dropping his middle name is convenience (In Re Petition for
Change of Name and/or Correction/Cancellation of Entry of Civil Registry of Julian Lin Carulasan Wang,
G.R. No. 159966, March 30, 2005)
SPECIAL PROCEEDINGS | Bar Review Guide 2015 | Justice Magdangal M. de Leon | page 48

The court shall grant the petition under Rule 103 only when satisfactory proof has been presented in open
court that the order had been published as directed, the allegations in the petition are true, and proper and
reasonable causes appear for changing the name of the petitioner. (RE: FINAL REPORT ON THE
JUDICIAL AUDIT CONDUCTED AT THE RTC, BR. 67, PANIQUI, TARLAC, A.M. No. 06-7-414-RTC,
October 19, 2007)

A persons first name cannot be changed on the ground of sex assignment

Petitioner sought to have his name in his birth certificate changed from "Rommel Jacinto" to "Mely," and his
sex from "male" to "female." Petitioners basis in praying for the change of his first name was his sex
reassignment. He intended to make his first name compatible with the sex he thought he transformed
himself into through surgery. However, a change of name does not alter ones legal capacity or civil
status.RA 9048 does not sanction a change of first name on the ground of sex reassignment. Rather than
avoiding confusion, changing petitioners first name for his declared purpose may only create grave
complications in the civil registry and the public interest.

Before a person can legally change his given name, he must present proper or reasonable cause or any
compelling reason justifying such change. In addition, he must show that he will be prejudiced by the use of
his true and official name. In this case, he failed to show, or even allege, any prejudice that he might suffer
as a result of using his true and official name.

In sum, the petition in the trial court in so far as it prayed for the change of petitioners first name was not
within that courts primary jurisdiction as the petition should have been filed with the local civil registrar
concerned, assuming it could be legally done. It was an improper remedy because the proper remedy was
administrative, that is, that provided under RA 9048. It was also filed in the wrong venue as the proper
venue was in the Office of the Civil Registrar of Manila where his birth certificate is kept. More importantly, it
had no merit since the use of his true and official name does not prejudice him at all. (Silverio v. Republic,
GR No. 174689. Oct. 22, 2007)

Where change of name allowed arising from change of gender

As for respondents change of name under Rule 103, this Court has held that a change of name is
not a matter of right but of judicial discretion, to be exercised in the light of the reasons adduced and the
consequences that will follow. The trial courts grant of respondents change of name from Jennifer to Jeff
implies a change of a feminine name to a masculine name. Considering the consequence that
respondents change of name merely recognizes his preferred gender, we find merit in respondents change
of name. Such a change will conform with the change of the entry in his birth certificate from female to
male. (Republic vs. Cagandahan, G.R. No. 166676, September 12, 2008)

Q. Absentees
Rule 107 Absentees

1. Purpose of the rule


2. Who may file; when to file

Provisional representative

When a person disappears from his domicile, his whereabouts being unknown, and without having
left an agent to administer property or the power conferred on the agent has expired, an interested
party, relative or friend may file a petition in the RTC of the place where the absentee resided
before disappearance to appoint provisionally a representative for him (Sec. 1).

Trustee or administrator

After 2 years without any news or after 5 years if an agent was left to administer the absentees
property, a petition for declaration of absence and appointment of a trustee or administrator may
be filed.(Sec. 2)

Notice and publication required

Copies of the notice and hearing shall be served on known heirs and creditors and other interested
persons and published once a week for 3 consecutive weeks in a newspaper of general
circulation. (Sec. 4)
SPECIAL PROCEEDINGS | Bar Review Guide 2015 | Justice Magdangal M. de Leon | page 49

Declaration of presumptive death

No independent action for declaration of presumption of death presumption may arise and be
invoked in an action or special proceeding

Exception

Under Art. 41 of Family Code, for purpose of present spouse contracting a second marriage, he
must file summary proceeding for declaration of presumptive death of the absentee, without
prejudice to the latters reappearance.

This is intended to protect present spouse from criminal prosecution for bigamy under Art. 349 of
RPC. With judicial declaration that missing spouse is presumptively dead, good faith of present
spouse in contracting marriage is established.

Period of absence of spouse before subsequent marriage


- 4 consecutive years well founded belief that absent spouse already dead
- 2 years danger of death

R. Cancellation or Correction of Entries in the Civil Registry

Rule 108 Cancellation or correction of entries in the civil registry

Who may file petition

1. Any person interested in any


- act
- event
- decree
2. concerning the civil status of persons
3. which has been recorded in the civil registry

Venue
Regional Trial Court of place where corresponding civil registry is located (Sec. 1)

Correction of entry under Rule 108 proceeding in rem publication binds the whole world

Substantial corrections or cancellations of entries in civil registry records affecting the status or legitimacy
of a person may be effected through the institution of a petition under Rule 108 of the Revised Rules of Court,
with the proper Regional Trial Court. Being a proceeding in rem, acquisition of jurisdiction over the person of
petitioner is therefore not required in the present case. It is enough that the trial court is vested with jurisdiction
over the subject matter.

The service of the order at No. 418 Arquiza St., Ermita, Manila and the publication thereof in a newspaper of
general circulation in Manila, sufficiently complied with the requirement of due process, the essence of which is
an opportunity to be heard. The publication of the order is a notice to all indispensable parties, including Armi
and petitioner minor, which binds the whole world to the judgment that may be rendered in the petition. (Alba
vs. CA, G.R. No. 164041, July 29, 2005)

Indispensable parties must be notified

Under Sec. 3, Rule 108 not only the civil registrar but also all persons who have or claim any interest which
would be affected by a proceeding concerning the cancellation or correction of an entry in the civil register must
be made parties thereto.

No party could be more interested in the cancellation of Rosilyns birth certificate than Rosilyn herself. Her
filiation, legitimacy, and date of birth are at stake.

The lack of summons on Rosilyn was not cured by the publication of the order of the trial court setting the
case for hearing for three consecutive weeks in a newspaper of general circulation. Summons must still be
served, not for the purpose of vesting the courts with jurisdiction, but to comply with the requirements of fair play
and due process. This is but proper, to afford the person concerned the opportunity to protect her interest if she
so chooses. (Ceruila vs. Delantar, G.R. No. 140305, December 9, 2005)
SPECIAL PROCEEDINGS | Bar Review Guide 2015 | Justice Magdangal M. de Leon | page 50
1.Entries subject to cancellation or correction under Rule 108, in relation to RA 9048

Administrative correction of clerical or typographical errors

The obvious effect of Republic Act 9048 is merely to make possible the administrative correction of clerical or
typographical errors or change of first name or nickname in entries in the civil register, leaving to Rule 108 the
correction of substantial changes in the civil registry in appropriate adversarial proceedings. (Republic v.
Benemerito G.R. No. 146963, March 15, 2004).

Republic Act 9048:

- Who may file petition:


1. Any person of legal age
2. Having direct and personal interest in the
3. Correction of clerical or typographical error in an entry and/or
4. Change of first name or nickname in the civil register

A person considered to have a direct and personal interest when he is the owner of the record or
the owners spouse, children, parents, brothers, sisters, grandparents, guardian, or any other
person duly authorized by law or by the owner of the document sought to be corrected

- Venue : Local Civil Registrar of the place where the record is located:
Exceptions: (a) If impractical in terms of transportation expenses, time, effort as where
petitioner has transferred to another place LCR of petitioners residence.
(b) If person presently residing or domiciled in a foreign countrynearest
Philippine Consulate, or LCR of place where record is located

Change of name under Rule 108


The enactment in March 2001 of Republic Act No. 9048 has been considered to lend legislative affirmation
to the judicial precedence that substantial corrections to the civil status of persons recorded in the civil registry
may be effected through the filing of a petition under Rule 108. When all the procedural requirements under
Rule 108 are thus followed, the appropriate adversary proceeding necessary to effect substantial corrections to
the entries of the civil register is satisfied.

