Special Proceedings

SPECIAL
PROCEEDINGS
Atty. Francesca Lourdes M. Señga
Special Proceedings
◦ a remedy by which a party seeks to establish a status, a right, or a particular fact [RULES OF
COURT, Rule 1, Sec. 3 (c) ]
◦ In the absence of special provisions, the rules provided for in ordinary actions shall be, as far
as practicable, applicable in special proceedings [RULES OF COURT, Rule 72, Sec. 2 ]
◦ courts act with limited jurisdiction
Special Proceeding
◦ Different from Summary proceeding
◦ Presumptive Death, Art. 41
◦ Consent of spouse required in transactions, judicial authorization through summary proceeding after
separation in fact, Art. 100 (2) and Art. 127 (2)
◦ In absence of community property/conjugal property, spouse present shall be given judicial authority
to encumber and administer any specific property of other spouse to satisfy share after separation in
fact, Art. 100 (3) and Art. 127 (3)
◦ Parental authority over foundlings/abused or neglected children entrusted in summary judicial
proceedings to heads of children’s homes, institutions accredited by government agency, Art. 217
◦ Approval of bond for guardianship over property of minor, Art. 225
◦ Separation in fact, abandonment and parental authority incidents, Art. 238, Art. 252
◦ Other matters – Art. 253
Special Proceedings – Rules of Court
◦ Settlement of estate of deceased persons (Rule 73-90);
◦ Escheat (Rule 91);
◦ Guardianship and custody of children (Rule 92-97);
◦ Trustees (Rule 98);
◦ Adoption (Rule 99) – Domestic Adoption Act, Inter Country Adoption Act, RA 11222, Simulated Birth Rectification Act
◦ Rescission and revocation of adoption (Rule 100);
◦ Hospitalization of insane persons (Rule 101);
◦ Habeas Corpus; (Rule 102);
◦ Change of Name; (Rule 103);
◦ Voluntary dissolution of corporations; (Rule 104);
◦ Judicial approval of voluntary recognition of minor natural children; (Rule 105) – Family Code
◦ Constitution of family home; (Rule 106) – Family Code
◦ Declaration of absence and death (Rule 107); and
◦ Cancellation and correction of entries in the civil registry (Rule 108) – RA 9048 as amended by RA 10172
Special Proceedings
◦ Nullity of Marriage
◦ Annulment of Marriage
◦ Legal Separation
◦ Amparo
◦ Habeas Data
Settlement of Estate of Deceased Persons
◦ Facts sought to be established: death and validity of will
◦ Exceptions
◦ Probate during lifetime

◦ Due execution of will
◦ Termination of the proceedings
◦ Probate during lifetime not res judicata in relation to petition for issuance of letters
testamentary Maloles II v. Pacita De Los Reyes Phillips, G.R. Nos. 129505 & 133359, 31
January 2000
◦ Presumption of Death
◦ Rule 107, Absence
◦ Article 390 – legal presumption, no judicial declaration of death
◦ 10 years for purposes of succession
◦ 5 years if disappeared after 75 years of age
◦ 4 years if under exceptional circumstances
◦ (1) a person on board a vessel lost during a sea voyage or an airplane which is missing, has
not been heard of for 4 years since the loss of the vessel or airplane;
◦ (2) a person in the armed forces who has taken part in war has been missing for 4 years; and
◦ (3) a person has been in danger of death under other circumstances and his existence has not
been known for 4 years
◦ the presumption of death is established by law and no court declaration is needed for the
presumption to arise (Valdez v. Republic, G.R. No. 180863, 8 September 2009)
◦ A judicial pronouncement on such presumption is useless because it would still be a prima

facie presumption, and as such, disputable [In Re: Gue v. Republic, G.R. No. L-14058, 24
March 1960, citing In Re: Szatraw v. Sors, 81 Phil. 461 (1948)]
Remedy of person presumed dead but
later found to be alive
◦ Article 392 of the Civil Code - recover his property in the condition in which it may be found,
and the price of any property that may have been alienated or the property acquired therewith
◦ Section 4, Rule 73 - entitled to the balance of his estate after payment of all his debts,
recovered by motion in the same proceeding
Jurisdiction
◦ RTC shall have jurisdiction over all matters of probate, both testate and intestate, where the
gross value of the estate exceeds Php300,000.00 or, in probate matters in Metro Manila, where
such gross value exceeds Php400,000.00. Otherwise, it shall be with the appropriate MTC.
[Section 19 (4) of BP 129 ]
◦ gross value of the estate not assessed value

Rule 73 - Venue
◦ decedent is an inhabitant of the Philippines at the time of his death, whether a citizen or an
alien - in the province in which he resides at the time of his death
◦ Resides / domicile – resident/inhabitant/actual residence with continuity and consistency [Jao

v. Court of Appeals, G.R. No. 128314, 29 May 2002 ]
◦ In Re: Eusebio v. Eusebio, et al., G.R. No. L-8049, 28 December 1956

◦ (a) capacity to choose and freedom of choice;
◦ (b) physical presence at the place chosen; and
◦ (c) intention to stay therein permanently
Rule 73 - Venue
◦ decedent is an inhabitant of a foreign country, venue shall be in the proper court of any
province in which he had estate
◦ Cayetano v. Leonidas, G.R. No. 54919, 30 May 1984
◦ proceedings in Manila, where the decedent, who was proven to be a citizen and permanent
resident of the United States, had an estate
Rule 73 - Venue
◦ Rule 73 only pertains to venue and not to jurisdiction
◦ Not CFI but RTC or MTC, depending on gross estate – BP 129
◦ Venue is procedural, jurisdiction is substantive

Rule 73 – Venue
◦ The court with whom the petition is first filed, must also first take cognizance of the settlement
of the estate in order to exercise jurisdiction over it to the exclusion of all other courts
◦ Uriarte vs. Court of First Instance of Negros Occidental, G.R. No. L-21938-39, 29 May
1970 - Proceedings for the probate of a will enjoy priority over intestate proceedings
◦ Rodriguez v. De Borja, G.R. No. L-21993, 21 June 1966 - Only after final decision as to the
nullity of testate succession could an intestate succession be instituted in the form of pre-
established action.
Rule 73 - Venue
◦ jurisdiction assumed by a court, so far as it depends on the place of residence of the decedent,
or of the location of the estate, shall not be contested in a suit or proceeding
◦ Except: appeal from that court, in the original case or when the want of jurisdiction appears
on the record [RULES OF COURT, Rule 73, Sec. 1]
Improper Venue Subject to Waiver
◦ laying of venue is procedural rather than substantive; it relates to the jurisdiction of the court
over the person rather than the subject matter [Dacoycoy v. Intermediate Appellate Court, G.R.
No. 7854, 2 April 1991 ]
◦ Consolidated Bank and Trust Corp. v. Intermediate Appellate Court, G.R. No. 75017, 3 June
1991 – waiver, failure to file motion to dismiss and estoppel
◦ Cayetano v. Leonidas, G.R. No. 54919, 30 May 1984 - estoppel
Settlement of Estates Upon Dissolution
of Marriage
◦ Art. 103 and 130 of the Family Code
◦ ACP/CPG liquidated in the same proceedings for settlement of deceased; if both died then in
settlement of either
◦ If no settlement within 6 months, surviving spouse to liquidate
◦ If no liquidation, any disposition or encumbrance is void
◦ Mandatory regime of separation of property for subsequent marriage
Issuance of Warrants and Process
◦ To compel attendance of witnesses
◦ Carry into effect orders
◦ Apprehension and imprisonment
Deed of Extrajudicial Settlement/
Partition
◦ If the decedent left no will and no debts, and the heirs are all of age, or the minors are represented by their
judicial or legal representatives duly authorized for the purpose
◦ File with office of register of deeds
◦ Partition if fail to agree
◦ Avelino v. Court of Appeals, G.R. No. 115181 (Resolution), 31 March 2000 – conversion of petition for
issuance of letters administration to partition upon motion of heirs
◦ Publication once 1 week for 3 consecutive weeks
◦ Bond in an amount equivalent to the value of the personal property involved as certified under oath by the
parties concerned
◦ Real Property – Lien
◦ conditioned upon the payment of any just claim that may be filed by an heir or other person unduly deprived of his
lawful participation in the estate or an unpaid creditor
Affidavit of Self-Adjudication
◦ Sole heir, no debts
◦ Filed with the office of the register of deeds
◦ Bond for personal property, in an amount equivalent to the value of the personal property involved as
certified under oath by the parties concerned; real property, lien
◦ conditioned upon the payment of any just claim that may be filed by an heir or other person unduly
deprived of his lawful participation in the estate or an unpaid creditor
If decedent left a will but no debts, may Section 1, Rule 74
Apply?
No. Section 1, Rule 74 only applies if there are no debts and no will left behind. If the decedent
left a will and no debts, the will must be admitted to probate and the estate divided in
accordance with the will. The heirs may not do away with the presentation of the will to the
court for probate, because such suppression of the will is contrary to law and public policy
[Guevara v. Guevara, 74 Phil. 479 (1943) ]
Summary Settlement of Estates of Small
Value
◦ gross value of the estate does not exceed Php10,000.00, whether there be a will left behind or not, an
action for summary settlement of estate may be filed in the appropriate MTC by an interested person
2-year prescriptive period
◦ 2 years from the settlement or distribution of estate in accordance with Sections 1 or 2 of Rule 74, for an
heir or a person unduly deprived of his participation in the estate to compel settlement of estate in court
for the purpose of satisfying such lawful participation
◦ After the lapse of 2 years, a person who has been deprived of his lawful participation in the estate of the
decedent, whether as heir or as creditor, will be precluded from doing so as the right will have prescribed
◦ If on the date of the expiration of the 2-year perceptive period the person authorized to file a claim is a
minor or mentally incapacitated, or is in prison or outside the Philippines, he may present his claim
within 1 year after such disability is removed
◦ No extrajudicial settlement shall be binding upon any person who has not participated therein
or had no notice thereof
◦ contemplates a notice that has been sent out or issued before any deed of settlement and/or
partition is agreed upon, i.e., notice calling all interested parties to participate in the said
deed of extrajudicial settlement and partition, and not after such agreement had already
been executed
◦ 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
◦ for the protection of creditors and was never intended to deprive heirs of their lawful
participation in the decedent’s estate
◦ shall not apply to a partition that was null and void. The rule only contemplates valid partitions
◦ Agolto v. Court of Appeals, G.R. No. L-23025, 30 June 1970
◦ Segura v. Segura, G.R. No. L-29320, 19 September 1988
◦ Cua v. Vargas, G.R. No. 156536, 31 October 2006 ; Article 1088, Civil Code
Probate/ Allowance of Will
◦ act of proving before a competent court the due execution of a will by a person having testamentary
capacity, as well as the approval thereof by said court
◦ In rem
◦ Mandatory
◦ Art. 838 Civil Code
◦ Art. 1080 Civil Code
◦ Imprescriptible – public policy to obey will of testator
◦ Not subject to laches/estoppel
Limited Jurisdiction In Probate of Will;
Exceptions
◦ relates only to matters having to do with the settlement of the estate and probate of will of deceased
persons
◦ Probate court exercises special and limited jurisdiction
◦ Exceptions:
◦ Ownership to determine inventory
◦ Optional submission, with consent of all heirs and third person/ no third person shall be prejudiced thereby
◦ Status of heir
◦ Whether property is conjugal or not
◦ Matters collateral or incidental to probate of estate
May the production/delivery of the will be
compelled by mandamus?
◦ No. There are other plain, speedy adequate remedies under the Rules of Court to compel
delivery. [Uy Kiao Eng v. Lee, G.R. No. 176831, 15 January 2010 ]
◦ Fine
◦ Order to deliver
◦ Committed to prison until delivery
Who may petition for allowance of will
◦ Executor
◦ Devisee
◦ Legatee
◦ Testator himself during lifetime
◦ Any other person interested in the estate
Reason for Allowing Probate During
Lifetime of Testator
◦ Minimize cases (lessen contest on will)
◦ Easier to determine capacity/ absence of fraud
◦ Can rectify mistakes
◦ Intrinsic validity will remain (Maloles II v. Pacita De Los Reyes Phillips, G.R. Nos. 129505 & 133359,
January 31, 2000)
Contents of Petition
◦ Jurisdictional Facts
◦ Death of decedent
◦ residence at the time of his death in the province where the probate court is sitting, or if he is an inhabitant of a
foreign country, his having left his estate in such province
◦ Gross value of estate
Is it mandatory that the original will be attached
to the Petition?
No. Annexing of the original will to the petition is not a jurisdictional
requirement is clearly evident in Section 1, Rule 76 of the Rules of Court
which allows the filing of a petition for probate by the person named therein
regardless of whether or not he is in possession of the will, or the same is lost
or destroyed .
Publication
◦ Notice of court’s order setting the time and place for providing the will and when all concerned may
appear to contest the allowance thereof shall be published 3 weeks successively, previous to the time
appointed, in a newspaper of general circulation in the province
◦ No publication if the petition for probate is filed by the testator himself
◦ Publication is notice to the whole world that the proceeding has for its object to bar indefinitely all who
might be minded to make an objection of any sort against the right sought to be established.
◦ notice that brings in the whole world as a party (Alaban v. Court of Appeals, G.R. No. 156021,
September 23, 2005)
Probate of Will Conclusive as to due
execution
◦ Cannot be assailed once it attains finality
◦ Exceptions:
◦ (1) Petition for relief under Rule 38 of the Rules of Court which must be filed within sixty (60) days after
learning of the decision, but not more than six (6) months after such decision is entered;
◦ (2) By direct action, via a special civil action for certiorari, or by collateral attack, assuming that the
decision is void for want of jurisdiction;
◦ (3) By an independent civil action under Article 1114 of the Civil Code, assuming that the decision was
obtained through fraud and Rule 38 can not be applied. (Heirs of Fran v. Salas, G.R. No. 53546, June
25, 1992)
Non-distribution of estate not ground to
re-open testate proceedings
◦ Remedy is to file a motion for execution
◦ Court may direct transfer of possession of share/property
◦ if no motion for execution is filed within the reglementary period, a separate action for the recovery of
the shares would be in order (Heirs of Fran v. Salas, G.R. No. 53546, June 25, 1992)
Notice on Heirs, Devisees, Legatees, and
Executors
◦ Personal service at least 10 days before the hearing
◦ Deposited in the post office with postage thereon prepaid at least 20 days before the hearing
◦ Exception:
◦ If testator asks for allowance of own will, notice shall be sent only to compulsory heirs
Proof at Hearing
◦ Show compliance with publication and notice requirements (Sec. 3 and 4 of Rile 76)
◦ Testimony of witnesses shall be taken under oath and reduced to writing
◦ NOTARIAL WILL
◦ If no person appears to contest allowance, court may grant allowance on the testimony of
subscribing witnesses, if testified that the will was executed as required by law
◦ If all subscribing witnesses reside outside the province – deposition is allowed and the court
may authorize a photographic copy of the will to be made and to be presented to the witness
on his examination
◦ If the subscribing witnesses are dead, insane, or none of them resides in the Philippines – The
court may admit testimony of other witnesses to prove the sanity of the testator, and the due
execution of the will, and as evidence of the execution of the will, it may admit proof of the
handwriting of the testator and of the subscribing witnesses or of any of them
Proof at Hearing
◦ Contested Notarial Will
◦ All subscribing witnesses and the notary public before whom the will was acknowledged, if
present in the Philippines and not insane, must be produced and examined
◦ if any or all the witnesses
◦ (i) testify against the execution of the will,
◦ (ii) do not remember attesting thereto, or
◦ (iii) are of doubtful credibility,
◦ the will may be allowed if the court is satisfied from the testimony of other witnesses and
from all the evidence presented that the will was executed and attested in the manner
required by law (an instance where a party may impeach his own witness)
Proof at Hearing
◦ Holographic will – necessary that at least 1 witness knows the handwriting and signature of testator and
declare the will and signature are the handwriting of testator; in the absence thereof – expert testimony
◦ Probate by testator - If there is no contest, the fact that the testator affirms that the holographic will and
the signature are in his own handwriting shall be sufficient evidence of the genuineness and due
execution thereof.
◦ In case of contest, the burden of proof is on the contestant.
◦ Burden of proof remains with contestant but burden of evidence shifts to testator – testator may, in
turn, present such additional proof as may be necessary to rebut the evidence of the contestant
Proof at Hearing
◦ Contested Holographic Will
◦ At least three (3) witnesses who know the handwriting of testator. In the absence thereof and if the court
deem it necessary, testimony of an expert witness may be resorted to.
◦ The word "shall" connotes a mandatory order (for at least 3). The goal is to give effect to the wishes of
the deceased and the evil to be prevented is the possibility that unscrupulous individuals who for their
benefit will employ means to defeat the wishes of the testator.
May a lost/destroyed holographic will be
probated?
Yes, if there exists a photocopy of the hologrpahic will. The copy is required so that it
may be used as basis for comparing the handwriting of the testator therein with sample
handwritten statements.
May a lost or destroyed notarial will be
probated?
Yes, but the will must be first proved as lost or destroyed by establishing:
1. its execution and validity;
2. its existence at the time of death of the testator, or was fraudulently or accidentally destroyed during the
lifetime of the testator without his knowledge; and
3. The provisions of the will, clearly and distinctly proved by at least 2 credible witnesses
What is the duty of the court when a lost will is
proved, if any?
When a lost will is proved, the provisions thereof must be distinctly stated
and certified by the judge, under the seal of the court, and the certificate must
be filed and recorded as other wills are filed and recorded. (Sec. 6, Rule 76)
Contestant Must file Grounds
◦ Grounds contesting the will must be in writing
◦ Copies thereof must be served on the petitioner and the other
parties interested in the estate
Exclusive List for Disallowing Will
◦ If not executed and attested as required by law (Formalities);
◦ If the testator was Insane, or otherwise mentally incapable to make a will, at the time of its
execution;
◦ If it was executed under Duress, or the influence of fear, or threats;
◦ If it was procured by Undue and improper pressure and influence, on the part of the
beneficiary, or of some other person for his benefit; or
◦ If the Signature of the testator was procured by fraud or trick, and he did not intend that the
instrument should be his will at the time of fixing his signature thereto.
Certificate of Allowance
◦ Signed by the judge
◦ Attested by the seal of the court
◦ Attached to the will, which will be filed and recorded by the clerk
◦ Attesting copies of the will devising real estate and of certificate of allowance thereof shall
be recorded in the register of deeds in which the lands lie
Allowance of Will Proved Outside of the
Philippines
◦ A will of a foreigner executed abroad can be probated in the Philippines
without need of being probated abroad
◦ Art. 816 of the Civil Code - the will of an alien who is abroad produces
effect in the Philippines if made in accordance with the formalities
prescribed by the law of the place where he resides, or according to the
formalities observed in his country.
Reprobate
◦ to establish the validity of a will proved in a foreign country
◦ Cannot require that a will executed abroad be first probated abroad before it may be admitted to probate
in the Philippines especially if the instituted heirs do not have the means to go abroad for the probate of
the will; it is as good as depriving them outright of their inheritance (In Re: Palaganas, G.R. No. 169114,
January 26, 2011).
Notice of Hearing for Allowance
◦ Petition for allowance accompanied with:
◦ Authenticated copy of the will; and
◦ Authenticated decree of the allowance thereof.
◦ Court will then fix a time and place for the hearing, and cause notices thereof to be given as in
case of an original will presented for allowance
◦ Will is treated as one being presented for probate for the first time
◦ Notice and publication must be complied with
Requirements/ proof for reprobate
◦ The due execution of the will in accordance with the foreign laws;
◦ The testator has his domicile in the foreign country and not in the Philippines;
◦ The will has been admitted to probate in such country;
◦ The fact that the foreign tribunal is a probate court; and
◦ The laws of a foreign country on procedure and allowance of wills
◦ Our courts do not take judicial notice of foreign law
◦ Official translation
◦ Doctrine of Processual Presumption - In the absence of proof of the foreign law, it is presumed that it is the same as
that in the Philippines
Effect of Allowance of Will
◦ a certificate of its allowance, signed by the judge and attested by the seal of the court to which shall be
attached a copy of the will
◦ shall be filed and recorded by the clerk,
◦ the will shall have the same effect as if originally proved and allowed in such court.
◦ Letters testamentary or administration with a will annexed shall extend to all estates in the Philippines
◦ After payment of just debts and expenses of administration, the residue of the estate shall be disposed
of as provided by law in cases of estates in the Philippines belonging to persons who are inhabitants of
another state or country
◦ When a person dies intestate owning property in the country of domicile as well as in a foreign
country, administration shall be had in both countries.
◦ Ancillary Administration - that which is granted in the jurisdiction other than the decedent’s domicile
Disqualifications to serve as
executor/administrator
◦ Minority
◦ Non-resident of the Philippines
◦ If in the opinion of the court, unfit to exercise duties of the trust by reason of the following:
◦ Drunkenness
◦ Improvidence
◦ Want of understanding or integrity
◦ Conviction of an offense involving moral turpitude
◦ Executor of an executor shall not administer the estate of the first executor
◦ Applies to administrator of executor (Philippine Commercial and Industrial Bank v. Escolin, G.R. Nos. L-27860 &
L-27896, L-27937, March 29, 1974)
Disqualifications to serve as
executor/administrator
◦ Married woman not disqualified
◦ Single woman who subsequently marries not disqualified
Improvidence
◦ want of care and foresight in the management of property which would be likely to render the estate and
effects of the intestate unsafe and liable to be lost or diminished in value (Black’s Law Dictionary, 5th ed.,
p.682);
Moral Turpitude
◦ "an act of baseness, vileness, or depravity in the private duties which a man owes his fellow men, or to
society in general, contrary to the accepted and customary rule of right and duty between man and
woman, or conduct contrary to justice, honesty, modesty, or good morals.”(Villaber v. COMELEC, G.R.
No. 148326, 15 November 2001)
◦ "embezzlement, forgery, robbery, and swindling are crimes which denote moral turpitude and, as a
general rule, all crimes of which fraud is an element are looked on as involving moral
turpitude" (De Jesus-Paras v. Valloces, A.C. No. 439, 12 April 1961)
◦ Does not include violation of NIRC for failing to file income tax return, especially since the accused
therein appealed the conviction. Even if convicted, not ground for disqualification. What is of moral
turpitude is one that involves willfulness and fraudulent intent, i.e., filing fraudulent return with
intent to evade tax, and note merely failure to file return (Republic v. Marcos II, G.R. Nos. 130371 &
130855, August 4, 2009)
Special Administrator
◦ When there is delay in granting letters testamentary or of administration, by any cause, including an
appeal from an allowance or disallowance of a will
◦ an officer of the court who is subject to its supervision and control, expected to work for the best
interest of the entire estate, with a view to its smooth administration and speedy settlement. (Co v.
Rosario, G.R. No. 160671, 30 April 2008)
◦ When appointed, he or she is not regarded as an agent or representative of the parties suggesting the
appointment (Heirs of Belinda Dahlia A. Castillo v. Lacuata-Gabriel, G.R. No. 162934, 11 November
2005)
◦ The principal object of the appointment of a temporary administrator is to preserve the estate until it can
pass to the hands of a person fully authorized to administer it for the benefit of creditors and heirs, (Tan v.
Gedorio, Jr., G.R. No. 166520, 14 March 2008)
◦ Must give a bond before entering upon duties
◦ Amount of bond – such sum as the court directs
◦ Condition on bond – that he will (1) make and return a true inventory of the goods,
chattels, rights, credits and estate of deceased which come to his possession or knowledge; and
(2) truly account for such as are received by him when required by court, and deliver the
same to the person appointed as executor or administrator or person authorized to receive
◦ Takes possession and charge of the estate of the deceased and preserves the same until the
questions causing delay are decided and the executors/administrators are appointed
◦ Not liable to pay any debts of the deceased unless ordered by the court
◦ In performance of duty, may commence and maintain suits as administrator
◦ May sell only perishable property and other property as the court orders sold
◦ Court is not bound by rules on fitness and order preference for appointment of regular
administrator
◦ The probate court may appoint or remove special administrators based on grounds other than
those enumerated in the Rules at its discretion
May the probate court appoint its clerk of court as special
administrator?
NO. The probate court's appointment of its branch clerk of court as special administrator is not a
salutary practice because it might engender the suspicion that the probate Judge and his clerk of
court are in cahoots in milking the decedent's estate. Should the branch clerk of court commit
any abuse in the course of his administration, the probate Judge might find it difficult to hold
him to a strict accountability. A court employee should devote his official time to his official
duties and should not have as a sideline the administration of a decedent's estate. (Balanay, Jr. v.
Martinez, G.R. No. L-39247, June 27, 1975)
◦ Supreme Court sustained probate court’s revocation of appointment as special

