Page 1 of 69

SPECIAL PROCEEDINGS

DEFINITION:

A special proceeding is a remedy by which a party seeks to establish a status, a right or a particular
fact. (Section (c), Rule 1)

The term special proceeding may be defined as an application or proceeding to establish the status
or right of a party, or a particular fact. Usually, in special proceedings, no formal pleadings are required unless
the statute expressly so provides and the remedy is granted generally upon an application or motion.
(Natcher vs. CA, G.R. No. 133000, October 2, 2001)

A special proceeding, by which a party seeks to establish a status, right, or a particular fact, has one
definite party, who petitions or applies for a declaration of a status, right, or particular fact, but no definite
adverse party. (Montaer vc CA, G.R. No. 174975, January 20, 2009)

Are the enumerations under Sec. 1, Rule 72 exclusive?

The list under Section 1, Rule 72 is not exclusive. Any petition which has for its main purpose the
establishment of a status, right or a particular fact may be included as special proceeding. (Festin, Special
Proceedings, A Foresight to the Bar Exam: Question and Answer Noted, Bar Questions, Cases and
Updated Laws, 2011)

What are some of the cases which are considered special proceeding?

1. Declaration of Nullity of Marriage;
2. Annulment of Marriage
3. Insolvency proceedings
4. Proceeding for the issuance of writ of amparo
5. Proceedings for the issuance of writ of habeas data
6. Alternative Dispute Resolution proceedings;
7. Presumptive death

Can a special proceeding be joined with ordinary civil actions?

No, by express provision of Sec. 5, Rule 2 which requires that the joinder of causes of action must not
involve special civil actions or actions governed by special rules, (which includes special proceedings)

Specific rules on settlement prevail over general rules
We read with approval the CAs use of statutory construction principle of lex specialis derogate
generali, leading to the conclusion that the specific provisions of Section 5, Rule 86 of the Rules of Court
should prevail over the general provisions of Section 11, Rule 6 of the Rules of Court; the settlement of the
estate of deceased persons (where claims against the deceased should be filed) is primarily governed by the
rules on special proceedings, while the rules provided for ordinary claims, including Section 11, Rule 6 of the
Rules of Court, merely apply suppletorily. (Metropolitan Bank & Trust Company v. Absolute Management
Corporation, G.R. No. 170498. January 9, 2013)

4.1. SETTLEMENT OF ESTATE OF DECEASED PERSONS, VENUE AND PROCESS

A special proceeding for the settlement of an estate is filed and intended to settle the entire estate of
the deceased is obvious and elementary ( Vda. De Reyes vs. CA, G.R. No. L-47027 January 27, 1989).


Page 2 of 69
Probate of the will takes precedence over intestate proceedings: Effect if probate of the will is
disapproved:

If in the course of intestate proceedings pending before a court of first instance it is found it that the
decedent had left a last will, proceedings for the probate of the latter should replace the intestate proceedings
even if at that stage an administrator had already been appointed, the latter being required to render final
account and turn over the estate in his possession to the executor subsequently appointed but this is without
prejudice to the fact that should the alleged last will be rejected or is disapproved, the proceeding shall
continue as intestacy. (Uriarte vs CFI Of Negros, G.R. Nos. L-21938-39 May 29, 1970)

Insolvency proceedings and settlement are actions in rem:

Insolvency proceedings end settlement of a decedents estate is both proceedings in rem which are
binding the whole world. Consequently, a liquidation of similar import or other equivalent general liquidation
must also necessarily be a proceeding in rem so that all interested persons whether known to the parties or
not may be bound by such proceeding. (Philippine Savings Bank vs Lantin, G.R. No. L-33929. September 2,
1983.)

4.1. 1. JURISDICTION OVER SETTLEMENT OF THE ESTATE.

The Regional Trial Court has jurisdiction over proceedings for the settlement of the estate of a
deceased person (probate proceedings) where the gross value of the estate exceeds P300,000 and in
Metro Manila where the gross value of the estate exceeds P400,000. Where the gross value does not
exceed P300,000 or P400,000 it would be the Municipal Trial Court which would have jurisdiction. (BP
129 and RA 7691)

4.1. 2 VENUE IN JUDICIAL SETTLEMENT OF ESTATE

The matter of venue, or the particular Court of First Instance where the special proceeding should be
commenced, is regulated by former Rule 75, Section 1 of the Rules of Court, now Section 1, Rule 73 of the
Revised Rules of Court, which provides that the estate of a decedent inhabitant of the Philippines at the time
of his death, whether a citizen or an alien, shall be in the court of first instance in the province in which
he resided at the time of his death, and if he is an inhabitant of a foreign country, the court of first
instance of any province in which he had estate. (Uriarte vs CFI Of Negros, G.R. Nos. L-21938-39 May 29,
1970)

Place of residence of the deceased is for the determination of venue:

The place of residence of the deceased is not an element of jurisdiction over the subject-matter
but merely of venue. And it is upon this ground that in the new Rules of Court the province where the estate of
a deceased person shall be settled is properly called "venue". (Cuenco vs CA, G.R. No. L-24742 October 26,
1973)

The place of residence of the deceased in settlement of estates, probate of will, and issuance of letters
of administration does not constitute an element of jurisdiction over the subject matter. As it is merely
constitutive of venue (Fule vs. CA, L-40502, November 29, 1976).

Venue in settlement of the estate waivable:

It is well settled in this jurisdiction that wrong venue is merely a waiveable procedural defect.
Moreover, it must be remembered that this Court is not inclined to annul proceedings regularly had in a
lower court even if the latter was not the proper venue therefor, if the net result would be to have the same
proceedings repeated in some other court of similar jurisdiction; more so in a case like the present where the
objection against said proceedings is raised too late. (Uriarte vs CA, G.R. Nos. L-21938-39 May 29, 1970)


Page 3 of 69
Exclusionary rule on venue in settlement of the estate:

Even assuming that there is concurrent venue among the Regional Trial Courts of the places where
the decedent has residences, the Regional Trial Court first taking cognizance of the settlement of the estate of
the decedent, shall exercise jurisdiction to the exclusion of all other courts (Section 1, Rule 73). (Vda. De Chua
vs CA. G.R. No. 116835 March 5, 1998)

4.1. 3. EXTENT OF JURISDICTION OF PROBATE COURT

Coverage on the extent of the power of the probate court: Issue of ownership not included:

The probate jurisdiction of the former court of first instance or the present regional trial court relates
only to matters having to do with the settlement of the estate and probate of wills of deceased persons, and
the appointment and removal of administrators, executors, guardians and trustees and does not extend the
jurisdiction of a probate court to the determination of questions of ownership that arise during the
proceeding. The parties concerned may choose to bring a separate action as a matter of convenience in the
preparation or presentation of evidence. (Ramos vs CA, G.R. No. 42108 December 29, 1989)

Jurisdiction of probate court to determine whether property belongs to conjugal partnership or
exclusive ownership of a party

In the case now before us, the matter in controversy is the question of ownership of certain of the
properties involved whether they belong to the conjugal partnership or to the husband exclusively. This is
a matter properly within the jurisdiction of the probate court which necessarily has to liquidate the conjugal
partnership in order to determine the estate of the decedent which is to be distributed among his heirs who
are all parties to the proceedings. (Leo C. Romero and David Amando C. Romero vs. Hon. Court of Appeals,
Aurora C. Romero and Vittorio C. Romero, G.R. No. 188921, April 18, 2012)
Probate court has a special and limited jurisdiction:

It must be emphasized that the trial court, sitting, as a probate court, has limited and special
jurisdiction and cannot hear and dispose of collateral matters and issues which may be properly threshed out
only in an ordinary civil action. (Vda. De Manalo vs. CA, G.R. No. 129242. January 16, 2001)

The authority of the Regional Trial Court, sitting, albeit with limited jurisdiction, as a probate court
over the estate of deceased individual, is not a trifling thing. The court's jurisdiction, once invoked, and made
effective, cannot be treated with indifference nor should it be ignored with impunity by the very parties
invoking its authority. (Romero vs CA, G.R. No. 188921, April 18, 2012)

Issues that may be resolved by the probate court:

In testament to this, it has been held that it is within the jurisdiction of the probate court to (1)
approve the sale of properties of a deceased person by his prospective heirs before final adjudication; (2) to
determine who are the heirs of the decedent; (3) the recognition of a natural child; (4) the status of a woman
claiming to be the legal wife of the decedent; the legality of disinheritance of an heir by the testator; and (5)to
pass upon the validity of a waiver of hereditary rights. (Romero vs CA, G.R. No. 188921, April 18, 2012)

Determination of heir an issue resolvable by probate court

While the foregoing allegations, if admitted to be true, would consequently warrant the reliefs sought
for in the said complaint, the rule that the determination of a decedents lawful heirs should be made in the
corresponding special proceeding precludes the RTC, in an ordinary action for cancellation of title and
reconveyance, from granting the same. In the case of Heirs of Teofilo Gabatan v. CA, the Court, citing several
other precedents, held that the determination of who are the decedents lawful heirs must be made in the

Page 4 of 69
proper special proceeding for such purpose, and not in an ordinary suit for recovery of ownership and/or
possession, as in this case:



Jurisprudence dictates that the determination of who are the legal heirs of the deceased must be
made in the proper special proceedings in court, and not in an ordinary suit for recovery of ownership
and possession of property. This must take precedence over the action for recovery of possession and
ownership. The Court has consistently ruled that the trial court cannot make a declaration of heirship in the
civil action for the reason that such a declaration can only be made in a special proceeding. Under Section 3,
Rule 1 of the 1997 Revised Rules of Court, a civil action is defined as one by which a party sues another for the
enforcement or protection of a right, or the prevention or redress of a wrong while a special proceeding is a
remedy by which a party seeks to establish a status, a right, or a particular fact. It is then decisively clear that
the declaration of heirship can be made only in a special proceeding inasmuch as the petitioners here are
seeking the establishment of a status or right. (Heirs of Magdaleno Ypon vs. Gaudioso Ponteras Ricaforte
a.k.a. Gaudioso E. Ypon, and The Register of Deeds of Toledo City., G.R. No. 198680, July 8, 2013)




Nature of the determination of issue of ownership in probate not conclusive merely provisional:

The probate court may pass upon the title thereto but such determination is not conclusive and is
subject to the final decision in a separate action regarding ownership which may be instituted by the parties.
(Reyes vs Mosqueda, G.R. No. L-45262 July 23, 1990)

The jurisprudence and rule are both to the effect that the probate court "may" provisionally pass
upon the question of exclusion, not "should". The obvious reason is the probate court's limited jurisdiction
and the principle that questions of title or ownership, which result to inclusion in or exclusion from the
inventory of the property, can only be settled in a separate action. (Pio Baretto vs. Aa, G.R. No. L-62431-33
August 31, 1984)

It cannot but be conceded that the limited jurisdiction of a probate court prohibits it from
determining rights to property left by a decedent which depends on the contract (Goodin v. Casselman 200
N.W. 94, 51 N.D. 543).

However, actions of the probate court, in the case at bar, do not refer to the adjudication of rights
under the contract entered into by the deceased during his lifetime. It is to be noted that the dealings of the
respondent with the court arose out of the latter's bid to sell property under its authority to sell, mortgage or
otherwise encumber property of the estate to pay or settle against the estate (Rule 89, Revised Rules of
Court).

"[A] probate court or one in charge of proceedings whether testate or intestate cannot adjudicate or
determine title to properties claimed to be a part of the estate and which are claimed to belong to outside
parties. All that the said court could do as regards said properties is to determine whether they should or
should not be included in the inventory or list of properties to be administered by the administrator. "( De
Leon vs. CA, G.R. No. 128781, August 6, 2002)

Although generally, a probate court may not decide a question of title or ownership, yet if the
interested parties are all heirs, or the question is one of collation or advancement, or the parties consent to
the assumption of jurisdiction by the probate court and the rights of third parties are not impaired, then the
probate court is competent to decide the question of ownership. (Romero vs CA, G.R. No. 188921, April 18,
2012)


Page 5 of 69
4.1.4. POWERS AND DUTIES OF PROBATE COURT

In probate proceedings, the court:

a) Orders the probate of the will of the decedent (Sec. 3, Rule 77);
b) Grants letters of administration of the party best entitled thereto or to any qualified applicant (Sec.
5, Rule 79);
c) Supervises and control all acts of administration;
d) Hears and approves claims against the estate of the deceased (Sec. 11, Rule 86);
e) Orders payment of lawful debts (Sec. 11, Rule 88);
f) Authorizes sale, mortgage or any encumbrance of real estate (Sec. 2, Rule 89);
g) Directs the delivery of the estate to those entitled thereto (Sec. 1, Rule 90);
h) Issue warrants and processes necessary to compel the attendance of witnesses or to carry into
effect their orders and judgments, and all other powers granted them by law (Sec. 3, Rule 73);
i) If a person defies a probate order, it may issue a warrant for the apprehension and imprisonment of
such person until he performs such order or judgment, or is released (Sec. 3, Rule 73).

Power of supervision and control of the probate court:

"The court which acquires jurisdiction over the properties of a deceased person through the filing of
the corresponding proceedings, has supervision and control over the said properties, and under the said
power, it is its inherent duty to see that the inventory submitted by the administrator appointed by it
contains all the properties, rights and credits which the law requires the administrator to set out in his
inventory. In compliance with this duty the court has also inherent power to determine what properties,
rights and credits of the deceased should be included in or excluded from the inventory. (De Leon vs CA, G.R.
No. 128781, August 6, 2002)

The court acts as trustee and as such, should jealously guard the estate and see to it that it is wisely
and economically administered, not dissipated (Timbol vs. Cano, 111 Phil. 923, G.R. No. L-15445, April 29,
1961).