With respect to the correction in Carlitos birth certificate of his name from Carlito John to Carlito, the
same was properly granted under Rule 108 of the Rules of Court. As correctly pointed out by the CA, the
cancellation or correction of entries involving changes of name falls under letter o of the following provision of
Section 2 of Rule 108: Entries subject to cancellation or correction. Upon good and valid grounds, the
following entries in the civil register may be cancelled or corrected: x x x (o) changes of name. Hence, while the
jurisdictional requirements of Rule 103 (which governs petitions for change of name) were not complied with,
observance of the provisions of Rule 108 suffices to effect the correction sought for. (Republic vs. Kho, G.R.
No. 170340, June 28, 2007)

Registered name of illegitimate child


An illegitimate child whose filiation is not recognized by the father bears only a given name and his mothers
surname, and does not have a middle name. The name of the unrecognized illegitimate child therefore identifies
him as such. It is only when the illegitimate child is legitimated by the subsequent marriage of his parents or
acknowledged by the father in a public document or private handwritten instrument that he bears both his
mothers surname as his middle name and his fathers surname as his surname, reflecting his status as a
legitimated child or an acknowledged illegitimate child.

Accordingly, the registration in the civil registry of the birth of such individuals requires that the middle name
be indicated in the certificate. The registered name of a legitimate, legitimated and recognized illegitimate child
thus contains a given or proper name, a middle name, and a surname. (IN RE: PETITION FOR CHANGE OF
NAME AND/OR CORRECTION/CANCELLATION OF ENTRY IN CIVIL REGISTRY OF JULIAN LIN
CARULASAN WANG (G.R. No. 159966. March 30, 2005)

No intent on the part of the lawmakers to remove the authority of the trial courts to make judicial
corrections of entries in the civil registry
It can thus be concluded that the local civil registrar has primary, not exclusive, jurisdiction over such
petitions for correction of clerical errors and change of first name or nickname, with R.A. No. 9048 prescribing
the procedure that the petitioner and local civil registrar should follow. Since R.A. No. 9048 refers specifically to
the administrative summary proceeding before the local civil registrar it would be inappropriate to apply the
same procedure to petitions for the correction of entries in the civil registry before the courts. ( Re: Final Report
on the Judicial Audit Conducted at the Regional Trial Court, Br. 67, Paniqui, Tarlac, A.M. No. 06-7-414-RTC,
October 19, 2007).
SPECIAL PROCEEDINGS | Bar Review Guide 2015 | Justice Magdangal M. de Leon | page 51

Change of first name is within the primary jurisdiction of the local civil registrar
RA 9048 now governs the change of first name. It vests the power and authority to entertain petitions for
change of first name to the city or municipal civil registrar or consul general concerned. Under the law, therefore,
jurisdiction over applications for change of first name is now primarily lodged with the aforementioned
administrative officers. The intent and effect of the law is to exclude the change of first name from the coverage
of Rules 103 (Change of Name) and 108 (Cancellation or Correction of Entries in the Civil Registry) of the Rules
of Court, until and unless an administrative petition for change of name is first filed and subsequently denied. It
likewise lays down the corresponding venue, form and procedure. In sum, the remedy and the proceedings
regulating change of first name are primarily administrative in nature, not judicial (Silverio vs Republic, G.R. No.
174689, October 22, 2007)

Change of sex or gender allowed where person has both male and female sexual characteristics
The trial court ordered the correction of entries in the birth certificate of respondent to change her sex or
gender, from female to male, on the ground of her medical condition known as Congenital Adrenal Hyerplasia
(CAH), and her name from Jennifer to Jeff, under Rules 103 and 108 of the Rules of Court. xxx CAH is one of
many conditions that involve intersex anatomy. The term intersexuality applies to human beings who cannot be
classified as either male or female. We respect respondents congenital condition and his mature decision to be a
male.

As for respondents change of name under Rule 103, this Court has held that a change of name is not a
matter of right but of judicial discretion, to be exercised in the light of the reasons adduced and the consequences
that will follow. The trial courts grant of respondents change of name from Jennifer to Jeff implies a change of a
feminine name to a masculine name. Considering the consequence that respondents change of name merely
recognizes his preferred gender, we find merit in respondents change of name. Such a change will conform with
the change of the entry in his birth certificate from female to male (Republic vs. Jennifer Cagandahan, G.R. No.
166676, September 12, 2008).

A persons first name cannot be changed on the ground of sex reassignment


Petitioner sought to have his name in his birth certificate changed from Rommel Jacinto to Mely, and his
sex from male to female. Petitioners basis in praying for the change of his first name was his sex
reassignment. He intended to make his first name compatible with the sex he thought he transformed himself into
through surgery. However, a change of name does not alter ones legal capacity or civil status. RA 9048 does not
sanction a change of first name on the ground of sex reassignment. Rather than avoiding confusion, changing
petitioners first name for his declared purpose may only create grave complications in the civil registry and the
public interest.

Before a person can legally change his given name, he must present proper or reasonable cause or any
compelling reason justifying such change. In addition, he must show that he will be prejudiced by the use of his
true and official name. In this case, he failed to show, or even allege, any prejudice that he might suffer as a
result of using his true and official name. (Silverio vs Republic, G.R. No. 174689, October 22, 2007)

No law allows the change of entry in the birth certificate as to sex on the ground of sex reassignment.

The acts, events or factual errors contemplated under Article 407 of the Civil Code include even those that
occur after birth. However, no reasonable interpretation of the provision can justify the conclusion that it covers
the correction on the ground of sex reassignment. To correct simply means to make or set aright; to remove
the faults or error from while to change means to replace something with something else of the same kind or
with something that serves as a substitute. The birth certificate of petitioner contained no error. All entries
therein, including those corresponding to his first name and sex, were all correct. No correction is necessary.
While petitioner may have succeeded in altering his body and appearance through the intervention of
modern surgery, no law authorizes the change of entry as to sex in the civil registry for that reason. Thus, there
is no legal basis for his petition for the correction or change of the entries in his birth certificate. (Silverio vs
Republic, G.R. No. 174689, October 22, 2007)

Other Jurisprudence

Ty Kong Tin (1954): followed by Chua Wee vs. Rep., Wong vs. Rep., Rep. vs. Medina Rule 108 should be
limited solely to implementation of Art. 412, the substantive law on the matter of correcting errors in the civil
register.

Art. 412 contemplates a summary procedure, involving correction of clerical errors, or a harmless,
innocuous nature, not changes involving civil status, nationality or citizenship, which are substantial and/or
controversial

Rep. vs. Macli-ing proceedings, although filed under Rule 108, not summary because published for 3
consecutive weeks; SolGen notified and filed opposition, etc.

Rep. vs. Valencia (141 SCRA 462 [1986]) turning point, paradigm shift:
SPECIAL PROCEEDINGS | Bar Review Guide 2015 | Justice Magdangal M. de Leon | page 52
Rule 108 embodies two kinds of proceedings:
1. procedure summary in nature for correcting clerical or unsubstantial matters to make it less
tedious and expensive
2. procedure adversary in nature to govern proceedings involving substantial changes

If all procedural requirements have been followed, petition for correction/or cancellation even if filed
under Rule 108 no longer summary.

Even substantial errors may be corrected and true facts established prov. parties aggrieved by the error
avail of the appropriate adversary proceeding.

Appropriate proceeding:
a. where all relevant facts have been fully weighed and considered
b. where opposing counsel have been given opportunity to demolish the opposing partys case
c. where evidence has been thoroughly weighed and considered

Procedure becomes ADVERSARY proceedings when opposition to petition is filed by LCR or


any person having or claiming interest in entries sought to be cancelled and/ or corrected and
opposition is actively prosecuted.

Substantial corrections allowed: citizenship from Chinese to Filipino; status from legitimate to
illegitimate status of mother from married to single

Valencia ruling (en banc) reiterated in Chia Ben Lim vs. Zosa (en banc), Rep. vs. Bautista
and Zapanta vs. LCR of Davao

Attempts to revert to Ty Kong Tin Labayo Rowe vs. Rep., Leonor vs. CA and Rep. vs.
Labrador

However, all doubts resolved in Lee vs. CA (367 SCRA 110 [2001]):
1. Substantial corrections Rule 108
2. Clerical or typographical errors (including change of first name) RA 9048 (administrative correction)

Substantial corrections

Appropriate adversary proceeding is one having opposing parties; contested, as distinguished from an ex
parte application, one of which the party seeking relief has given legal warning to the other party, and afforded the
latter an opportunity to contest it.