administrators for failing to post their administrators' bond and to submit an inventory
and accounting as required of them, tantamount to failing to comply with its lawful
orders.
◦ the ability to post the bond is in the nature of a qualification for the office of
administration. (Ocampo v. Ocampo, G.R. No. 187879, July 5, 2010)
◦ The order appointing a special administrator is not appealable (Gurrea v. Vda. de Gurrea, G.R.
No. L-21917, November 29, 1966)
◦ Not being appealable, the only remedy against the appointment of a special administrator
is Certiorari under Rule 65 of the Rules of Court (Tan v. Gedorio, Jr., G.R. No. 166520,
March 14, 2008)
May the court decline to appoint the illegitimate
son of the decedent’s spouse as special
administrator?
What about a debtor of the decedent?

YES. The illegitimate son of the decedent’s spouse is not related to the decedent nor an heir, and
therefore a stranger. A debtor, like an illegitimate son of the decedent’s spouse has interests
incongruent with the duties of a special administrator. [Manungas v. Loreto, G.R. No. 193161,
22 August 2011; Zamora v. Twitchett, G.R. No. 217613 (Notice), July 2, 2018]
Effect of Grant of Letters Testamentary or
of Administration on Special Administrator
◦ Powers shall cease
◦ Shall deliver to the executor or administrator the goods, chattels, money and estate of deceased in his
hands
◦ Executor and administrator to prosecute to final judgment suits commenced by special adminstrator
Letters Testamentary
◦ Executor
◦ Person named in the will, not disqualified and accepts the trust, nominated by the testator to carry out the directions
and requests in his will and to dispose of his property according to his testamentary provisions after his death
◦ After will has been proved and allowed, court issues letters testamentary provided executor named in the will
accepts the trust, is competent and gives the bond required
◦ If more than 1 named in the will but not all are competent, accepts or gives the bond required, letters testamentary
may issue to such of them as are competent, accepts and gives bond
X was appointed administrator in the intestate proceedings of W’s estate. After X’s appointment,
W’s brother, B, submitted to the court for allowance, a document purporting to be W’s will,
where B was named as executor. Upon B’s motion, the appointment of X was revoked and B
was instead appointed administrator. What the probate court’s ruling proper?
NO. Section 4 of Rule 79 provides that letters testamentary shall issue in favor of the executor named in
the will when a will has been proved and allowed and provided the executor is competent, accepts the trust
and gives the bond as required, The will was only submitted but not yet allowed to probate. The discovery
of a document purporting to be the will of the deceased, after the appointment of administrator on the
assumption that the decedent died intestate, does not nullify the letters of administration already issued
or authorize the revocation thereof, until the alleged will has been proven and allowed by the
court. (Advincula v. Teodoro, Sr., G.R. No. L-9282, May 31, 1956)
Petition for Letters of Administration
◦ Filed by an “interested person” - one who would be benefited in the estate, such as an heir, or one who
has a claim against the estate, such as a creditor (Garcia-Quiazon v. Belen, G.R. No. 189121, July 31,
2013)
◦ A person not legally adopted has no interest in the property of the deceased (Eusebio v. Valmores, G.R.
No. L-7019, May 31, 1955)
◦ a compulsory heir stands to be benefited by the distribution of estate - is deemed to be an interested
party. Garcia-Quiazon v. Belen, G.R. No. 189121, July 31, 2013)
◦ 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. (Vda. de Chua v. Court of
Appeals, G.R. No. 116835, March 5, 1998)
◦ The lack of interest of the person who filed the petition is not a jurisdictional fact, but a dismissal of the
petition may be sustained on the ground of lack of legal capacity to institute proceedings (Pilipinas
Shell Petroleum Corp. v. Dumlao, G.R. No. L-44888, February 7, 1992)
◦ Court shall fix time and place for hearing the petition and shall cause notice thereof to be given to the
known heirs and creditors of the decedent, and to any other persons believed to have interest in the
estate
◦ There shall be publication for 3 weeks successively
◦ Notice personally served at least 10 days before hearing/ deposited in the post office with postage thereon prepaid
at least 20 days before the hearing
◦ The requirement as to notice is essential to the validity of the proceedings in order that no person may be
deprived of his right or property without due process of law. The absence of notice makes the
proceedings voide (Eusebio v. Valmores, G.R. No. L-7019, May 31, 1955)
Letters of Administration
◦ Administrator with a will annexed - If no executor is named in the will/ executor is incompetent or
refuses the trust/ or fails to give a bond
◦ When a person dies intestate=
Order of Preference:
a. Surviving husband or wife, next of kin, or both, in the discretion of the court, or to such
person as such surviving wife or husband or next of kin requests to have appointed, if
competent and willing to serve
◦ Surviving spouse is supposed to have an interest therein as a partner in the conjugal partnership. The widow would
have the right of succession over a portion of the exclusive property of the decedent, aside from her share in the
conjugal partnership. For such reason, she would have as much, if not more, interest in administering the entire
estate correctly than any other next of kin (Gabriel v. Court of Appeals, G.R. No. 101512, August 7, 1992)
◦ "next of kin" refers to those whose relationship with the decedent is such that they are entitled to share in the estate
as distributees (Solinap v. Locsin, Jr., G.R. No. 146737, 10 December 2001)
b. One or more of the principal creditors, if competent and willing to serve - if those in (a) be
incompetent or unwilling, or husband be a widow, or next of kin neglects for 30 days after
death of person to apply for administration or request that administration be granted to some
other person
◦ remedy for the judgment creditor to enforce his claim, in the absence of estate
proceeding. He may initiate proceedings under Section 1, Rule 76 of the Rules of Court
if the judgment debtor died testate or under Section 6(b) Rule 78 if he died intestate.| (Py
Eng Chong v. Herrera, G.R. No. L-31229, March 25, 1976)
c. Such other person as the court may select if (c) not competent and willing to serve
◦ a probate court cannot arbitrarily and without sufficient reason disregard the preferential rights
of the surviving spouse to the administration of the estate of the deceased spouse. But, if the
person enjoying such preferential rights is unsuitable, the court may appoint another
person.
◦ Unsuitableness may consist in adverse interest of some kind or hostility to those
immediately interested in the estate.[Sioca v. Garcia, 44 Phil. 711 (1923)]
◦ The determination of a person's suitability for the office of administrator rests, to a great
extent, in the sound judgment of the court exercising the power of appointment
◦ Remedy is to appeal an erroneous appointment (Uy v. Court of Appeals, G.R. No. 167979,
March 16, 2006)
◦ order of preference is not absolute for it depends on the attendant facts and circumstances of each
case. The selection of an administrator lies in the sound discretion of the trial court. (Suntay III v.
Cojuangco-Suntay, G.R. No. 183053, June 16, 2010)
◦ an administrator is not supposed to represent the interests of any particular party and his acts are deemed
to be objectively for the protection of the rights of everybody concerned with the estate of the decedent
◦ criterion in the selection of the administrator is not his impartiality alone but, more importantly, the
extent of his interest in the estate - the one assumed to have greater interest is preferred to another
who has less. (Philippine Commercial and Industrial Bank v. Escolin, G.R. Nos. L-27860 & L-27896, L-
27937, March 29, 1974)
◦ The underlying assumption behind this rule is that those who will reap the benefit of a wise, speedy,
economical administration of the estate, or, on the other hand, suffer the consequences of waste,
improvidence or mismanagement, have the highest interest and most influential motive to administer the
estate correctly. (Gonzales v. Aguinaldo, G.R. No. 74769, September 28, 1990)
◦ Letters of administration may be granted to a qualified applicant, though it appears that there are other
competent persons having better right to the administration, if such persons fail to appear when
notified and claim the issuance of letters to themselves
◦ Inaction implies indifference [Lota v. Tolentino, 90 PHIL 829 (1952)]
May the court appoint co-administrators/ more
than 1 administrator?
Co-Administrators
YES. In the appointment of an administrator, the principal consideration is the interest in the estate of the
one to be appointed. The order of preference does not rule out the appointment of co-administrators,
specially in cases where justice and equity demand that opposing parties or factions be represented in the
management of the estates. (Delgado Vda. De De la Rosa v. Heirs of Marciana Rustia Vda. De Damian,
G.R. No. 155733, 27 October 2006)
In the exercise of its discretion, the probate court may appoint one, two or more co-administrators to have
the benefit of their judgment and perhaps at all times to have different interests represented. (Gonzales v.
Aguinaldo, G.R. No. 74769, September 28)
Co-Administrator
◦ performs all the functions and duties and exercises all the powers of a regular administrator, only that he
is not alone in the administration [De Borja v. Tan, 97 Phil. 874 (1955)]
◦ Co-administrators may be allowed and appointed in the following instances:
1. to have the benefit of their judgment and perhaps at all times to have different interests represented;
2. where justice and equity demand that opposing parties or factions be represented in the management of
the estate of the deceased;
3. where the estate is large or, from any cause, an intricate and perplexing one to settle;
4. to have all interested persons satisfied and the representatives to work in harmony for the best interests
of the estate; and
5. when a person entitled to the administration of an estate desires to have another competent person
associated with him in the office (Gabriel v. CA, G.R. No. 101512, 7 August 1992)
Co-Administrator
◦ In Uy v. Court of Appeals, G.R. No. 167979, March 16, 2006, the court sustained the appointment of the
son of the deceased and the creditor as co-administrators since the estate was sizeable and the son was
having a difficult time attending to it alone, as shown by the son’s failure to submit any report regarding
the estate under his administration.
Opposition
◦ Any person interested in a will may state in writing the grounds why letters testamentary should not
issue to the persons named therein as executors, or any of them, and the court, after hearing upon notice,
shall pass upon the sufficiency of such grounds.
◦ A petition may, at the same time, be filed for letters of administration with the will annexed.
◦ An "interested person" is one who would be benefited by the estate, such as an heir, or one who has a
claim against the estate, such as a creditor, and whose interest is material and direct, not merely
incidental or contingent. (Maloles II v. Pacita De Los Reyes Phillips, G.R. Nos. 129505 & 133359,
January 31, 2000)
Opposition
◦ A person nearest of kin to the decedent is not necessarily an interested person if he is not an heir or
creditor
◦ One who dies with no compulsory heirs may dispose of his entire estate by will (Art. 842, Civil Code) in
favor of any person having capacity to succeed. So the nearest of kin, who is not a compulsory heir or
heir named in the will has no right or interest to intervene in the settlement proceedings (Maloles II v.
Pacita De Los Reyes Phillips, G.R. Nos. 129505 & 133359, January 31, 2000)
Bonds of Executors and Administrators
◦ the bond secures the performance of the duties and obligations of an administrator namely:
(1) to administer the estate and pay the debts;
(2) to perform all judicial orders;
(3) to account within 1 year and at any other time when required by the probate court; and
(4) to make an inventory within 3 months. (Ocampo v. Ocampo, G.R. No. 187879, July 5, 2010)
◦ for the benefit of the creditors and the heirs, as it compels the administrator, whether regular or special,
to perform the trust reposed in, and discharge the obligations incumbent upon, him.
◦ object and purpose is to safeguard the properties of the decedent
◦ bond should not be considered as part of the necessary expenses chargeable against the estate, not being
included among the acts constituting the care, management, and settlement of the estate.
Bonds of Executors and Administrators
◦ The position of an executor or administrator is one of trust
◦ to safeguard the estates of deceased persons, executor or administrator must give a suitable bond
◦ ability to give this bond is in the nature of a qualification for the office
◦ execution and approval of the bond constitute a condition precedent to acceptance of the responsibilities
of the trust.
◦ when the individual profers an adequate bond and has it approved by the probate court, he admits the
adequacy of the compensation which is permitted him pursuant to law. [Sulit v. Santos, G.R. No. 34895,
56 PHIL 626 (1932)]
Administrator Executor
- Appointed by court if no appointed executor/executor refused - Named in the will