Should an heir or person interested in the properties of a deceased person duly call the courts
attention to the fact that certain properties, rights or credits have been left out in the inventory, it is likewise
the courts duty to hear the observations, with power to determine if such observations should be attended to
or not and if the properties referred to therein belong prima facie to the intestate, but no such determination
is final and ultimate in nature as to the ownership of the said properties. (De Leon vs CA, G.R. No. 128781,
August 6, 2002)

4.2. SUMMARY SETTLEMENT OF ESTATES

General rule:

When a person dies leaving property, the same should be JUDICIALLY ADMINISTERED and the competent
court should appoint a qualified administrator, in the order established in Section 6, Rule 78, in case the
deceased left no will, or in case he had left one, should he fail to name an executor therein. (Pereira vs CA,
G.R. No. L-81147 June 20, 1989)


Exceptions:

1. Extrajudicial settlement (Section 1, Rule 74)
2. Summary settlement of estates of small value (Section 2, Rule 74)

4.2.1. EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN HEIRS, WHEN ALLOWED


Page 6 of 69
As a general rule, when a person dies living property in the Philippine Islands, his property should be
judicially administered and the competent court should appoint a qualified administrator, or in case the
deceased left no will, or in case he had left one should he fail to name an executor therein. This rule, however,
is subject to the exceptions, such as when the heirs are all of lawful age and there are no debts there is no
reason why the estate should be burdened with the cost and expenses of an administrator. (Pereira vs CA,
G.R. No. L-81147 June 20, 1989 citing Utulo vs. Pasion vda. De Garcia, 66 Phil. 303, G.R. No. 45904,
September 30, 1938)

This court repeatedly held that when a person dies without leaving pending obligations to be paid,
his heirs, whether of age or not, are not bound to submit the property to a judicial administration and the
appointment of an administrator are superfluous and unnecessary proceedings (Fule vs CA, G.R. No. L-40502
November 29, 1976)

If the intention were otherwise the framer of the rule would have employed the word shall as was
done in other provisions that are mandatory in character. Note that the word may is used not only once but in
the whole section which indicates an intention to leave the matter entirely to the discretion of the heirs.
(Arcilla vs Montejo, G.R. No. L-21725, November 29, 1968)

It should be noted that recourse to an administration proceeding even if the estate has no debts is
sanctioned only if the heirs have good reasons for not resorting to an action for partition. Where partition is
possible, either in or out of court, the estate should not be burdened with an administration proceeding
without good and compelling reasons. (Pereira vs CA, G.R. No. L-81147 June 20, 1989)

Effect of Exclusion of Heirs-Agreement null and void

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

Section 1, Rule 74 of the Rules of Court provides:

SECTION 1. Extrajudicial settlement by agreement between heirs. x x x no extrajudicial settlement
shall be binding upon any person who has not participated therein or had no notice thereof. x x x
(emphasis supplied). (Neri, at al. vs. Heirs of Hadji Yusop Uy and Julpha Ibrahim Uy., G.R. No.
194366, October 10, 2012)

4.2.2. TWO-YEAR PRESCRIPTIVE PERIOD

Extrajudicial settlement is an ex-parte proceeding:

The procedure outlined in Section 1 of Rule 74 of extrajudicial settlement, or by affidavit, is an ex
parte proceeding. It cannot by any reason or logic be contended that such settlement or distribution would
affect third persons who had no knowledge either of the death of the decedent or of the extrajudicial
settlement or affidavit, especially as no mention of such effect is made, either directly or by implication.
(Sampilo vs CA, G.R. No. L-10474, February 28, 1958)

Two (2) year prescriptive period applies only persons who knew or participated in the extrajudicial
settlement:

The provisions of Section 4 of Rule 74, barring distributees or heirs from objecting to an extrajudicial
partition after the expiration of two years from such extrajudicial partition, is applicable only to persons who
have participated or taken part or had notice of the extrajudicial partition, and, in addition, when the
provisions of Section 1 of Rule 74 have been strictly complied with. There is nothing therein, or in its source

Page 7 of 69
which shows clearly a statute of limitations and a bar of action against third persons. (Sampilo vs CA, G.R. No.
L-10474, February 28, 1958)


4.2.3. AFFIDAVIT OF SELF-ADJUDICATION BY SOLE HEIR

If there is only one heir, he may adjudicate to himself the entire estate by means of an affidavit filed
in the office of the register of deeds. The parties to an extrajudicial settlement, whether by public instrument
or by stipulation in a pending action for partition, or the sole heir who adjudicates the entire estate to himself
by means of an affidavit shall file, simultaneously with and as a condition precedent to the filing of the public
instrument, or stipulation in the action for partition, or of the affidavit in the office of the register of deeds, a
bond with the said register of deeds, in an amount equivalent to the value of the personal property involved
as certified to under oath by the parties concerned and conditioned upon the payment of any just claim that
may be filed under Section 4 of this rule. It shall be presumed that the decedent left no debts if no creditor
files a petition for letters of administration within two (2) years after the death of the decedent. (Sec.1, Rule
74)

4.2.4. SUMMARY SETTLEMENT OF ESTATES OF SMALL VALUE, WHEN ALLOWED

Factors to consider in the summary settlement of the estate of small value:

a) WE uniformly held that for the court to acquire jurisdiction in a petition for summary settlement
of estate under the rules, the requirement that the amount of the estate involved should not exceed
P10,000,00 (P6,000.00 under the old rules) is jurisdictional. (Del Rosario v. Cunanan, L-37903, March 30,
1977);
b) Decedent died testate or intestate;
c) Petition filed by an interested person;
d) Notice published at least once a week for 3 consecutive weeks in a newspaper of general
circulation;
e) Hearing of petition held not less than 1 month nor more than 3 months from the date of the LAST
publication of notice;
f) Payment of such debts of the estate as the court shall find to be due;
g) The order of partition or award, if it involves real estate, recorded in the register of deeds; and
h) Bond filed with the register of deeds in an amount to be fixed by the court.

Bond not required in case when only real property is involved:

No bond is necessary when only real estate is involved because the lien as recorded is sufficient
security for any claim which may be filed under Sec 4, that is, when an heir or other person has been unduly
deprived of his lawful participation in the estate.

4.2.5. REMEDIES OF AGGRIEVED PARTIES AFTER EXTRAJUDICIAL SETTLEMENT OF ESTATE

Binding effects of extra-judicial settlement:

An extrajudicial settlement despite the publication shall not be binding on any person who has not
participated therein or who had no notice of death of the decedent. this is because the procedure in section 1,
rule 74 is an ex parte proceeding (Sampilo vs CA, G.R. No. L-10474, February 28, 1958)

A SUMMARY SETTLEMENT is likewise NOT BINDING upon heirs or creditors who were not parties
therein or had no knowledge thereof.

REMEDIES OF AN EXCLUDED CREDITOR:

1. Proceed Against the Bond (Section 4, Rule 74)

Page 8 of 69

a) The unpaid creditor MAY PROCEED against the bond by filing, WITHIN 2 YEARS, a motion for the
payment of his credit in the court wherein such summary settlement was had.

b) AFTER the lapse of the 2 year period, the creditor may NO LONGER proceed against the bond, BUT
can institute an ordinary action against the distributees within the statute of limitations.

2. Petition for Letters of Administration

3. Action to annul a deed of extrajudicial settlement on the ground of fraud should be filed within
four years from the discovery of fraud. (Regalado, 2008)

4. Proceed Against the Real Property

a) The lien subsists for 2 years.

b) The 2-year lien upon the real property distributed by extrajudicial or summary settlement shall be
annotated on the title issued to the distributees and after 2 years will be cancelled by the register of deeds
without need of court order (LRC Circular 143)

5) Ordinary Civil Action

REMEDIES OF AN EXCLUDED HEIR:

1) Action to compel settlement of estate(Section 4, Rule 74)
2) Action for rescission on the ground of lesion (Art. 1381, par. 1, NCC) Prescriptive period is 4 years
3) Accion Reivindicatoria
4)10 years, Implied Trust. Annulment on the ground of fraud

When does the prescriptive period of four (4) years begin to run?

Prescriptive period is 4 years. The period of four (4) years therein prescribed did not begin to run
until actual discovery of the fraud perpetrated by respondents, which, it is claimed, took place in 1956 or
1957; and that accordingly, said period had not expired when the present action was commenced on
November 4, 1958. (Gerona vs. De Guzman, Gr L-19060, 1964)

PERIOD FOR CLAIM OF MINOR OR INCAPACITATED PERSON

If on the date of the expiration of the period of two (2) years prescribed in the preceding section the
person authorized to file a claim is a minor or mentally incapacitated, or is in prison or outside the
Philippines, he may present his claim within one (1) year after such disability is removed. (Section 5, Rule 75)

4.3. PRODUCTION AND PROBATE OF WILL

What is probate of the will?

A judicial act whereby an instrument is adjudged valid and is ordered to be recorded. It is the
statutory method of establishing the proper execution of the instrument and giving notice of its contents. The
probate of a will by the court having jurisdiction thereof is considered as conclusive as to its due execution
and testamentary capacity of the testator (Mercado vs. Santos, No. 45629, 22 September 1938).

4.3.1. NATURE OF PROBATE PROCEEDING:

The probate of the will is mandatory (Guevara vs. Guevara, 74 Phil. 479 and 98 Phil. 249; Baluyot
vs. Panio, L-42088, May 7, 1976, 71 SCRA 86).

Page 9 of 69

Consolidation of the intestate proceedings with testate proceedings:

It is anomalous that the estate of a person who died testate should be settled in an intestate
proceeding. Therefore, the intestate case should be consolidated with the testate proceeding and the judge
assigned to the testate proceeding should continue hearing the two cases. (Roberts vs. Leonidas, G.R. No. L-
55509 April 27, 1984)

Reason why the will should be probated:

The law enjoins the probate of the Will and public policy requires it, because unless the Will is
probated and notice thereof given to the whole world, the right of a person to dispose of his property by Will
may be rendered nugatory. (Maninang vs. CA, G.R. No. L-57848 June 19, 1982)

Exceptions:

a) The heirs divide the estate according to the will; pay the creditors accordingly so that none of them
may be prejudiced. By permitting partition and division of estate without judicial proceedings would enable
the heirs to take over their respective shares in the inheritance without delay and thereby avoid expenses and
waste (McMicking v. Sy Combieng, 21 Phil. 219)

b) No will shall pass either real or personal property unless it is proved or allowed in court. We find,
that the document may be sustained on the basis of Article 1056 which reads as follows: Art. 1056. If the
testator should make a partition of his properties by an act inter vivos, or by win, such partition shall stand in so
far as it does not prejudice the legitime of the forced heirs . (Mang-Oy vs CA, G.R. No. L-27421 September 12,
1986)

Issues that may be resolved in probate proceedings:

As a general rule, courts in probate proceedings are limited only to passing upon the extrinsic
validity of the will sought to be probated, the due execution thereof, the testator's testamentary capacity and
the compliance with the requisites or solemnities prescribes by law. The question of the intrinsic validity of a
will normally comes only after the court has declared that the will has been duly authenticated. (Nufable vs
Nufable, G.R. No. 126950 July 2, 1999)

In a special proceeding for the probate of a will, the issue by and large is restricted to the extrinsic
validity of the will, i.e., whether the testator, being of sound mind, freely executed the will in accordance with
the formalities prescribed by law. (Rules of Court, Rule 75, Section 1; Rule 76, Section 9.)

Probate court cannot pass upon issue of ownership: Exceptions:

As a rule, the question of ownership is an extraneous matter which the Probate Court cannot resolve
with finality. Thus, for the purpose of determining whether a certain property should or should not be
included in the inventory of estate properties, the Probate Court may pass upon the title thereto, but such
determination is provisional, not conclusive, and is subject to the final decision in a separate action to resolve
title. (Pastor Jr. vs. CA, G.R. No. L-56340 June 24, 1983)

EXCEPTION WHEN PROBATE COURT MAY PASS UPON INTRINSIC VALIDITY:

1) Null and void will:

In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the testator instituted the petitioner as
universal heir and completely preterited her surviving forced heirs. A will of this nature, no matter how valid
it may appear extrinsically, would be null and void and separate or latter proceedings to determine the

Page 10 of 69
intrinsic validity of the testamentary provisions would be superfluous. (Nepomuceno vs CA, G.R. No. L-62952
October 9, 1985)

2) Grave abuse of discretion by the probate court: Remedy of certiorari available:

An act done by a Probate Court in excess of its jurisdiction may be corrected by Certiorari. And even
assuming the existence of the remedy of appeal, we harken to the rule that in the broader interests of justice,
a petition for certiorari may be entertained, particularly where appeal would not afford speedy and adequate
relief. (Maninang vs CA, G.R. No. L-57848 June 19, 1982)
Doctrine of estoppels not applicable in probate proceedings:

Doctrine of estoppel is not applicable in probate proceedings as the presentation and probate of a
will are requirements of public policy, being primarily designed to protect the testator's, expressed wishes,
which are entitled to respect as a consequence of the decedent's ownership and right of disposition within
legal limits. It would be a non sequitur to allow public policy to be evaded on the pretext of estoppel.
(Fernandez, Et Al. vs. Dimagiba, L-23638, October 12, 1967)

4.3.2. WHO MAY PETITION FOR PROBATE; PERSONS ENTITLED TO NOTICE

The following may petition for the allowance of a will:

a) Testator himself during his lifetime
b) Heir (person interested in the estate)
c) Executor
d) Creditor
e) Devisee or legatee

Person who will intervene in probate proceedings must have an interest:

It is a well-settled rule that in order that a person may be allowed to intervene in a probate
proceeding he must have an interest in the estate, or in the will, or in the property to be affected by it either
as executor or as a claimant of the estate (Ngo The Hua vs. Chung Kiat Hua, Et Al., L-17091, September 30,
1963);

Who is an interested party?

An INTERESTED PARTY is one who would be benefited by the estate such as an heir or one who has a
claim against the estate such as a creditor. (Sumilang vs. Ramagosa, 21 SCRA 1398, G.R. No. L-
23135 December 26, 1967)

4.4. ALLOWANCE OR DISALLOWANCE OF WILL

4.4. 1. Contents of petition for allowance of will

a) Rule 76, section 2 requires that the petition for allowance of a will must show: "(a)
the jurisdictional facts." Such "jurisdictional facts" in probate proceedings, as held by the Court in Fernando vs.
Crisostomo " are the death of the decedent, his 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." (Cuenco vs CA, G.R. No. L-24742 October 26, 1973)

b) Names, ages and residences of heirs, legatees, and devisees;

c) Probable value and character of the property of the estate;


Page 11 of 69
d) Name of person for whom letters are prayed;

e) Name of person having custody of will, if it has not yet been delivered to the court. (In The Matter
Of The Petition To Approve The Will Of Ruperta Palaganas vs. Ernesto Palaganas, G.R. No. 169144,
January 26, 2011)

4.4. 2. GROUNDS FOR DISALLOWING A WILL:

What are the grounds for the disallowance of a will? Nature? Issues to be resolved in the probate of a
holographic will:

a) The will was not executed and attested as required by law;
b) The testator was insane or otherwise mentally incapable of making a will at the time of its execution;
c) The will was executed through force or under duress or the influence of fear, or threats;
d) The will was procured by undue and improper pressure and influence, on the part of the beneficiary or
of some other person for his benefit;
e) The signature of the testator was procured by fraud or trick;
f) The testator acted by mistake or did not intend that the instrument he signed should be his will at the
time of affixing his signature thereto. (Section 9, Rule 76 of Rules of court and Art 839, New Civil Code)

These lists are exclusive; no other grounds can serve to disallow a will. Thus, in a petition to admit
a holographic will to probate, the only issues to be resolved are: (1) whether the instrument submitted is,
indeed, the decedent's last will and testament; (2) whether said will was executed in accordance with the
formalities prescribed by law; (3) whether the decedent had the necessary testamentary capacity at the time
the will was executed; and, (4) whether the execution of the will and its signing were the voluntary acts of the
decedent. (Ajero vs. CA, G.R. No. 106720 September 15, 1994)

4.4. 3. REPROBATE OF THE WILL:

Duty of the court in reprobate of the will:

Reprobate is specifically governed by Rule 77 of the Rules of Court. In reprobate, the local court
acknowledges as binding the findings of the foreign probate court provided its jurisdiction over the matter
can be established. (In The Matter Of The Petition To Approve The Will Of Ruperta Palaganas vs. Ernesto
Palaganas, G.R. No. 169144, January 26, 2011)

a) Requisites before a will proved abroad will be allowed in the Philippines

Article 816 of the Civil Code of the Philippines provides thus:

Art. 816. The will of an alien who is abroad produces effect in the Philippines if made with the
formalities prescribed by the law of the place in which he resides, or according to the formalities observed in
his country, or in conformity with those which this Code prescribes. (Art. 816 of the Civil Code)

Matters to be proved in reprobate of the will:

The evidence necessary for the reprobate or allowance of wills which have been probated outside of
the Philippines are as follows: (1) the due execution of the will in accordance with the foreign laws; (2) the
testator has his domicile in the foreign country and not in the Philippines; (3) the will has been admitted to
probate in such country; (4) the fact that the foreign tribunal is a probate court, and (5) the laws of a foreign
country on procedure and allowance of wills . (De Perez vs. Tolete, G.R. No. 76714 June 2, 1994)

Duty of proving foreign laws in reprobate of the will: Reason:


Page 12 of 69
The necessity of presenting evidence on the foreign laws upon which the probate in the foreign
country is based is impelled by the fact that our courts cannot take judicial notice of them (Philippine
Commercial and Industrial Bank vs. Escolin, 56 Scra 266 G.R. Nos. L-27860 and L-27896 March 29, 1974).