When all the procedural requirements under Rule 108 are thus followed, the appropriate adversary
proceeding necessary to effect substantial corrections to the entries of the civil register is satisfied.

No substantial change or correction in an entry in a civil register can be made without a judicial order, and, under
the law, a change in citizenship status is a substantial change. (Republic vs. Kho, G.R. No. 170340, June 29, 2007)

N.B. A correction is SUBSTATIAL OR CONTROVERSIAL if it involves the change of the age, sex,
nationality, or civil status of a person (Rule 11.1.2 IRR, RA 9048)

Republic Act No. 9048 provides in Section 2 (3) that a summary administrative proceeding to correct clerical or
typographical errors in a birth certificate cannot apply to a change in nationality. Substantial corrections to the
nationality or citizenship of persons recorded in the civil registry should, therefore, be effected through a petition
filed in court under Rule 108 of the Rules of Court. (Kilosbayan Foundation vs. Ermita, G.R. No. 177721, July 3,
2007)

The local civil registrar has primary, not exclusive, jurisdiction over such petitions for correction of clerical
errors and change of first name or nickname, with R.A. No. 9048 prescribing the procedure that the petitioner and
local civil registrar should follow. (Re: Final Report on the Judicial Audit Conducted at the RTC, BR. 67, Paniqui,
Tarlac, A.M. No. 06-7-414-RTC, October 19, 2007)

S. Appeal in Special Proceedings


Rule 109 Appeals in special proceeding

1. Judgments and orders for which appeal may be taken


SPECIAL PROCEEDINGS | Bar Review Guide 2015 | Justice Magdangal M. de Leon | page 53
2. When to appeal

Sec. 1. Any INTERESTED PERSON may appeal from an order or judgment rendered by the RTC, where such
order or judgment

1. Allows or disallows a WILL


2. Determines who are the lawful heirs of a deceased or the DISTRIBUTIVE SHARE of the estate to which he
is entitled
3. Allows or disallows, in whole and any part, any CLAIM against the estate, or any CLAIM presented in behalf
of the estate IN OFFSET to any claim against it
4. Settles the ACCOUNT of an executor, administrator, trustee or guardian
5. Constitutes, in proceedings relating to the SETTLEMENT of the estate of the deceased, or the
ADMINISTRATION of a trustee or guardian, a FINAL DETERMINATION in the lower court of the rights of
the party appealing. Exception: no appeal from appointment of special administrator.
6. Is the FINAL ORDER or JUDGMENT rendered in the case, and affects the SUBSTANTIAL RIGHTS of the
person appealing. Unless it be an order granting or denying a motion for new trial or reconsideration
Sec. 1 (a), Rule 41: no appeal may be taken from an order denying a motion for new trial or
reconsideration.

In certain kinds of special proceedings, such as settlement of estate, appeal may be taken at
various stages of the proceedings.

3. Modes of appeal

Rules 40, 41, 42 and 45 apply in conformity with Rule 72, Sec. 2 (applicability of rules of civil actions). If it is an
ordinary appeal under Rules 40 or 41, and the special proceedings are subject to multiple appeals, like
settlement of estates, the appeal period is 30 days, a notice of appeal and record on appeal being required.

Rationale for multiple appeals


The rationale behind allowing more than one appeal in the same case is to enable the rest of the case to
proceed in the event that a separate and distinct issue is resolved by the court and held to be final. In this
multi-appeal mode, the probate court loses jurisdiction only over the subject matter of the appeal but retains
jurisdiction over the special proceeding from which the appeal was taken for purposes of further remedies the
parties may avail of.

Where multi-appeals are allowed, we see no reason why a separate petition for certiorari cannot be allowed on
an interlocutory aspect of the case that is separate and distinct as an issue from the aspect of the case that has
been adjudged with finality by the lower court. (Briones vs. Henson-Cruz, G.R. No. 159130, August 22, 2008)

Record of appeal is required only in cases where multiple appeals may arise

Rule 109 contemplates multiple appeals during the pendency of special proceedings. A record on appeal in
addition to the notice of appeal is thus required to be filed as the original records of the case should remain with
the trial court to enable the rest of the case to proceed in the event that a separate and distinct issue is resolved
by said court and held to be final.

In the present case, the filing of a record on appeal was not necessary since no other matter remained to be
heard and determined by the trial court after it issued the appealed order granting respondents petition for
cancellation of birth record and change of surname in the civil registry. (G.R. No. 186053, Nov. 15, 2010,
REPUBLIC VS. NISHINA)

4. Rule on advance distribution

Notwithstanding a pending controversy or appeal in prccedings to settle the estate of a decedent, the court
may, in its discretion and upon such terms as it may deem proper and just, permit that such part of the estate as
may be affected by the controversy or appeal be distributed among the heirs or legatees, upon compliance with
the conditions set forth in Rule 90.

Rule 90, Sec. 1 - Distribution before payment of obligations is allowed provided distributees give BOND
conditioned for payment thereof within such time as court directs.

VENUE OF SPECIAL PROCEEDINGS


1. Settlement of estate (Rule 73):
RTC (or MTC) of province where deceased last resided/property situated.

2. Escheat (Rule 91):


RTC of province where deceased last resided/property situated.
SPECIAL PROCEEDINGS | Bar Review Guide 2015 | Justice Magdangal M. de Leon | page 54

3. Guardianship:
(Rule on Guardianship of Minors [A.M. No. 03-02-05-SC])
Family Court of province or city where minor resides/property situated.

Rule 92
RTC of province or city where incompetent resides/property situated.

4. Adoption (Rule on Adoption [A.M. No. 02-6-02-SC]):


Family Court of province or city where prospective adoptive parents reside.
Rescission where adoptee resides.

5. Habeas Corpus (Rule 102):


If filed with RTC, where detainee is detained. SC, CA and RTC have concurrent jurisdiction. However, the
writ of habeas corpus issued by the RTC shall be enforceable only within its judicial region (Sec. 21, BP
129).

Habeas Corpus for custody of minors:


Family courts have exclusive jurisdiction (Family Courts Act of 1997 [RA 8309].
However, under the Rule on Custody of Minors and Writ of Habeas Corpus in relation to Custody of Minors
(A.M. No. 03-04-04-SC), the petition may be filed with SC, CA or any of its members, and the writ shall be
enforceable anywhere in the Philippines.

6. Amparo (A.M. No. 07-9-12-SC)


SC, CA and SB
RTC of the place where the threat, act or omission was committed or any of its elements occurred

7. Habeas Data (A.M. No. 08-1-16-SC)


SC, CA and SB
RTC:
1. Where petitioner resides; or
2. Where respondent resides; or
3. Which has jurisdiction over the place where data or information is gathered, etc.
All at the option of petitioner.

8. Kalikasan (A.M. 09-6-08-SC)


SC and CA

9. Change of name (Rule 103):


RTC of province of residence of petitioner.

10. Absentees (Rule 107):


RTC of place where absentee resided before his disappearance.

11. Cancellation or correction of entries (Rule 108):


RTC of place where civil registry is located.

Correction of clerical or typographical errors (RA 9048):


Local Civil Registrar of place where record is located.
Exc. if impractical in terms of transportation expenses, time and effort as where petitioner has
transferred to another place Local Civil Registrar of petitioners residence.

SPECIAL PROCEEDINGS THAT DO NOT REQUIRE PUBLICATION


1. Guardianship
2. Trustees
3. Custody of minors
4. Hospitalization of Insane Persons
5. Rescission of adoption
6. Administrative cancellation or correction of entries
7. Habeas Corpus
8. Writ of Amparo
9. Writ of Habeas Data
10. Writ of Kalikasan
11. Petitions for Foster Care and Temporary Custody
12. Cases of domestic violence against women and children
13. Summary Proceedings
SPECIAL PROCEEDINGS | Bar Review Guide 2015 | Justice Magdangal M. de Leon | page 55

Writ of KALIKASAN
RULE 7 WRIT OF KALIKASAN (A.M. No. 09-6-8-SC RULES OF PROCEDURE FOR ENVIRONMENTAL CASES)

A. Nature of the writ.

The writ is a remedy available to a natural or juridical person, entity authorized by law, peoples 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.
(Section 1.)