appointment (administrator with will annexed), or if will disallowed or
there is intestate succession
- No duty to present will to court - Duty to present will to court w/in 20 days from knowledge of
death/from knowledge he is named executor if learned thereof after death
of testator
- Required to file bond unless exempted by law - May be exempted by testator from filing bond, but court may require to
give bond conditioned on payment of debts
Joint administrators/executors – court may take a separate bond from each or a joint bond from all
Compensation under Sec. 7, Rule 85 – Php4.00/ day or commission upon - same as administrator, unless deceased by will makes some other
the value of so much of estate as comes into his possession and finally provision for he compensation of executor – such provision shall be
disposed of by him in payment of debts, expenses, legacies or full satisfaction for his services unless by written instrument filed in
distributive shares, or by delivery to heirs or devisees, of 2% of 1 st the court the executor renounces all claim to compensation provided
Php5,000.00 of such value, 1% of so much of such value as exceeds by the will
Php5,000.00 and does not exceed Php30,000.00, ½% exceeding
Php30,000.00 but not exceeding Php100,000.00, ¼% of exceeding
Php100,000.00; greater sum may be allowed where estate is large or
settlement attended by difficulty
if more 2 or more, compensation apportioned among them by court according to services actually rendered by them
Revocation of Administration, Death, Resignation
and Removal of Executors and Administrators
◦ Administrators have such an interest in the execution of their trust as entitle them to protection from
removal without just cause.
◦ Section 2 of Rule 82 of the Rules of Court provides the legal and specific causes authorizing the court to
remove an administrator.
◦ the court is invested with ample discretion in the removal of an administrator; it however must have
some fact legally before it in order to justify a removal.
◦ There must be evidence of an act or omission on the part of the administrator not conformable to or in disregard of
the rules or the orders of the court, which it deems sufficient or substantial to warrant the removal of the
administrator.
◦ In making such a determination, the court must exercise good judgment, guided by law and precedents. (Gonzales
v. Aguinaldo, G.R. No. 74769, September 28, 1990)
Revocation of Administration, Death, Resignation
and Removal of Executors and Administrators
◦ Revocation - If will is proved and allowed by the court – administrator shall surrender the letters to the court and render his
account; proceedings for issuance of letters testamentary shall proceed
◦ Death of administrator/executor
◦ Acceptance of resignation
◦ Removal –
◦ neglect to render account and settle the estate in accordance with law
◦ Neglect to perform an order or judgment of the court, or duty expressly provided by rules
◦ Becomes incapable or unsuitable to discharge the trust
◦ May be permitted to resign instead
◦ an order removing the executor or administrator is appealable.|Borromeo v. Borromeo, G.R. No. L-6363,
September 15, 1955)
◦ Acts done before revocation/resignation/removal shall remain valid
◦ Remaining executor/administrator to continue, if none left, appoint anew
X and Y were co-administrators. X manifested in court that she was having
some misunderstanding with Y. On this basis, to remove any conflict, the court
removed Y as administrator. Was the court’s removal of Y as administrator
valid?
NO. While it is desirable that the administration of the deceased's estate be marked with
harmonious relations between co-administrators, mere disagreements between such joint
fiduciaries, without misconduct, cannot sustain a valid removal. Conflicts of opinion and
judgment naturally, and, inevitably, occur between persons with different interests in the same
estate. Such conflicts, if unresolved by the co-administrators, can be resolved by the probate
court to the best interest of the estate and its heirs. The removal must be with just cause.
(Gonzales v. Aguinaldo, G.R. No. 74769, September 28, 1990)
Inventory and Appraisal
◦ Within 3 months after his appointment every executor or administrator shall return to the court a true
inventory and appraisal of all the real and personal estate of the deceased which has come into his
possession or knowledge. In the appraisement of such estate, the court may order one or more of the
inheritance tax appraisers to give his or their assistance.
◦ The usage of the word all i demands the inclusion of all the real and personal properties of the
decedent in the inventory, but is qualified by the phrase which has come into his possession or
knowledge, which signifies that the properties must be known to the administrator to belong to the
decedent or are in her possession as the administrator.
◦ This rule allows no exception, for the phrase true inventory implies that no properties appearing to
belong to the decedent can be excluded from the inventory, regardless of their being in the possession of
another person or entity (Aranas v. Mercado, G.R. No. 156407, January 15, 2014)
Inventory and Appraisal
◦ Objective in requiring the inventory and appraisal of the estate of the decedent is to aid the court in
revising the accounts and determining the liabilities of the executor or the administrator, and in malting a
final and equitable distribution (partition) of the estate and otherwise to facilitate the administration of
the estate. [Siy Chong Keng v. CIR, 60 Phil. 493 (1934)]
◦ EXCLUSIONS – inventory and administration
◦ Wearing apparel of the surviving spouse and minor children
◦ Marriage bed and bedding
◦ Such provision and other articles as will necessary be consumed in the substinence of the family of the deceased
Provision for Support of Family
◦ Surviving spouse and minor or incapacitated children of deceased, during settlement of estate, shall
receive therefrom, under the direction of the court, such allowances as are provided by law
◦ Administrator cannot decide on his own the provision for support, it must be with the approval of and
under the direction of the court (Cotia v. Jimenez, G.R. No. L-12132, December 22, 1958)
◦ Art. 194, FC – support comprises everything indispensable for sustenance, dwelling, clothing, medical
attendance, education and transportation, in keeping with the financial capacity of the family. Education
shall include schooling or training for some profession, trade or vocation, even beyond the age of
majority.
◦ Article 195, FC – the following are obliged to support each other, to the whole extent set forth in Art.
194:
1. Spouses
2. Legitimate ascendants and descendants
3. Parents and their legitimate children and the legitimate and illegitimate children of the latter
4. Parents and their illegitimate children and the legitimate and illegitimate children of the latter;
5. Legitimate brothers and sisters, whether of the full or half-blood
◦ Sec. 3, Rule 84 made a distinction – minor or incapacitated children
◦ No distinction under the law on minority or incapacity
◦ The fact that the children are of age, gainfully employed or married is of no moment and should not be regarded
as the determining factor of their right to allowances.
◦ While the Rules of Court limit allowances to the widow and minor or incapacitated children of the deceased, the
law gives the surviving spouse and his/her children without distinction. Since the provision of a substantive la,
gives the surviving spouse and to the children the right to receive support during the liquidation of the estate of
the deceased, such right cannot be impaired by Rule 83, Sec. 3 which is a procedural rule.
◦ the "spouse,” must be the "legitimate spouse” and not a common law spouse (Santero v. Court of First Instance
of Cavite, G.R. Nos. L-61700-03, September 14, 1987)
◦ The law is rooted on the fact that the right and duty to support, especially the right to education, subsist even
beyond the age of majority. (Estate of Ruiz v. Court of Appeals, G.R. No. 118671, January 29, 1996)
◦ A guardianship court, being a court of limited jurisdiction, cannot enforce an order granting
allowance issued by a settlement court.
◦ The court referred to in Sec. 3, Rule 83 is the court hearing the settlement of estate since the
provision of the surviving spouse’s allowance is to be taken from the common mass of
property forming part of the estate of the decedent
◦ it is the court hearing the settlement of the estate that should effect the payment of widow's
allowance considering that the properties of the estate are within its jurisdiction, to the
exclusion of all other courts. (Heirs of Bang v. Sy, G.R. Nos. 114217 & 150797, October 13,
2009)
General Powers and Duties
◦ The right of an executor or administrator to the possession and management of the real and personal
properties of the deceased is not absolute and can only be exercised "so long as it is necessary for the
payment of the debts and expenses of administration.” (Estate of Ruiz v. Court of Appeals, G.R. No.
118671, January 29, 1996)
May an executor/administrator lease a property part of the estate for a period of 3 years
without prior court approval?
Will the 3-year lease violate Art. 1878 (8) of the Civil Code, that provides that special
powers of attorneys are necessary for the lease of any real property to another person
for more than 1 year?
May an executor/administrator lease a property part of the estate for a period of 3 years
without prior court approval?
YES. Lease has been considered an act of administration [Jocson de Hilado vs. Nava, 69 Phil.,
1 (1939]
Will the 3-year lease violate Art. 1878 (8) of the Civil Code, that provides that special powers of
attorneys are necessary for the lease of any real property to another person for more than 1
year?
NO. While it may be admitted that the duties of a judicial administrator and an agent are in some
respects, identical (they act in a representative capacity), the provisions on agency should not apply to
a judicial administrator. A judicial administrator is appointed by the Court. He is not only the
representative of said Court, but also the heirs and creditors of the estate [Chua Tan vs. del
Rosario, 57 Phil., 411 (1932)].
A judicial administrator before entering into his duties, is required to file a bond. These circumstances
are not true in case of agency. The agent is only answerable to his principal. The protection which the
law gives the principal, in limiting the powers and rights of an agent, stems from the fact that control
by the principal can only be thru agreements, whereas the acts of a judicial administrator are subject
to specific provisions of law and orders of the appointing court. (San Diego, Sr. v. Nombre, G.R. No.
L-19265, May 29, 1964], 120 PHIL 162-167)
Accountability
◦ chargeable in his account with all estate and income, and with the proceeds of so much of the estate sold
by him, at the price it was sold
◦ Shall not profit by the increase or suffer loss by the decrease or destruction without his fault of any part
of the estate
◦ Must account for the excess when he sells any part of the estate for more than the appraisement
◦ If sold for less than the appraisement, he is not responsible for the loss if he sale has been justly made
◦ Settlement of any claim against the estate for less than its nominal value, he is entitle to charge in his
account only the amount actually paid or settled
◦ Not accountable for debts due the deceased which remained uncollected without his fault
Accountability
◦ If uses/occupies any part of real estate himself, shall account for it as may be agreed upon between him
and interested parties, or adjusted by the court with their consent; if parties do not agreed upon the sum,
it may be ascertained by the court, whose determination shall be respected as final
◦ If neglects or unreasonably delays to raise money, by collecting debts or selling real or personal estate of
deceased, or neglects to pay over the money he has in his hands and value of estate is lessened or
unnecessary cost or interest accrues, or person interested suffer loss, shall be deemed waste and damage
sustained may be charged and allowed against him in his account, and he shall be liable therefor on his
bond
◦ Paid costs awarded against him shall be allowed in his administration account, unless it appears the
action or proceeding in which costs were taxed was prosecuted or resisted without just cause and not in
good faith
Accountability
◦ Shall render an account within 1 year from time of receiving letters unless otherwise directed by court
due to extensions of time for presenting claims against or paying the debts of the estate, or for disposing
of the estate
◦ Render further accounts as court may require until the estate is wholly settled
◦ Court may examine them upon oath with respect to ever matter relating to any account rendered and
shall examine them as to the correctness of account before it is allowed, except when no objection is
made to the allowance and its correctness is satisfactorily established by competent proof
◦ Before the account is allowed, notice shall be given to persons interested of the time and place of
examining and allowing the same and such notice shall be given personally to such persons interested or
by advertisement in a newspaper/s, or both as court may direct
Accountability
◦ Upon settlement of the account of an executor or administrator, a person liable as surety in respect to
such account may, upon application, be admitted as a party to accounting
Compensation
◦ If an attorney, shall not charge against the estate any professional fees for legal services rendered by him
◦ Necessary expenses for the care, management and settlement of the estate
◦ Necessary Expenses are such expenses as are entailed for the preservation and productivity of the estate
and for its management for purposes of liquidation, payment of debts, and distribution of the residue
among persons entitled thereto
Claims Against Estate
◦ A notice to creditors is not in order if only a special administrator has been appointed.
◦ be published for 3 successive weeks in a newspaper of general circulation in the province
◦ posted for the same period in 4 public places in the province and in two 2 public places in the municipality where
the decedent last resided
◦ File a printed copy of the notice Within 10 days after publication and posting, setting forth dates of the
first and last publication thereof and name of the newspaper in which the same is printed
◦ Section 1, Rule 86 provides that "immediately after granting letters of testamentary or of
administration, the court shall issue a notice requiring all persons having money claims against the
decedent to file them in the office of the clerk of said court”. This contemplates the appointment of an
executor or regular administrator and not that of a special administrator. (Balanay, Jr. v. Martinez,
G.R. No. L-39247, June 27, 1975)
◦ Pertains to money claims
◦ Arising from contracts, express or implied, whether it be due, not due or contingent
◦ A deficiency judgment is a contingent claim and therefore, must be filed with the probate
court where the settlement of the deceased is pending, within the period fixed for the filing
of claims (First National City Bank of New York v. Cheng Tan, G.R. No. L-14234, February
28, 1962)
◦ Funeral expenses and for the last sickness of decedent
◦ The purpose of presentation of claims against decedents of the estate in the probate court is to protect the
estate of deceased persons. The executor or administrator will be able to examine each claim and
determine whether it is a proper one which should be allowed. It is to apprise the administrator and the
probate court of the existence of the claim so that a proper and timely arrangement may be made for its
payment in full or by pro-rata portion in the due course of the administration because upon the death of a
person, his entire estate is burdened with the payment of all of his debts and no creditor shall enjoy any
preference or priority; all of them shall share pro-rata in the liquidation of the estate of the deceased.
(Estate of Olave v. Reyes, G.R. No. L-29407, July 29, 1983)
Statute of Non-Claims
◦ Court shall state the time for filing of claims against the estate which shall not be more than 12 months nor
less than 6 months after date if the first publication of notice
◦ Claims not filed within that period shall be barred
Exceptions:
1. At any time before an order of distribution is entered, on application of a creditor who failed to file his claim
within the period provided, the court may, for cause shown and on such terms as are equitable, allow such claim
to be filed within a time not exceeding 1 month
◦ there is a time limit for the exercise by the court of discretion to allow claims presented beyond the period previously fixed,
in no case beyond the entry of the order of distribution [Edmands v. Philippine Trust Co., 87 PHIL 405 (1950)]
◦ Claim of taxes due from the estate filed beyond the period prescribed but before an order of the distribution is entered was
granted, in the absence of any valid ground, justifying denialthereof, specially considering that it was for allowance of
claim for taxes due from the estate, which in effect represents a claim of the people at large (Vera v. Fernandez, G.R. No. L-
31364, March 30, 1979)
Statute of Non-Claims
2. When set forth as counterclaims in any action that the executor or administrator may bring against the
claimants
3. When an executor/administrator commences an action. Or prosecutes an action already commenced by
the deceased in his lifetime, debtor may set forth by answer the claims he has against the decedent, instead
of presenting them independently to the settlement court, and mutual claims may be set off against each
other in such action
◦ if a final judgment is rendered in favor of defendant, the amount so determined shall be considered the true balance
against the estate as though the claim was presented directly before the court in the administration
proceedings
◦ Claims not yet due or contingent may be approved at their present value
What is the effect of death of a defendant when a case for
collection of sum of money was filed against him?
1. Sec. 16, Rule 3 provides that when a party to a pending action dies, and the claim is not extinguished, it
shall be the duty of his counsel to inform the court within 30 days after the death f the fact thereof and
to give the name and address of legal representative. The court shall order the legal representative to
appear and be substituted. The heirs of the deceased may be allowed to be substituted for the deceased,
without requiring the appointment of an executor/administrator and the court may appoint a guardian
ad litem for the minor heirs.
2. The final judgment of the appellate court shall not be enforceable by a writ of execution but should be
filed in the probate court as a money claim in accordance with Rule 86, Sec. 5 (Paredes v. Moya, G.R.
No. L-38051, December 26, 1974). If none of the heirs is willing to be substituted defendant, the
creditor has to procure the appointment of an executor/administrator (ROC, Rule 3, Sec. 16).
3. If death occurs after final judgment had been rendered against decedent prior to death but without levy
on execution effected on his property, such judgment must also be filed as a claim against the estate
4. If levy has been made before the death, the same may be sold for the satisfaction of the judgment
obligation, and the officer making the sale shall account to the executor/administrator for any surplus in
his hands (Sec. 7(c), Rule 39)
◦ Solidary obligation - Claim should be filed against decedent as if he were the only debtor without
prejudice on the part of the estate to recover contribution from the other debtor
◦ Art. 1216, Civil Code – the creditor may proceed against any of the solidary debtors
◦ Joint obligation - The claim must be confined to the portion belonging to the decedent.
Remedies of Mortgagee
The mortgage creditor can avail of only one of the following three remedies and if he fails to recover under that
remedy he can not avail of any of the other two remedies (Bachrach Motor Co., Inc., v. Icarangal, G.R. No. L-
45350, May 29, 1939):
1. Abandon or waive the security and prosecute his claim against the estate and share in the general distribution of
the assets of the estate;
2. Foreclose his mortgage or realize upon his security by action in court making the executor/administrator a
party defendant;
◦ If there is judgment for deficiency, after the sale of the mortgaged properties or property pledged, in the
foreclosure or other proceeding to realize upon the security, he may file a claim (contingent) against the estate
within the statute of non-claims;
3. Rely solely on his mortgage or other security alone and foreclose (judicially or extrajudicially) the same at
anytime within the period of the statute of limitations but he cannot be admitted as creditor and shall not receive
in the distribution of the other assets of the estate.
Redemption
◦ Executor/Administrator may redeem the foreclosed property, but the redemption is subject to
the approval of the settlement court (Manalansan v. Castaneda, G.R. No. L-43607, June 27,
1978).
Claim of Executor/Administrator Against
Estate
◦ If executor/ administrator has claims against the estate, like a creditor, he shall give notice thereof, in
writing, to the court, and the court shall appoint a special administrator
◦ The special administrator, shall in the adjustment of such claim, have the same liability of a general
administrator or executor in the settlement of other claims.
Judgment on the Claims
◦ Court shall either approve or disapprove the claim
◦ Judgment is appealable
Actions By and Against Executors and
Administrators
◦ No action upon a claim for recovery of money or debt or interest thereon shall be commenced against the
executor or administrator – filed as claims against the estate instead
◦ Actions to recover real or personal property, or an interest therein, from the estate, or to enforce a lien
thereon, and actions to recover damages for an injury to person or property, real or personal
◦ an action for legal separation is abated by the death of the plaintiff, even if property rights are involved,
because these rights are mere effects of a decree of separation, their source being the decree itself;
without the decree such rights do not come into existence, so that before the finality of a decree, these
claims are merely rights in expectation. If death supervenes during the pendency of the action, no decree
can be forthcoming, death producing a more radical and definitive separation; and the expected
consequential rights and claims would necessarily remain unborn. (Sy v. Eufemio, G.R. No. L-30977,
January 31, 1972)
Administrators
◦ May bring or defend actions for causes which survive, in the right of the deceased, for the recovery or
protection of the property or rights of the deceased
◦ rentals allegedly due to the decedent's estate may not be collected by the administrator by filing a motion
in the testate proceeding. The said rentals do not constitute property in the administrator's hands and are
not within the effective control of the probate court. The proper procedure in collating such rentals is to
file an independent action so that the right of the estate thereto may be the threshed out in a full-dress
trial on the merits. (Lachenal v. Salas, G.R. No. L-42257, June 14, 1976)
Administrators
Double Value Rule
◦ A person who, before the granting of letters testamentary or administration, embezzles or alienates any
money, goods, chattels or effects of the deceased, shall be liable to an action in favor of the
executor/administrator for double the value of the property sold, embezzled, or alienated, to be recovered
for the benefit of the estate.
Property fraudulently conveyed by
deceased may be recovered
◦ When there is a deficiency of assets in the hands of the executor/administrator for the payment of the
debts and expenses for administration - and the deceased in his lifetime had conveyed property with
intent to defraud his creditors, or to avoid any right debt or duty
◦ deceased had so conveyed such property, right, interest, debt or credit that by law the conveyance would
be void as against his creditors, and the subject of the attempted conveyance would be liable to
attachment by any of them in his lifetime
◦ there must be an application of the creditors of the deceased
◦ creditors making the application pay such part of the costs and expenses, or give security therefor to the
executor/administrator, as the court deems equitable
◦ If executor/administrator fails to bring such action, any of the creditors may bring suit in his own name,
with leave of court, upon the filing of an indemnity bond for such costs and expenses as may arise from
the suit
Payment of the Debts of the Estate
◦ If, after hearing all the money claims against the estate, and after ascertaining the amount of such claims,
it appears that there are sufficient assets to pay the debts, the executor/administrator shall pay the same
within the time limited for that purpose.
◦ A writ of execution is not the proper procedure to satisfy debts. The court must order the sale or
mortgage of the properties of decedent, the proceeds of which will satisfy the debts and expenses
(Aldamiz v. Judge of CFI of Mindoro, G.R. No. L-2360, December 29, 1949)
Order of preference in the payment of
debts
1. From the portion or property designated in the will;
2. From the personal property; and
3. From the real property.
◦ Exception: The court, on petition of interested parties, may modify such order of disposition.
◦ If the testator makes a provision in his will or designates the estate to be appropriated for the payment of
his debts, the expenses for administration, or family expenses, they shall be paid according to the
provisions of the will
◦ If the provision made by the will is not sufficient, Such part of the estate as is not disposed of by will,
real or personal, if any, shall be appropriated for that purpose
Payment of Debts
Instances when real property can be charged first:
1. When the decedent’s personal property is insufficient;
2. When the sale of personal property shall be detrimental to the participants of the estate;
3. When the sale of personal property may injure the business or interests of those interested in the estate;
4. When the testator during his lifetime has not made sufficient provision for the payment of such debts,
expenses, and legacies (ROC, Rule 89, Sec. 2);
5. When the decedent was, in his lifetime, under contract, binding in law, to deed real property to
beneficiary (ROC, Rule 89, sec. 8); and
6. When the decedent during his lifetime held real property in trust for another (ROC, Rule 89, Sec. 9).
Payment of Debts
◦ If court is satisfied that there are valid contingent claims, court may order the executor/administrator to
retain in his hands a sufficient part of the estate to pay such contingent claim when it becomes absolute,
or If the estate is insolvent, such portion equal to the dividend of the creditors.
◦ If such contingent claim becomes absolute and is presented to the court as an absolute claim within 2
years from the time allowed for other creditors to present their claims, it will be allowed by court if not
disputed by the executor/administrator; but if disputed, it may be proved and allowed or disallowed by
the court as the facts may warrant
◦ If the contingent claim is allowed, the creditor shall receive payment to the same extent as the other
creditors if the estate retained by the executor/administrator is sufficient.
◦ If the claim is not so presented, after having become absolute, within said 2 years, and allowed, the assets
retained in the hands of the executor/administrator, not exhausted in the payment of claims, shall be
distributed by the order of the court to the persons entitled to the same.
Action Against Distributees
◦ assets so distributed may still be applied to the payment of the claim when established, and the creditor
may maintain an action against the distributees to recover the debt - and such distributees and their
estates shall be liable for the debt in proportion to the estate they have respectively received from the
property of the deceased.
◦ If the contingent claim matures after the expiration of the 2 years - the creditors may sue the distributees,
who are liable in proportion to the shares in the estate respectively received by them (Jaucian v. Querol,
G.R. No. L-11307, October 5, 1918)
◦ It has been ruled that the only instance wherein a creditor can file an action against a distributee of the
debtor’s assets is under Rule 88, Sec. 5. The contingent claims must first have been established and
allowed in the probate court before the creditors can file an action directly against the distributes (De
Bautista v. De Guzman, G.R. No. L-28298, November 25, 1983)
Court to fix contributive shares where devisees,
legatees, or heirs have been in possession
◦ applies where devisees, legatees, or heirs have entered into possession of portions of the estate before the
debts and expenses have been settled and paid, and have become liable to contribute for the payment of
such debts and expenses
◦ Heirs are not required to respond with their own property for the debts of their deceased ancestors.
However, even after partition, they are liable individually for the payment of all lawful outstanding
claims against the estate in proportion to the amount or value of the property they have respectively
received from the estate (Pavia v. Dela Rosa, G.R. No. 3083, March 18, 1907)
◦ Execution may issue only where the heirs, devisees, and legatees have entered into possession of their
respective portions in the estate prior to payment of debts and expenses of administration and it is later
ascertained that there are still debts and expenses to be paid, in which case the court, having jurisdiction,
after hearing, may order the heirs, devisees and legates to contribute to the payment, and may issue
execution if circumstances require.
Is the remedy of execution available in favor of
a creditor against the estate of the decedent?
No, because the procedure outlined by law is the sale of personal property or
the sale or mortgage of real property of the decedent and the proceeds shall
be paid out of said sale. (Aldamiz v. CFI of Mindoro, G.R. No. L-2360,
December 29, 1949)
Order of Payment if Estate Insolvent
◦ If liabilities are more than the assets, Sec.7 of Rule 88 of the Rules of Court
in relation to Art. 1059 and 2239 to 2251 of the Civil Code (Concurrence
and Preference of Credits) must apply
◦ In case of insolvent non-resident where administration is taken in the
Philippines, his estate in the Philippines shall be so disposed of that his
creditors in and outside the Philippines may receive an equal share, in
proportion to their respective credits.
◦ If it appears that Claims were proven outside the Philippines against the estate of an insolvent, The
insolvent decedent was at the time of his death an inhabitant of the Philippines; and The
Executor/administrator in the Philippines had knowledge and opportunity to contest its allowance, The
court shall receive a certified list of such claims, when perfected in such country, and add the same to the
list of claims proved against the deceased person in the Philippines so that a just distribution of the whole
estate may be made equally among all its creditors according to their respective claims.
◦ Rule is subject to the principle of reciprocity
Principle of Reciprocity
◦ The benefits of Sections 9 and 10 cannot be extended to the creditors in another country if the property of
such deceased person there found is not equally apportioned to the creditors residing in the Philippines.
◦
Subsequent Distribution May be Ordered
◦ Whole of the debts are not paid;
◦ Whole assets are not distributed; or
◦ Other assets afterwards come to the hands of the executor/administrator
Time of Payment
General Rule: Shall not exceed 1 year in the first instance, after issuance of the letters testamentary or of
administration within which to wind up the estate of the deceased
Exception: The court may extend the period, after hearing and notice, on the following conditions:
◦ The extension must not exceed 6 months for a single extension; and
◦ The whole period allowed to the original executor/administrator shall not exceed 2 years.
Sales, Mortgages and Other
Encumbrances of Decedent
◦ The court, upon the application of the Executor/administrator, and on written notice to the heirs and
other persons interested, may order the whole or part of the personal estate to be sold if necessary:
1. To pay debts and expenses of administration;
2. To pay legacies; or
3. To cover expenses for the preservation of the estate.
◦ Notice is mandatory: Without notice and hearing, the sale, mortgage or encumbrance is void.
Sales, Mortgages and Other
Encumbrances of Decedent
◦ The requirements of Rule 89 of the Rules of Court are mandatory and failure to give notice to the heirs
would invalidate the authority granted by the intestate/probate court to mortgage or sell estate assets
(Pahamotang v. PNB and the Heirs of Arguna, G.R. No. 156403, March 31, 2005).
◦ the heirs are the presumptive owners. Since they succeed to all the rights and obligation of the deceased
from the moment of the latter’s death, they are the persons directly affected by the sale or mortgage and
therefore cannot be deprived of the property, except in the manner provided by law (Maneclang v. Baun,
G.R. No. L-27876, April 22, 1992).
Sales, Mortgages and Other Encumbrances of Decedent
◦ Court may authorize sale, mortgage or other encumbrance of realty to pay debts and legacies though personalty not
exhausted, upon application of executor/administrator, with written notice to heirs, devices and legatees residing
in the Philippines, and with hearing, in the following instances:
◦ If personal estate is not sufficient to pay debts, expenses of administration and legacies; or
◦ If the sale of personal estate may injure the business or other interests of those interested in the estate;
◦ If the testator has not made sufficient provision for payment of such debts, expenses and legacies;
◦ If the deceased was in his lifetime under contract, binding in law to deed real property to beneficiary (ROC, Rule 89,
Sec. 8);and
◦ If the deceased during his lifetime held real property in trust for another person (ROC, Rule 89, Sec.9).
◦ For purposes of complying with the requirement of notice under Rule 89, notice to the parents of minor is not
sufficient. However, if the heirs were duly represented by counsel or by a guardian ad litem, the notice may be given to
such counsel or guardian ad litem (Maneclang v. Baung, G.R. No. L-27876, April 22, 1992)
Distribution and Partition of Estate
General Rule: An order of distribution shall be made after payment of all debts, funeral expenses,
expenses for administration, allowance of the widow and inheritance tax is made.
Exception: If the distributees or any of them gives a bond conditioned for the payment of said obligation,
the order of distribution may be made even before payments of all debts, etc.
Two Requisites Before Distribution of Estate:
◦ Liquidation - refers to the determination of all assets of the estate and payment of all debts and
expenses.
◦ Declaration of Heirs - undertaken to determine to whom residue of the estate should be distributed
◦ A separate action to the declare the heirs is not necessary
◦ Orders that determine who the heirs are and their distributive shares are appealable. If not appealed within the
reglementary period, they become final (Imperial v. Munoz, G.R. No. L-30787, August 29, 1974)
◦ The probate court, in the exercise of its jurisdiction to distribute the estate, has the power to determine to
proportion or parts to which each distributee is entitled (Vda. de Kilayko v Tengco, G.R. No. 45425,
March 27, 1992)
◦ The probate court has the power to entertain the question whether or not a person is an acknowledged
natural child of the decedent (Conde v Abaya, G.R. No. L-4275, March 23, 1909); The validity of
disinheritance effected by the testator (Hilado v. Ponce de Leon, G.R. No. 8020-R, October 22, 1953);
status of a woman who claims to be the lawful wife of the decedent (Torres v. Javier, G.R. No. L-10560,
March 24, 1916)
◦ adoption decree cannot be assailed collaterally in settlement proceedings (Santos v. Aranzanso, G.R. No. L-26940,
August 21, 1982)
◦ probate court loses jurisdiction over the settlement proceedings only upon payment of all debts and
expenses of the obligor and delivery of the entire estate to all the heirs (Guilas v. Judge of CFI of
Pampanga, G.R. No. L-26695, January 31, 1972) and/or persons entitled thereto.
Remedy of Heir Who did Not receive
share
◦ File a motion with the probate court for delivery to him of his share; or
◦ If the estate proceedings have been closed, file a motion for reopening of the proceeding, within the prescriptive
period.
◦ The probate court has the authority to order the issuance of a writ of possession for the recovery of the share by the heir
or other interested person from the Executor/administrator or other persons having possession of the property without
the need of previous demand
◦ a final order of distribution of the estate of a deceased person vests the title to the land of the estate in the distributees;
and that the only instance where a party interested in a probate proceeding may have a final liquidation set aside is
when he is left out by reason of circumstances beyond his control or through mistake or inadvertence not imputable to
negligence. Even then, the better practice to secure relief is reopening of the same case by proper motion within the
reglementary period (Vda. de Alberto v. CA, G.R. No. L-29759, May 18, 1989).
◦ Where the order closing the intestate proceedings was already final and executory, the same cannot be reopened on a
motion therefore filed after the lapse of the reglementary period (Divinagracia v. Rovira, G.R. No. L- 42615, August
10, 1976).
Writ of Execution
General Rule: The probate court generally cannot issue a writ of execution.
◦ It is not supposed to issue a writ of execution because its orders usually refer to the adjudication of
claims against the estate which the executor/administrator may satisfy without the necessity of resorting
to a writ of execution (Vda de Valera v Judge Ofilada, G.R. No. 27526, September 12, 1974).
Exceptions
1. To satisfy the Contributive share of the devisees, legatees and heirs when the latter had entered prior
possession over the estate (ROC, Rule 88, Sec. 6);
2. To enforce payment of the Expenses of partition ROC, (ROC, Rule 90, Sec. 3); and
3. To satisfy the costs when a person is cited for Examination in probate proceedings (ROC, Rule 87, Sec.
6; Spouses Pastor v CA, G.R. No. 56340, June 24, 1983).
◦ Certified copies of final orders and judgments of the court relating to the real estate or the partition
thereof shall be recorded in the registry of deeds of the province where the property is situated
◦ Title is vested on the distributees from the finality of the order of distribution
◦ If the decree is erroneous, it should be corrected by an opportune appeal, for once it becomes final, its binding
effect is like any other judgment in rem, unless property set aside for lack of jurisdiction or fraud. Where the court
has validly issued a decree of distribution and the same has become final, the validity or invalidity of the project of
partition becomes irrelevant (Vda. de Kilayko v. Tengco, G.R. No, 45425, March 27, 1992
Escheats
◦ Escheat is the proceeding, unlike that of succession or assignment, whereby the state, by virtue of
sovereignty, steps in and claims the real and personal property of a person who dies intestate leaving no
heir (Republic v. CA, G.R. No. 14383, January 31, 2002).
◦ Escheat proceedings refer to the judicial process in which the state, by virtue of its sovereignty, steps in
and claims abandoned, left vacant, or unclaimed property, without there being an interested person
having a legal claim thereto. (RCBC v. Hi-Tri Development Corporation, G.R. No. 192413, 13 June
2012)
◦ rest on the principle of ultimate ownership by the state of all property within its jurisdiction
◦ Escheat is not an ordinary civil action but a special proceeding that should be commenced not by
complaint but by petition (Municipal Council of San Pedro, Laguna v. Colegio de San Jose, G.R. No. L-
45460, February 25, 1938)
Escheats
Three instances of escheats
1. When a person dies intestate leaving no heir but leaving property in the Philippines (ROC, Rule 91, Sec. 1);
2. Reversion Proceedings – Property alienated in violation of the Constitution or the law; governed by Rule
91 as expressly stated by Sec. 5.
◦ action must be instituted in the province where the land lies in whole or in part.
◦ Reversion will not be allowed even if the original buyer was an alien, if later on the title to the property was
transferred by succession to the buyer’s heirs who are qualified parties, i.e. Philippine citizens (see Republic
v. Registry of Deeds of Roxas City, G.R. No. 158230, 16 July 2008).
◦ In all actions for the reversion to the Government of lands of the public domain or improvements thereon, the
Republic of the Philippines is the real party in interest. The action shall be instituted by the Solicitor General
or the officer acting in his stead, in behalf of the Republic of the Philippines (Manese v. Sps. Velasco, G.R.
No. 164024, January 29, 2009).
Escheats
3. Unclaimed Balances Act (Act 3936, as amended by P.D. 679) – Dormant accounts for ten (10) years shall be escheated (Act
3936, Sec. 1).
◦ Escheat under the Act 3936 must be filed in the RTC of the place where the dormant deposits are found (Act 3936, Sec. 3).
◦ In the case of dormant accounts, the state inquires into the status, custody, and ownership of the unclaimed balance to
determine whether the inactivity was brought about by the fact of death or absence of or abandonment by the depositor (RCBC
v. Hi-Tri Development Corporation, G.R. No. 192413, 13 June 2012)
◦ If after the proceedings the property remains without a lawful owner interested to claim it, the property shall be reverted to the
state "to forestall an open invitation to self-service by the first comers."
◦ However, if interested parties have come forward and lain claim to the property, the courts shall determine whether the credit or
deposit should pass to the claimants or be forfeited in favor of the state.
◦ escheat is not a proceeding to penalize depositors for failing to deposit to or withdraw from their accounts. It is a proceeding
whereby the state compels the surrender to it of unclaimed deposit balances when there is substantial ground for a belief that
they have been abandoned, forgotten, or without an owner (RCBC v. Hi-Tri Development Corporation, G.R. No. 192413, 13
June 2012)
◦ publication of the list of unclaimed balances is intended to safeguard the right of the depositors, their heirs and successors to
due process. (Republic v. CA, G.R. No. 95533, 20 November 2000)
◦ The law sets a detailed system for notifying depositors of unclaimed balances.
◦ notification is meant to inform them that their deposit could be escheated if left unclaimed.
◦ before filing a sworn statement, banks and other similar institutions are under obligation to communicate
with owners of dormant accounts.
◦ Purpose is for a bank to determine whether an inactive account has indeed been unclaimed, abandoned,
forgotten, or left without an owner.
◦ If the depositor simply does not wish to touch the funds in the meantime, but still asserts ownership and
dominion over the dormant account, then the bank is no longer obligated to include the account in its
sworn statement
◦ It is not the intent of the law to force depositors into unnecessary litigation and defense of their rights, as
the state is only interested in escheating balances that have been abandoned and left without an owner.
(RCBC v. Hi-Tri Development Corporation, G.R. No. 192413, 13 June 2012)
Escheats
◦ Once the court acquires jurisdiction to hear the petition for escheat by virtue of the publication of the
petition for escheat, this jurisdiction cannot be converted into one for the distribution of the properties of
the decedent (In re Anne Fallon Murphy, G.R. No. L-14157, October 26, 1960).
Evidence Required in Escheat Proceedings
◦ The burden of proof rests on the state to prove that the property in question is in all respects liable to
escheat
◦ The jurisdiction acquired by a court to hear a petition for escheat by virtue of its publication can not be
converted into one for the distribution of the properties of the decedents. For the latter proceedings to be
instituted, the proper parties must be presented and the proceedings should comply with the requirements
of the Rules of Court (Fallon v. Bezore, G.R. No. 14157, 26 October 1960)
To whom property escheated will be
assigned
1. If personal property– to the municipality or city where he last resided;
2. If real property – to the municipality or city where the property is situated; or
3. If deceased never resided in the Philippines – to the municipality or city where the property may be
found.
◦ The court, at the instance of an interested party, or on its own motion, may order the establishment of a
permanent trust, so that only the income from the property shall be used.
Claim on Escheated property
◦ Must be filed within 5 years from date of judgment, otherwise it will be barred forever
◦ Under Art. 1014 of the Civil Code, the five (5)-year period is reckoned from the date the property was delivered to
the state and further provides that if the property had been sold, the municipality or city shall be accountable only
for such part of the proceeds as may not have been lawfully spent
◦ Any devisee, legatee, heir, widow/er, or other person entitled thereto may make a claim on the escheated
propert
◦ Such person shall have possession of and title to the same, or if sold, the municipality or city shall be accountable
to him for the proceeds after deducting reasonable charges for the care of the estate.
◦ A donee who is not an heir may assert his right over escheated property provided the donee files his
claim within the five-year reglementary period. Any person alleging to have a direct right or interest in
the property sought to be escheated is likewise an interested party and may appear and oppose the
petition for escheat (Republic v. CA and Solano, G.R. No. 143843, January 31, 2002).
Guardianship
Rules 92-97
- guardianship of incompetents who are not minors. Incompetent includes: Those suffering from penalty of Civil interdiction;
Hospitalized Lepers; Prodigals; Deaf and dumb who are unable to read and write; Those of Unsound mind though they may
have lucid intervals; and Persons Not 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.
◦ A prodigal is synonymous to a spendthrift or a person who by excessive drinking, gaming, idleness or debauchery of any
kind shall so spend, waste or lessen his estate as to expose himself or his family to want or suffering or expose the town to
charge or expense for the support of himself or his family (Cyclopedic Law Dictionary, 811).
Rule on Guardianship of Minors (A.M. No. 03-02-05-SC)
- Guardianship of minors
Guardianship
◦ Legal Guardian – without need of judicial appointment;
◦ Guardian ad litem– appointed by courts of justice to prosecute or defend a minor, insane or person declared to
be incompetent, in an action in court; and
◦ Judicial Guardian– appointed in pursuance to law, as guardian for insane persons, prodigals, minors, etc.
Guardianship court exercises limited jurisdiction
◦ In guardianship proceedings, the court cannot actually order the delivery of the ward’s property found to be
embezzled, concealed or conveyed except when the title of the ward to the same is clear and indisputable. Absent
the exception, the recovery of such property must be made in a separate proceeding (Cui v. Piccio, G.R. No. L-
5131, July 31, 1952)
◦ No jurisdiction to settle the controversy as to who has a better right or title to properties conveyed in the course of
guardianship proceedings. The controversy should be threshed out in a separate action as the dispute is beyond
the jurisdiction of the guardianship court (Parco, et al. v CA, et al., G.R. No. L-33152, January 30, 1982).
Jurisdiction
1. Regional Trial Courts – B.P. Blg. 129 provides that RTCs have jurisdiction over actions and special
proceedings falling within the exclusive original jurisdiction of the Juvenile and Domestic Relations
Court (Id. at 238). RTC has jurisdiction over proceedings on guardianship of incompetents.
2. Family Courts – R.A. No. 8369 otherwise known as Family Courts Act of 1997 vested the Family
Courts with exclusive original jurisdiction on guardianship of minors
Venue, Rules of Court
◦ Resident – RTC of the ward’s residence
◦ Non-Resident – RTC of the place where the ward’s property is located
◦ Transfer of venue - The court taking cognizance of the guardianship proceeding may transfer the same
to the court of another province or municipality wherein the ward has acquired real property, if he has
transferred thereto his bona fide residence, and the latter court shall have full jurisdiction to continue the
proceedings, without requiring payment of additional court fees
Appointment of Guardians, Rules of
Court
◦ Any Relative;
◦ Friend; or
◦ Other person on behalf of the resident incompetent who has no parents or lawful guardian; or
◦ The Director of Health in favor of an insane person who should be hospitalized or in favor of an isolated
leper.
◦ If the interested person is a creditor and mortgagee of the estate of the minor, he cannot be appointed
guardian of the person and property of the latter. No man can serve two masters (Garchitorena v.
Sotelo, G.R. No. L-47867, November 13, 1942).
Appointment of Guardian, Non-Resident
The following may file the petition:
◦ Any Friend;
◦ Relative;
◦ Anyone Interested in the Estate of a person liable to be put under guardianship
Ancillary Guardianship
◦ refers to the guardianship in a state other than that in which guardianship is originally granted
Factors Considered
◦ Financial situation;
◦ Physical condition;
◦ Sound Judgment, prudence and trustworthiness;
◦ Moral character and conduct; and
◦ Present and past History of a prospective appointee; and
◦ Probability of his being able to exercise the powers and duties of guardian for the full period during
which guardianship will be necessary (Francisco v. C.A., G.R. No. L-57438, January 31, 1984).
Removal
◦ He becomes Physically Disabled or incapacitated;
◦ He becomes Insane or mentally incapacitated;
◦ He wasted or Mismanaged the estate;
◦ He failed to render an Account or make a return for 30 days after it is due.
◦ He is Convicted of a Crime; or
◦ He becomes a Moral Delinquent
Jurisdictional Facts
◦ The Incompetency of the person for whom guardianship is sought; and