Duty of the court in case a will is presented for reprobate:

The rule that the court having jurisdiction over the reprobate of a will shall "cause notice thereof to
be given as in case of an original will presented for allowance" (Revised Rules of Court, Rule 27, Section 2)
means that with regard to notices, the will probated abroad should be treated as if it were an "original will" or
a will that is presented for probate for the first time. (De Perez vs. Tolete, G.R. No. 76714 June 2, 1994)

Where to make the administration of property?

When a person dies intestate owning property in the country of his domicile as well as in a foreign
country, administration is had in both countries. (B.E. Johannes vs. Harvey, G.R. No. 18600, March 9, 1922)

Principal/domiciliary administration vs. Ancillary administration:

That which is granted in the jurisdiction of decedent's last domicile is termed the principal/
domiciliary administration, while any other administration is termed the ancillary administration. The
ancillary administration is proper, whenever a person dies, leaving in a country other than that of his last
domicile, property to be administered in the nature of assets of the deceased liable for his individual debts or
to be distributed among his heirs." (Testate Estate of Idonah Perkins vs Benguet Consolidated, G.R. No. L-
23145, November 29, 1968)

4.4.4. EFFECTS OF PROBATE:

a) The will shall be treated as if originally proved and allowed in Philippine courts; (De Perez vs.
Tolete, G.R. No. 76714 June 2, 1994)

b) Letters testamentary or administration with a will annexed shall extend to all estates of the
Philippines;

c) 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 (Section 4, Rule 77).

4.5. LETTERS TESTAMENTARY AND OF ADMINISTRATION

4.5. 1. WHEN AND TO WHOM LETTERS OF ADMINISTRATION GRANTED

The following may administer the estate of a deceased:

1. Executor

2. Administrator

WHO ARE INCOMPETENT TO SERVE AS EXECUTORS OR ADMINISTRATORS

No person is competent to serve as executor or administrator who:

(a) Is a minor;

(b) Is not a resident of the Philippines; and

Page 13 of 69

(c) Is in the opinion of the court unfit to execute the duties of the trust by reason of

i.)drunkenness,
ii.) improvidence, or
Iii.)want of understanding or integrity, or
iv.) by reason of conviction of an offense involving moral turpitude. (Section 1, Rule 78)
v.) Antagonistic Interest. "(I)n this jurisdiction, one is considered to be unsuitable for
appointment as administrator when he has adverse interest of some kind of hostility to those immediately
interested in the estate.". (Medina vs. CA, G.R. No. L-34760, September 28, 1973)

Determination of executor or administrator discretionary upon the court:

The Rules of Court gives the lower court the duty and discretion to determine whether in its opinion
an individual is unfit to serve as an executor. The sufficiency of any ground for removal should thus be
determined by the said court, whose sensibilities are, in the first place, affected by any act or omission on the
part of the administrator not conformable to or in disregard of the rules of orders of the court. (Matute vs.
Court Of Appeals, No. L- 26751, January 31, 1969, 26 SCRA 768, 784)

Choice of executor prerogative of the testator:

The choice of his executor is a precious prerogative of a testator, a necessary concomitant of
his right to dispose of his property in the manner he wishes. The curtailment of this right may be
considered as a curtailment of the right to dispose and as the rights granted by will take effect from the time
of death, the management of his estate by the administrator of his choice should be made as soon as
practicable, when no reasonable objection to his assumption of the trust can be interposed any longer. (RP
vs. Marcos Ii, G.R. Nos. 130371 &130855, August 4, 2009)


4.5. 2. ORDER OF PREFERENCE

Order of preference in the appointment of a regular administrator:

Section 6, Rule 78 of the Rules of Court lists the order of preference in the appointment of an
administrator of an estate:

SEC. 6. When and to whom letters of administration granted. If no executor is named in the
will, or the executor or executors are incompetent, refuse the trust, or fail to give bond, or a person
dies intestate, administration shall be granted:

(a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the
discretion of the court, or to such person as such surviving husband or wife, or next of kin, requests
to have appointed, if competent and willing to serve;

(b) If such surviving husband or wife, as the case may be, or next of kin, or the person
selected by them, be incompetent or unwilling, or if the husband or widow, or next of kin, neglects for
thirty (30) days after the death of the person to apply for administration or to request that
administration be granted to some other person, it may be granted to one or more of the principal
creditors, if competent and willing to serve;

(c) If there is no such creditor competent and willing to serve, it may be granted to such
other person as the court may select.

However, the order of preference is not absolute for it depends on the attendant facts and
circumstances of each case and it has been long held that the selection of an administrator lies in the sound

Page 14 of 69
discretion of the trial court. (In The Matter Of The Intestate Estate Of Cristina Aguinaldo- Suntay; Emilio
A.M. Suntay III vs. Cojuangco-Suntay, G.R. No. 183053, June 16, 2010)

Factor to consider in the appointment of administrator:

The paramount consideration in the appointment of an administrator over the estate of a decedent is
the prospective administrators interest in the estate. This is the same consideration which Section 6, Rule
78 takes into account in establishing the order of preference in the appointment of administrator for the
estate. The rationale behind the rule is that those who will reap the benefit of a wise, speedy and economical
administration of the estate, or, in the alternative, suffer the consequences of waste, improvidence or
mismanagement, have the highest interest and most influential motive to administer the estate correctly. In
all, given that the rule speaks of an order of preference, the person to be appointed administrator of a
decedents estate must demonstrate not only an interest in the estate, but an interest therein greater than any
other candidate. (Emilio A.M. Suntay III vs. Isabel Cojuangco-Suntay., G.R. No. 183053, October 10, 2012)

In the appointment of the administrator of the estate of a deceased person, the principal
consideration reckoned with is the interest in said estate of the one to be appointed as administrator. 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 vs. Aguinaldo, G.R. No. 74769 September 28, 1990)

When can the court appoint an administrator if the executor is disqualified, refused to assume the
trust, etc.?

The rule is that if no executor is named in the will, or the named executor or executors are
incompetent, refuse the trust, or fail to give bond, or a person dies intestate, the court must appoint an
administrator of the estate of the deceased who shall act as representative not only of the court appointing
him but also of the heirs and the creditors of the estate. 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 vs. Aguinaldo, G.R. No. 74769 September 28, 1990)

Appointment of co-administrators:

Where the estate is large, to appoint two or more administrators of such estate to have different
interests represented and satisfied, and furthermore, to have such representatives work in harmony for the
best interests of such estate. (Matute vs. CA, G.R. No. 26751, January 31, 1969)

Appointment of co-administrator is allowed but as an exception
It is to this requirement of observation of the order of preference in the appointment of
administrator of a decedents estate, that the appointment of co-administrators has been allowed, but as an
exception. We again refer to Section 6(a) of Rule 78 of the Rules of Court which specifically states that letters
of administration may be issued to both the surviving spouse and the next of kin. In addition and impliedly,
we can refer to Section 2 of Rule 82 of the Rules of Court which say that x x x [w]hen an executor or
administrator dies, resigns, or is removed, the remaining executor or administrator may administer the trust
alone, x x x.
In a number of cases, we have sanctioned the appointment of more than one administrator for the
benefit of the estate and those interested therein. We recognized that the appointment of administrator of the
estate of a decedent or the determination of a persons suitability for the office of judicial administrator rests,
to a great extent, in the sound judgment of the court exercising the power of appointment.
Under certain circumstances and for various reasons well-settled in Philippine and American
jurisprudence, we have upheld the appointment of co-administrators: (1) to have the benefits of their

Page 15 of 69
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 when a
person entitled to the administration of an estate desires to have another competent person associated with
him in the office. (Emilio A.M. Suntay III vs. Isabel Cojuangco-Suntay., G.R. No. 183053, October 10, 2012)


4.5. 3. OPPOSITION TO ISSUANCE OF LETTERS TESTAMENTARY; SIMULTANEOUS FILING OF PETITION
FOR ADMINISTRATION

Who may oppose the petition for issuance of letter administration?

Only an interested person may oppose the petition for issuance of letters of administration. 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; his interest is material and direct, and not one that is only indirect or
contingent. (Vda. De Chua vs. CA. G.R. No. 116835 March 5, 1998)

Who is an interested party?

An interested party has been defined in this connection as one who would be benefited by the
estate, such as an heir, or one who has a claim against the estate, such as a creditor (Intestate Estate of Julio
Magbanwa 40 Off. Gaz. 1171).

Nature of the interest?

The interest required in order that a person may be a party thereto must be material and direct,
and not merely indirect or contingent. In the case at bar, Petitioners interest in the estate of the deceased
Maria V. Lindayag was disputed, through a motion to dismiss her petition, by the surviving spouse on the
ground that said deceased was survived by him and by three legally adopted children thus excluding
petitioner who was the deceaseds sister, as an heir. (Saguinsin vs. Lindayag, G.R. No. L-17759. December
17, 1962 )

Lack of interest is a ground for the dismissal of the action on the ground of lack legal capacity to sue:

Of course, since the opening sentence of the section requires that the petition must be filed by an
interested person, it goes without saying that a motion to dismiss may lie not on the basis of lack of
jurisdiction on the part of the court, but rather on the ground of lack of legal capacity to institute the
proceedings. (Pilipinas Shell vs. Dumlao, G.R. No. 44888. February 7, 1992)


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

1) To have access to, and examine and take copies of books and papers relating to the partnership in
case of a deceased partner;
2) To examine and make invoices of the property belonging to the partnership in case of a deceased
partner;
3) To make improvements on the properties under administration with the necessary court approval
except for necessary repairs;
4) To possess and manage the estate when necessary:

a) payment of debts; and
b) payment of expenses of administration;


Page 16 of 69
5) To maintain in tenantable repairs houses and other structures and fences and to deliver the same
in such repair to the heirs or devisees when directed so to do by the court.

Duty to account by the executor or administrator mandatory:

The duty of an executor or administrator to render an account is not a mere incident of an
administration proceeding which can be waived or disregarded as it is a duty that has to be performed and
duly acted upon by the court before the administration is finally ordered closed and terminated, to the end
that no part of the decedent's estate be left unaccounted for. The fact that the final accounts had been
approved does not divest the court of jurisdiction to require supplemental accounting. (Vda. De Chua vs. CA.
G.R. No. 116835 March 5, 1998)

Purpose of the bond by the administrator:

Pursuant to Section 1 of Rule 81, 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 one (1) year and at any other time when required by the probate court; and
(4) to make an inventory within three (3) months.

More specifically, per Section 4 of the same Rule, the bond is conditioned on the faithful execution of
the administration of the decedents estate requiring the special administrator to:

(1) make and return a true inventory of the goods, chattels, rights, credits, and estate of the deceased
which come to his possession or knowledge;
(2) truly account for such as received by him when required by the court; and
(3) deliver the same to the person appointed as executor or regular administrator, or to such other
person as may be authorized to receive them.

Verily, the administration bond is 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, therefore, it 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. (Ocampo vs. Ocampo, G.R. No. 187879, July 5, 2010)

4.5. 5. APPOINTMENT OF SPECIAL ADMINISTRATOR:

Order of preference in the appointment of regular administrator may be considered in the
appointment of a special administrator:

Nothing is wrong for the judge to consider the order of preference in the appointment of a regular
administrator in appointing a special administrator. After all, the consideration that overrides all others in
this respect is the beneficial interest of the appointee in the estate of the decedent (Fule vs. CA, G.R. No. L-
40502 November 29, 1976)

Principal object of the appointment of a special administrator:

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,
pursuant to Section 2 of Rule 80 of the Rules of Court. (Ocampo vs. Ocampo, G.R. No. 187879, July 5, 2010)

Nature of the duty of the special administrators:


Page 17 of 69
The Special Administrators that while they may have respective interests to protect, they are officers
of the Court subject to the supervision and control of the Probate Court and are expected to work for the best
interests of the entire estate, its smooth administration, and its earliest settlement. (Corona vs. CA, G.R. No. L-
59821 August 30, 1982)

When can a special administrator be appointed?

The specific and limited powers of special administrators and that their appointment
merely temporary and subsists only until a regular administrator is duly appointed (since Rule 80, section 1
provides for the appointment of a special administrator as a caretaker only "when there is delay in granting
letters testamentary or of administration by any cause") (Medina vs. Beda Gonzales, G.R. No. L-34760
September 28, 1973)

Appointment of a special administrator discretionary:

The discretion to appoint a special administrator or not lies in the probate court but that is no
authority for the judge to become partial, or to make his personal likes and dislikes prevail over, or his
passions to rule, his judgment but such discretion must be based on reason, equity, justice and legal principle.
There is no reason why the same fundamental and legal principles governing the choice of a regular
administrator should not be taken into account in the appointment of a special administrator. (Fule vs. CA,
G.R. No. L-40502 November 29, 1976)

Choice of the executrix of special administrator deserves highest consideration:

The executrix's choice of Special Administrator, considering her own inability to serve and the wide
latitude of discretion given her by the testatrix in her Will (Annex "A-1"), is entitled to the highest
consideration.. (Corona vs CA, G.R. No. L-59821 August 30, 1982)


4.5. 6. GROUNDS FOR REMOVAL OF ADMINISTRATOR:

1.) neglects to render his account and settle the estate according to law, or
2) neglects to perform an order or judgment of the court, or
3.) neglect to perfom a duty expressly provided by these rules, or
4.) absconds, or becomes insane, or otherwise incapable or unsuitable to discharge the trust, the
court may remove him, or, in its discretion, may permit him to resign. (Section 2, Rule 82)

Other grounds for the removal of the administrator discretionary upon the court:

The probate court may appoint or remove special administrators based on grounds other than those
enumerated in the Rules at its discretion, such that the need to first pass upon and resolve the issues of
fitness or unfitness and the application of the order of preference under Section 6 of Rule 78, as would be
proper in the case of a regular administrator,

do not obtain. (Ocampo vs. Ocampo, G.R. No. 187879, July 5,
2010)

Nature of the powers of administrator:

Administrators have such an interest in the execution of their trust as to entitle them to protection
from removal without just cause. Hence, Section 2 of Rule 82 of the Rules of Court provides the legal and
specific causes authorizing the court to remove an administrator. (Gonzales vs. Aguinaldo, G.R. No. 74769
September 28, 1990)

Trial courts action of removing administrator deserves respect by the appellate court except when
there is an error or grave abuse of discretion:


Page 18 of 69
The sufficiency of any ground for removal should thus be determined by said court, whose
sensibilities are, in first place, affected by any act or omission on the part of the administrator not
conformable to or in disregard of the rules or the orders of the court. Consequently, appellate tribunals are
disinclined to interfere with the action taken by a probate court in the matter of the removal of an executor or
administrator unless positive error or gross abuse of discretion is shown. (Matute vs. CA, No. L- 26751, January
31, 1969, 26 Scra 768, 784)

Grounds for removal of administrator must be proved by evidence:

While it is conceded that 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. (Gonzales vs. Aguinaldo, G.R. No. 74769 September 28, 1990)

Effects of revocation of letters testamentary or administration:

It is elementary that the effect of revocation of letters testamentary or of administration is to
terminate the authority of the executor or administrator, but the acts of the executor or administrator, done
in good faith prior to the revocation of the letters, will be protected, and a similar protection will be extended
to rights acquired under a previous grant of administration. (Vda. De Bacaling vs. Laguna, G.R. No. L-26694
December 18, 1973)

Order of appointment of special administrator an interlocutory order subject to certiorari:

The appointment or removal of special administrators, being discretionary, is thus interlocutory and
may be assailed through a petition for certiorari under Rule 65 of the Rules of Court. (Ocampo vs. Ocampo,
G.R. No. 187879, July 5, 2010)

4.6. CLAIMS AGAINST THE ESTATE

Upon the death of a person, all his property is burdened with all his debts, his death creating and
equitable lien thereon for the benefit of the creditors. Such lien continues until all debts are extinguished
either by the payment, prescription, or satisfaction in one of the modes recognized by law. (Sui Liong vs.
Taysan, G.R. No. L-4777, November 11, 1908 )

4.6.1. TIME WITHIN WHICH CLAIMS SHALL BE FILED; EXCEPTIONS

Statute of non-claims:

Section 2, Rule 86, which provides:

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

Purpose of the fixing of the period of claims:

The purpose of the law, in fixing a period within which claims against an estate must be presented, is
to insure a speedy settlement of the affairs of the deceased person and the early delivery of the property to
the person entitled to the same. (Heirs of Pizarro vs. Consolacion, G.R. No. L-51278 May 9, 1988)


Page 19 of 69
Purpose of the presentation of the claims against the estate:

The purpose of presentation of claims against decedents of the estate in the probate court is to
protect the estate of deceased persons to enable the executor or administrator will be able to examine each
claim and determine whether it is a proper one which should be allowed. Further, the primary object of the
provisions requiring presentation is to apprise the administrator and the probate court of the existence of the
claim so that a proper and timely arrangement may be made for its payment in full or by pro-rata portion in
the due course of the administration. (Estate of Olave vs. Reyes, G.R. No. L-29407 July 29, 1983)

4.6.2.CLAIMS AGAINST THE ESTATE:

The following are money claims which can be charged against the estate:

1. All claims for money against the decedent, arising from contract, express or implied, whether the
same be due, not due, or contingent;
2. All claims for funeral expenses;
3. All claims for expenses for the last sickness of the decedent; and
4. Judgment for money against the decedent. (Section 5, Rule 86)

What does the word claims connotes?