B. Contents of the petition. (Sec. 2)

The verified petition shall contain the following:


(a) The personal circumstances of the petitioner;
(b) The name and personal circumstances of the respondent or if the name and personal circumstances are
unknown and uncertain, the respondent may be described by an assumed appellation;
(c) The environmental law, rule or regulation violated or threatened to be violated, the act or omission complained
of, and the environmental damage of such magnitude as to prejudice the life, health or property of inhabitants
in two or more cities or provinces.
(d) All relevant and material evidence consisting of the affidavits of witnesses, documentary evidence, scientific or
other expert studies, and if possible, object evidence;
(e) The certification of petitioner under oath that: (1) petitioner has not commenced any action or filed any claim
involving the same issues in any court, tribunal or quasi-judicial agency, and no such other action or claim is
pending therein; (2) if there is such other pending action or claim, a complete statement of its present status;
(3) if petitioner should learn that the same or similar action or claim has been filed or is pending, petitioner
shall report to the court that fact within five (5) days therefrom; and
(f) The reliefs prayed for which may include a prayer for the issuance of a TEPO.

C. Where to file. (Sec. 3)

The petition shall be filed with the Supreme Court or with any of the stations of the Court of Appeals.

D. No docket fees. (Sec. 4)

The petitioner shall be exempt from the payment of docket fees.

E. Issuance of the writ. (Sec. 5)

Within three (3) days from the date of filing of the petition, if the petition is sufficient in form and substance, the court
shall give an order: (a) issuing the writ; and (b) requiring the respondent to file a verified return as provided in Section
8 of this Rule.

The clerk of court shall forthwith issue the writ under the seal of the court including the issuance of a cease and
desist order and other temporary reliefs effective until further order.

F. How the writ is served. (Sec. 6)

The writ shall be served upon the respondent by a court officer or any person deputized by the court, who shall retain
a copy on which to make a return of service. In case the writ cannot be served personally, the rule on substituted
service shall apply.

G. Prohibited pleadings and motions (Sec. 9) - The following pleadings and motions are prohibited:
(a) Motion to dismiss;
(b) Motion for extension of time to file return;
(c) Motion for postponement;
(d) Motion for a bill of particulars;
(e) Counterclaim or cross-claim;
(f) Third-party complaint;
(g) Reply; and
(h) Motion to declare respondent in default.
SPECIAL PROCEEDINGS | Bar Review Guide 2015 | Justice Magdangal M. de Leon | page 56
H. Discovery Measures.

A party may file a verified motion for the following reliefs:

(a) Ocular Inspection; order The motion must show that an ocular inspection order is necessary to establish
the magnitude of the violation or the threat as to prejudice the life, health or property of inhabitants in two or more
cities or provinces. It shall state in detail the place or places to be inspected. It shall be supported by affidavits of
witnesses having personal knowledge of the violation or threatened violation of environmental law.

After hearing, the court may order any person in possession or control of a designated land or other property to
permit entry for the purpose of inspecting or photographing the property or any relevant object or operation
thereon.

The order shall specify the person or persons authorized to make the inspection and the date, time, place and
manner of making the inspection and may prescribe other conditions to protect the constitutional rights of all
parties.

(b) Production or inspection of documents or things; order The motion must show that a production order is
necessary to establish the magnitude of the violation or the threat as to prejudice the life, health or property of
inhabitants in two or more cities or provinces.

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

The production order shall specify the person or persons authorized to make the production and the date, time,
place and manner of making the inspection or production and may prescribe other conditions to protect the
constitutional rights of all parties.

What is the Writ of Kalikasan?


The writ is a remedy available to a natural or juridical person, entity authorized by law, peoples 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.

Who may avail of the writ?


The petition can be filed by the following:
1. A natural or juridical person;
2. Entity authorized by law; or
3. POs, NGOs or any public interest group accredited by or registered with any governmental agency on
behalf of persons whose constitutional right to a balanced and healthful ecology is violated.

Where should the petition be filed? Supreme Court or Court of Appeals (Sec. 3)

What is the magnitude of environmental damage in a writ of kalikasan?


It must be of environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in
two or more cities or provinces. (sec. 1)

Is the petitioner required to pay docket fees?


No, the petitioner is exempt from payment of docket fees (Sec. 4)
The exemption encourages the public to avail of the remedy

Within what time should the issuance of the writ be made?


Within three (3) days from the date of filing of the petition, if the petition is sufficient in form and substance, the court
shall give an order: (a) issuing the writ; and (b) requiring the respondent to file a verified return as provided in Section
8 of this Rule.

What shall the return contain?


Within a non-extendible period of ten (10) days after service of the writ, the respondent shall file a verified return
which shall contain all defenses to show that respondent did not
a. violate or
b. threaten to violate, or
c. allow the violation of any environmental law, rule or regulation or
d. commit any act resulting to environmental damage of such magnitude as to prejudice the life, health or property of
inhabitants in two or more cities or provinces.
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All defenses not raised in the return shall be deemed waived.

The return shall include affidavits of witnesses, documentary evidence, scientific or other expert studies, and if
possible, object evidence, in support of the defense of the respondent.

A general denial of allegations in the petition shall be considered as an admission thereof. (Sec. 8)

What are the prohibited pleadings and motions?


(a) Motion to dismiss;
(b) Motion for extension of time to file return;
(c) Motion for postponement;
(d) Motion for a bill of particulars;
(e) Counterclaim or cross-claim;
(f) Third-party complaint;
(g) Reply; and
(h) Motion to declare respondent in default.

What are the interim reliefs available to the petitioner upon filing a verified motion?
1. Ocular inspection
2. Production or inspection of documents or things

What are the requisites for granting an ocular inspection?


The motion must show:
a. that an ocular inspection order is necessary to establish the magnitude of the violation or the threat as to
prejudice the life, health or property of inhabitants in two or more cities or provinces.
b. It shall state in detail the place or places to be inspected.
c. It shall be supported by affidavits of witnesses having personal knowledge of the violation or threatened violation
of environmental law.

What does the ocular inspection order contain?

The order shall specify the person or persons authorized to make the inspection and the date, time, place and
manner of making the inspection and may prescribe other conditions to protect the constitutional rights of all parties.

What must the motion asking for a production order or inspection of documents?

The motion must show that a production order is necessary to establish the magnitude of the violation or the threat
as to prejudice the life, health or property of inhabitants in two or more cities or provinces.

What must the production order state?

The production order shall specify the person or persons authorized to make the production and the date, time, place
and manner of making the inspection or production and may prescribe other conditions to protect the constitutional
rights of all parties.

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

On what grounds may a respondent be cited for contempt?


The court may after hearing punish the respondent who refuses or unduly delays the filing of a return, or who makes
a false return, or any person who disobeys or resists a lawful process or order of the court for indirect contempt
under Rule 71 of the Rules of Court.

NB: This section is similar to Sec. 16 of Writ of Amparao

When should the court render judgment?


Within sixty (60) days from the time the petition is submitted for decision, the court shall render judgment granting or
denying the privilege of the writ of kalikasan.

What reliefs may be granted under the writ?


The reliefs that may be granted under the writ are the following (Sec. 15):

(a) Directing respondent to permanently cease and desist from committing acts or neglecting the performance
of a duty in violation of environmental laws resulting in environmental destruction or damage;
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(b) Directing the respondent public official, government agency, private person or entity to protect, preserve,
rehabilitate or restore the environment;
(c) Directing the respondent public official, government agency, private person or entity to monitor strict
compliance with the decision and orders of the court;
(d) Directing the respondent public official, government agency, or private person or entity to make periodic
reports on the execution of the final judgment; and
(e) Such other reliefs which relate to the right of the people to a balanced and healthful ecology or to the
protection, preservation, rehabilitation or restoration of the environment, except the award of damages to
individual petitioners.

What is the period to appeal from judgment?