◦ The fact that ward Resides in the place where the court has jurisdiction;
◦ The petition must be verified;
◦ A certificate against forum shopping must be attached in the petition; and
◦ Although not expressly provided, a certification against forum shopping is required in special
proceedings by virtue of Rule 72, Sec. 2 (Sheker v. Estate of Alice Sheker, G.R. No. 157912,
December 12, 2007).
Notice
◦ The court shall fix a time and place for hearing the same, and shall cause reasonable notice thereof to be
given to the persons mentioned in the petition and may direct other general or special notice thereof to be
given
◦ Persons mentioned in the petition residing in the Philippine and the incompetent
◦ No requirement for publication, only notice, unless there is a non-resident ward
◦ service of notice upon the persons mentioned in the petition, including the incompetent who is not a
minor, is mandatory and jurisdictional.
◦ If the person is insane, service of notice upon the Director of the Hospital where he is hospitalized is
sufficient
Opposition
◦ In writing
◦ Competency of alleged incompetent; or
◦ Unsuitability of the person for whom letters are prayed
◦ may pray that the petition be dismissed, or that letters of guardianship issue to himself, or to any suitable
person named in the opposition
Parents
◦ Section 7 modified by the Family Code, Art. 220 and 225
◦ Legal guardians
◦ If the value of the property or the annual income of the child is P50,000 or less, the father and mother
jointly exercises legal guardianship. In case of disagreement, the father’s decision prevails, unless there
is a judicial order to the contrary.
◦ If the value exceeds P50,000, the parent concerned must file a verified petition for the approval of the
bond, the amount of which the court may determine, but must not be less that 10% of the value of the
property or the annual income of the child.
Service of Judgment
◦ Civil Registrar of the place where the minor or incompetent resides or where the property is situated shall
be served with a copy of the judgment
Bonds of Guardians
◦ Before an appointed guardian enters upon the execution of his trust, or letters of guardianship issue he shall give a
bond, in such sum to be determined by the court
Conditions
◦ To make and return to the court, within three (3) months, a true and complete Inventory of all the estate of his ward
which shall come to his possession or knowledge or to the possession or knowledge of any other person for him;
◦ To Faithfully execute the duties of his trust, to manage and dispose of the estate according to these rules for the best
interests of the ward, and to provide for the proper care, custody, and education of the ward;
◦ To render a true and just Account of all the estate of the ward in his hands, and of all proceeds or interest derived
therefrom, and of the management and disposition of the same, at the time designated by these rules and such other
times as the court directs; and at the expiration of his trust to settle his accounts with the court and deliver and pay
over all the estate, effects, and moneys remaining in his hands, or due from him on such settlement, to the person
lawfully entitled thereto; and
◦ To Perform all orders of the court by him to be performed.
Bonds of Guardians
◦ For the protection of the property of the minor or incompetent to the end that he may be assured of an
honest administration of his funds
◦ When required by statutes to give a bond, no person can qualify and act as guardian without complying
with this condition precedent
◦ Takes effect at the time of appointment notwithstanding the bond being filed later
◦ A new bond may be required when the guardian is about to receive funds not in contemplation when the
original bond was executed and should be given as a condition of the payment of a legacy or distributive
share to the guardian when there is any express statutory requirement to that effect
Bonds of Guardians
◦ filed in the office of the Clerk of Court.
◦ In case of breach of the bond’s conditions, the bond may be prosecuted in the same proceeding or in a
separate action, for the use and benefit of the ward or of any person legally interested in the estate
◦ The bond of the guardian is a continuing one against the obligors and their estates until all of its
conditions are fulfilled. The mere fact that defendant was removed as guardian did not relieve her or her
bondsmen from liability during the time she was duly acting as such guardian (Guerrero v. Teran, G.R.
No. L-4898, March 19, 1909)
Selling and Encumbering Property of
Ward
◦ For the sale or encumbrance of the property, a verified petition is required, but no such verification is
required for that purpose with respect to the estate of a decedent (ROC, Rule 89, Secs. 1 and 4) and a
mere motion therein will suffice.
Grounds:
◦ When the income of estate is insufficient to maintain the ward and his family; or
◦ When it appears that it is for the benefit of the ward.
◦ Jurisdictional Requirements:
◦ Petition must be verified;
◦ Notice must be given to the next of kin; and
◦ Hearing so that they may show cause why petition should not be granted.
Ward
◦ Sale of the ward’s realty by the guardian without authority from the court is void. Under the law, a parent
acting merely as legal administrator of the property of his/her children does not have the power to
dispose of, or alienate, the property of said minor without judicial approval (Lindain v. CA, G.R. No.
95305, August 20, 1992)
◦ The court shall make an order directing the next of kin, and all persons interested in the estate, to show
cause why the petition under this Rule must not be granted
◦ Next of kin does not mean the next of kindred but pertains to those relatives who are entitled to share in
the estate of the ward under the Law on Intestate Succession including those who inherit per stirpes or by
right of representation (Lopez v. Teodoro, Sr., G.R. No. L-3071, May 29, 1950)
Ward
◦ Notice to next of kin and interested persons is jurisdictional. Failure to notify the next of kin shall be a
ground for dismissal of the petition under this Rule (Singco v. Longa, G.R. No. L-27962, February 14,
1928).
◦ However, notice is not necessary where the next of kin to the ward and all persons interested in the estate
are her mother and guardian, uncles and aunts who agreed to make the transfer of their respective shares
in the property to the corporation to be organized (Pardo de Tavera v. El Hogar Filipino, Inc. and
Magdalena Estate, G.R. No. L-5893, February 28, 1956)
Order of Sale / Encumbrance
◦ The order of sale must specify the grounds. It may direct that the estate be sold publicly or privately.
◦ The court may also require an additional bond.
◦ General Rule: Sale must first be confirmed by the court, and that until such confirmation, not even
equitable title passes
◦ Exception: The court’s order expressly authorized the guardian to execute and deliver to the purchaser
definitely named, a deed of conveyance to a parcel of land specifically described at a price already fixed
and it was intended to be the approval itself of the sale that was already perfected or agreed upon by the
seller and the buyers, needing only a judicial go-ahead signal to reduce the agreement to the statutory
form and it had been made without departure from the terms of the order (Soriano v. Latono, G.R. No. L-
3408, December 23, 1950).
Order of Sale / Encumbrance
◦ Duration of the Order of Sale and Encumbrance of Property: Within 1 year from the granting of the
order. The authority to sell or encumber shall not extend beyond 1 year unless renewed by the court.
◦ It is presumed that if the property was not sold within 1 year, the ward has sufficient income.
◦ The guardian, among others, cannot acquire by purchase even at a public or judicial auction, either in
person or through the mediation of another, the property of the person or persons who may be under his
guardianship (CIVIL CODE, Art. 1491).
◦ Subject to ratification
Order of Sale/Encumbrance
◦ Appeal is the proper remedy against an order of the court authorizing the sale of the ward’s property
(Lopez v. Teodoro, G.R. No. L- 3071, May 29, 1950)
◦ There being a presumption that the sale of the ward’s estate is valid, it cannot be attacked collaterally in
the registration proceedings. A separate action to avoid or rescind the sale on the grounds specified by
law should be filed (Margate v. Rabacal, G.R. No. L-14302, April 30, 1963)
Investment of Proceeds
◦ Sections 1 and 2 relate only to the investment of proceeds from the sale or encumbrance of the estate,
and investment of other funds is covered by Section 5 of this Rule. While Section 5 requires judicial
authority in order that a guardian may invest the ward’s money, it does not provide that said authority
must always be either prior to or expressed (Philippine Trust Co. v. Ballesteros, G.R. No. L-8532,
October 11, 1957).
Powers and Duties
◦ A guardian appointed shall have the care and custody of the person of his ward, and the management of
his estate, or the management of the estate only, as the case may be.
◦ The guardian of the estate of a non-resident shall have the management of all the estate of the ward
within the Philippines, and no court other than that in which such guardian was appointed shall have
jurisdiction over the guardianship.
◦ Conflicts regarding the ownership or title to the property in the hands of the guardian in his capacity as
such should be litigated in a separate proceeding, the court in guardianship proceeding being solely
concerned with the ward’s care and custody and proper administration of his properties (Viloria v.
Administrator of Veteran Affairs, G.R. No. L-9620, June 28, 1957).
Powers and Duties
◦ Pay the debts of the ward – personal estate and income, then real property
◦ Ordinarily, a guardian ad litem has no authority to act or bind a minor in any transaction with regard to
his estate, but he can, however, do so with the approval of the court, such as the amicable settlement of a
case affecting the property of the minor, duly approved by the court (Santo Domingo v. Santo Domingo,
G.R. No. L-10886, April 18, 1958)
◦ manage the estate of the ward frugally and without waste, and apply the income and the profits thereof to
the comfortable and sufficient maintenance of the ward and his family
◦ apply the proceeds to maintenance of the ward (ROC, Rule 96, Sec. 4);
◦ Settle accounts, collect debts and appear in actions for ward (ROC, Rule 96, Sec. 3);
◦ Render a verified Inventory within three (3) months after his appointment and annually thereafter, and
upon application of interested persons (ROC, Rule 96, Sec. 7);
Powers and Duties
◦ To have the Care and custody of the person of the ward, and the management of his estate, or the
management of the estate only, as the case may be (ROC, Rule 96, Sec. 1);
◦ Render to court for its approval an Accounting of the property for one (1) year from his appointment and
every year thereafter, and upon application of interested persons (ROC, Rule 96, Sec. 8)
Partition Proceedings Involving Ward
◦ Guardian needs to be authorized by court
◦ Hearing;
◦ Notice to relatives of the ward; and
◦ Careful investigation as to the necessity and propriety of the proposed action.
Persons Suspected of Embezzling or
Concealing Property of Ward
◦ Upon complaint filed by guardian, ward, or any person having actual or prospective interest that anyone
is suspected of having embezzled, concealed, or conveyed the goods, the court may cite the suspected
person to appear for examination and make such orders for the security of the estate
◦ To secure evidence from persons suspected of embezzling, concealing or conveying any property of the
ward so as to enable the guardian to institute the appropriate action to obtain the possession of and secure
title to said property (Cui v. Piccio, G.R. No. L-5131, July 31, 1952)
Compensation
◦ guardian shall be allowed the amount of his reasonable expenses incurred in the execution of his trust
and such compensation for his services, not exceeding fifteen percent 15% of the net income of the ward
May a guardian make a donation of the ward’s
property?
NO. A guardian, just like a trustee, is prohibited under Art. 736 of the Civil
Code from making a donation of the properties entrusted to him (Araneta v.
Perez, G.R. No. L-18872, July 15, 1966)
Termination
Petition that Competency of the Ward be adjudged
◦ Person who has been declared incompetent;
◦ guardian;
◦ Relative; or
◦ Friend.
◦ verified by oath and shall state that such person is then competent
Termination
Grounds for Termination:
◦ Competency of the ward has been judicially determined;
◦ Guardianship is no longer necessary;
◦ Death of guardian; or
◦ Death of ward.
Who may oppose:
◦ Guardian;
◦ Relative of the ward; or
◦ Any other person, in the discretion of the court.
Removal
Grounds for Removal of a Guardian:
◦ Insanity;
◦ Incapability or unsuitability to discharge functions;
◦ Wastage or mismanagement of the property of the ward; or
◦ Failure to render an account or make a return within thirty (30) days after it was due.
◦ The remedy of a guardian from the order of removal is to appeal (Olarte v. Enriquez, G.R. No. L-16098,
October 31, 1960).
Resignation
◦ The guardian may file a petition before the guardianship court for permission to resign is trust, stating the
grounds therefore, and accompanied by a report of the state of his account and an offer to settle the
account and deliver the estate over the court
Special Disqualification
◦ Non-residence of the guardian;
◦ Courts should not appoint persons as guardians who are not within the jurisdiction of our courts or they
will find it difficult to protect the ward (Vancil v. Belmes, G.R. No. 132223, June 19, 2001).
◦ Advance age of the guardian (Francisco v. CA, G.R. no. 57438, January 31, 1984);
◦ Judges, clerks of court, and lawyers (Rule 137, Sec. 1 and A.M. No. 08-4-1-SC)
◦ Section 4, Rule 97 – Obsolete - all courts in the Philippines are all courts of record.
SERVICE OF JUDGMENT
◦ Final orders or judgments shall be served upon the Civil Registrar where the minor or incompetent
person resides or where his property or part thereof is situated.
Guardianship of Minors
◦ Minor children refer to persons below eighteen (18) years of age or those over but are unable to fully
take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation, or discrimination
because of a physical or mental disability or condition (R.A. 7610, Sec. 3(a))
Tender-Age Presumption
◦ A mother is to be preferred in awarding custody of children under the age of seven (7).
◦ presumption may be overcome only by compelling evidence of the mother’s unfitness
◦ sexual preference or moral laxity alone does not prove parental neglect or incompetence (Pablo-
Gualberto v. Gualberto, G.R. No. 154994, June 28, 2005)
Petition for Guardianship
◦ The Minor himself if fourteen (14) years of age or over;
◦ Any Relative;
◦ Other person on behalf of a minor;
◦ The Secretary of Social Welfare and Development; or
◦ The Secretary of Health in case of an insane minor who needs to be hospitalized.
◦ Where to file - Family Court of the province or the city where the minor actually resides. If he resides in
a foreign country, with the Family Court of the Province or city where his property or any part thereof is
situated.
◦ The petition shall be verified and accompanied by a certification against forum shopping (Sec.7)
Grounds
◦ Death, continued absence, or incapacity of his parents;
◦ Suspension, termination or deprivation of parental authority;
◦ Remarriage of his surviving parent, if the latter is found unsuitable to exercise parental authority; or
◦ When the Best interests of the minor so require
Qualifications
◦ Moral character;
◦ Physical, mental and psychological condition;
◦ Financial status;
◦ Relationship of trust with the minor;
◦ Availability to exercise the powers and duties of a guardian for the full period of the guardianship;
◦ Lack of conflict of interest with the minor; and
◦ Ability to manage the property of the minor.
Guardian
In default of parents or a court-appointed guardian, the court may appoint a guardian of a minor, observing
as far as practicable, the following order of preference:
◦ The surviving Grandparent and in case several grandparents survive, the court shall select any of them
taking into account all relevant considerations;
◦ The oldest Brother or sister of the minor over twenty-one (21) years of age, unless unfit or disqualified;
◦ The Actual custodian of the minor over twenty-one (21) years of age, unless unfit or disqualified; and
◦ Any Other person, who in the sound discretion of the court would serve the best interests of the minor.
Jurisdictional Facts
◦ Minority of the person for whom guardianship is sought; and
◦ The fact that the minor Resides in the place where the court has jurisdiction.
Notice of Hearing
◦ Notice must be given to persons named in the petition including the minor if over fourteen (14) years of
age
◦ Notice to a minor who is above fourteen (14) years old is jurisdictional. Non-compliance with this
renders the proceedings null and void
Case Study Report
◦ The court shall order a social worker to conduct a case study of the minor and all prospective guardians
and submit his report and recommendation (3 days before hearing) to the court for its guidance before the
scheduled hearing.
Opposition
◦ In writing
◦ Need not be verified
◦ Majority of alleged minor; or
◦ Unsuitability of the person for whom letters are prayed.
◦ Prayer that the petition be denied; or
◦ Prayer that letters of guardianship issue to himself or to any suitable person named in the opposition
Bond and Conditions
Before the guardian enters upon the execution of his trust or letters of guardianship he may be required to
post a bond in the amount set by the court under the following conditions:
◦ To make and return to the court, within three (3) months after the issuance of his letters of guardianship,
a true and complete inventory of all the property, real and personal, of his ward which shall come to his
possession or knowledge or to the possession or knowledge of any other person in his behalf;
◦ To faithfully execute the duties of his trust, to manage and dispose of the property according to this rule
for the best interests of the ward, and to provide for his proper care, custody and education;
Bond and Conditions
◦ To render a true and just account of all the property of the ward in his hands, and of all proceeds or
interest derived therefrom, and of the management and disposition of the same, at the time designated by
this rule and such other times as the court directs; and at the expiration of his trust, to settle his accounts
with the court and deliver and pay over all the property, effects, and monies remaining in his hands, or
due from him on such settlement, to the person lawfully entitled thereto; and
◦ To perform all orders of the court and such other duties as may be required by law.
Petition to Sell/ Encumber
◦ When the income of estate is insufficient to maintain and educate ward; or
◦ When it appears that it is for the benefit of the ward.
◦ The authority to sell or encumber shall not extend beyond one (1) year, unless renewed by the court.
Removal/ Resignation
◦ Becomes insane or otherwise incapable of discharging his trust;
◦ Is found thereafter to be unsuitable;
◦ Has wasted or mismanaged the property of the ward; or
◦ Has failed to render an account or make a return thirty (30) days after it was due.
◦ Motion for removal/ resignation
◦ Before a motion for removal or resignation may be granted under Sec. 24, the guardian must submit the
proper accounting of the property of the ward and the court has to approve the same.
Termination
◦ The ward has come of age; or
◦ Has died.
◦ may be motu proprio or by a verified motion by any person allowed to file a petition for guardianship on
the grounds of majority and/or death of the ward. The guardian shall notify the court of such fact within
ten (10) days of its occurrence.
Trustee
◦ TRUST - is a confidence reposed in one person, called the trustee, for the benefit of another, called the
cestui que trust, with respect to the property held by the former for the benefit of the latter. The person in
whom confidence is reposed as regards the property for the benefit of another is also known as trustee.
◦ TRUSTEE - The person in whom confidence is reposed as regards property for the benefit of another
person (Civil Code, Art. 1440).
◦ This rule provides for the procedure for appointment of a trustee.