The word "claims" as used in statutes requiring the presentation of claims against a decedent's estate
is generally construed to mean debts or demands of a pecuniary nature which could have been enforced
against the deceased in his lifetime and could have been reduced to simple money judgments; and among
these are those founded upon contract. (Gutierrez vs. Baretto-Datu, G.R. No. L-17175, July 31, 1962)

Actions that does not survives the death of the party: Rationale:

This situation brings to the fore a consideration of Section 21, Rule 3 of the Rules of Court, which
reads:

SEC. 21. Where claim does not survive. When the action is for recovery of money, debt or interest
thereon, and the defendant dies before final judgment in the Court of First Instance, it shall be dismissed to be
prosecuted in the manner especially provided in these rules. ( Section 21, Rule 3 of the Rules of Court)

The Philosophy behind the rule which provides for the dismissal of the civil case is that, upon the
death of defendant, all money claims should be filed in the testate or interstate proceedings "to avoid useless
duplicity of procedure." (Ignacio vs. Pambusco., G.R. No. L-18936, May 23, 1967)

Money claims arising from contract against the estate is an action that survives:

Generally, death of either the creditor or the debtor does not extinguish the obligation and only
obligations that are personal or are identified with the persons themselves are extinguished by death. Section
5 of Rule 86 of the Rules of Court expressly allows the prosecution of money claims arising from a contract
against the estate of a deceased debtor as these claims are not actually extinguished. (Stronghold Insurance
vs. Republic-Asahi, G.R. No. 147561, June 22, 2006)

Claims for taxes survive the death of the decedent:

Claims for taxes may be collected even after the distribution of the decedent's estate among his heirs
who shall be liable therefor in proportion of their share in the inheritance. (Government of the Philippines
vs. Pamintuan, 55 Phil. 13)

Reason for the rule:


Page 20 of 69
The reason for the more liberal treatment of claims for taxes against a decedent's estate in the form
of exception from the application of the statute of non-claims, is not hard to find. Taxes are the lifeblood of the
Government and their prompt and certain availability are imperious need. (Vera vs. Hon. Fernandez, G.R. No.
L-31364 March 30, 1979)

Claims against a deceased surety on the performance bond is a claim which survive:

Death is not a defense that he or his estate can set up to wipe out the obligations under the
performance bond. Consequently, petitioner as surety cannot use his death to escape its monetary obligation
under its performance bond. (Stronghold Insurance vs. Republic-Asahi, G.R. No. 147561, June 22, 2006)

Claims include quasi-Contract and contingent claims

In Maclan v. Garcia, Maclan filed a civil case to recover from Ruben Garcia the necessary expenses he
spent as possessor of a piece of land. Garcia acquired the land as an heir of its previous owner, he set up the
defense that this claim should have been filed in the special proceedings to settle the estate of his
predecessor. Maclan, on the other hand, contended that his claim arises from law and not from contract,
express or implied. Thus, it need not be filed in the settlement of the estate of Garcias predecessor, as
mandated by Section 5, Rule 87 of the Rules of Court (now Section 5, Rule 86).

The court held under these facts that a claim for necessary expenses spent as previous possessor of the land
is a kind of quasi-contract. Citing Leung Ben v OBrien, it explained that the term implied contracts, as used
in our remedial law, originated from the common law where obligations derived from quasi-contracts and
from law are both considered as implied contracts. Thus, the term quasi-contract is included in the concept
implied contracts as used in the Rules of Court. Accordingly, the liabilities of the deceased arising from
quasi-contracts should be filed as claims in the settlement of his estate, as provided in Section 5, Rule 86 of
the Rules of Court.
A distinctive character of Metrobanks fourth-party complaint is its contingent nature the claim depends on
the possibility that Metrobank would be adjudged liable to AMC, a future event that may or may not happen.
This characteristic unmistakably marks the complaint as a contingent one that must be included in the claims
falling under the terms of Section 5, Rule 86 of the Rules of Court. (Metropolitan Bank & Trust Company v.
Absolute Management Corporation, G.R. No. 170498. January 9, 2013)


4.6.3. CLAIM OF EXECUTOR OR ADMINISTRATOR AGAINST THE ESTATE

Remedies of a creditor:

The contract made between the administrator and the lawyer does not bind the estate to such an
extent that the lawyer can maintain an action against it and recover a judgment which is binding upon it. In
such a case the creditor has two remedies:

(1)He can prosecute an action against the administrator as an individual. If judgment is rendered
against the administrator and it is paid by him, when he presents his final account to the Court of First
Instance as such administrator he can include the amount so paid as an expense of administration. The
creditor can also

(2) Present a petition in the proceeding relating to the settlement of the estate, asking that the court,
after notice to all persons interested, allow his claim and direct the administrator to pay it as an expense of
administration. Whichever course is adopted the heirs and other persons interested in the estate will have a
right to inquire into the necessity for making the contract and the value of the work performed by the
attorney." (Ramos vs. Bidin, G.R. No. L-53650 May 28, 1988)


Page 21 of 69
Causal relation between the monetary claims and the acts of administration:

The rule is that where the monetary claim against the administrator has a relation to his acts of
administration in the ordinary course thereof, such claims can be presented for payment with the court
where a special proceeding for the settlement of the estate is pending, although said claims were not incurred
by the deceased during his lifetime and collectible after his death. (Quirino vs. Gorospe, G.R. No. L-58797,
January 31, 1989)

4.6.4. PAYMENT OF DEBTS

Procedure for the payment of debts:

The proper procedure allowed by the Rules of Court is for the court to order the sale of personal
estate or the sale of mortgaged of real property of the deceased and all debts or expenses of administration
should be paid out of the proceeds of the sale or mortgage. The order for the sale or mortgage should be
issued upon motion of the administrator and with the written notice to all the heirs, legatees and devisees
residing in the Philippines, according to Rule 89, section 3, and Rule 90, section 2. (Aldamiz vs. CFI, G.R. No.
L-2360, December 29, 1949)

Action against a distributee of the debtors assets by the creditor based on monetary claims:

The only instance wherein a creditor can file an action against a distributee of the debtor's asset is
under Section 5, Rule 88 of the Rules of Court. 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, such is not
the situation in the case at bar. (De Bautista vs. De Guzman, G.R. No. L-28298 November 25, 1983)

Instances when the probate court can issue writ of execution: Exclusive:

The circumstances that the Rules of Court expressly specifies that the probate court may issue
execution

(1) to satisfy (debts of the estate out of) the contributive shares of devisees, legatees and heirs in
possession of the decedent's assets (Sec. 6. Rule 88),
(2) to enforce payment of the expenses of partition (Sec. 3, Rule 90), and
(3) to satisfy the costs when a person is cited for examination in probate proceedings (Sec. 13, Rule
142)

Under the rule of inclusion unius est exclusion alterius, above cited instances are the only
circumstances when probate court can issue a writ of execution. (Pastor, Jr. vs. CA, G.R. No. L-56340 June
24, 1983)

4.7. ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS
4.7.1. ACTIONS THAT MAY BE BROUGHT AGAINST EXECUTORS AND ADMINISTRATORS

The only actions that may be instituted against the executor or administrator independently of the
testate or intestate proceedings are:

1) Recovery of real or personal property or any interest therein from the estate;
2) Enforcement of a lien thereon;
3) Action to recover damages for an injury to person or property, real or personal; and
4) Action to recover damages for breach of contract entered into by the decedent, but committed by the
administrator, which is personal to him (Gutierrez vs. Barreto-Datu, G.R. No. L-17175, July 31, 1962).

Claim by the administrator against third person is by way of an action not by motion:


Page 22 of 69
"When the demand is in favor of the administrator and the party against whom it is enforced is a
third party, not under the court's jurisdiction, the demand cannot be by mere motion by the administrator,
but by an independent action against the third person." Matters affecting property under judicial
administration may not be taken cognizance of by the court in the course of intestate proceedings, if the
"interests of third persons are prejudiced". (Dela Cruz vs. Camon, G.R. No. L-21034, April 30, 1966)

When does the liability of an administrator for tax payment begin?

That "the assessment is deemed made when the notice to this effect is released, mailed or sent to the
taxpayer for the purpose of giving effect to said assessment." It appearing that the person liable for the
payment of the tax, in this case the administrator, did not receive the assessment, the assessment could not
become final and executory. (RP vs. Dela Rama, G.R. No. L-21108, November 29, 1966)

Monetary claims against the estate?

It is apparent that actions for damages caused by tortious conduct of a defendant survive the death of
the latter. Under Rule 87, section 5, the actions that are abated by death are:

(1) claims for funeral expenses and those for the last sickness of the decedent;
(2) judgments for money; and
(3) "all claims for money against the decedent, arising from contract express or implied".

It is not enough that the claim against the deceased party be for money, but it must arise from
"contract express or implied", and these words (also used by the Rules in connection with attachments and
derived from the common law) were construed to include all purely personal obligations other than those
which have their source in delict or tort. (Aguas v.s Llemos, G.R. No. L-18107, August 30, 1962)

Action that survive against the executor or administrator:

Rule 88, section 1, enumerates actions that survive against a decedent's executors or administrators,
and they are:

(1) actions to recover real and personal property from the estate;
(2) actions to enforce a lien thereon; and
(3) actions to recover damages for an injury to person or property.

When heirs may act in place of the Administrator:

1) No appointed administrator yet.

Section 2 of Rule 87 of the same Rules, which also deals with administrators, states: Sec. 2. Executor
or administrator may bring or defend actions which survive. - For the recovery or protection of the property or
rights of the deceased, an executor or administrator may bring or defend, in the right of the deceased, actions
for causes which survive.

When no administrator has been appointed, as in this case, there is all the more reason to recognize
the heirs as the proper representatives of the deceased (Go Chan vs. Young, G.R. No. 131889, March 12,
2001)

Even if there is an appointed administrator, jurisprudence recognizes two exceptions, viz:

(2) if the executor or administrator is unwilling or refuses to bring suit; and

(3) when the administrator is alleged to have participated in the act complained of
[31]
and he is made
a party defendant. Evidently, the necessity for the heirs to seek judicial relief to recover property of the

Page 23 of 69
estate is as compelling when there is no appointed administrator, if not more, as where there is an appointed
administrator but he is either disinclined to bring suit or is one of the guilty parties himself.
All told, therefore, the rule that the heirs have no legal standing to sue for the recovery of property of the
estate during the pendency of administration proceedings has three exceptions, the third being when there is
no appointed administrator such as in this case. (Rioferio vs. CA, G.R. No. 129008. January 13, 2004 )

4.7.2. REQUISITES BEFORE CREDITOR MAY BRING AN ACTION FOR RECOVERY OF PROPERTY
FRAUDULENTLY CONVEYED BY THE DECEASED


1) There is DEFICIENCY of assets in the hands of an executor or administrator for the payment of
debts and expenses of administration;
2) The deceased in his lifetime had made or attempted to make a FRAUDULENT CONVEYANCE of his
property or had so conveyed such property that by law the conveyance would be void as against his creditors;
3) The subject of the attempted conveyance would be liable to ATTACHMENT in his lifetime;
4) The executor or administrator has shown NO DESIRE TO FILE the action or failed to institute the
same within a reasonable time;
5) LEAVE is granted by the court to the creditor to file the action;
6) A BOND is filed by the creditor;
7) The action by the creditor is in the NAME of the executor or administrator. (Section 10, Rule 87)

Power of supervision and control of the probate court over properties of the decedent:

The court which acquires jurisdiction over the properties of a deceased person through the filing of
the corresponding proceedings has supervision and control over these properties and in compliance with this
duty, the court also has the inherent power to determine what properties, rights and credits of the deceased
the administrator should include or exclude in the inventory. (Chua vs. Absolute Management Corp., G.R.
No. 144881, October 16, 2003)

Power to recover properties against third person belongs to the administrator not the court:

The trial court has no authority to decide whether the properties, real or personal, belong to the
estate or to the persons examined. If after such examination there is good reason to believe that the person
examined is keeping properties belonging to the estate, then the administrator should file an ordinary action
in court to recover the same. (Chua vs. Absolute Management Corp., G.R. No. 144881, October 16, 2003)

Issuance of a writ of attachment must be for the protection of the estate not of the creditor:

Any writ of attachment necessary to secure the judgment must be related to the protection of the
estate. The writ may not issue if only to protect the personal interests of the private respondent as a creditor
of that estate. (Gruenberg vs. CA, G. R. No. L-45948 September 10, 1985)

4.8. DISTRIBUTION AND PARTITION
4.8.1. LIQUIDATION

What is administration? Purpose?

Administration is for the purpose of liquidation of the estate and distribution of the residue among
the heirs and legatees. And liquidation means the determination of all the assets of the estate and payment of
all the debts and expenses. (Luzon Surety vs Quebrar, G.R. No. L-40517 January 31, 1984)

When can distribution of the estate be done?

No distribution shall be allowed until the payment of the obligations above-mentioned has been made or
provided for, unless the distributees, or any of them, give a bond, in a sum to be fixed by the court,

Page 24 of 69
conditioned for the payment of said obligations within such time as the court directs. (Estate Of Ruiz vs. CA,
G.R. No. 118671, January 29, 1996)

How will the distribution of the estate properties be done?