Within fifteen (15) days from the date of notice of the adverse judgment or denial of motion for reconsideration, any
party may appeal to the Supreme Court under Rule 45 of the Rules of Court. The appeal may raise questions of fact.

May separate actions be filed after filing the petition for issuance of Writ of Kalikasan?
The filing of a petition for the issuance of the writ of kalikasan shall not preclude the filing of separate civil, criminal or
administrative actions.

---------------------------------

WRIT OF CONTINUING MANDAMUS


RULE 8

A. Petition for continuing mandamus.


When any agency or instrumentality of the government or officer thereof unlawfully neglects the
performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station in
connection with the enforcement or violation of an environmental law rule or regulation or a right therein, or
unlawfully excludes another from the use or enjoyment of such right and there is no other plain, speedy and
adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in
the proper court, alleging the facts with certainty, attaching thereto supporting evidence, specifying that the
petition concerns an environmental law, rule or regulation, and praying that judgment be rendered
commanding the respondent to do an act or series of acts until the judgment is fully satisfied, and to pay
damages sustained by the petitioner by reason of the malicious neglect to perform the duties of the
respondent, under the law, rules or regulations. The petition shall also contain a sworn certification of non-
forum shopping.

B. Where to file the petition.


The petition shall be filed with the Regional Trial Court exercising jurisdiction over the territory where the
actionable neglect or omission occurred or with the Court of Appeals or the Supreme Court.

C. No docket fees. - The petitioner shall be exempt from the payment of docket fees.

D. Order to comment.
If the petition is sufficient in form and substance, the court shall issue the writ and require the respondent to
comment on the petition within ten (10) days from receipt of a copy thereof. Such order shall be served on
the respondents in such manner as the court may direct, together with a copy of the petition and any
annexes thereto.

CRIMINAL PROCEDURE

RULE 9 PROSECUTION OF OFFENSES

1. Who may file. - Any offended party, peace officer or any public officer charged with the enforcement of an
environmental law may file a complaint before the proper officer in accordance with the Rules of Court.

2. Filing of the information and Institution of civil action

An information, charging a person with a violation of an environmental law and subscribed by the prosecutor, shall
be filed with the court.

When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged,
shall be deemed instituted with the criminal action unless the complainant waives the civil action, reserves the right
to institute it separately or institutes the civil action prior to the criminal action.

Unless the civil action has been instituted prior to the criminal action, the reservation of the right to institute
separately the civil action shall be made during arraignment.
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In case civil liability is imposed or damages are awarded, the filing and other legal fees shall be imposed on said
award in accordance with Rule 141 of the Rules of Court, and the fees shall constitute a first lien on the judgment
award. The damages awarded in cases where there is no private offended party, less the filing fees, shall accrue to
the funds of the agency charged with the implementation of the environmental law violated. The award shall be used
for the restoration and rehabilitation of the environment adversely affected.

3. Arrest without warrant; when lawful. - A peace officer or an individual deputized by the proper government
agency may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing or is attempting
to commit an offense; or
(b) When an offense has just been committed, and he has probable cause to believe based on personal
knowledge of facts or circumstances that the person to be arrested has committed it. Individuals deputized
by the proper government agency who are enforcing environmental laws shall enjoy the presumption of
regularity under Section 3(m), Rule 131 of the Rules of Court when effecting arrests for violations of
environmental laws.

4. CUSTODY AND DISPOSITION OF SEIZED ITEMS

Custody and disposition of seized items.


The custody and disposition of seized items shall be in accordance with the applicable laws or rules promulgated
by the concerned government agency.

Procedure.

In the absence of applicable laws or rules promulgated by the concerned government agency, the following
procedure shall be observed:

(a) The apprehending officer having initial custody and control of the seized items, equipment,
paraphernalia, conveyances and instruments shall physically inventory and whenever practicable,
photograph the same in the presence of the person from whom such items were seized.

(b) Thereafter, the apprehending officer shall submit to the issuing court the return of the search warrant
within five (5) days from date of seizure or in case of warrantless arrest, submit within five (5) days from
date of seizure, the inventory report, compliance report, photographs, representative samples and other
pertinent documents to the public prosecutor for appropriate action.

(c) Upon motion by any interested party, the court may direct the auction sale of seized items, equipment,
paraphernalia, tools or instruments of the crime. The court shall, after hearing, fix the minimum bid price
based on the recommendation of the concerned government agency. The sheriff shall conduct the auction.

(d) The auction sale shall be with notice to the accused, the person from whom the items were seized, or
the owner thereof and the concerned government agency.

(e) The notice of auction shall be posted in three conspicuous places in the city or municipality where the
items, equipment, paraphernalia, tools or instruments of the crime were seized.

(f) The proceeds shall be held in trust and deposited with the government depository bank for disposition
according to the judgment.

5. BAIL

A. Where filed.

Bail in the amount fixed may be filed with the court where the case is pending, or in the absence or unavailability of
the judge thereof, with any regional trial judge, metropolitan trial judge, municipal trial judge or municipal circuit trial
judge in the province, city or municipality. If the accused is arrested in a province, city or municipality other than
where the case is pending, bail may also be filed with any Regional Trial Court of said place, or if no judge thereof is
available, with any metropolitan trial judge, municipal trial judge or municipal circuit trial judge therein. If the court
grants bail, the court may issue a hold-departure order in appropriate cases.

B. Duties of the court.

Before granting the application for bail, the judge must read the information in a language known to and understood
by the accused and require the accused to sign a written undertaking, as follows:

(a) To appear before the court that issued the warrant of arrest for arraignment purposes on the date
scheduled, and if the accused fails to appear without justification on the date of arraignment, accused
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waives the reading of the information and authorizes the court to enter a plea of not guilty on behalf of the
accused and to set the case for trial;

(b) To appear whenever required by the court where the case is pending; and

(c) To waive the right of the accused to be present at the trial, and upon failure of the accused to appear
without justification and despite due notice, the trial may proceed in absentia.

6. ARRAIGNMENT AND PLEA

A. Arraignment.

The court shall set the arraignment of the accused within fifteen (15) days from the time it acquires jurisdiction over
the accused, with notice to the public prosecutor and offended party or concerned government agency that it will
entertain plea-bargaining on the date of the arraignment.

B Plea-bargaining.

On the scheduled date of arraignment, the court shall consider plea-bargaining arrangements. Where the
prosecution and offended party or concerned government agency agree to the plea offered by the accused, the court
shall:
(a) Issue an order which contains the plea-bargaining arrived at;
(b) Proceed to receive evidence on the civil aspect of the case, if any; and
(c) Render and promulgate judgment of conviction, including the civil liability for damages.

7. PRE-TRIAL

A. Setting of pre-trial conference. - After the arraignment, the court shall set the pre-trial conference within thirty
(30) days. It may refer the case to the branch clerk of court, if warranted, for a preliminary conference to be set at
least three (3) days prior to the pre-trial.

B. Manner of questioning. - All questions or statements must be directed to the court.

C. Agreements or admissions. - All agreements or admissions made or entered during the pre-trial conference
shall be reduced in writing and signed by the accused and counsel; otherwise, they cannot be used against the
accused. The agreements covering the matters referred to in Section 1, Rule 118 of the Rules of Court shall be
approved by the court.

D. Record of proceedings. - All proceedings during the pre-trial shall be recorded, the transcripts prepared and the
minutes signed by the parties or their counsels.

E. Pre-trial order. - The court shall issue a pre-trial order within ten (10) days after the termination of the pre-trial,
setting forth the actions taken during the pre-trial conference, the facts stipulated, the admissions made, evidence
marked, the number of witnesses to be presented and the schedule of trial. The order shall bind the parties and
control the course of action during the trial.

8. SUBSIDIARY LIABILITY
In case of conviction of the accused and subsidiary liability is allowed by law, the court may, by motion of the person
entitled to recover under judgment, enforce such subsidiary liability against a person or corporation subsidiary liable
under Article 102 and Article 103 of the Revised Penal Code.

EVIDENCE
1. PRECAUTIONARY PRINCIPLE

Applicability. - When there is a lack of full scientific certainty in establishing a causal link between human activity
and environmental effect, the court shall apply the precautionary principle in resolving the case before it.