Jurisdiction
◦ The RTC or MTC in which the will was allowed, if it be a will allowed in the Philippines.
◦ Otherwise by the RTC of the province in which the property, or some portion thereof, affected by the
trust is situated.
Trustee
◦ To carry into effect:
◦ A will creating a trust but the testator omitted to appoint a trustee in the Philippines (Testamentary
Trust); and
◦ Other written instrument where the trustee therein declines, resigns, dies, or is removed before
accomplishment of trust (Contractual Trust).
◦ Applies to express trusts only
Nature of Possession Of Trustee
General Rule: For the purpose of prescription, the possession of the property by the trustee is not an
adverse possession, but only in the name and in behalf of the owner of the same.
◦ Exception: Prescription may arise where there is adverse possession of the property.
◦ To constitute adverse possession, the following requisites must concur: (1) that the trustee has
performed unequivocal acts of repudiation amounting to ouster of the cestui que trust; (2) that such
positive acts of repudiation have been known to the cestui que trust; and (3) the evidence thereon should
be clear and conclusive (Ceniza v. CA, G.R. No. L-46345, January 30, 1990)
◦ As such, a trustee may acquire the trust estate by prescription provided there is an open, clear, and
unequivocal repudiation of the trust known to the cestui que trust (Salinas v. Tuason, G.R. No. L-33626,
March 2, 1931).
Appointment of Trustee
◦ If a testator has omitted in his will to appoint a trustee in the Philippines, and if such appointment is
necessary to carry into effect the provisions of the will
◦ trustee to be appointed shall have the same rights, powers, and duties, and in whom the estate shall vest,
as if he had been appointed by the testator
◦ Notice to and consent of the beneficiary are not essential for the creation of the trust (De Leon v. Molo-
Peckson, G.R. No. L-17809, December 29, 1962)
◦ Notice to and consent of the beneficiary are not essential for the creation of the trust (De Leon v. Molo-
Peckson, G.R. No. L-17809, December 29, 1962)
Appointment of Trustee
◦ When a trustee under a written instrument declines, resigns, dies or is removed before the objects of
the trust are accomplished and no adequate provision is made in such instrument supplying the
vacancy
◦ new trustee shall have and exercise the same powers, rights, and duties as if he had been originally
appointed.
Trustee Appointed Abroad
◦ land in the Philippines is held in trust for a resident by a trustee who derives his authority from abroad,
such trustee must petition the court where the land is situated, otherwise, the trust will be vacant and a
new trustee will be appointed
◦ when a trust is created abroad for property in the Philippines, judicial approval is still needed though the
trustor is alive
Bond
◦ Filed with the clerk of court having jurisdiction of the trust a bond in the amount fixed by the judge of
said court, unless exempted by the court when requested by testator or all persons beneficially
interested in the trust
◦ exemption may be cancelled by the court at any time, and the trustee required to forthwith file a bond
◦ Neglect to file bond - interpreted by the court as resignation or a decline to accept the trust
Conditions of Bond
◦ Account - That he will render upon oath at least once (1) a year until his trust is fulfilled a true account
of the property in his hands and of the management and disposition thereof, and such other accounts as
the court may order;
◦ Accounts of trustees and guardians must be under oath and shall be filed annually
◦ Settlement of Accounts - That at the expiration of his trust he will settle his accounts in court and pay
over and deliver all the estate remaining in his hands, or due from him on such settlement, to the person
or persons entitled thereto;
◦ Inventory - That the trustee will make and return to the court, at such time as it may order, a true
inventory of all the estate belonging to him as trustee, which at the time of the making of such inventory
shall have come to his possession or knowledge; and
◦ When the trustee is appointed as a successor to a prior trustee, the court may dispense with the making and return
of an inventory if one has already been filed
◦ Management and Disposition - That he will manage and dispose of all such estate, and faithfully
discharge his trust in relation thereto, according to law and the will of the testator or the provisions of the
instrument or order under which he is appointed.
Compensation
◦ that which is provided by the instrument creating the trust. Otherwise, it shall be fixed by the court
◦ Reimbursement of necessary expenses
Removal
◦ Petition for Removal filed by parties beneficially interested
Grounds
◦ Removal appears essential in the interest of petitioners;
◦ Insanity;
◦ Incapability of discharging trust; or
◦ Unsuitability.
◦ May instead tender resignation