In settlement of estate proceedings, the distribution of the estate properties can only be made:

(1) after all the debts, funeral charges, expenses of administration, allowance to the widow, and
estate tax have been paid; or
(2) before payment of said obligations only if the distributees or any of them gives a bond in a sum
fixed by the court conditioned upon the payment of said obligations within such time as the court directs, or
when provision is made to meet those obligations. (Castillo v. Castillo, 124 Phil. 485 [1966])

Estate tax must be paid before distribution of estate properties:

The estate tax is one of those obligations that must be paid before distribution of the estate. If
not yet paid, the rule requires that the distributees post a bond or make such provisions as to meet the said
tax obligation in proportion to their respective shares in the inheritance. (Estate Of Ruiz vs. CA, G.R. No.
118671, January 29, 1996)

Declaration of heirs can be made even before the satisfaction of the obligation chargeable to the
estate:

What the court is enjoined from doing is the assignment or distribution of the residue of the
deceased's estate before the above-mentioned obligations chargeable to the estate are first paid. Nowhere
from said section may it be inferred that the court cannot make a declaration of heirs prior to the satisfaction
of these obligations. (Ngo The Hua vs. Chung Kiat Hua, G.R. No. L-17091, September 30, 1963)

Determination of charges against the estate necessary before the distribution of legal share:

Before any conclusion about the legal share due to a compulsory heir may be reached, it is necessary that the
net estate of the decedent must be ascertained, by deducting all payable obligations and charges from the
value of the property owned by the deceased at the time of his death; then, all donations subject to collation
would be added to it, form there, the legitime of the compulsory heir or heirs can be established; and it is only
then can it be ascertained whether or not a donation had prejudiced the legitimes. (Natcher vs. CA, G.R. No.
133000, October 2, 2001)

Claim of the creditor of the heirs of the deceased may be collected from the share of the heir:

The creditor of the heirs of a deceased person is entitled to collect his claim out of the property which
pertains by inheritance to said heirs, only after the debts of the testate or intestate succession have been paid
and when the net assets that are divisible among the heirs are known, because the debts of the deceased must
first be paid before his heirs can inherit. (Litonjua vs. Montilla, G.R. No. L-4170, January 31, 1952)

4.8.2. PROJECT OF PARTITION

Power of the probate court to determine share: Project of partition:

The probate court, in the exercise of its jurisdiction to distribute the estate, has the power to
determine the proportion or parts to which each distributee is entitled . A project of partition is merely a
proposal for the distribution of the heredity estate which the court may accept or reject. It is the court that
makes that distribution of the estate and determines the persons entitled thereto. (Vda. De Kilayko vs.
Tengco, G.R. No. 45425 March 27, 1992)

Approval of the project of partition does not terminate administration proceedings:

Page 25 of 69

In the case of Montemayor vs. Gutierrez (114 Phil. 95), an estate may be partitioned even before the
termination of the administration proceedings. Hence, the approval of the project of partition did not
necessarily terminate the administration proceedings. (Luzon Surety vs. Quebrar, G.R. No. L-40517 January
31, 1984)

Requisites in order to consider settlement proceeding closed:

In order that a proceeding for the settlement of the estate of a deceased may be deemed ready for
final closure:

(1) there should have been issued already an order of distribution or assignment of the estate of the
decedent among or to those entitled thereto by will or by law, but
(2) such order shall not be issued until after it is shown that the "debts, funeral expenses, expenses of
administration, allowances, taxes, etc. chargeable to the estate" have been paid, which is but logical and
proper.
(3) Besides, such an order is usually issued upon proper and specific application for the purpose of
the interested party or parties, and not of the court. (Palicte vs. Ramolete, G.R. No. L-55076 September 21,
1987)

When will the heirs be entitled to residue of the estate?

It is only after, and not before, the payment of all debts, funeral charges, expenses of administration,
allowance to the widow, and inheritance tax shall have been effected that the court should make a declaration
of heirs or of such persons as are entitled by law to the residue. (Moran, Comments on the Rules of Court, 2nd
ed., Vol. II, p. 397, citing Capistrano vs. Nadurata, 49 Phil., 726; Lopez vs. Lopez, 37 Off. Gaz., 3091.) (Jimoga-
On vs. Belmonte, 84 Phil. 545, G.R. No. L-1605, September 13, 1949)

Order of distribution and delivery of the residue of the estate closes the settlement proceeding:

What brings an intestate (or testate) proceeding to a close is the order of distribution directing
delivery of the residue to the persons entitled thereto after paying the indebtedness, if any, left by the
deceased. (PCIB vs. Escolin, G.R. Nos. L-27860 And L-27896 March 29, 1974)

Grounds to set aside final liquidation:

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, instead of an independent action. (Vda. De Alberto vs. Ca,
G.R. No. L-29759 May 18, 1989)

After approval of partition and distribution and receipt of share of the distributee forecloses attack o
its validity:

Where a partition had not only been approved and thus become a judgment of the court, but
distribution of the estate in pursuance of such partition had fully been carried out, and the heirs had received
the property assigned to them, they are precluded from subsequently attacking its validity or any part of it.
(Ralla vs. Judge Untalan, G.R. Nos. L-63253-54, April 27, 1989)

Power to distribute exclusive with the power court: Doctrine of non-interference:

We hold that the separate action was improperly filed for it is the probate court that
has exclusive jurisdiction to make a just and legal distribution of the estate. In the interest of orderly
procedure and to avoid confusing and conflicting dispositions of a decedent's estate, a court should not

Page 26 of 69
interfere with probate proceedings pending in a co-equal court. (Solivio vs. CA, G.R. No. 83484, February 12,
1990)

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

Non-compliance of the order of distribution of estate does not terminate probate proceedings:

As long as the order of the distribution of the estate has not been complied with, the probate
proceedings cannot be deemed closed and terminated because a judicial partition is not final and conclusive
and does not prevent the heirs from bringing an action to obtain his share, provided the prescriptive period
therefore has not elapsed (Mari vs. Bonilia, 83 Phil. 137 March 19, 1949, G.R. No. L-852).

Remedies of heir who has not receive his share:

As a general rule, the better practice, however, for the heir who has not received his share, is to
demand his share through a proper motion in the same probate or administration proceedings, or for
reopening of the probate or administrative proceedings if it had already been closed, and not through
an independent action. (Solivio vs. CA, G.R. No. 83484, February 12, 1990)

ANALYSIS of Solivio and Guilas case:

In Solivio case, the proceeding were still pending, thus, the movant had lost her right to have herself declared
as a co-heir in said proceedings. Because she failed to pursue the motion in the same action but instead
erroneously chose to file a separate action. Unlike the circumstances present in the Guilas case where the
estate proceedings had already been closed and terminated for three years, thus, the separate action filed by
the movant for the annulment of the project partition was allowed to continue.

4.8.4. INSTANCES WHEN PROBATE COURT MAY ISSUE WRIT OF EXECUTION

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
or administrator may satisfy without the necessity of resorting to a writ of execution. The probate court, as
such, does not render any judgment enforceable by execution. (Pastor, Jr. vs. CA, G.R. No. L-56340, June 24,
1983)

The circumstances that the Rules of Court expressly specifies that the probate court may issue
execution

(1) to satisfy (debts of the estate out of) the contributive shares of devisees, legatees and heirs in
possession of the decedent's assets (Sec. 6. Rule 88),
(2) to enforce payment of the expenses of partition (Sec. 3, Rule 90), and
(3) to satisfy the costs when a person is cited for examination in probate proceedings (Sec. 13, Rule
142)

Under the rule of inclusion unius est exclusion alterius, the above cited instances are the only
circumstances when probate court can issue a writ of execution. Clearly, the provision authorizes execution
to enforce payment of debts of estate. A legacy is not a debt of the estate.(Pastor, Jr. vs. CA, G.R. No. L-56340,
June 24, 1983)

4.8.5. Effects of judgment of local courts:

Section 47 of Rule 39 provides:


Page 27 of 69
The effect of a judgment or final order rendered by a court of the Philippines, having
jurisdiction to pronounce the judgment or final order, may be as follows:

(a) In case of a judgment or final order against a specific thing, or in respect to the
probate of a will, or the administration of the estate of a deceased person, or in respect to
the personal, political, or legal condition or status of a particular person or his relationship
to another, the judgment or final order is conclusive upon the title to the thing, the will or
administration, or the condition, status or relationship of the person; however, the probate of
a will or granting of letters of administration shall only be prima facie evidence of the death
of the testator or intestate;


4.9. TRUSTEES

What is a trust?

A trust is a confidence reposed in one person, called the trustee, for the benefit of another, called the
cestui que trust, with respect to property held by the former to the latter. The person in whom the confidence
is reposed as regards property for the benefit of another is known as trustee. (Special Proceedings by
Gemilito Festin, Second Edition, 2011, Page 134)

What is an express trust?

Express trusts are those which are created by the direct and positive acts of the parties, by some
writing or deed, or will, or by words evincing an intention to create a trust. Implied trusts are those which,
without being express, are deducible from the nature of the transaction as matters of intent, or which are
superinduced on the transaction by operation of law as matters of equity, independently of the particular
intention of the parties. (Olaco vs. Co Cho Chit, G.R. No. 58010. March 31, 1993.)

What is a resulting trust?

A resulting trust is one that arises by implication of law and presumed always to have been
contemplated by the parties, the intention as to which can be found in the nature of their transaction although
not expressed in a deed or instrument of conveyance. Upon the other hand, a constructive trust is a trust not
created by any word or phrase, either expressly or impliedly, evincing a direct intention to create a trust, but
one that arises in order to satisfy the demands of justice. (Yap vs. CA, G.R. No. 133047. August 17, 1999)

Implied trust may be established by parol evidence?

Implied Trust may be established by parol evidence, Express Trust cannot. Even then, in order to establish an
implied trust in real property by parol evidence, the proof should be as fully convincing as if the acts giving
rise to the trust obligation are proven by an authentic document. An implied trust, in fine, cannot be
established upon vague and inconclusive proof. (Yap vs. CA, G.R. No. 133047. August 17, 1999)

Requisites to bar action by beneficiary against trustee which acquired title to the property by
acquisitive prescription:

It is true that in express trusts and resulting trusts, a trustee cannot acquire by prescription a
property entrusted to him unless he repudiates the trust. Acquisitive prescription may bar the action of the
beneficiary against the trustee in an express trust for the recovery of the property held in trust where (a) the
trustee has performed unequivocal acts of repudiation amounting to an ouster of the cestui que trust; (b) such
positive acts of repudiation have been made known to the cestui que trust, and (c) the evidence thereon is
clear and conclusive. (Torbela vs. Rosario, G.R. No. 140528 G.R. No. 140553, December 7, 2011 )

Page 28 of 69

Elements for the existence of trust:

As a rule, however, the burden of proving the existence of a trust is on the party asserting its
existence, and such proof must be clear and satisfactorily show the existence of the trust and its
elements. The presence of the following elements must be proved: (1) a trustor or settlor who executes the
instrument creating the trust; (2) a trustee, who is the person expressly designated to carry out the trust; (3)
the trust res, consisting of duly identified and definite real properties; and (4) the cestui que trust, or
beneficiaries whose identity must be clear. (CANEZO VS ROJAS, G.R. NO. 148788, NOVEMBER 23, 2007)


4.9.1. DISTINGUISHED FROM EXECUTOR/ADMINISTRATOR

Executor/Administrator Trustee

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


Accounts must be UNDER OATH and filed ANNUALLY.

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

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


May sell or encumber property of estate held in trust
if necessary or expedient upon ORDER of the court.
Order of sale has NO TIME LIMIT. Order of sale has NO TIME LIMIT.

Appointed by the court to SETTLE estate of decedent.

Appointed to CARRY INTO EFFECT the provisions of a
will or written instrument (contractual trust).

NOT EXEMPTED from filing bond even if such
exemption is provided in the will (bond is only
conditioned upon payment of debts).
May be EXEMPTED from filing bond if provided in the
will or if beneficiaries requested exemption.
Services of executor or administrator are terminated
UPON PAYMENT OF DEBTS of the estate and
distribution of property to heirs.

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

MUST PAY the debts of the estate.

NO OBLIGATION to pay debts of beneficiary or
trustor.

(FEU Bar Reviewer 2014, Remedial Law, page 145 )

4.9.2. CONDITIONS OF THE BOND


Page 29 of 69
The following conditions shall be deemed a part of the bond whether written therein or not

1) INVENTORY. The trustee shall submit to the court an inventory of the personal and real estate
belonging to him as trustee who shall have come to his possession or knowledge.
2) MANAGEMENT AND DISPOSITION. The trustee shall manage and dispose of such estate and
faithfully discharge his trust in relation thereto.
3) ACCOUNT. The trustee shall render under oath at least once a year until his trust is fulfilled an
account of the property in his hands and of the management and disposition thereof.
4) SETTLEMENT OF ACCOUNTS. The trustee shall settle his accounts and deliver the remaining
estate in his hands to those entitled thereto (S6 R98; Manuel R. Riguera Special Proceeding Notes).

4.9.3. REQUISITES FOR THE REMOVAL AND RESIGNATION OF A TRUSTEE:

1) If removal appears essential in the interests of the petitioners:

a) Petition to the proper RTC of the parties beneficially interested;
b) Due notice to the trustee; and
c) Hearing

2) Removal of a trustee who is insane or otherwise incapable of discharging his trust or
evidently unsuitable therefore:

a) At the initiative of the court;
b) After due notice to all persons interested

3) Resignation:

a) whether appointed by the court or under a written instrument;
b) if it appears to the court proper to allow such resignation (FEU Remedial Law Reviewer 2014,
page 146)

4.9.4. GROUNDS FOR REMOVAL AND RESIGNATION OF A TRUSTEE

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

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

4.9.5. EXTENT OF AUTHORITY OF TRUSTEE

Rights, powers and duties of a trustee:


Page 30 of 69
A trustee appointed by the RTC shall have the same rights, powers, and duties, and in whom the
estate shall vest, as if he had been appointed by the testator. No person succeeding to a trust as executor or
administrator of a former trustee shall be required to accept such trust. (Section 2, Rule 98)

In case of vacancy where the RTC has appointed a new trustee, such new trustee shall have and exercise the
same powers, rights, and duties as if he had been originally appointed, and the trust estate shall vest in him in
like manner as it had vested or would have vested, in the trustee in whose place he is substituted; and the
court may order such conveyance to be made by the former trustee or his representatives, or by the other
remaining trustees, as may be necessary or proper to vest the trust estate in the new trustee, either alone or
Jointly with the others. (Sec. 3, Rule 98)


4.10. ESCHEAT

What is escheat?