The constitutional right of the people to a balanced and healthful ecology shall be given the benefit of the doubt.

Standards for application.


In applying the precautionary principle, the following factors, among others, may be considered:
(1) threats to human life or health;
(2) inequity to present or future generations; or
(3) prejudice to the environment without legal consideration of the environmental rights of those affected.
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2. DOCUMENTARY EVIDENCE

Photographic, video and similar evidence. - Photographs, videos and similar evidence of events, acts,
transactions of wildlife, wildlife by-products or derivatives, forest products or mineral resources subject of a case
shall be admissible when authenticated by the person who took the same, by some other person present when said
evidence was taken, or by any other person competent to testify on the accuracy thereof.

Entries in official records. - Entries in official records made in the performance of his duty by a public officer of the
Philippines, or by a person in performance of a duty specially enjoined by law, are prima facie evidence of the facts
therein stated.
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REVISED RULES ON SUMMARY PROCEDURE


A. Cases covered by the Rule
The Rules shall govern the summary procedure in the MeTC, MTC and MCTC in the following cases falling within
their jurisdiction:

Civil Cases
(a) All cases of forcible entry and unlawful detainer irrespective of the amount of damages or unpaid rentals sought
to be recovered, and where attorneys fees awarded do not exceed P20,000;
(b) All other cases, except probate proceedings where the total amount of the plaintiffs claim does not exceed
P100,000 outside, or P200,000 in Metro Manila (as amended by AM 02-11-09-SC).

Criminal cases
(a) Violation of traffic laws, rules and regulations;
(b) Violations of rental laws;
(c) Violation of municipal or city ordinances
(d) Violation of BP 22 (Bouncing Checks Law)
(e) All other criminal cases where the penalty prescribed by law for the offense charged isimprisonment not
exceeding 6 months or a fine not exceeding P1,000 or both, irrespective of other imposable penalties,
accessory or otherwise, or of the civil liability arising therefrom; and in offenses involving damages to property
through criminal negligence, where the imposable fine does not exceed P1,000.

The Rule shall not apply in a civil case where the cause of action is pleaded with another cause of action
subject to the ordinary procedure, nor to criminal case where the offense charged is necessary related to
another criminal case subject to the ordinary procedure (Sec.

B. Pleadings Allowed
In civil cases the only pleadings allowed to be filed are complaints, compulsory counterclaims and cross-
claims pleaded in the answer, and the answers thereto.

C. Effect of failure to answer

Should the defendant fail to answer the complaint within 10 days from service of summons, the court shall
motu propio or on motion of the plaintiff, shall render judgment as may be warranted by the facts alleged in the
complaint and limited to what is prayed for therein; Provided, that the court may in its discretion reduce the
amount of damages and attorneys fees claimed for being excessive or otherwise unconscionable (Sec. 6). This
is without prejudice to the applicability of Sec. 4, Rule 18 if there are two or more defendants, (Sec. 4, Rule 18: It
shall be the duty of the parties and their counsel to appear at the pre-trial. The non-appearance of a party may be
excused only if a valid cause is shown therefor or if a representative shall appear in his behalf fully authorized in
writing to enter into an amicable settlement, to submit to alternative modes of dispute resolution, and to enter into
stipulations or admissions of facts and of documents).

D. Preliminary conference and appearances of parties

Not later than 30 days after the last answer is filed, a preliminary conference shall be held. The rules on pre-
trial in ordinary cases shall be applicable to the preliminary conference unless inconsistent with the provisions of
the Rule.

The failure of the plaintiff to appear in the preliminary conference shall be cause for the dismissal of his
complaint. The defendant who appears in the absence of the plaintiff shall be entitled to judgment on his
counterclaim in accordance with Section 6. All cross-claims shall be dismissed.

If a sole defendant shall fail to appear, the plaintiff shall be entitled to judgment in accordance with Sec. 6.
The Rule shall not apply where one of two or more defendants sued under a common cause of action who had
pleaded a common defenses shall appear at the preliminary conference (Sec. 7)

E. Submission of affidavits and position papers.

Within ten (10) days from receipt of the order mentioned in the next preceding section, the parties shall submit the
affidavits of their witnesses and other evidence on the factual issues defined in the order, together with their position
papers setting forth the law and the facts relied upon by them.

F. Rendition of judgment.

Within thirty (30) days after receipt of the last affidavits and position papers, or the expiration of the period for filing
the same, the court shall render judgment.
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However should the court find it necessary to clarify certain material facts, it may, during the said period, issue an
order specifying the matters to be clarified, and require the parties to submit affidavits or other evidence on the said
matters within ten (10) days from receipt of said order. Judgment shall be rendered within fifteen (15) days after the
receipt of the last clarificatory affidavits, or the expiration of the period for filing the same.

The court shall not resort to the clarificatory procedure to gain time for the rendition of the judgment. (Sec. 10)

CRIMINAL CASES

G. Arraignment and trial .

Should the court, upon a consideration of the complaint or information and the affidavits submitted by both parties,
find no cause or ground to hold the accused for trial, it shall order the dismissal of the case; otherwise, the court shall
set the case for arraignment and trial.
If the accused is in custody for the crime charged, he shall be immediately arraigned and if he enters a plea of guilty,
he shall forthwith be sentenced.(Sec 13)

H. Preliminary conference.

Before conducting the trial, the court shall call the parties to a preliminary conference during which a stipulation of
facts may be entered into, or the propriety of allowing the accused to enter a plea of guilty to a lesser offense may be
considered, or such other matters may be taken up to clarify the issues and to ensure a speedy disposition of the
case. However, no admission by the accused shall be used against him unless reduced to writing and signed by the
accused and his counsel. A refusal or failure to stipulate shall not prejudice the accused. (Sec. 14.)

I. Procedure of trial.

At the trial, the affidavits submitted by the parties shall constitute the direct testimonies of the witnesses who
executed the same. Witnesses who testified may be subjected to cross-examination, redirect or re-cross
examination.

Should the affiant fail to testify, his affidavit shall not be considered as competent evidence for the party presenting
the affidavit, but the adverse party may utilize the same for any admissible purpose. (Sec. 15)

J. Arrest of accused.

The court shall not order the arrest of the accused except for failure to appear whenever required. Release of the
person arrested shall either be on bail or on recognizance by a responsible citizen acceptable to the court. (Sec. 16)

K. Judgment.

Where a trial has been conducted, the court shall promulgate the judgment not later than thirty (30) days after the
termination of trial. (Sec. 17.)

L. Prohibited pleadings and motions. (Sec. 19.)


(a) Motion to dismiss the complaint or to quash the complaint or information except on the ground of lack of
jurisdiction over the subject matter, or failure to comply with the preceding section;
(b) Motion for a bill of particulars;
(c) Motion for new trial, or for reconsideration of a judgment, or for opening of trial;
(d) Petition for relief from judgment;
(e) Motion for extension of time to file pleadings, affidavits or any other paper; chanrobles virtual law library
(f) Memoranda;
(g) Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court;
(h) Motion to declare the defendant in default; chanrobles virtual law library
(i) Dilatory motions for postponement;
(j) Reply;
(k) Third party complaints;
(l) Interventions.

M. Appeal (Sec. 21)

The judgment or final order shall be appealable to the appropriate regional trial court which shall decide the same in
accordance with Section 22 of Batas Pambansa Blg. 129. The decision of the regional trial court in civil cases
governed by this Rule, including forcible entry and unlawful detainer, shall be immediately executory, without
prejudice to a further appeal that may be taken therefrom. Section 10 of Rule 70 shall be deemed repealed.
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PART VI. KATARUNGANG PAMBARANGAY


(Secs. 399-422, LGC)

A. Cases covered
(1) Except those enumerated as exceptions under Sec. 408, RA 7160, the following cases are cognizable with the
Katarungang Pambarangay:
(a) Disputes between persons actually residing in the same barangay;
(b) Those involving actual residents of different barangays within the same city or municipality;
(c) All disputes involving real property or any interest therein where the real property or the larger portion
thereof is situated;
(d) Those arising at the workplace where the contending parties are employed or at the institution where such
parties are enrolled for study, where such workplace or institution is located.