Sale and Encumbrance of Trust Estate
◦ Upon petition, after due notice and hearing, court having jurisdiction of the trust may order the sale or
encumbrance of any estate held in trust when such sale or encumbrance is necessary or expedient
◦ Similar to sale and encumbrance by guardians
Adoption
◦ A.M. No. 02-6-02-SC. July 31, 2002, Rule on Adoption
◦ Covers domestic adoption (RA 8552) and Inter-Country Adoption (RA 8043)
◦ Created legal tie between adopter and adoptee
Domestic Adoption – RA 8552
◦ All hearings in adoption cases, after compliance with the jurisdictional requirements shall be confidential
and shall not be open to the public.
◦ All records, books and papers relating to the adoption cases in the files of the court, the DSWD, or any
other agency or institution participating in the adoption proceedings shall be kept strictly confidential.
◦ If the court finds that the disclosure of the information to a third person is necessary for security reasons
or for purposes connected with or arising out of the adoption and will be for the best interests of the
adoptee, the court may, upon proper motion, order the necessary information to be released, restricting
the purposes for which it may be used.
Domestic Adoption
Pre-Adoption
◦ DSWD to provide counseling services
◦ Biological Parents
◦ Prospective Adoptive Parent/s
◦ Prospective Adoptee
◦ Locate unknown biological parents - DSWD or the child-placing or child-caring agency
◦ If such efforts fail, the child shall be registered as a foundling and subsequently be the
subject of legal proceedings where he/she shall be declared abandoned.
Who May Adopt
Any Filipino Citizen Alien Guardian
-of legal age, in possession of full civil capacity - possessing same qualifications as Filipino - with respect to the ward after the
and legal rights, of good moral character, not termination of the guardianship and
convicted of crime involving moral turpitude, - Provided his/her country has diplomatic relations with clearance of his/her financial accountabilities
emotionally and psychologically capable of caring Philippines, has been living in the Philippines for at least 3
for children, at least 16 years older than the continuous years prior to the filing of the application for
adoptee, in a position to support and care for adoption and maintains such residence until the adoption
his/her children in keeping with the means of the decree is entered, has been certified by his/her diplomatic
family. or consular office or any appropriate government agency
that he/she has the legal capacity to adopt in his/her
- 16 year difference may be waived when adopter country, and that his/her government allows the adoptee to
is biological parent of adoptee, or is spouse of the enter his/her country as his/her adopted son/daughter
adoptee's parent - requirements on residency and certification of the alien's
qualification to adopt in his/her country may be waived:
1. former Filipino citizen seeks to adopt a relative within
4th degree of consanguinity or affinity; or
2. seeks to adopt the legitimate son/daughter of his/her
Filipino spouse; or
3. married to a Filipino citizen and seeks to adopt jointly
with his/her spouse a relative within the 4th degree of
consanguinity or affinity of the Filipino spouse
Who may Adopt
Husband and wife shall jointly adopt, except in the following cases:
(i) if one spouse seeks to adopt the legitimate son/daughter of the other; or
(ii) if one spouse seeks to adopt his/her own illegitimate son/daughter, provided the other spouse has
signified his/her consent thereto; or
(iii) if the spouses are legally separated from each other.
◦ In case husband and wife jointly adopt, or one spouse adopts the illegitimate son/daughter of the other,
joint parental authority shall be exercised by the spouses.
◦ Where husband only gave consent and only the wife filed the petition, the petition will not be granted as
they failed to jointly adopt, more so when they do not fall under the exceptions. The use of the word
“shall” is mandatory (In Re: Petition For Adoption of Michelle P. Lim, Monina P. Lim, G.R. No. 168992-
93, 21 May 2009)
Who may be adopted
◦ A child legally available for adoption - a child who has been voluntarily or involuntarily committed to the DSWD or to a
duly licensed and accredited child-placing or child-caring agency, freed of the parental authority of his biological parents, or in
case of rescission of adoption, his guardian or adopter
◦ Any person below 18 years of age who has been voluntarily committed to the DSWD under Articles 154, 155 and 156 of PD
603 or judicially declared available for adoption;
◦ Art. 154-156, PD 603 – Voluntary Commitment of a Child to an Institution parent or guardian of a dependent, abandoned or
neglected child may voluntarily commit him to the DSWD or any duly licensed child placement agency or individual
◦ Child must be surrendered in writing by his parents or guardian to the care and custody of the DSWD or duly licensed
child placement agency
◦ In case of the death or legal incapacity of either parent or abandonment of the child for a period of at least 1 year, the
other parent alone shall have the authority to make the commitment.
◦ DSWD or any proper and duly licensed child placement agency or individual shall have the authority to receive, train,
educate, care for or arrange appropriate placement of such child.
◦ the rights of his natural parents, guardian, or other custodian to exercise parental authority over him shall cease.
◦ Such agency or individual shall be entitled to the custody and control of such child during his minority, and shall have
authority to care for, educate, train and place him out temporarily or for custody and care in a duly licensed child
placement agency. Such agency or individual may intervene in adoption proceedings in such manner as shall best inure to
the child's welfare.
Who may be adopted
◦ The legitimate child of one spouse, by the other spouse;