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. (Rizal Commercial Banking Corporation vs. Hi-Tri Development Corporation and
Luz R. Bakunawa., G.R. No. 192413, June 13, 2012)
Escheat is a proceeding, unlike that of succession or assignment, whereby the state, by virtue of its
sovereignty, steps in and claims the real or personal property of a person who dies intestate leaving no heir.
Since escheat is one of the incidents of sovereignty, the state may, and usually does, prescribe the conditions
and limits the time within which a claim to such property may be made. (RP vs. CA & Solano, G.R. No.
143483, January 31, 2002)

Nature of Escheat proceeding

Accordingly, the CA committed reversible error when it ruled that the issuance of individual notices
upon respondents was a jurisdictional requirement, and that failure to effect personal service on them
rendered the Decision and the Order of the RTC void for want of jurisdiction. Escheat proceedings are
actions in rem, whereby an action is brought against the thing itself instead of the person. Thus, an
action may be instituted and carried to judgment without personal service upon the depositors or other
claimants

. Jurisdiction is secured by the power of the court over the res.
]
Consequently, a judgment of escheat
is conclusive upon persons notified by advertisement, as publication is considered a general and constructive
notice to all persons interested. (Rizal Commercial Banking Corporation vs. Hi-Tri Development
Corporation and Luz R. Bakunawa., G.R. No. 192413, June 13, 2012)

OBJECTIVE OF ESCHEAT PROCEEDINGS
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.
x x x We reiterate our pronouncement that the objective of escheat proceedings is state forfeiture of
unclaimed balances. x x x Rizal Commercial Banking Corporation vs. Hi-Tri Development Corporation and
Luz R. Bakunawa., G.R. No. 192413, June 13, 2012)

4.10.1. WHEN TO FILE?

When a person dies intestate, seized of real or personal property in the Philippines, leaving no heir or
person by law entitled to the same, the Solicitor General or his representative in behalf of the Republic of the
Philippines, may file a petition in the Court of First Instance of the province where the deceased last resided

Page 31 of 69
or in which he had estate, if he resided out of the Philippines, setting forth the facts, and praying that the
estate of the deceased be declared escheated. (Section 1, Rule 91)

Dormant accounts subject of escheat
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. 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. We emphasize that 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. (Rizal Commercial Banking Corporation vs. Hi-Tri Development Corporation and Luz
R. Bakunawa., G.R. No. 192413, June 13, 2012)

Parties in a petition for Escheat:

Rule 91 of the Revised rules of Court, which provides that ONLY the Republic of the Philippines,
through the Solicitor General, may commence escheat proceedings, did not take effect until January 1, 1964.
They shall govern all cases brought after they take effect, and also all further proceedings in cases
pending, except to the extent that in the opinion of the court, their application would not be feasible or would
work injustice, in which event the former procedure shall apply. (Tan vs. City of Davao, G.R. No. L-44347
September 29, 1988)

"Interested party" in an escheat proceeding -

In a special proceeding for escheat under sections 750 and 751 the petitioner is not the sole and
exclusive interested party. 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. (RP vs. CA &
Solano, G.R. No. 143483, January 31, 2002)

Real party in interest:

A "real party in interest" has been defined as the party who would be benefited or injured by the
judgment of the suit or the party entitled to avail of the suit. There can be no doubt that private respondent
bank falls under this definition for the escheat of the dormant deposits in favor of the government would
necessarily deprive said bank of the use of such deposits. (RP vs. CFI of Manila, G.R. No. L-30381 August 30,
1988)

The jurisdiction acquired cannot be converted into one for the distribution of the properties of the
said decedents. For such proceedings (for the distribution of the estate of the decedents) to be instituted, the
proper parties must be presented and the proceedings should comply with the requirements of the Rule.
(Mun. of Magallon, Negros Occ. vs. Bezore, G.R. No. L-14157, October 26, 1960)

4.10.2. REQUISITES FOR FILING OF PETITION:

1) That a person died intestate;
2) That he left no heirs or persons by law entitled to the same; and
3) The deceased left properties. ( City of Manila vs. Archbishop of Manila, GR 10033, August 30,
1917 )

Requirement of publication and notice

Page 32 of 69
Hence, insofar as banks are concerned, service of processes is made by delivery of a copy of the
complaint and summons upon the president, cashier, or managing officer of the defendant bank.
[8]
On the
other hand, as to depositors or other claimants of the unclaimed balances, service is made by publication
of a copy of the summons in a newspaper of general circulation in the locality where the institution is
situated
.
A notice about the forthcoming escheat proceedings must also be issued and published, directing and
requiring all persons who may claim any interest in the unclaimed balances to appear before the court and
show cause why the dormant accounts should not be deposited with the Treasurer. (Rizal Commercial
Banking Corporation vs. Hi-Tri Development Corporation and Luz R. Bakunawa., G.R. No. 192413, June
13, 2012)

Effects of judgment in escheat proceedings:

A judgment in escheat proceedings when rendered by a court of competent jurisdiction is conclusive
against all persons with actual or constructive notice, but not against those who are not parties or privies
thereto. Absolute lack on the part of petitioners of any dishonest intent to deprive the appellee of any right, or
in any way injure him, constitutes due process of law, proper notice having been observed. (RP vs. CA &
Solano, G.R. No. 143483, January 31, 2002)

4.10.3. REMEDY OF RESPONDENT AGAINST PETITIONER; PERIOD FOR FILING A CLAIM:

The 5-year period is not a device capriciously conjured by the state to defraud any claimant; on the
contrary, it is decidedly prescribed to encourage would-be claimants to be punctilious in asserting their
claims, otherwise they may lose them forever in a final judgment. (RP vs. CA & Solano, G.R. No. 143483,
January 31, 2002)

Motion to dismiss available when the petition for escheat is groundless:

When a petition for escheat is clearly groundless for the court to proceed to the inquisition provided
by law, an interested party should not be disallowed from filing a motion to dismiss the petition which is
untenable from all standpoints. And when the motion to dismiss is entertained upon this ground, the petition
may be dismissed unconditionally and the petitioner is not entitled to be afforded an opportunity to amend
his petition. (Go Poco Grocery vs. Pacific Biscuit Co., G.R. Nos. L-43697 and L-442200, March 31, 1938, 65
Phil. 443).


4.11. GUARDIANSHIP:

Rule governing guardianship of minors and incompetent:

Rules 92-97 of the Revised Rules of Court originally governs the Guardianship of a minor and
incompetent both as to their person and property. However, by virtue of Administrative matter no. 03-02-05
SC (AM no. 03-02-05 SC) , the Supreme Court retained in the meantime Rule 92-97 to be applied only to
Guardianship of an Incompetent other than a minor. Effectively, guardianship would be treated in two parts,
one pursuant to Administrative matter no. 03-02-05 SC which deals with Guardianship of Minors and the
other refers to the Guardianship of Incompetents under Rules 92-97.

Also, in Guardianship of Minors, it is the Family Court of the place where the minor resides or if a
non-resident, with the Family Court of the place where the minors property or part thereof is situated, which
has jurisdiction over the guardianship proceeding. (as can be gleaned from the provisions of RA 8369) On
the other hand, with regard to Guardianship of Incompetents, it is the RTC of the place where the incompetent
resides or if a non-resident, with the RTC of the place where the incompetents property or part thereof is
situated, which has jurisdiction over the guardianship proceeding for such incompetent. (Special
Proceedings: Annotations by Herrera, 2007 Edition, page 232)


Page 33 of 69
Purpose of guardianship?

A guardianship is designed to further the wards well-being, not that of the guardian. It is intended to
preserve the wards property, as well as to render any assistance that the ward may personally require. It has
been stated that while custody involves immediate care and control, guardianship indicates not only those
responsibilities, but those of one in loco parentis as well. (Oropesa vs. Oropesa, G.R. No. 184528, April 25,
2012)

Basis of guardianship of minor:

Where minors are involved, the State acts as parens patriae which is inherent in the supreme
power of every State, whether that power is lodged in a royal person or in the legislature, and has no affinity
to those arbitrary powers which are sometimes exerted by irresponsible monarchs to the great detriment of
the people and the destruction of their liberties. On the contrary, it is a most beneficent function, and often
necessary to be exercised in the interest of humanity, and for the prevention of injury to those who cannot
protect themselves." (De Leon vs. Lorenzo, Gr L-23096 April 27, 1972)

NATURAL GUARDIAN VS. JUDICIAL GUARDIAN : POWER TO DISPOSE OR ENCUMBER THE PROPERTY
OF WARD
Thus, a father or mother, as the natural guardian of the minor under parental authority, does not
have the power to dispose or encumber the property of the latter. Such power is granted by law only to a
judicial guardian of the wards property and even then only with courts prior approval secured in accordance
with the proceedings set forth by the Rules of Court. (Napoleon D. Neri, Alicia D. Neri-Mondejar, Visminda
D. Neri-Chambers, Rosa D. Neri-Millan, Douglas D. Neri, Eutropia D. Illut-Cockinos and Victoria D. Illut-
Piala vs. Heirs of Hadji Yusop Uy and Julpha Ibrahim Uy., G.R. No. 194366, October 10, 2012)


4.11.1. GENERAL POWERS AND DUTIES OF GUARDIANS (Rule 96)

Summary of the powers and duties of guardians:

1) Have the care and custody of his ward and the management of his estate or the management of the
estate only, as the case may be.(Sec.1)
2) Must pay debts of ward. (Sec. 2)
3) To settle accounts, collect debts and appear in action for ward. (Sec. 3)
4) Estate to be managed frugally, and proceeds applied to maintenance of ward. (Sec.4)
5) May be authorized by court to join in partition proceedings after hearing. (Sec. 5)
6) The guardian may file a complaint against anyone whom is suspected of having embezzled,
concealed or conveyed away the any property of the ward. (Sec. 6)
7) Must render to the court an inventory of the estate of his ward within three months after his
appointment and annually after such appointment; such inventories and accounts shall be sworn to by the
guardian. (Sec. 7)
8) Upon the expiration of a year from the time of his appointment, and as often thereafter as may be
required, a guardian must present his account to the court for settlement and allowance. (Sec. 8)

Power of the parent/legal guardian over the property of the minor requires judicial power:

Under the law, a parent, acting merely as the legal (as distinguished from judicial) administrator of
the property of his/her minor children, does not have the power to dispose of, or alienate, the property of
said children without judicial approval. The powers and duties of the widow as legal administrator of her
minor children's property as provided in Rule 84 by the Rules of Court are only powers of possession and
management. (Lindain vs. Ila, G.R. No. 95305 August 20, 1992)

Power of the parents/guardian to repudiate inheritance requires judicial approval:

Page 34 of 69

Parents and guardians may not therefore repudiate the inheritance of their wards without judicial
approval. This is because repudiation amounts to an alienation of property which must pass the court's
scrutiny in order to protect the interest of the ward. Not having been judicially authorized, the Release and
Waiver of Claim in the instant case is void and will not bar private respondents from asserting their rights as
heirs of the deceased. (Guy vs. CA, G.R. No. 163707, September 15, 2006)

Power of the guardianship special and limited:

Generally, the guardianship court exercising special and limited jurisdiction cannot actually order the
delivery of the property of the ward found to be embezzled, concealed or conveyed. In a categorical language
of this Court, only in extreme cases, where property clearly belongs to the ward or where his title thereto has
been already judicially decided, may the court direct its delivery to the guardian. (Parco & Bautista vs. CA,
G.R. No. L-33152 January 30, 1982)

Conflict of interest a ground for the removal of the guardian:

Conflict of interest has been held sufficient ground for removal, the court may exercise discretion to
render a guardian unsuitable for the trust. To the extent that a court uses its discretion in appraising whether
a person is unsuitable or incapable of discharging his trust, it can be said that removal is discretionary but
such discretion must be exercised within the law, and when the latter has laid down the grounds for removal
of a guardian, discretion is limited to inquiring as to the existence of any of those grounds. (In The Matter of
Guardianship of Carmen Vda. De Bengson vs. PNB, G.R. No. L-17066, December 28, 1961)

Relationship of guardian and ward is dissolved by death
It is a well-established rule that the relationship of guardian and ward is necessarily terminated by
the death of either the guardian or the ward. The supervening event of death rendered it pointless to delve
into the propriety of Biasons appointment since the juridical tie between him and Maura has already been
dissolved. (Eduardo T. Abad vs. Leonardo Biason and Gabriel Magno., G.R. No. 191993, December 5,
2012)

4.11.2. CONDITIONS OF THE BOND OF THE GUARDIAN

Before an appointed guardian enters upon the execution of his trust, he shall give a BOND.

Conditions:

1) 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;
2) 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;
3) To Render a true and just ACCOUNT of all the estate of the ward in his hands, and of all proceeds
or interest derived 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;
4) To PERFORM all orders of the court by him to be performed. (Section 1, rule 94)

Purpose of the Bond:


Page 35 of 69
The purpose of the bond is for the protection of the property of the minor or incompetent to the end
that he may be assured of an honest administration of his funds during his minority. The bond served as
security to those interested in the property settlement of the estate, and the parties interested acquire a
vested interest in the bond which cannot be divested without their consent, except in a manner prescribed by
law (Special Proceedings, Herrera, 2005 Edition P. 281).

Necessity of the Bond:

When required by statutes to give a bond, no person can qualify and acts as guardian without
complying with this condition precedent. The court should not grant letters of guardianship without
requiring a bond. (Special Proceedings, Herrera, 2005 Edition P. 282)

4.11.3. RULE ON GUARDIANSHIP OVER MINOR

SALIENT PROVISIONS UNDER THE RULE ON GUARDIANSHIP OF MINORS (AM NO. 03-02-05 SC):

I. APPLICABILITY OF THE RULE:

Father and mother as legal guardian of minor; court appointment not required:

The father and mother shall jointly exercise legal guardianship over the person and property of their
unemancipated common child without the necessity of a court appointment. The Rule shall be suppletory to
the provisions of the Family Code on guardianship (Sec. 1, AM NO. 03-02-05 SC).

Who may file petition for guardianship?

On grounds authorized by law, any relative or other person on behalf of a minor, or the minor himself
if 14 years of age or over, may petition the Family Court for the appointment of a general guardian over the
person or property, or both, of such minor. The petition may also be filed by the Secretary of DSWD and of the
DOH in the case of an insane minor who needs to be hospitalized (Sec. 1, AM NO. 03-02-05 SC).

II. GROUNDS FOR PETITION (Section 4, AM NO. 03-02-05 SC)

The grounds for the appointment of a guardian over the person or property or both, of a minor are
the following:

1) Death, continued absence or incapacity of his parents;
2) Suspension, deprivation or termination of parental authority;
3) Remarriage of his surviving parent, if the latter is found unsuitable to exercise parental authority;
or
4) When the best interest of the minor so require.

III. Who may be appointed guardian of the person or property or both of a minor (Section 6, AM NO.
03-02-05 SC)

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

1) The surviving grandparent in case several grandparent survive, the court shall select any of them
taking into account all relevant considerations;
2) The oldest brother or sister of the minor over twenty-one years of age, unless unfit or disqualified;
3) The actual custodian of the minor over twenty-one years of age, unless unfit or disqualified; or
4) Any other person, who in the sound discretion of the court, would serve the best interest of the
minor.


Page 36 of 69
IV. QUALIFICATIONS OF GUARDIANS (Section 5, AM NO. 03-02-05 SC):

a) Moral character;
b) Physical, mental and psychological condition;
c) Financial status;
d) Relationship of trust with the minor;
e) Availability to exercise the powers and duties of a guardian for the full period of the guardianship;
f) Lack of conflict of interest with the minor; and
g) Ability to manage the property of the minor.


V. CASE STUDY REPORT (Section 9, AM NO. 03-02-05 SC)

The court shall order a social worker to conduct a case study of the minor and all the prospective
guardians and submit his report and recommendation to the court for its guidance before the scheduled
hearing. The social worker may intervene on behalf of the minor if he finds that the petition for guardianship
should be denied.

VI. When and How a Guardian of the Property for Nonresident Minor is Appointed; Notice
(Section 12, AM NO. 03-02-05 SC)

When minor resides outside the Philippines but has property in the Philippines:

1) Any relative or friend of such minor or anyone interested in his property, in expectancy or
otherwise, may petition to the Family Court for the appointment of a guardian over his property.

2) Notice of hearing shall be given to the minor by publication or any other means as the court may
deem proper. The court may dispense with the presence of the non-resident minor.

VII. Bond of Parents as Guardians of Property of Minor (Sec. 16, AM NO. 03-02-05 SC)

If the market value of the property or the annual income of the child exceeds P50,000.00, the parent
concern shall furnish a bond in such amount as the court may determine, but in no case less than 10% of the
value of such property or annual income, to guarantee the performance of the obligations prescribed for
general guardians.

NOTE: A verified petition for approval of the bond shall be filed in the Family Court of the place where the
child resides, or, if the child resides in a foreign country, in the Family Court of the place where the property
or any part thereof is situated.
The petition shall be docketed as a summary special proceeding, in which all incidents and issues regarding
the performance of the obligations of general guardian shall be heard and resolved.

VIII. Grounds for Termination of Guardianship

1. If upon petition by the person declared incompetent, or his guardian, relative, or friend, and after
trial, it is judicially determined that the person is no longer incompetent, his competency shall be adjudged
and the guardianship shall cease. (Section1, Rule 97).