B. Subject matter for amicable settlement


(1) The lupon of each barangay shall have authority to bring together the parties actually residing in the same
municipality or city for amicable settlement of all disputes except:
(a) Where one party is the government or any subdivision or instrumentality thereof;
(b) Where one party is a public officer or employee, and the dispute relates to the performance of his official
functions;
(c) Offenses punishable by imprisonment exceeding one (1) year or a fine exceeding P5,000;
(d) Offenses where there is no private offended party;
(e) Where the dispute involves real properties located in different cities or municipalities unless the parties
thereto agree to submit their differences to amicable settlement by an appropriate lupon;
(f) Disputes involving parties who actually reside in barangays of different cities or municipalities, except
where such barangay units adjoin each other and the parties thereto agree to submit their differences to
amicable settlement by an appropriate lupon;
(g) Such other classes of disputes which the President may determine in the interest of justice or upon the
recommendation of the Secretary of Justice;
(h) Any complaint by or against corporations, partnerships, or juridical entities. The reason is that only
individuals shall be parties to barangay conciliation proceedings either as complainants or respondents;
(i) Disputes where urgent legal action is necessary to prevent injustice from being committed or further
continued, specially the following:
a) A criminal case where the accused is under police custody or detention;
b) A petition for habeas corpus by a person illegally detained or deprived of his liberty or one acting in his
behalf;
c) Actions coupled with provisional remedies, such as preliminary injunction, attachment, replevin and
support pendente litem;
d) Where the action may be barred by the statute of limitations;
(j) Labor disputes or controversies arising from employer-employee relationship (Montoya vs. Escayo, 17
SCRA 442);
(k) Where the dispute arises from the Comprehensive Agrarian Reform Law (Secs. 46 and 47, RA 6657);
(l) Actions to annul judgment upon a compromise which can be filed directly in court (Sanchez vs. Tupas,
158 SCRA 459).

The court in which non-criminal cases not falling within the authority of the lupon under the Code are filed
may, at any time before trial, motu propio refer the case to the lupon concerned for amicable settlement
(Sec. 408, RA 7160)

C. Venue
(1) Rule on venue under Sec. 409, RA 7160:
(a) Disputes between persons actually residing in the same barangay shall be brought for amicable settlement
before the lupon of said barangay.
(b) Those involving actual residents of different barangays within the same city or municipality shall be
brought in the barangay where the respondent or any of the respondents actually resides, at the election of
the complainant.
(c) All disputes involving real property or any interest therein shall be brought in the barangay where the real
property or the larger portion thereof is situated.
(d) Those arising at the workplace where the contending parties are employed or at the institution where such
parties are enrolled for study, shall be brought in the barangay where such workplace or institution is located.
Objections to venue shall be raised in the mediation proceedings before the punong barangay; otherwise, the
same shall be deemed waived. Any legal question which may confront the punong barangay in resolving
objections to venue herein referred to may be submitted to the Secretary of Justice, or his duly designated
representative, whose ruling thereon shall be binding (Sec. 409).

D. When parties may directly go to court


(1) Sec. 411 of RA 7160 provides:
(a) Pre-condition to filing of complaint in court. No complaint, petition, action, or proceeding involving any
matter within the authority of the lupon shall be filed or instituted directly in court or any other government
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office for adjudication, unless there has been a confrontation between the parties before the lupon chairman
or the pangkat, and that no conciliation or settlement has been reached as certified by the lupon secretary or
pangkat chairman as attested by the lupon or pangkat chairman or unless the settlement has been repudiated
by the parties thereto.
(b) Where parties may go directly to court. The parties may go directly to court in the following instances:
1) Where the accused is under detention;
2) Where a person has otherwise been deprived or personal liberty calling for habeas corpus
proceedings;
3) Where actions are coupled with provisional remedies such as preliminary injunction,
attachment, delivery of personal property, and support pendente lite; and
4) Where the action may otherwise be barred by the statute of limitations.

E. Execution
(1) The amicable settlement or arbitration award may be enforced by execution by the lupon within six (6) months
from the date of the settlement. After the lapse of such time, the settlement may be enforced by action in the
appropriate city or municipal court (Sec. 417, RA 7160).

F. Repudiation
(1) Any party to the dispute may, within ten (10) days from the date of the settlement, repudiate the same by filing
with the lupon chairman a statement to that effect sworn to before him, where the consent is vitiated by fraud,
violence, or intimidation. Such repudiation shall be sufficient basis for the issuance of the certification for filing a
complaint as hereinabove provided (Sec. 418 RA 7160).

PART VII. RULE OF PROCEDURE FOR SMALL CLAIMS CASES


(AM No. 08-8-7-SC, as amended)

A. Scope and applicability of the Rule


SEC. 2. Scope. These Rules shall govern the procedure in actions before the Metropolitan Trial Courts (MeTCs),
Municipal Trial Courts in Cities (MTCCs), Municipal Trial Courts (MTCs) and Municipal Circuit Trial Courts (MCTCs)
for payment of money where the value of the claim does not exceed Two Hundred Thousand Pesos (P200,000.00)
exclusive of interest and costs.

SEC. 4. Applicability.

The Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts, and Municipal Circuit Trial
Courts shall apply this Rule in all actions which are: (a) purely civil in nature where the claim or relief prayed for by
the plaintiff is solely for payment or reimbursement of sum of money, and (b) the civil aspect of criminal actions,
either filed before the institution of the criminal action, or reserved upon the filing of the criminal action in court,
pursuant to Rule 111 of the Revised Rules of Criminal Procedure.

These claims or demands may be:


(a) For money owed under any of the following:
1. Contract of Lease;
2. Contract of Loan;
3. Contract of Services;
4. Contract of Sale; or
5. Contract of Mortgage;
(b) For damages arising from any of the following:
1. Fault or negligence;
2. Quasi-contract; or
3. Contract;
(c) The enforcement of a barangay amicable settlement or an arbitration award involving a money claim covered by
this Rule pursuant to Sec. 417 of Republic Act 7160, otherwise known as the Local Government Code of 1991.

B. Commencement of small claims action; Response


(1) Commencement of Small Claims Action.

A small claims action is commenced by filing with the court an accomplished and verified Statement of Claim (Form
1-SCC) in duplicate, accompanied by a Certification of Non-forum Shopping (Form 1-A, SCC), and two (2) duly
certified photocopies of the actionable document/s subject of the claim, as well as the affidavits of witnesses and
other evidence to support the claim. No evidence shall be allowed during the hearing which was not attached to or
submitted together with the Claim, unless good cause is shown for the admission of additional evidence. No formal
pleading, other than the Statement of Claim described in this Rule, is necessary to initiate a small claims action (Sec.
5).

(2) Response. The defendant shall file with the court and serve on the plaintiff a duly accomplished and verified
Response within a non-extendible period of ten (10) days from receipt of summons. The response shall be
SPECIAL PROCEEDINGS | Bar Review Guide 2015 | Justice Magdangal M. de Leon | page 66
accompanied by certified photocopies of documents, as well as affidavits of witnesses and other evidence in support
thereof. No evidence shall be allowed during the hearing which was not attached to or submitted together with the
Response, unless good cause is shown for the admission of additional evidence. The grounds for the dismissal of
the claim, under Rule 16 of the Rules of Court, should be pleaded (Sec. 11)

(3) Effect of Failure to File Response. Should the defendant fail to file his Response within the required period,
and likewise fail to appear at the date set for hearing, the court shall render judgment on the same day, as may be
warranted by the facts. Should the defendant fail to file his Response within the required period but appears at the
date set for hearing, the court shall ascertain what defense he has to offer and proceed to hear, mediate or
adjudicate the case on the same day as if a Response has been filed (Sec. 12).

C. Prohibited pleadings and motions


(1) Prohibited Pleadings and Motions. The following pleadings, motions, or petitions shall not be allowed in the
cases covered by this Rule:
(a) Motion to dismiss the complaint;
(b) Motion for a bill of particulars;
(c) Motion for new trial, or for reconsideration of a judgment, or for reopening of trial;
(d) Petition for relief from judgment;
(e) Motion for extension of time to file pleadings, affidavits, or any other paper;
(f) Memoranda;
(g) Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court;
(h) Motion to declare the defendant in default;
(i) Dilatory motions for postponement;
(j) Reply;
(k) Third-party complaints; and
(l) Interventions (Sec. 14).