◦ An illegitimate child, by a qualified adopter to raise the status of the former to that of legitimacy;
◦ A person of legal age regardless of civil status, if, prior to the adoption, said person has been
consistently considered and treated by the adopters as their own child since minority;
◦ A child whose adoption has been previously rescinded; or
◦ A child whose biological or adoptive parents have died, provided that no proceedings shall be initiated
within 6 months from the time of death of said parents.
◦ A child not otherwise disqualified by law or the rules.
Parental authority terminates at the age of majority. Does this mean that an
adoption of a person of legal age will have no more effect?
NO. Parental authority is merely just one of the effects of legal adoption. The following are the other legal effects:
◦ Legitimacy - To this end, the adoptee is entitled to love, guidance, and support in keeping with the means of the
family
◦ Succession - legal and compulsory heirs of each other; legitime and other successional rights
◦ sever all legal ties between the biological parent(s) and the adoptee, except when the biological parent is the spouse
of the adopter;
◦ give adopter and adoptee reciprocal rights and obligations arising from the relationship of parent and child,
◦ to bear the surname of the father and the mother;
◦ to receive support from their parents;
◦ the adoptive parents shall, with respect to the adopted child, enjoy all the benefits to which biological parents are
entitled such as support and successional rights. (In Re: Petition For Adoption of Michelle P. Lim, Monina P. Lim,
G.R. No. 168992-93, 21 May 2009)
Jurisdiction and Venue
◦ The petition for adoption shall be filed with the Family Court of the province or city where the
prospective adoptive parents reside
◦ Certification of non-forum shopping shall be included in the Petition
Petition for Adoption may include prayer for change of name – should state the cause or reason for the
change of name
Rectification of Simulated Birth
In case the petition also seeks rectification of a simulated of birth, it shall allege that:
(a) Petitioner is applying for rectification of a simulated birth;
(b) The simulation of birth was made prior to the date of effectivity of the Domestic Adoption Act and the
application for rectification of the birth registration and the petition for adoption were filed within 5 years
from said date;
(c) The petitioner made the simulation of birth for the best interests of the adoptee; and
(d) The adoptee has been consistently considered and treated by petitioner as his own child.
Affidavit of Consent
◦ The adoptee, if 10 years of age or over;
◦ biological parents of the child, if known, or the legal guardian, or the child-placement agency, child-
caring agency, or the proper government instrumentality which has legal custody of the child;
◦ legitimate and adopted children of the adopter and of the adoptee, if any, who are 10 years of age or over;
◦ illegitimate children of the adopter living with him who 10 years of age or over; and
◦ spouse, if any, of the adopter or adoptee.
◦ Child Study Report
◦ study made by the court social worker of the child's legal status, placement history, psychological, social, spiritual,
medical, ethno-cultural background and that of his biological family needed in determining the most appropriate
placement for him
◦ In preparing the child study report on the adoptee, the concerned social worker shall verify with the Civil Registry the
real identity and registered name of the adoptee.
◦ If the birth of the adoptee was not registered with the Civil Registry, it shall be the responsibility of the social worker to
register the adoptee and secure a certificate of foundling or late registration, as the case may be
◦ Home Study Report
◦ study made by the court social worker of the motivation and capacity of the prospective adoptive parents to provide a
home that meets the needs of a child
◦ If the adopter is an alien or residing abroad but qualified to adopt, the home study report by a foreign adoption agency duly accredited
by the Inter-Country Adoption Board
◦ In case the adopter is an alien, the home study report must show the legal capacity to adopt and that his government allows the
adoptee to enter his country as his adopted child in the absence of the certification required
◦ The social worker shall establish that the child is legally available for adoption and the documents in support thereof are
valid and authentic, that the adopter has sincere intentions and that the adoption shall inure to the best interests of the
child
◦ Order of Hearing
◦ the date and place of hearing which shall be set within 6 months from the date of the issuance of the order and
shall direct that a copy thereof be published before the date of hearing at least once a week for 3 successive weeks
in a newspaper of general circulation in the province or city where the court is situated;
◦ in case of application for change of name, the date set for hearing shall not be within four 4 months after the last
publication of the notice nor within 30 days prior to an election.
◦ The newspaper shall be selected by raffle under the supervision of the Executive Judge
◦ Contain a directive to the social worker of the court, the social service office of the local government unit or any
child-placing or child-caring agency, or the DSWD to prepare and submit child and home study reports before the
hearing if such reports had not been attached to the petition due to unavailability at the time of the filing of the
latter; and
◦ a directive to the social worker of the court to conduct counseling sessions with the biological parents on the
matter of adoption of the adoptee and submit her report before the date of hearing.
Hearing
◦ Upon satisfactory proof that the order of hearing has been published and jurisdictional requirements have
been complied with, the court shall proceed to hear the petition. The petitioner and the adoptee must
personally appear and the former must testify before the presiding judge of the court on the date set for
hearing.
Supervised Trial Custody
◦ Before issuance of the decree of adoption, the court shall give the adopter trial custody of the adoptee for a
period of at least 6 months within which the parties are expected to adjust psychologically and emotionally
to each other and establish a bonding relationship.
◦ shall be monitored by the social worker of the court, DSWD, or the social service of the local government
unit, or the child-placement or child-caring agency which submitted and prepared the case studies.
◦ During said period, temporary parental authority shall be vested in the adopter.
◦ court may, motu proprio or upon motion of any party, reduce the period or exempt the parties if it finds
that the same shall be for the best interests of the adoptee, stating the reasons therefor.
◦ An alien adopter however must complete the 6-month trial custody except the following:
1. a former Filipino citizen who seeks to adopt a relative within the 4th degree of consanguinity or
affinity; or
2. one who seeks to adopt the legitimate child of his Filipino spouse; or
3. one who is married to a Filipino citizen and seeks to adopt jointly with his or her spouse the latter's
relative within the 4th degree of consanguinity or affinity.
◦ If the child is below 7 years of age and is placed with the prospective adopter through a pre-adoption
placement authority issued by the DSWD, the court shall order that the prospective adopter shall enjoy
all the benefits to which the biological parent is entitled from the date the adoptee is placed with him.
◦ The social worker shall submit to the court a report on the result of the trial custody within two weeks
after its termination.
Decree of Adoption
◦ If the supervised trial custody is satisfactory to the parties and the court is convinced from the trial custody report
and the evidence adduced that the adoption shall redound to the best interests of the adoptee, a decree of adoption
shall be issued which shall take effect as of the date the original petition was filed even if the petitioners die
before its issuance
The decree shall:
A. State the name by which the child is to be known and registered;
B. Order:
1) the Clerk of Court to issue to the adopter a certificate of finality upon expiration of the 15-day reglementary
period within which to appeal;
2) the adopter to submit a certified true copy of the decree of adoption and the certificate of finality to the Civil
Registrar where the child was originally registered within thirty (30) days from receipt of the certificate of finality. In
case of change of name, the decree shall be submitted to the Civil Registrar where the court issuing the same is
situated. ACcDEa
Decree of Adoption
3) the Civil Registrar of the place where the adoptee was registered:
a. to annotate on the adoptee's original certificate of birth the decree of adoption within 30 days from receipt of the
certificate of finality;
b. to issue a certificate of birth which shall not bear any notation that it is a new or amended certificate and which shall
show, among others, the following: registry number, date of registration, name of child, sex, date of birth, place of
birth, name and citizenship of adoptive mother and father, and the date and place of their marriage, when applicable;
c. to seal the original certificate of birth in the civil registry records which can be opened only upon order of the court
which issued the decree of adoption; and
d. to submit to the court issuing the decree of adoption proof of compliance with all the foregoing within thirty days
from receipt of the decree.
◦ If the adoptee is a foundling, the court shall order the Civil Registrar where the foundling was registered, to annotate
the decree of adoption on the foundling certificate and a new birth certificate shall be ordered prepared by the Civil
Registrar in accordance with the decree.
May an illegitimate child adopted by her natural
mother use the surname of her natural mother as
her middle name?
YES. While there is no law regulating the use of a middle name, the adoptee may maintain as
middle name that of her biological mother’s surname to maintain maternal lineage. It is to be
noted that Article 189(3) of the Family Code and Section 18, Article V of the Domestic
Adoption Act provide that the adoptee remains an intestate heir of his/her biological parent.
Hence, the adopted child can well assert or claim her hereditary rights from her natural mother
in the future.
◦ Adoption statutes, being humane and salutary, should be liberally construed to carry out the
beneficent purposes of adoption. The interests and welfare of the adopted child are of primary
and paramount consideration, hence, every reasonable intendment should be sustained to
promote and fulfill these noble and compassionate objectives of the law
◦ There is no law prohibiting an illegitimate child adopted by her natural father, like Stephanie,
to use, as middle name her mother's surname, we find no reason why she should not be
allowed to do so
Maximo Alcala was adopted by Naturalized Filipino citizens. As a consequence of adoption, he bore the
surname Wong, from that of his adopting parents. Upon reaching the age of 22, he sought to change his
name on the ground that his use of the surname Wong embarrassed and isolated him from his relatives and
friends, as the same suggests a Chinese ancestry when in truth and in fact he is a Muslim Filipino residing
in a Muslim community, and he wants to erase any implication whatsoever of alien nationality; that he is
being ridiculed for carrying a Chinese surname, thus hampering his business and social life; and that his
adoptive mother does not oppose his desire to revert to his former surname. The OSG opposed it as it was
crass ingratitude to the memory of his adoptive father and his adoptive mother who is still alive, despite her
consent to the petition for change of name. Should the change of name be granted?
YES. Achange of name does not define or effect a change in one's existing family relations or in the rights
and duties flowing therefrom. It does not alter one's legal capacity, civil status or citizenship: what is
altered is only the name. Rule 103 of the Rules of Court has its primordial purpose which is to give a
person an opportunity to improve his personality and provide his best interest. The grounds are proper.
(Republic v. Court of Appeals, G.R. No. 97906, May 21, 1992)
Juan was being adopted and together with the adoption, his adoptive parents
sought to change his first name to Michael, the name they had him baptized
with. May his name be changed since he is being adopted?
◦ NO. The law allows the adoptee, as a matter of right and obligation, to bear the surname of the adopter,
upon issuance of the decree of adoption. It is the change of the adoptee' s surname to follow that of the
adopter which is the natural and necessary consequence of a grant of adoption and must specifically be
contained in the order of the court, in fact, even if not prayed for by petitioner. However,
the given or proper name, also known as the first or Christian name, of the adoptee must remain as it was
originally registered in the civil register. The creation of an adoptive relationship does not confer upon
the adopter a license to change the adoptee's registered Christian or first name. The automatic change
thereof, premised solely upon the adoption thus granted, is beyond the purview of a decree of adoption.
Neither is it a mere incident in nor an adjunct of an adoption proceeding, such that a prayer therefor
furtively inserted in a petition for adoption, as in this case, cannot properly be granted. None of the
grounds justifying change of name under Rule 103 are present. (Republic v. Hernandez, G.R. No. 117209,
February 9, 1996)
Rescission of Adoption by Adoptee
◦ The petition shall be verified and filed by the adoptee who is over 18 years of age, or with the assistance
of the DSWD, if he is a minor, or if he is over 18 years of age but is incapacitated, by his guardian or
counsel.
◦ Adoption, being in the best interests of the child, shall not be subject to rescission by the adopter.
However, the adopter may disinherit the adoptee for causes provided in Article 919 of the Civil Code.
◦ The petition shall be filed with the Family Court of the city or province where the adoptee resides
Grounds:
1) repeated physical and verbal maltreatment by the adopter despite having undergone counseling;
2) attempt on the life of the adoptee;
3) sexual assault or violence; or
4) abandonment or failure to comply with parental obligations.
◦ court shall issue an order requiring the adverse party to answer the petition within 15 days from receipt
of a copy thereof. T
◦ he order and copy of the petition shall be served on the adverse party in such manner as the court may
direct
◦ If the court finds that the allegations of the petition are true, it shall render judgment ordering the
rescission of adoption, with or without costs, as justice requires
◦ court shall order that the parental authority of the biological parent of the adoptee, if known, or the legal
custody of the DSWD shall be restored if the adoptee is still a minor or incapacitated and declare that the
reciprocal rights and obligations of the adopter and the adoptee to each other shall be extinguished.
◦ The court shall further declare that successional rights shall revert to its status prior to adoption, as of the
date of judgment of judicial rescission. Vested rights acquired prior to judicial rescission shall be
respected
◦ It shall also order the adoptee to use the name stated in his original birth or foundling certificate.
◦ The court shall further order the Civil Registrar where the adoption decree was registered to cancel the
new birth certificate of the adoptee and reinstate his original birth or foundling certificate.
◦ A certified true copy of the judgment together with a certificate of finality issued by the Branch Clerk of
the Court which rendered the decision hall be served by the petitioner upon the Civil Registrar concerned
within 30 days from receipt of the certificate of finality.
◦ The Civil Registrar shall forthwith enter the rescission decree in the register and submit proof of
compliance to the court issuing the decree and the Clerk of Court within 30 days from receipt of the
decree.
X was adopted in 1975 pursuant to the the Civil Code. At the time of adoption,
the laws allowed rescission by the adopting parent. After the effectivity of the
Domestic Adoption Act, the adoptive parents sought to rescind the adoption.
May they do so, applying the law in force at the time of adoption in 1975?
◦ NO. The effectivity of RA 8552 already abrogated and repealed the right of an adopter under the Civil
Code and the Family Code to rescind a decree of adoption. The action for rescission of the adoption
decree, having been initiated by petitioner after the Domestic Adoption had come into force, can no
longer could be pursued.
◦ While adoption has often been referred to in the context of a "right," the privilege to adopt is itself not
naturally innate or fundamental but rather a right merely created by statute. It is a privilege that is
governed by the state's determination on what it may deem to be for the best interest and welfare of the
child. Matters relating to adoption, including the withdrawal of the right of an adopter to nullify the
adoption decree, are subject to regulation by the State. Concomitantly, a right of action given by statute
may be taken away at anytime before it has been exercised.
◦ The adopting parent can always for valid reasons cause the forfeiture of certain benefits otherwise
accruing to an undeserving child. An adopter may deny to an adopted child his legitime and, by a will
and testament, may freely exclude him from having a share in the disposable portion of his estate.
(Lahom v. Sibulo, G.R. No. 143989, 14 July 2003.)
Book of Adoptions
◦ The Clerk of Court shall keep a book of adoptions showing the date of issuance of the decree in each
case, compliance by the Civil Registrar in the Decree of Adoption and all incidents arising after the
issuance of the decree.
◦ The Clerk of Court shall enter here the compliance of Service of Judgment of Rescission of Adoptee
Inter-Country Adoption (RA 8043)
◦ socio-legal process of adopting a Filipino child by a foreign national or a Filipino citizen permanently
residing abroad where the petition for adoption is filed, the supervised trial custody is undertaken, and
the decree of adoption is issued in the foreign country where the applicant resides thereby creating a
permanent parent-child relationship between the child and the adoptive parents|
◦ A verified petition to adopt a Filipino child 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
◦ It may be filed directly with the Inter-Country Adoption Board.
◦ Only a child legally available for domestic adoption may be the subject of inter-country adoption
◦ The court, after finding that the petition is sufficient in form and substance and a proper case for inter-
country adoption, shall immediately transmit the petition to the Inter-Country Adoption Board for
appropriate action
Inter-Country Adoption
◦ The application, together with all the records, documents, and communications relating thereto and its
processes, shall be confidential.
◦ No copy thereof as well as any information relating thereto shall be released without written authority
from the Board or the written request of any of the following:
(a) the child/adopted person, with appropriate guidance and counselling, or his/her duly authorized representative,
spouse, parent or parents, direct descendants, or guardian or legal institution legally in charge of the adopted person,
if a minor;
(b) the court or proper public official whenever necessary in an administrative, judicial or other official proceeding to
determine the identity of the parent or parents or of the circumstances surrounding the birth of the child/adopted
person; or
(c) the nearest kin, in case of the death of the child/adopted person.
◦ The Board shall ensure that information held by them concerning the origin of the child/adopted person,
in particular the identity of his/her biological parents, is preserved.
Board
- act as the central authority in matters relating to inter-country adoption
- composed of the Secretary of the DSWD as ex officio Chairman, and 6 other members to be appointed by
the President for a nonrenewable term of six 6 years:
- there shall be appointed 1 psychiatrist or psychologist, 2 lawyers who shall have at least the
qualifications of a regional trial court judge, 1 registered social worker and 2 representatives from non-
governmental organizations engaged in child-caring and placement activities
Who may adopt
Any foreign national or a Filipino citizen permanently residing abroad who has the qualifications and none
of the disqualifications if he/she is:
◦ (a) is at least 27 years of age;
◦ (b) is at least 16 years older than the child to be adopted at the time of the filing of the application, unless
the applicant is the parent by nature of the child to be adopted or is the spouse of such parent by nature;
◦ (c) has the capacity to act and assume all the rights and responsibilities incident to parental authority
under his/her national law;
◦ (d) has undergone appropriate counselling from an accredited counselor in his/her country;
◦ (e) has not been convicted of a crime involving moral turpitude;
Who may adopt
◦ (f) is eligible to adopt under his/her national law;
◦ (g) can provide the proper care and support and give the necessary moral values and example to the child
and, in the proper case, to all his/her other children;
◦ (h) comes from a country:
(i) with whom the Philippines has diplomatic relations;
(ii) whose government maintains a foreign adoption agency; and
(iii) whose laws allow adoption; and
(i) files jointly with his/her spouse, if any, who shall have the same qualifications and none of the disqualifications to
adopt as prescribed above.
Matching. — The matching of the child to an applicant shall be carried out during a matching conference
before the Placement Committee participated in by the executive director or social worker of the child
caring agency or the social worker of the Department in case of adoption by a relative. The Board shall set
the guidelines for the manner by which the matching process shall be conducted and shall include among
others the following:
(a) Matching proposal
(b) Filing of matching proposal
(c) Presentation by the social worker
(d) Deliberations
(e) Committee action (approval, disapproval or deferment)
(f) Motion for reconsideration
◦ The Committee shall endorse the matching proposal to the Board for its approval or other appropriate action. The
endorsement shall state the reasons for the Committee's recommendation on the placement.
◦ The Board shall immediately act on the matching proposal of the Committee. If approved, a notice of matching shall be
sent to the concerned foreign adoption agency within 5 days from date of approval and shall be accompanied by the
following documents:
(a) Child Study Report;
(b) Health certificate and medical history of the child;
(c) Recent photographs of the child; and
(d) Itemized pre-adoptive placement costs.
◦ The applicant shall notify the foreign adoption agency in writing of his/her decision on the matching proposal within
15 calendar days from receipt of said proposal unless the applicant requests for additional information about the child.
T
◦ he matching proposal shall be deemed rejected if the applicant, through the foreign adoption agency, fails to notify the
Board of his/her decision within 15 days from receipt of the notice.
◦ No matching arrangements except under these Rules shall be made between the applicant and the child's
parents/guardians or custodians, nor shall any contact between them concerning a particular child be
done before the matching proposal of the Committee has been approved by the Board.
◦ This prohibition shall not apply in cases of adoption of a relative or in exceptional cases where the child's
best interest, as determined by the Board, is at stake
◦ Upon receipt of the applicant's acceptance of the matching proposal and confirmation of the pre-adoptive
placement plans presented by the foreign adoption agency, the Board shall issue the Placement Authority
within five (5) working days. A certified excerpt of the Minutes of the meeting of the Committee
approving the matching shall be attached to the Placement Authority and shall form part of the records of
the Child.
◦ Copy of the Placement Authority shall be transmitted to the Department of Foreign Affairs and to the
foreign adoption agency
◦ After the issuance of the Placement Authority and prior to departure abroad, the child shall be given the
necessary preparation and guidance by the child caring/placing agency which submitted the matching
proposal or by the social worker of the Department in case of adoption by a relative, in order to minimize
the trauma of separation from the persons with whom the child may have formed attachments and to
ensure that the child is physically able and emotionally ready to travel and to form new relationships.
◦ The applicant shall personally fetch the child from the Philippines not later than 30 days after notice of
issuance of the visa of the child for travel to the country where the applicant resides.
◦ The unjustified failure of the applicant to fetch the child within said period shall result in the automatic
cancellation of the Placement Authority.
◦ Trial custody shall start upon actual physical transfer of the child to the applicant who, as actual
custodian, shall exercise substitute parental authority over the person of the child.
◦ In all cases, the foreign adoption agency shall supervise and monitor the exercise of custody by
maintaining communication with the applicant from the time the child leaves the Philippines.
Supervision of Pre-Adoptive Placement
◦ The foreign adoption agency shall be responsible for the pre-adoptive placement, care and family
counselling of the child for at least 6 months from the arrival of the child in the residence of the
applicant. During the period, the foreign adoption agency shall furnish the Board with bi-monthly reports
on the child's health, psycho-social adjustment and relationships which the child has developed with the
applicant including the applicant's health, financial condition and legal capacity.
◦ The Board shall furnish the child's home agency a copy of the report
Emergency Report
◦ During the trial custody period, the foreign adoption agency shall notify the Board of any incident that may
have resulted in a serious impairment of the relationship between the child and the applicant or of any serious
ailment or injury suffered by the child, as soon as possible but not later than 72 hours after the incident or the
discovery of the ailment or injury.
Termination of Pre-Adoptive Relationship
◦ if the pre-adoptive relationship is found unsatisfactory by the child or the applicant, or both, or if the foreign
adoption agency finds that the continued placement of the child is not in the child's best interests, said
relationship shall be suspended by the Board and the foreign adoption agency shall arrange for the child's
temporary care.
◦ No termination of pre-adoptive relationship shall be made unless it is shown that the foreign adoption agency
has exhausted all means to remove the cause of the unsatisfactory relationship which impedes or prevents the
creation of a mutually satisfactory adoptive relationship.
New Placement for Child
◦ In the event of termination of the pre-adoptive relationship, the Board shall identify from the Roster of
Applicants a qualified family to adopt the child with due consideration for suitability and proximity.
◦ In the absence of any suitable family in the Roster of Applicants, the foreign adoption agency may
propose a replacement family whose application shall be filed for the consideration of the Board.
◦ The consent of the child shall be obtained in relation to the measures to be taken under this provision
having regard in particular to his/her age and level of maturity.
Repatriation of Child
◦ The child shall be repatriated as a last resort if found by the Board to be in his/her best interests.
◦ If the Board in coordination with the foreign adoption agency fails to find another placement for the child
within a reasonable period of time after the termination of the pre-adoptive relationship, the Board shall
arrange for the child's repatriation.
◦ The Board shall inform the DSWD, the child caring/placing agency concerned and the Department of
Foreign Affairs, of the decision to repatriate the child.
◦ If a satisfactory pre-adoptive relationship is formed between the applicant and the child, the Board shall
transmit the written consent to the adoption executed by the DSWD to the foreign adoption agency
within 30 days after receipt of the latter's request
◦ The applicant shall file the petition for the adoption of the child with the proper court or tribunal in the
country where the applicant resides within 6 months after the completion of the trial custody period
◦ Decree of Adoption - a copy of the final decree of adoption of the child, including the certificate of
citizenship/naturalization whenever applicable, shall be transmitted by the foreign adoption agency to the
Board within 1 month after its issuance.
◦ The copy of the adoption decree shall form part of the records of the Board which shall require the
recording of the final judgment in the appropriate local and foreign Civil Register
◦ In case of dismissal by the foreign tribunal of the petition for adoption filed by the applicant, then there
may be termination of pre-adoptive relationship, new placement or repatriation of the child
◦ The Board shall establish a program of post-adoption services in cooperation with local child caring and
child placing agencies and foreign adoption agencies.
Illegal Adoption – criminal offense
Presumption of Illegality. — An adoption shall be presumed illegal if:
(a) the consent for an adoption was acquired through, or attended by coercion, fraud, or improper material
inducement;
(b) there is no authority from the Board to effect adoption;
(c) the procedures and safeguards placed under the Act for adoption were not complied with; or
(d) if the child to be adopted is subjected or exposed to danger, abuse and exploitation.
Habeas Coprus
◦ 1987 Constitution, the Supreme Court was vested with original jurisdiction over habeas corpus cases,
concurrent with the Court of Appeals and the Regional Trial Court, pursuant to Batas Pambansa Bilang
129
◦ inferior courts, in certain cases, may hear habeas corpus cases – when there are no judges available in the
Regional Trial Courts in a province or city. The Clerk of Court of the Regional Trial Court shall promptly
transfer the case to the MTC
◦ reason for this rule is that habeas corpus cases are given special preference by the courts
◦ Principal and ancillary remedy
◦ great writ of liberty, the writ of habeas corpus was devised and exists as a speedy and effectual remedy to
relieve persons from unlawful restraint, and as the best and only sufficient defense of personal freedom
Habeas Corpus
◦ Limited jurisdiction
◦ No damages may be awarded
◦ A.M. No. 03-4-04-SC on 22 April 2003 governing the Rule on Custody of Minors and Writ of Habeas
Corpus in Relation to Custody of Minors
◦ The nature of the restraint of liberty need not be related to any offense so as to entitle a person to the
efficient remedy of habeas corpus
◦ Any restraint which will preclude freedom of action is sufficient
◦ it will not issue as a matter of course or as a mere perfunctory operation on the filing of the petition
◦ be clear to the judge to whom the petition is presented that, prima facie, the petitioner is entitled to the
writ
Jurisdiction/ Enforceability
◦ If granted by SC/CA or any justice thereof – anywhere in the Philippines
◦ Returnable to same court or to lower court
◦ RTC – judicial region – Sec. 21, in relation to Sec. 13, BP 129