2. The guardianship may also be terminated when it appears that the guardianship is no longer
necessary. (Section 3, Rule 97)

IX. Grounds for removal or resignation of guardian (Section 24)

When a guardian becomes insane or otherwise incapable of discharging his trust or is found
thereafter to be unsuitable, or has wasted or mismanaged the property of the ward, or has failed to render an

Page 37 of 69
account or make a return for thirty days after it is due, the court may, upon reasonable notice to the guardian,
remove him as such and require him to surrender the property of the ward to the person found to be lawfully
entitled thereto.

The court may allow the guardian to resign for justifiable causes.

Upon the removal or resignation of the guardian, the court shall appoint a new one.

No motion for removal or resignation shall be granted unless the guardian has submitted the proper
accounting of the property of the ward and the court has approved the same.

Upon termination of the trust, it is the duty of the guardian 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, as provided for in Section 14, par. C of AM No. 03-02-05 SC.

4.12. ADOPTION:

What is adoption?

Adoption is defined as the process of making a child, whether related or not to the adopter, possess
in general, the rights accorded to a legitimate child. It is a juridical act, a proceeding in rem which creates
between two persons a relationship similar to that which results from legitimate paternity and filiation. (IN
RE: Stephanie Garcia, GR 148311, March 31, 2005)

What is the purpose of adoption?

Formerly, Adoption used to be for the benefit of the adoptor and was intended to afford to persons
who have no child of their own the consolation of having one, by creating through legal fiction, the relation of
paternity and filiation where none exists by blood relationship. The present tendency, however, is geared
more towards the promotion of the welfare of the child and the enhancement of his opportunities for a useful
and happy life, and every intendment is sustained to promote that objective.

(Daoang vs. CA, G.R. No. L-
34568 March 28, 1988)

4.12.1. Distinguish domestic adoption from inter-country adoption:



DOMESTIC ADOPTION
RA 8552

INTER-COUNTRY ADOPTION
RA 8043

Proper in DOMESTIC adoption.


Proper in INTER-COUNTRY adoption.


QUALIFICATIONS:

1.) FILIPINO CITIZEN:
(a) legal age, in possession of full civil capacity and
legal rights,

(b) of good moral character, has not been convicted of
any crime involving moral turpitude, emotionally and

(c) psychologically capable of caring for children,

QUALIFICATIONS:

An alien or a Filipino citizen permanently residing
abroad may file an application for inter-country adoption
of a Filipino child if he/she:
(a) is at least twenty-seven (27) years of age and at
least sixteen (16) years older than the child to be adopted,
at the time of application unless the adopter is the parent
by nature of the child to be adopted or the spouse of such
parent:

Page 38 of 69

(d) at least sixteen (16) years older than the adoptee,
and who is in a position to support and care for his/her
children in keeping with the means of the family. (Waived
when adopter is a biological parent of the adoptee, or is the
spouse of the adoptees parent)


2.) ALIEN:
(a) Any alien possessing the same qualifications as
above stated for Filipino nationals:

(b) Provided, That his/her country has diplomatic
relations with the Republic of the Philippines,

(c) that he/she has been living in the Philippines for at
least three (3) continuous years prior to the filing of the
application for adoption and maintains such residence until
the adoption decree is entered,

(d) that he/she has been certified by his/her
diplomatic or consular office or any appropriate government
agency that he/she has the legal capacity to adopt in his/her
country, and that

(e) his/her government allows the adoptee to enter
his/her country as his/her adopted son/daughter:


Exception to the Requirements on residency::

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

(ii) one who seeks to adopt the legitimate son/daughter of
his/her Filipino spouse; or

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

3.) GUARDIAN:
The guardian with respect to the ward after the termination
of the guardianship and clearance of his/her financial
accountabilities.

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, However, that 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.


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

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

(d) has not been convicted of a crime involving moral
turpitude;

(e) is eligible to adopt under his/her national law;

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

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

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

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


Page 39 of 69

Under the jurisdiction of the FAMILY COURT where adopter
resides.

Under the jurisdiction of the INTER-COUNTRY ADOPTION
BOARD (but a petition may also be filed with the FAMILY
COURT [where adoptee resides] which will turn it over to
ICAB).


Trial custody is IN THE PHILIPPINES for 6 months (but court
may reduce period or exempt parties from trial custody).

Trial custody is IN THE COUNTRY OF ADOPTER for 6
months and is mandatory before a decree of adoption is
issued.

PETITION FOR ADOPTION may include PRAYER for change of
name, or declaration that child is a foundling, abandoned,
dependent or neglected child.


PETITION FOR ADOPTION only.

ADOPTEE: Legitimate or illegitimate CHILD of a spouse or
even a person who is OF LEGAL AGE may be adopted.

ADOPTEE: Only a CHILD LEGALLY AVAILABLE for
domestic adoption may be the subject of inter-country
adoption.

ANNEXES: Income tax returns, police clearance, character
reference, family picture, birth certificate of adopter are NOT
REQUIRED to be annexed in the petition.

ANNEXES: Income tax returns, police clearance, character
reference, family picture, birth certificate of adopter are
REQUIRED to be annexed in the petition.

Petition must be PUBLISHED at least once a week for 3
successive weeks in a newspaper of general circulation in the
province or city where court is situated.


NO PUBLICATION requirement.
Application is through a PETITION IN THE Family Court (FC).

Application may be through AGENCY IN FOREIGN
COUNTRY and then submit to Inter-Country Adoption Boar
(ICAB).


Decree of adoption issued by FC which has jurisdiction over
case.

Decree of adoption issued by a FOREIGN COURT.
(RA 8552 AND RA 8043)

4.12.2. DOMESTIC ADOPTION ACT

a) What are the effects of adoption?

1.) Except in cases where the biological parent is the spouse of the adopter, all legal ties between the
biological parent(s) and the adoptee shall be severed and the same shall then be vested on the adopter(s).
2.) The adoptee shall be considered the legitimate son/daughter of the adopter(s) for all intents and
purposes and as such is entitled to all the rights and obligations provided by law to legitimate sons/daughters
born to them without discrimination of any kind. To this end, the adoptee is entitled to love, guidance, and
support in keeping with the means of the family.

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

What are the rights of the adoptee?

Page 40 of 69

Being a legitimate child by virtue of her adoption, it follows that Stephanie is entitled to all the rights
provided by law to a legitimate child without discrimination of any kind, including the right to bear the
surname of her father and her mother, as discussed above. This is consistent with the intention of the
members of the Civil Code and Family Law Committees as earlier discussed. (IN RE: Stephanie Garcia, GR
148311, March 31, 2005)

Right of the adoptee to use the surname of the adopter:

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. (RP vs. Hernandez, G.R. No.
117209, February 9, 1996)

The adoptee may use the surname of the adopter. The minor cannot bear adopter's surname as a
married woman, for her husband has not joined in the petition for adoption and cannot join it, because he has
children by a previous marriage and to allow the minor to adopt the surname of the husband of the adopter
(where the husband had not), would mislead the public into believing that she (adoptee) has also been
adopted by the husband, which is not the case. (Suarez vs.. Republic, L-20914 December 24, 1965).

b) Instances when adoption may be rescinded

As provided in Section 19 of RA 8552 or the Domestic Adoption act, upon petition of the adoptee,
with the assistance of the Department if a minor or if over eighteen (18) years of age but is incapacitated, as
guardian/counsel, the adoption may be rescinded on any of the following grounds committed by the
adopter(s):
(a) repeated physical and verbal maltreatment by the adopter(s) despite having undergone
counseling;
(b) attempt on the life of the adoptee;
(c) sexual assault or violence; or
(d) abandonment and failure to comply with parental obligations.

Adoption, being in the best interest of the child, shall not be subject to rescission by the adopter(s). However,
the adopter(s) may disinherit the adoptee for causes provided in Article 919 of the Civil Code.

Adopter cannot rescind the adoption, but he can forfeit some benefits of the adoptee:

While R.A. No. 8552 has unqualifiedly withdrawn from an adopter a consequential right to rescind
the adoption decree even in cases where the adoption might clearly turn out to be undesirable, it remains,
nevertheless, the bounden duty of the Court to apply the law. It is noteworthy, however, that an adopter,
while barred from severing the legal ties of adoption, can always for valid reasons cause the forfeiture of
certain benefits otherwise accruing to an undeserving child e.g. valid disinheritance (Lahom vs. Sibulo, G.R.
No. 143989, July 14, 2003)

c) Effects of rescission of adoption:

1) Parental authority of biological parent or legal custody of DSWD will be restored;
2) Reciprocal rights of adoptee and adopter will be extinguished;
3) Vested rights acquired prior to judicial rescission shall be respected;

Page 41 of 69
4) Successional rights shall revert to its status prior to adoption, as of the date of judgment of judicial
rescission;
5) Adoptee shall use the name stated in his original birth or foundling certificate;
6) Civil registrar will reinstate his original birth or foundling certificate. (Section 20, RA 8552)

4.12.3. INTER-COUNTRY ADOPTION

What is inter-country adoption?

Inter-Country Adoption refers to the socio-legal process of adopting a Filipino child by a foreign
national or a Filipino citizen permanently residing abroad. (Section 3 (a) RA 8043)

When allowed?

1) Inter-country adoptions are allowed when the same shall prove beneficial to the childs best
interests, and shall serve and protect his/her fundamental rights (Sec. 2).
2) It is allowed when all the requirements and standards set forth under RA 8043 are complied with.
3) Maximum number that may be allowed for foreign adoption shall not exceed six hundred (600) a
year for the first five (5) years.

PROCEDURE: (A.M. No. 02-6-02-SC)

1) Filing of petition with the Family Court of the place where the prospective adoptive parents
reside The petition may also pray for a change of name of the child.

2) Order of Hearing No petition for adoption shall be set for hearing unless a licensed social
worker has made a CASE STUDY of the adoptee, adopter and the biological parents (Sec. 11).

A copy of the order of hearing shall be published at least once a week for 3 successive weeks in a
newspaper of general circulation.

At the discretion of the court, copies of the order shall also be furnished the Office of the Solicitor
General. If a change of name of the adoptee is prayed for in the petition, notice to the Solicitor General is
mandatory.

3) Child and Home Study Report The social worker shall verify with the Civil Registry the real
identity and registered name of the adoptee.

4) Hearing It shall be held within 6 months from the date of issuance of the order.

In case of application for change of name, hearing shall be held within 4 months after the last
publication of notice nor within 30 days prior to an election.

5) Supervised Trial Custody No petition for adoption shall be finally granted until the adopters
have been given by the court a supervised trial custody period for at least six (6) months (Sec. 12).

6) Decree of Adoption After the publication of the order of hearing and no opposition has been
interposed to the petition, a decree of adoption shall be entered stating the name by which the child is to be
known which shall take effect as of the date the original petition was filed EVEN if petitioners die before its
issuance.

An amended birth certificate shall be issued. The original birth certificate shall be stamped
"cancelled" and shall be sealed in the Civil Registry records.

Page 42 of 69

The new birth certificate to be issued to the adoptee shall not bear any notation that it is an amended
issue (Sec. 14). (A.M. No. 02-6-02-SC)

IN CASE OF RESCISSION/REVOCATION

Venue:

The petition shall be filed with the Family Court of the city or province where the adoptee resides.

Time within which to file petition.

The adoptee, if incapacitated, must file the petition for recission or revocation of adoption within five
(5) years after he reaches the age of majority, or if he was imcompetent at the time of the adoption, within
five (5) years after recovery from such incompetency. (Section 20 and 21 of RA A.M. No. 02-6-02-SC)

c) Best interest of the minor standard

The best interests of the minor and shall give paramount consideration to his material and moral
welfare. The best interests of the minor refer to the totality of the circumstances and conditions as are most
congenial to the survival, protection, and feelings of security of the minor encouraging to his physical,
psychological and emotional development. It also means the least detrimental available alternative for
safeguarding the growth and development of the minor (Sec. 14[[A.M. No. 03-04-04-SC 2003-04-22]].

It would thus be against the spirit of the law if financial consideration were to be the paramount
consideration in deciding whether to deprive a person of parental authority over his/her children. Again, it is
the best interest of the child that takes precedence in adoption. ( Landingin vs. Republic, G.R. No. 164948,
June 27, 2006)

4.13. WRIT OF HABEAS CORPUS

What is a writ of habeas corpus?

Writ of habeas corpus is an order issued by the court commanding a person in custody of another to
produce the body of the person on the place, date and time specified therein.

Writ of habeas corpus not available in case a person is out on bail?

The law is well settled that a person out on bail is not so restrained of his liberty as to be entitled to a
writ of habeas corpus. The restraint of liberty which would justify the issuance of the writ must be more than
a mere moral restraint; it must be actual or physical. (Felipe Gonzales vs.. Viola, G.R. No. L-43195, August
23, 1935)

When writ of habeas corpus may be issued?

The most basic criterion for the issuance of the writ, therefore, is that the individual seeking such
relief be illegally deprived of his freedom of movement or placed under some form of illegal restraint. If an
individual's liberty is restrained via some legal process, the writ of habeas corpus is unavailing. (In Re
Reynaldo De Villa, G.R. No. 158802, November 17, 2004)

Consequently, the writ may also be availed of where, as a consequence of a judicial proceeding,

(a) there has been a deprivation of a constitutional right resulting in the restraint of a person,
(b) the court had no jurisdiction to impose the sentence, or

Page 43 of 69
(c) an excessive penalty has been imposed, as such sentence is void as to such excess. (Feria vs. CA,
G.R. No. 122954, February 15, 2000)

4.13.1. CONTENTS OF THE PETITION

Application for the writ shall be by petition signed and verified either by the party for whose relief it
is intended, or by some person on his behalf, and shall set forth:

(a) That the person in whose behalf the application is made is imprisoned or restrained of his liberty;

(b) The officer or name of the person by whom he is so imprisoned or restrained; or, if both are
unknown or uncertain, such officer or person may be described by an assumed appellation, and the person
who is served with the writ shall be deemed the person intended;

(c) The place where he is so imprisoned or restrained, if known;

(d) A copy of the commitment or cause of detention of such person, if it can be procured without
impairing the efficiency of the remedy; or, if the imprisonment or restraint is without any legal authority,
such fact shall appear. (Section 3, Rule 102)

* In paragraph b, or, if both persons are unknown or uncertain, such officer or person may be
described by an assumed appellation, and the person who is served with the writ shall be deemed the person
intended.

* In paragraph d, a copy of the commitment or cause of detention should set forth, if it can be
procured without impairing the efficiency of the remedy; or, if the imprisonment or restraint is without any
legal authority, such fact shall appear. (FEU bar reviewer, remedial law 2014, page 153-154)

4.13.2. CONTENTS OF THE RETURN

When the person to be produced is imprisoned or restrained by an officer, the person who makes the
return shall state therein, and in other cases the person in whose custody the prisoner is found shall state, in
writing to the court or judge before whom the writ is returnable, plainly and unequivocably:

a) Whether he has or has not the party in his custody or power, or under restraint;

b) If he has the party in his custody or power, or under restraint, the authority and the true and
whole cause thereof, set forth at large, with a copy of the writ, order, execution, or other process, if any, upon
which the party is held;

c) If the party is in his custody or power or is restrained by him, and is not produced, particularly the
nature and gravity of the sickness or infirmity of such party by reason of which he cannot, without danger, be
brought before the court or judge;

d) If he has had the party in his custody or power, or under restraint, and has transferred such
custody or restraint to another, particularly to whom, at what time, for what cause, and by what authority
such transfer was made (Sec. 10).