D. Appearances
(1) Appearance. The parties shall appear at the designated date of hearing personally. Appearance through a
representative must be for a valid cause. The representative of an individual-party must not be a lawyer, and must be
related to or next-of-kin of the individual-party. Juridical entities shall not be represented by a lawyer in any capacity.
The representative must be authorized under a Special Power of Attorney (Form 5-SCC) to enter into an amicable
settlement of the dispute and to enter into stipulations or admissions of facts and of documentary exhibits (Sec. 16).

(2) Appearance of Attorneys Not Allowed. No attorney shall appear in behalf of or represent a party at the
hearing, unless the attorney is the plaintiff or defendant. If the court determines that a party cannot properly present
his/her claim or defense and needs assistance, the court may, in its discretion, allow another individual who is not an
attorney to assist that party upon the latters consent (Sec. 17).

(3) Non-appearance of Parties. Failure of the plaintiff to appear shall be cause for the dismissal of the claim
without prejudice. The defendant who appears shall be entitled to judgment on a permissive counterclaim. Failure of
the defendant to appear shall have the same effect as failure to file a Response under Section 12 of this Rule. This
shall not apply where one of two or more defendants who are sued under a common cause of action and have
pleaded a common defense appears at the hearing. Failure of both parties to appear shall cause the dismissal with
prejudice of both the claim and counterclaim (Sec. 18).

E. Hearing; duty of the judge


(1) Duty of the Court. At the beginning of the court session, the judge shall read aloud a short statement
explaining the nature, purpose and the rule of procedure of small claims cases (Sec, 20).

(2) Hearing. At the hearing, the judge shall exert efforts to bring the parties to an amicable settlement of their
dispute. Any settlement (Form 7-SCC) or resolution (Form 8-SCC) of the dispute shall be reduced into writing,
signed by the parties and submitted to the court for approval (Form 12-SCC) Settlement discussions shall be strictly
confidential and any reference to any settlement made in the course of such discussions shall be punishable by
contempt (Sec. 21).

F. Finality of judgment

Decision - After the hearing, the court shall render its decision on the same day, based on the facts established by
the evidence (Form 13-SCC). The decision shall immediately be entered by the Clerk of Court in the court docket for
civil cases and a copy thereof forthwith served on the parties.

The decision shall be final and unappealable (Sec. 23).

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SPECIAL PROCEEDINGS | Bar Review Guide 2015 | Justice Magdangal M. de Leon | page 67

JUDICIAL AFFIDAVIT RULE


[A.M. No. 12-8-8-SC, 4 September 2012]

A. Scope .
This Rule shall apply to all actions, proceedings, and incidents requiring the reception of evidence before:

(1) The Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the Municipal Trial Courts, the Municipal
Circuit Trial Courts, and the Sharia Circuit Courts but shall not apply to small claims cases under A.M. 08-8-7-
SC;

(2) The Regional Trial Courts and the Sharia District Courts;

(3) The Sandiganbayan, the Court of Tax Appeals, the Court of Appeals, and the Sharia Appellate Courts;

(4) The investigating officers and bodies authorized by the Supreme Court to receive evidence, including the
Integrated Bar of the Philippine (IBP); and

(5) The special courts and quasi-judicial bodies, whose rules of procedure are subject to disapproval of the
Supreme Court, insofar as their existing rules of procedure contravene the provisions of this Rule.[1]

B. Contents and Procedure

Contents of Judicial Affidavit. A judicial affidavit shall be prepared in the language known to the witness and, if
not in English or Filipino, accompanied by a translation in English or Filipino, and shall contain the following:

(a) The name, age, residence or business address, and occupation of the witness;
(b) The name and address of the lawyer who conducts or supervises the examination of the witness and the
place where the examination is being held;
(c) A statement that the witness is answering the questions asked of him, fully conscious that he does so
under oath, and that he may face criminal liability for false testimony or perjury;
(d) Questions asked of the witness and his corresponding answers, consecutively numbered, that:
(1) Show the circumstances under which the witness acquired the facts upon which he testifies;
(2) Elicit from him those facts which are relevant to the issues that the case presents; and
(3) Identify the attached documentary and object evidence and establish their authenticity in
accordance with the Rules of Court;
(e) The signature of the witness over his printed name; and
(f) A jurat with the signature of the notary public who administers the oath or an officer who is authorized by
law to administer the same.

Sworn attestation of the lawyer.


The judicial affidavit shall contain a sworn attestation at the end, executed by the lawyer who conducted or
supervised the examination of the witness, to the effect that:
(1) He faithfully recorded or caused to be recorded the questions he asked and the corresponding answers
that the witness gave; and
(2) Neither he nor any other person then present or assisting him coached the witness regarding the latters
answers.

A false attestation shall subject the lawyer mentioned to disciplinary action, including disbarment.

PROCEDURE:

What must be filed and served


The parties shall file with the court and serve on the adverse party, personally or by licensed courier service, not later
than five days before pre-trial or preliminary conference or the scheduled hearing with respect to motions and
incidents, the following:

(1) The judicial affidavits of their witnesses, which shall take the place of such witnesses' direct testimonies;
and
(2) The parties' docun1entary or object evidence, if any, which shall be attached to the judicial affidavits and
marked as Exhibits A, B, C, and so on in the case of the complainant or the plaintiff, and as Exhibits 1, 2,
3, and so on in the case of the respondent or the defendant. (Sec. 2 (a))

FILING AND SERVICE IN CRIMINAL CASES


The prosecution shall submit the judicial affidavits of its witnesses not later than five days before the pre-trial, serving
copies if the same upon the accused. The complainant or public prosecutor shall attach to the affidavits such
documentary or object evidence as he may have, marking them as Exhibits A, B, C, and so on. No further judicial
affidavit, documentary, or object evidence shall be admitted at the trial.
SPECIAL PROCEEDINGS | Bar Review Guide 2015 | Justice Magdangal M. de Leon | page 68
If the accused desires to be heard on his defense after receipt of the judicial affidavits of the prosecution, he shall
have the option to submit his judicial affidavit as well as those of his witnesses to the court within ten days from
receipt of such affidavits and serve a copy of each on the public and private prosecutor, including his documentary
and object evidence previously marked as Exhibits 1, 2, 3, and so on. These affidavits shall serve as direct
testimonies of the accused and his witnesses when they appear before the court to testify. (Sec 9)

Subpoena
If the government employee or official, or the requested witness, who is neither the witness of the adverse party nor
a hostile witness, unjustifiably declines to execute a judicial affidavit or refuses without just cause to make the
relevant books, documents, or other things under his control available for copying, authentication, and eventual
production in court, the requesting party may avail himself of the issuance of a subpoena ad testificandum or duces
tecum under Rule 21 of the Rules of Court. The rules governing the issuance of a subpoena to the witness in this
case shall be the same as when taking his deposition except that the taking of a judicial affidavit shal1 be understood
to be ex parte. (Sec. 5)

HOW OFFER OF TESTIMONY IS MADE:


The party presenting the judicial affidavit of his witness in place of direct testimony shall state the purpose of such
testimony at the start of the presentation of the witness. (Sec. 6)

Objections to testimony in judicial affidavit.


The adverse party may move to disqualify the witness or to strike out his affidavit or any of the answers found in it on
ground of inadmissibility. The court shall promptly rule on the motion and, if granted, shall cause the marking of any
excluded answer by placing it in brackets under the initials of an authorized court personnel, without prejudice to a
tender of excluded evidence under Section 40 of Rule 132 of the Rules of Court. (Sec. 6)

Effect of judicial Affidavit Rule to Other Rules.


The provisions of the Rules of Court and the rules of procedure governing investigating officers and bodies
authorized by the Supreme Court to receive evidence are repealed or modified insofar as these are inconsistent with
the provisions of this Rule.(Sec. 11)

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