◦ Sandiganbayan exercises exclusive original jurisdiction over petitions for the issuance of writ of habeas
corpus, among others, in aid of its appellate jurisdiction, arising or that may arise in cases filed or which
may be filed under Executive Order Nos. 1, 2, 14 and 14-A
◦ Section 5(b) of Republic Act No. 8639 or the Family Courts Act of 1997 provides that the Family Courts
have exclusive, original jurisdiction to hear and decide petitions for habeas corpus in relation to the
custody of children
◦ Family Court – concurrent with CA and SC – custody of minors (Thornton v. Thornton, G.R. No.
154598, 16 August 2004 )
Habeas Corpus
◦ If upon inquiry of the court it is found that the detention was illegal, it does not follow that the person
detained shall be forthwith discharged. Even if the arrest of a person is illegal, supervening events may
bar his release or discharge from custody
◦ What is to be inquired into is the legality of his detention as of, at the earliest, the filing of the application
for a writ of habeas corpus, for even if the detention is at its inception illegal, it may, by reason of same
supervening events such as the instances mentioned in Section 4, Rule 102, i.e., the issuance of a judicial
process preventing the discharge of the detained person, be no longer illegal at the time of the filing of
the application
◦ Peremptory writ vs Preliminary Citation
Habeas Corpus
◦ Ampatuan v. Macaraig, G.R. No. 139255, 24 November 2003
◦ a restrictive custody and monitoring of movements or whereabouts of police officers under investigation
by their superiors is not a form of illegal detention or restraint of liberty
◦ Restrictive Custody pursuant to Republic Act No. 6975 or the Department of Interior and Local
Government Act of 1990 as amended by Republic Act No. 8551 or the Philippine National Police
Reform and Reorganization Act, which provides that members of the police force, such as PO1
Ampatuan, are subject to the administrative disciplinary machinery of the PNP
Habeas Corpus
◦ Ilagan v. Ponce Enrile, G.R. No. 70748, 21 October 1985 - remedy of habeas corpus was no longer
available considering that the incarceration was by virtue of a judicial order in relation to criminal cases
subsequently filed against said lawyers
◦ persons restrained under a lawful process or order of the court must pursue the orderly course of trial and
exhaust the usual remedies, such as a motion to quash the information or the warrant of arrest, among
others
◦ Burden of proof – petitioner
◦ Collateral Attack
◦ Direct Attack – Post-Conviction DNA Testing
Habeas Corpus
◦ The grant or issuance of the writ of habeas corpus does not mean that the detainee shall be automatically
released from detention.
◦ What the writ of habeas corpus provides is that the respondent will be required to present to the court the
detainee on a particular day and period before the court. And after the detainee had been presented on
that particular day and period, the respondent would have complied with the writ of habeas corpus
◦ The return or statement shall be signed by the person who makes it; and shall also be sworn to by him if
the prisoner is not produced, and in all other cases unless the return is made and signed by a sworn public
officer in his official capacity.
◦ The requirement that a copy of the writ, warrant, execution or other process by which the petitioner is
detained shall appear in the return is not applicable if no such writ, warrant, execution or other process
exists.
Habeas Corpus
◦ If it appears that the prisoner is in custody under a warrant of commitment in pursuance of law, the return
shall be considered prima facie evidence of the cause of restraint; but if he is restrained of his liberty by
any alleged private authority, the return shall be considered only as a plea of the facts therein set forth,
and the party claiming the custody must prove such facts.
◦ No writ of habeas corpus can be disobeyed for defect of form, if it sufficiently appears therefrom in
whose custody or under whose restraint the party imprisoned or restrained is held and the court or judge
before whom he is to be brought
Habeas Corpus
◦ According to Section 12, Rule 102, the judge in a habeas corpus proceeding must immediately proceed
to hear and decide the case, unless for good cause shown the hearing is adjourned, in which event the
court or judge shall make such order for the safekeeping of the person imprisoned or restrained as the
nature of the case requires.
◦ The word "safekeeping" according to the dictionaries means "the act or state of keeping or being kept in
safety
◦ Margolari v. Tancino, 84 Phil. 865 (1949)
Habeas Corpus
◦ A person who is set at liberty upon a writ of habeas corpus shall not be again imprisoned for the same
offense unless by the lawful order or process of a court having jurisdiction of the cause or offense
◦ Contreras v. Solis, A.M. No. RTJ-94-1266, 21 August 1996
◦ Presumption of regularity applies – overcome by clear and convincing evidence
◦ The proceedings upon a writ of habeas corpus shall be recorded by the clerk of the court, and upon the
final disposition of such proceedings the court or judge shall make such order as to costs as the case
requires
◦ When a person confined under color of proceedings in a criminal case is discharged, the costs shall be
taxed against the Government of the Philippines, and paid out of its Treasury; when a person in custody
by virtue or under color of proceedings in a civil case is discharged, the costs shall be taxed against him,
or against the person who signed the application for the writ, or both, as the court shall direct
Habeas Corpus - Minors
Tujan-Militante v. Cada-Deapera, G.R. No. 210636, 28 July 2014
◦ QC and Caloocan within the same national capital judicial region
◦ the grant of the writ in the instant case will all depend on the concurrence of the following requisites: (1)
that the petitioner has the right of custody over the minor; (2) that the rightful custody of the minor is
being withheld from the petitioner by the respondent; and (3) that it is to the best interest of
the minor concerned to be in the custody of petitioner and not that of the respondent. (Sombong v. Court
of Appeals, G.R. No. 111876, January 31, 1996)
Change of Name
Name
◦ a man's name is the designation by which he is known and called in the community in which he lives and
is best known.
◦ It is defined as the word or combination of words by which a person is distinguished from other
individuals and, also, as the label or appellation which he bears for the convenience of the world at large
addressing him, or in speaking of or dealing with him.
◦ used merely as one method of indicating the identity of persons; they are descriptive of persons for
identification, since, the identity is the essential thing and it has frequently been held that, when identity
is certain, a variance in, or misspelling of, the name is immaterial (Republic v. Court of Appeals, G.R.
No. 97906, May 21, 1992)
Name
◦ names of individuals usually have 2 parts: the given name or proper name, and the surname or family
name. T
◦ he given or proper name is that which is given to the individual at birth or baptism, to distinguish him
from other individuals.
◦ The name or family name is that which identifies the family to which he belongs and is continued from
parent to child.
◦ The given name may be freely selected by the parents for the child; but the surname to which the child is
entitled is fixed by law.
(Republic v. Court of Appeals, G.R. No. 97906, May 21, 1992)
Name
Has the following characteristics:
(1) It is absolute, intended to protect the individual from being confused with others.
(2) It is obligatory in certain respects, for nobody can be without a name.
(3) It is fixed, unchangeable, or immutable, at least at the start, and may be changed only for good cause
and by judicial proceedings.
(4) It is outside the commerce of man, and, therefore, inalienable and intransmissible by act inter
vivos or mortis causa.
(5) It is imprescriptible.
Change of Name
◦ Article 376 of the Civil Code - No person can change his name or surname without judicial authority.
◦ The purpose of the statutory procedure authorizing a change of personal name is simply to have,
wherever possible, a record of the change, and in keeping with the object of the statute, a court to which
application is made should normally make its decree recording such change of name (Republic v. Court
of Appeals, G.R. No. 97906, May 21, 1992)
◦ State has an interest in the names borne by individuals and entities for the purpose of identification, and
a change of name is not a matter of right but of sound judicial discretion, to be exercised in the light of
reasons adduced and the consequences that will likely follow; it is a privilege which may be granted only
upon a showing of a proper or reasonable cause or compelling reason therefor. (Republic v. Court of
Appeals, G.R. No. 97906, May 21, 1992)
Change of Name
GROUNDS
(a) When the name is ridiculous, dishonorable or extremely difficult to write or pronounce;
(b) When the change results as a legal consequence, as in legitimation;
(c) When the change will avoid confusion;
(d) Having continuously used and been known since childhood by a Filipino name, unaware of her alien
parentage;
(e) A sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith and
without prejudicing anybody;
(f) When the surname causes embarrassment and there is no showing that the desired change of name was
for a fraudulent purpose or that the change of name would prejudice public interest. (Republic v. Court
of Appeals, G.R. No. 97906, May 21, 1992)
Change of Name
◦ Petitioner points out that the middle name "Carulasan" will cause him undue embarrassment and the
difficulty in writing or pronouncing it will be an obstacle to his social acceptance and integration in the
Singaporean community and seeks to change it to remove it from his name “Julian Lin Carulasang
Wang” to “Julian Lin Wang”. Can this be done?
◦ NO. While no law governing middle names, this does not mean that middle names have no practical or
legal significance. 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. (Julian
Lin Wang v. Cebu City Civil Registrar, G.R. No. 159966, March 30, 2005)
Change of Name
◦ In case of annulment of marriage and wife is guilty party, she shall resume her maiden name and
surname
◦ If she is innocent spouse, she may resume her maiden name and surname
◦ May use to continue employing her former husband’s surname, unless:
◦ Court decrees otherwise
◦ She or the former husband is married again
◦ When legal separation granted, wife shall continue to use her surname employed before legal separation
◦ Widow may use deceased’s husband’s surname
Change of Name
Anna Cruz Santos married Pedro Dizon Reyes
She may use
◦ Anna Cruz Santos
◦ Anna Santos Reyes
◦ Anna Cruz Santos-Reyes
◦ Mrs. Pedro Dizon Reyes
◦ Once change using husband’s surname, may not revert back unless marriage is nullified or dissolved
Cancellation/Correction of Entries
◦ Entries in Civil Registry
◦ RA 10172
◦ typographical errors and
◦ change of first name or nickname, the
◦ day and month in the date of birth or s
◦ ex of a person
◦ where it is patently clear that there was a clerical or typographical error or mistake in the entry, which
can be corrected or changed by the concerned city or municipal civil registrar or consul general
◦ Can a Petition denominated as that under Rule 103 be treated as that under Rule 108 and vice versa?
◦ Yes, provided that the allegations needed in the petition and the jurisdicitonal requirements are met.
103 108
- Residence of petitioner - Where civil registry located
- Publication once a week for 3 - Publication once a week for 3
consecutive weeks consecutive weeks
- Date of hearing not be within 30 days - No such requirement
before an election or within 4 months
after last publication of notice
- Any interested person may appear and - Civil registrar and all persons claiming
oppose; OSG or prosecutor to appear on any interest should be made parties
behalf of Government
RA 10172
◦ Clerical or typographical error' refers to a mistake committed in the performance of clerical work in
writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous, such
as misspelled name or misspelled place of birth, mistake in the entry of day and month in the date of
birth or the sex of the person or the like, which is visible to the eyes or obvious to the understanding, and
can be corrected or changed only by reference to other existing record or records:
◦ no correction must involve the change of nationality, age, or status of the petitioner.
◦ In Republic v. Cagandahan, it was held that R.A. 9048 removed from the ambit of Rule 108 correction of
clerical or typographical errors and that Rule 108 applies only to substantial changes or correction of
entries in the civil register (G.R. No. 166676, September 12, 2008).
RA 10172
◦ Verified petition with the local civil registry office of the city or municipality where the record being
sought to be corrected or changed is kept.
◦ In case the petitioner has already migrated to another place in the country and it would not be practical
for such party, in terms of transportation expenses, time and effort to appear in person before the local
civil registrar keeping the documents to be corrected or changed, the petition may be filed, in person,
with the local civil registrar of the place where the interested party is presently residing or domiciled.
The two (2) local civil registrars concerned will then communicate to facilitate the processing of the
petition
RA 9048, as amended by RA 10172
◦ The city or municipal civil registrar or the consul general to whom the petition is presented shall examine
the petition and its supporting documents.
◦ post the petition in a conspicuous place provided for that purpose for 10 consecutive days after he finds
the petition and its supporting documents sufficient in form and substance.
◦ The city or municipal civil registrar or the consul general shall act on the petition and shall render a
decision not later than 5 working days after the completion of the posting and/or publication requirement.
He
◦ shall transmit a copy of his decision together with the records of the proceedings to the Office of the
Civil Registrar General within five (5) working days from the date of the decision.
RA 9048, as amended by RA 10172
◦ petition is denied by the city or municipal civil registrar or the consul general, the petitioner may either
appeal the decision to the civil registrar general or file the appropriate petition with the proper court
◦ petitioner may seek reconsideration with the civil registrar general or file the appropriate petition with
the proper court.
◦ It is remedial in nature and may apply retroactively as long as it does not impair vested rights (Republic
v. Unabia, G.R. No. 213346, 11 February 2019)
Silverio
◦ Since the statutory language of the Civil Register Law was enacted in the early 1900s and remains
unchanged, it cannot be argued that the terms “sex” as used then is something alterable through surgery
or something that allows a post-operative male-to-female transsexual to be included in the category of
“female” (Silverio v. Republic of the Philippines, G.R. No. 174689, October 22, 2007).
Cagandahan
◦ This condition causes the early or “inappropriate” appearance of male characteristics. CAH is one of
many conditions that involves intersex anatomy. During the twentieth century, medicine adopted the term
“intersexuality” to apply to human beings who cannot be classified as either male or female. The term is
now of widespread use. According to Wikipedia, intersexuality “is the state of a living thing of a
gonochoristic species whose sex chromosomes, genitalia, and/or secondary sex characteristics are
determined to be neither exclusively male nor female. An organism with intersex may have biological
characteristics of both male and female sexes” (Republic v. Cagandahan)
Republic v. Olaybar
While we maintain that Rule 108 cannot be availed of to determine the validity of marriage, we cannot
nullify the proceedings before the trial court where all the parties had been given the opportunity to contest
the allegations of respondent; the procedures were followed, and all the evidence of the parties had already
been admitted and examined. Respondent indeed sought, not the nullification of marriage as there was no
marriage to speak of, but the correction of the record of such marriage to reflect the truth as set forth by the
evidence. Otherwise stated, in allowing the correction of the subject certificate of marriage by cancelling
the wife portion thereof, the trial court did not, in any way, declare the marriage void as there was no
marriage to speak of
◦ Petition for cancellation of entries of marriage contract
◦ while the law requires the entry of the divorce decree in the civil registry, the law and the submission of
the decree by themselves do not ipso facto authorize the decree's registration. The law should be read in
relation with the requirement of a judicial recognition of the foreign judgment before it can be given res
judicata effect. In the context of the present case, no judicial order as yet exists recognizing the foreign
divorce decree.
◦ the recognition that the RTC may extend to the Canadian divorce decree does not, by itself, authorize
the cancellation of the entry in the civil registry. A petition for recognition of a foreign judgment is not
the proper proceeding, for the cancellation of entries in the civil registry
◦ this ruling should not be construed as requiring two separate proceedings for the registration of a foreign
divorce decree in the civil registry — one for recognition of the foreign decree and another specifically
for cancellation of the entry under Rule 108 of the Rules of court The recognition of the foreign divorce
decree may be made in a Rule 108 proceeding itself, as the object of special proceedings (such as that in
Rule 108) is precisely to establish the status or right of a party or a particular fact. Moreover, Rule 108
can serve as the appropriate adversarial proceeding by which the applicability of the foreign judgment
can be measured and tested in terms of jurisdictional infirmities, want of notice to the party, collusion,
fraud, or clear mistake of law or fact (Corpuz v. Sto. Tomas, G.R. No. 186571, August 11, 2010)
Writ of Amparo
◦ A remedy available to any person whose right to life, liberty and security is violated or threatened with
violation by an unlawful act or omission of a public official or employee, or of a private individual or
entity.
◦ It covers extralegal killings and enforced disappearances or threats thereof (A.M. 07-9-12-SC, Sec. 1).
Applicable in pending cases due to the remedial nature of the writ
◦ Indispensable Element
◦ It must also be shown and proved by substantial evidence that the disappearance was carried out by, or
with the authorization, support or acquiescence of, the State or a political organization, followed by a
refusal to acknowledge the same or give information on the fate or whereabouts of said missing persons,
with the intention of removing them from the protection of the law for a prolonged period of time. Simply
put, the petitioner in an amparo case has the burden of proving by substantial evidence the indispensable
element of government participation (Navia v. Pardico, G.R. No. 184467, June 19, 2012).
◦ Who may file (Order of Preference): By the aggrieved party or by any qualified person or entity in the
following order:
◦ Any member of the immediate family, namely: the spouse, children and parents of the aggrieved party;
◦ Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of
consanguinity or affinity, in default of those mentioned in the preceding paragraph; or
◦ Any concerned citizen, organization, association or institution, if there is no known member of the
immediate family or relative of the aggrieved party.
◦ Filing of a petition by the aggrieved party suspends the right of all other authorized parties to file similar
petitions.
◦ Likewise, the filing of the petition by an authorized party on behalf of the aggrieved party suspends the
right of all others, observing the order established herein (A.M. 07-9-12-SC, Sec. 2).
◦ The term ‘any threat,’ however, cannot be taken to mean every conceivable threat in the mind that may
cause one to fear for his life, liberty or security. In the context of the Amparo Rule, only actual threats, as
may be established from all of the facts and circumstances of the case, can qualify as a violation that may
be addressed under the Rule on the Writ of Amparo (In the Matter of the Petition for the Issuance of A
Writ of Amparo in Favor of Lilibeth O. Ladaga, G.R. No. 189689, November 13, 2012).
◦
Jurisdiction and Enforceability
◦ Regional Trial Court where the threat, act or omission was committed or any of its elements occurred;
◦ With the Sandiganbayan, Court of Appeals, the Supreme Court or any justice of such courts.
◦ This writ shall be enforceable anywhere in the Philippines.
◦ No general denial – the policy is to require revelation of all evidence relevant to the petition. So that all
pieces of evidence relevant to the resolution of the petition may be presented especially as that the
proceeding is a search for the truth.
◦ Omnibus Waiver Rule - The respondent must plead all his defenses in the return. Failure to do so shall
operate as a waiver of such defenses not therein pleaded
◦ Failure to file return - The court, justice or judge shall hear the petition ex parte
◦ No docket fees - enforcement of these sacrosanct rights should not be frustrated by lack of finances.
Interim Reliefs
◦ Temporary Protection Order – The court, justice or judge, upon motion or motu proprio, may order that the petitioner or
the aggrieved party and any member of the immediate family be protected in a government agency or by an accredited
person or private institution capable of keeping and securing their safety. If the petitioner is an organization, association or
institution referred to in Section 3 (c) of this Rule, the protection may be extended to the officers involved.
◦ Inspection Order – The court, justice or judge, upon verified motion and after due hearing, may order any person in
possession or control of a designated land or other property, to permit entry for the purpose of inspecting, measuring,
surveying, or photographing the property or any relevant object or operation thereon.
◦ Production Order – The court, justice or judge, upon verified motion and after due hearing, may order any person in
possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or
tangible things, or objects in digitized or electronic form, which constitute or contain evidence relevant to the petition or
the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant.
◦ Witness Protection Order - The court, justice or judge, upon motion or motu proprio, may refer the witnesses to the
Department of Justice for admission to the Witness Protection Security and Benefit Program or the witness may be referred
to other government agencies, or to accredited persons or private institutions capable of keeping and securing their safety.
◦ Upon verified motion of the respondent and after due hearing, the court, justice or judge may issue an
inspection order or production order. A motion for inspection order shall be supported by affidavits or
testimonies of witnesses having personal knowledge of the defenses of the respondent.
◦ the failure to establish that the public official observed extraordinary diligence in the performance of
duty does not result in the automatic grant of the privilege of the amparo writ. It does not relieve the
petitioner from establishing his or her claim by substantial evidence. The omission or inaction on the part
of the public official provides, however, some basis for the petitioner to move and for the court to grant
certain interim reliefs (Yano v. Sanchez, G.R. No. 186640, February 11, 2010).
◦ the court shall render judgment within ten (10) days from the time the petition is submitted for decision.
◦ Within five (5) days to appeal to the SC under Rule 45 and may raise questions of fact or law or both
◦ The court shall not dismiss the petition, but shall archive it, if upon its determination it cannot proceed
for a valid cause such as the failure of petitioner or witnesses to appear due to threats on their lives
(Liberalized Rule on Dismissal).
◦ the petition shall be dismissed with prejudice upon failure to prosecute the case after the lapse of two (2)
years from notice to the petitioner of the order archiving the case
◦ Filing of a petition for the writ of amparo shall not preclude the filing of separate criminal, civil or
administrative actions.
◦ When a criminal action has been commenced, no separate petition for the writ shall be filed. The reliefs
under the writ shall be available by motion in the criminal case. The procedure under the Rule on the
Writ of Amparo shall govern the disposition of reliefs available under the writ
◦ When a criminal action is filed subsequent to the filing of a petition for the writ, the latter shall be
consolidated with the criminal action.
◦ When a criminal action and a separate civil action are filed subsequent to a petition for a writ of amparo,
the latter shall be consolidated with the criminal action. After consolidation, the procedure under this
Rule shall continue to apply to the disposition of the reliefs in the petition (A.M. 07-9-12-SC, Sec. 23).
◦ The President cannot be included as respondent in a writ of amparo case solely on the basis of command
responsibility because of the presidential immunity from suit. (Burgos v. Macapagal-Arroyo, G.R. No.
183711, June 22, 2010)
◦ The AFP Chief of Staff and the PNP Director may also be included as respondents, but not for the
purpose of attaching accountability and responsibility to them for the enforced disappearance of the
victim but only to determine the author who, at the first instance, is accountable for and has the duty to
address the disappearance and harassment complained of in order to enable the court to devise remedial
measures. (Rubrico v. Macapagal-Arroyo, G.R. No. 183871, February 18, 2010).
◦
Habeas Data
◦ A remedy available to any person whose right to privacy in life, liberty or security is violated or
threatened by an unlawful act or omission of a public official or employee, or of a private individual or
entity engaged in the gathering, collecting or storing of data or information regarding the person, family,
home and correspondence of the aggrieved part
◦ designed to safeguard individual freedom from abuse in the information age by means of an individual
complaint presented in a constitutional court. Specifically, it protects the image, privacy, honor,
information, self-determination, and freedom of information of a person (The Philippine Supreme Court’s
Bulletin, Benchmark Online, November 2007)
◦ Any aggrieved party may file a petition for the writ of habeas data. However, in cases of extralegal
killings and enforced disappearances, the petition may be filed by:
◦ Any member of the immediate family of the aggrieved party, namely: the spouse, children and parents; or
◦ Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of
consanguinity or affinity, in default of those mentioned in the preceding paragraph (A.M. No. 08-1-16-SC, Sec. 2).
◦
◦ Unlike in amparo, human rights organizations or institutions are no longer allowed to file the petition.
When issued by:
◦ The RTC or any judge thereof – returnable before such court or judge
◦ CA or the Sandiganbayan or any of its justices – before such court or any justice thereof, or to any
Regional Trial Court of the place where the petitioner or respondent resides, or that which has
jurisdiction over the place where the data or information is gathered, collected or stored.
◦ SC or any of its justices – before such Court or any justice thereof, or before the Court of Appeals or
the Sandiganbayan or any of its justices, or to any Regional Trial Court of the place where the petitioner
or respondent resides, or that which has jurisdiction over the place where the data or information is
gathered, collected or stored (
◦ An indigent petitioner need not pay the docket fees if he files the petition but subject to the submission of
proof of indigency.
◦ No docket and other lawful fees shall be required from an indigent petitioner. But without prejudice to
submission of proof of indigency not later than fifteen (15) days from filing of proof (A.M. No. 08-1-16-
SC, Sec. 5).
Defenses available to Respondent
◦ National security;
◦ State secrets;
◦ Privileged communications; and
◦ Confidentiality of the source of information of media and others.
◦
◦ Failure to file return - The court shall proceed to hear the petition ex parte, granting the petitioner such
relief as the petition may warrant unless the court in its discretion requires the petitioner to submit
evidence.
Hearing petition in chambers
◦ Where the respondent invokes the defense that:
◦ The release of the data or information in question shall compromise national security or state secrets; or
◦ The data or information cannot be divulged to the public due to its nature or privileged character. (A.M.
No. 08-1-16-SC, Sec. 12)
◦
Grant of the Writ v. Grant of the Privilege of the Writ
◦ The grant of the writ refers to the decision of the court to give due course to the petition, require
respondents to file their return and set the petition for hearing.
◦ The grant of the privilege of the writ means that the petition is found meritorious, the prayers therein
are granted and the petitioner is granted the relief sought.
◦ Effect of filing of petition in relation to the right to file other action: Filing of a petition for the writ
of habeas data shall not preclude the filing of separate criminal, civil or administrative actions.
◦ Any party may appeal from the judgment or final order within five (5) days to the SC under Rule 45 and
may raise questions of fact or law or both.
Effect of filing of a criminal action after the filing of the petition:
◦ When a criminal action is filed subsequent to the filing of a petition for the writ, the latter shall be
consolidated with the criminal action.
◦ When a criminal action and a separate civil action are filed subsequent to a petition for a writ of habeas
data, the petition shall be consolidated with the criminal action.
◦ After consolidation, the procedure under this Rule shall continue to govern the disposition of the reliefs
in the petition.
◦ when a criminal action has been commenced, no separate petition for the writ shall be filed. The relief
under the writ shall be available to an aggrieved party by motion in the criminal case.
◦ The procedure under this Rule shall govern the disposition of the reliefs available under the writ of
habeas data (A.M. No. 08-1-16-SC, Sec. 21).
Special Proceedings - Marriage
◦ Nullity
◦ Annulment
◦ Collusion
◦ OSG, Prosecutor
◦ Interim Reliefs
◦ Support
◦ Custody
◦ Protection Order
◦ HDO
◦ Visitation
◦ Administratiton
THANK YOU!

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SPECIAL

◦ Probate during lifetime

◦ A judicial pronouncement on such presumption is useless because it would still be a prima

◦ gross value of the estate not assessed value

◦ Resides / domicile – resident/inhabitant/actual residence with continuity and consistency [Jao

◦ In Re: Eusebio v. Eusebio, et al., G.R. No. L-8049, 28 December 1956

◦ Cayetano v. Leonidas, G.R. No. 54919, 30 May 1984

◦ Not CFI but RTC or MTC, depending on gross estate – BP 129

◦ Venue is procedural, jurisdiction is substantive

◦ Supreme Court sustained probate court’s revocation of appointment as special

What about a debtor of the decedent?

- Appointed by court if no appointed executor/executor refused - Named in the will

◦ The Incompetency of the person for whom guardianship is sought; and

◦ This rule provides for the procedure for appointment of a trustee.

◦ May instead tender resignation

◦ The legitimate child of one spouse, by the other spouse;

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