4.13.3. DISTINGUISH PEREMPTORY WRIT FROM PRELIMINARY CITATION

Peremptory writ of habeas corpus, is one which unconditionally commands the respondent to have
the body of the detained person before the court at a time and place therein specified. The order served in the
case before us was merely a preliminary citation or one which merely requires the respondent to appear

Page 44 of 69
and show cause why the peremptory writ should not be granted. (Lee Yick Hon vs. Insular Collector Of
Customs, G.R. No. L-16779, March 30, 1921)

4.13.4. WHEN NOT PROPER/APPLICABLE

Ordinarily, the writ of habeas corpus will not be granted when there is an adequate remedy by writ
of error or appeal or by writ of certiorari, it may, nevertheless, be available in exceptional cases, for the writ
should not be considered subservient to procedural limitations which glorify form over substance. (39
C.J.S. Habeas Corpus 13, 486-488)

It must be kept in mind that in both habeas corpus and certiorari proceedings is whether an inferior
court has exceeded its jurisdiction, the former involves a collateral attack on the judgment and "reaches the
body but not the record," while the latter assails directly the judgment and "reaches the record but not the
body." (Velasco vs. CA G.R. No. 118644 July 7, 1995)

4.13.5. WHEN WRIT DISALLOWED/DISCHARGED

Section 4, Rule 102 provides: If it appears that the person alleged to be restrained of his liberty
is in the custody of an officer under process issued by a court or judge or by virtue of a judgment or
order of a court of record, and that the court or judge had jurisdiction to issue the process, render the
judgment, or make the order, the writ shall not be allowed. (In Re Ashraf Kunting, G.R. No. 167193,
April 19, 2006)

4.13.6. DISTINGUISH FROM WRIT OF AMPARO AND HABEAS DATA (See matrix of distinctions between
Habeas Corpus, Amparo and Habeas Data)

4.13.7. RULES ON CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS IN RELATION TO CUSTODY OF
MINORS (A.M. NO. 03-04-04-SC)

CUSTODY OF MINORS

Petition for custody of minor falls within the jurisdiction of the Family Court:

A petition for the custody of minors is also provided in Rule 99, Section 1 which provides for a
petition for adoption. The petition for custody of children is now within the exclusive original jurisdiction of
Family Courts, as provided in Republic Act No. 8369, Section 5(b) [Family Courts Act of 1997].

Rule on the custody of minor under seven years of age:

Under Article 213, second paragraph of the Family Code, no child under seven years of age shall be
separated from the mother, unless the court finds compelling reasons to order otherwise. This rule, however,
is not absolute. (Espiritu vs. Court Of Appeals, G.R. No. 115640, March 15, 1995; Orda vs. Court Of Appeals,
G.R. No. 92625, December 26, 1990; Luna vs. Intermediate Appellate Court, No. L-68374, June 18, 1985)

WRIT OF HABEAS CORPUS IN RELATION TO CUSTODY OF MINORS

Right to the custody required in a petition for writ of habeas corpus of minors:

The writ of habeas corpus extends to all cases of illegal confinement or detention by which any
person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person
entitled thereto. Thus, it is the proper legal remedy to enable parents to regain the custody of a minor child
even if the latter be in the custody of a third person of his own free will. (Tijing vs. CA, G.R. No. 125901,
March 8, 2001)


Page 45 of 69
Petitioners must convincingly establish that the minor in whose behalf the application for the writ is
made is the person upon whom they have rightful custody. If there is doubt on the identity of the minor in
whose behalf the application for the writ is made, petitioners cannot invoke with certainty their right of
custody over the said minor. (Tijing vs. CA, G.R. No. 125901, March 8, 2001)

Habeas corpus in relation Post-Conviction DNA Testing Results:

Sec. 10 of the DNA Evidence Rule (A.M. No. 06-11-5-SC, October 15, 2007) provides for
the rule on the post- conviction DNA Testing results and the remedy if favorable. It states that:

SEC. 10. Post-conviction DNA Testing. Remedy if the Results Are Favorable to the
Convict. The convict or the prosecution may file a petition for a writ of habeas corpus in
the court of origin if the results of the post-conviction DNA testing are favorable to the
convict. In case the court, after due hearing, finds the petition to be meritorious, it shall
reverse or modify the judgment of conviction and order the release of the convict, unless
continued detention is justified for a lawful cause. A similar petition may be filed either in
the Court of Appeals or the Supreme Court, or with any member of said courts, which may
conduct a hearing thereon or remand the petition to the court of origin and issue the
appropriate orders.

4.14. WRIT OF AMPARO (A.M. NO. 07-9-12-SC):

4.14.1. COVERAGE

The Amparo Rule was intended to address the intractable problem of (1) "EXTRALEGAL KILLINGS"
and (2) "ENFORCED DISAPPEARANCES," its coverage, in its present form, is confined to these two instances
or to threats thereof. "Extralegal killings" are "killings committed without due process of law, i.e., without
legal safeguards or judicial proceedings." (Secretary of Defense vs. Manalo, G.R. No. 180906, October 7,
2008)

Confined only to cases of extrajudicial killings and enfroced disappearances
As it stands, the writ of amparo is confined only to cases of extrajudicial killings and enforced
disappearances, or to threats thereof.Considering that this remedy is aimed at addressing these serious
violations of or threats to the right to life, liberty and security, it cannot be issued on amorphous and
uncertain grounds, or in cases where the alleged threat has ceased and is no longer imminent or
continuing. Instead, it must be granted judiciously so as not to dilute the extraordinary and remedial
character of the writ, thus:
The privilege of the writ of amparo is envisioned basically to protect and guarantee the rights to life,
liberty, and security of persons, free from fears and threats that vitiate the quality of this life. It is an
extraordinary writ conceptualized and adopted in light of and in response to the prevalence of extra-legal
killings and enforced disappearances. Accordingly, the remedy ought to be resorted to and granted
judiciously, lest the ideal sought by the Amparo Rule be diluted and undermined by the indiscriminate
filing of amparo petitions for purposes less than the desire to secure Amparo reliefs and protection
and/or on the basis of unsubstantiated allegations.(Emphasis supplied.) (RODOLFO NOEL LOZADA, JR.,
VIOLETA LOZADA and ARTURO LOZADA, vs. PRESIDENT GLORIA MACAPAGAL ARROYO, EDUARDO
ERMITA, AVELINO RAZON, ANGEL ATUTUBO and SPO4 ROGER VALEROSO,
*
G.R. Nos. 184379-80, April 24,
2012)

Nature of the writ of amparo: Equitable and Extraordinary remedy


Page 46 of 69
The remedy of the Writ of Amparo is an equitable and extraordinary remedy to safeguard the
right of the people to life, liberty and security as enshrined in the 1987 Constitution. The Rule on the Writ
of Amparo was issued as an exercise of the Supreme Courts power to promulgate rules concerning the
protection and enforcement of constitutional rights. It aims to address concerns such as, among others,
extrajudicial killings and enforced disappearances.
x x x
It is clear from this rule that this type of summary procedure only applies to MTC/MTCC/MCTCs. It is
mind-boggling how this rule could possibly apply to proceedings in an RTC. Aside from that, this Court limited
the application of summary procedure to certain civil and criminal cases. A writ of Amparo is a special
proceeding. It is a remedy by which a party seeks to establish a status, a right or particular fact. It is not a
civil nor a criminal action, hence, the application of the Revised Rule on Summary Procedure is seriously
misplaced. (Secretary Leila M. De Lima, Director Nonnatus R. Rojas and Deputy Director Reynaldo O.
Esmeralda v. Magtanggol B. Gatdula; G.R. No. 204528. February 19, 2013)
The writ of amparo was promulgated by the Court pursuant to its rulemaking powers in response to
the alarming rise in the number of cases of enforced disappearances and extrajudicial killings. It plays the
preventive role of breaking the expectation of impunity in the commission of extralegal killings and enforced
disappearances, as well as the curative role of facilitating the subsequent punishment of the perpetrators. In
Tapuz v. Del Rosario, the Court has previously held that the writ of amparo is an extraordinary remedy
intended to address violations of, or threats to, the rights to life, liberty or security and that, being a remedy of
extraordinary character, it is not one to issue on amorphous or uncertain grounds but only upon reasonable
certainty. Hence, every petition for the issuance of the writ is required to be supported by justifying
allegations of fact on the following matters:

(a) The personal circumstances of the petitioner;

(b) The name and personal circumstances of the respondent responsible for the
threat, act or omission, or, if the name is unknown or uncertain, the respondent may
be described by an assumed appellation;

(c) The right to life, liberty and security of the aggrieved party violated or threatened
with violation by an unlawful act or omission of the respondent, and how such threat
or violation is committed with the attendant circumstances detailed in supporting
affidavits;

(d) The investigation conducted, if any, specifying the names, personal
circumstances, and addresses of the investigating authority or individuals, as well as
the manner and conduct of the investigation, together with any report;

(e) The actions and recourses taken by the petitioner to determine the fate or
whereabouts of the aggrieved party and the identity of the person responsible for the
threat, act or omission; and

(f) The relief prayed for. The petition may include a general prayer for other just and
equitable reliefs. (In the Matter of the Petition for the Issuance of a Writ of Amparo
in Favor of Lilibeth Ladaga Vs. Major General Reynaldo Mapagu, Commanding
General of the Philippine Army's 10th Infantry Division, et al./In the Matter of the
Petition for the Issuance of a Writ of Amparo in Favor of Angela A. Librado-
Trinidad Vs. Major General Reynaldo Mapagu, Commanding General of the
Philippine Army's 10th Infantry Division, et al.In the Matter fo the Petition for the
Issuance of a Writ of Amparo in Favor of Carlos Isagani T. Zarate Vs. Major
General Reynaldo Mapagu, Commanding General of the Philippine Army's 10th

Page 47 of 69
Infantry Division, et al. G.R. No. 189689/G.R. No. 189690/G.R. No.
189691, November 13, 2012)


Objective as a curative remedy

Thus, if the Complaint filed before the DOJ had already progressed into a criminal case, then the latter
action can more adequately dispose of the allegations made by petitioners. After all, one of the ultimate
objectives of the writ of amparo as a curative remedy is to facilitate the subsequent punishment of
perpetrators. (RODOLFO NOEL LOZADA, JR., VIOLETA LOZADA and ARTURO LOZADA, vs. PRESIDENT
GLORIA MACAPAGAL ARROYO, EDUARDO ERMITA, AVELINO RAZON, ANGEL ATUTUBO and SPO4
ROGER VALEROSO,
*
G.R. Nos. 184379-80, April 24, 2012)

It is PREVENTIVE in that it breaks the expectation of impunity in the commission of these offenses; it
is CURATIVE in that it facilitates the subsequent punishment of perpetrators as it will inevitably yield leads to
subsequent investigation and action. In the long run, the goal of both the preventive and curative roles is to
deter the further commission of extralegal killings and enforced disappearances. (Secretary of Defense vs.
Manalo, G.R. No. 180906, October 7, 2008)


4.14.2. DISTINGUISH FROM HABEAS CORPUS AND HABEAS DATA (See matrix of distinctions between
Habeas Corpus, Amparo and Habeas Data)

4.14.3. DIFFERENCES BETWEEN AMPARO AND SEARCH WARRANT
The writ applies to extralegal/extrajudicial killings and enforced disappearances or threats thereof while
a search warrant is an order in writing issued in the name of the People of the Philippines, signed by a judge
and directed to a peace officer, commanding him to search for personal property described therein and bring
it before the court. (Secretary of Defense vs. Manalo, G.R. No. 180906, October 7, 2008)

Procedures

Due to the delicate and urgent nature of these controversies, the procedure was devised to afford
swift but decisive relief. It is initiated through a petition to be filed in a Regional Trial Court, Sandiganbayan,
the Court of Appeals, or the Supreme Court. The judge or justice then makes an immediate evaluation of the
facts as alleged in the petition and the affidavits submitted with the attendant circumstances detailed. After
evaluation, the judge has the option to issue the Writ of Amparo or immediately dismiss the case. Dismissal
is proper if the petition and the supporting affidavits do not show that the petitioners right to lie liberty or
security is under threat or the acts complained of are not unlawful. On the other hand, the issuance of the writ
itself sets in motion presumptive judicial protection for the petitioner. The court compels the respondents to
appear before a court of law to show whether the grounds for more permanent protection and interim relies
are necessary.

The respondents are required to file a Return after the issuance of the writ through the clerk of court. The
Return serves as the responsive pleading to the petition. Unlike an Answer, the Return has other purposes
aside form identifying the issues in the case, Respondents are also required to detail the actions they had
taken to determine the fate or whereabouts of the aggrieved party.
If the respondents are public officials or employees, they are also required to state the actions they had taken
to: (i) verify the identity of the aggrieved party; (ii) recover and preserve evidence related to the death or
disappearance of the person identified in the petition; (iii) identify witnesses and obtain statements
concerning the death or disappearance; (iv) determine the cause, manner, location, and time of death or
disappearance as well as any patter or practice that may have brought about the death or disappearance; and
(v) bring the suspected offenders before a competent court. Clearly these matters are important to the judge

Page 48 of 69
so that s/he can calibrate the means and methods that will be required to further the protections, if any, that
will be due to the petitioner.
There will be a summary hearing only after the Return is filed to determine the merits of the petition and
whether interim reliefs are warranted. If the Return is not filed, the hearing will be done ex parte. After the
hearing, the court will render the judgment within ten (10) days from the time the petition is submitted for
decision.
If the allegations are proven with substantial evidence, the court shall grant the privilege of the writ and such
reliefs as may be proper ans appropriate. The judgment should contain measures which the judge views as
essential for the continued protection of the petitioner in the Amparo case. These measures must be detailed
enough o that the judge may be able to verify and monitor the actions taken by the respondents. It is this
judgment that could be subject to appeal to the Supreme Court via Rule 45. After the measures have served
their purpose, the judgment will be satisfied. In Amparo cases, this is when the threats to the petitioners life,
liberty and security cease to exist as evaluated by the court that renders the judgment. Parenthetically, the
case may also be terminated through consolidation should a subsequent case be filed either criminal or civil.
Until the full satisfaction of the judgment, the extraordinary remedy of Amparo allows vigilant judicial
monitoring to ensure the protection of constitutional rights. (Secretary Leila M. De Lima, Director Nonnatus
R. Rojas and Deputy Director Reynaldo O. Esmeralda v. Magtanggol B. Gatdula; G.R. No. 204528.
February 19, 2013)

4.14.4. WHO MAY FILE

The Rules on Writ of Amparo provides:

Section 1. Petition. The petition for a writ of amparo is a remedy available to any person
whose right to life, liberty and security is violated or threatened with violation by an unlawful act or
omission of a public official or employee, or of a private individual or entity. The writ shall cover
extralegal killings and enforced disappearances or threats thereof.

Writ of amparo not available in case of demolition of dwelling of squatters by final judgment:

The threatened demolition of a dwelling by virtue of a final judgment of the court, which in this case
was affirmed with finality, is not included among the enumeration of rights as stated in the above-quoted
Section 1 for which the remedy of a writ of amparo is made available. (Canlas vs. Napico, G.R. No. 182795,
June 5, 2008)

Who may file the petition?

Section 2 of the Rule on the Writ of Amparo provides:

The petition may be filed by the aggrieved party or by any qualified person or entity in the
following order:

(a) Any member of the immediate family, namely: the spouse, children and parents of the
aggrieved party;
(b) 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
(c) Any concerned citizen, organization, association or institution, if there is no known
member of the immediate family or relative of the aggrieved party.


Order of succession must be followed: mandatory and exclusive:


Page 49 of 69
The exclusive and successive order mandated by the above-quoted provision must be followed. The
order of priority is not without reason"to prevent the indiscriminate and groundless filing of petitions for
Amparo which may even prejudice the right to life, liberty or security of the aggrieved party." (Boac, Et.Al. vs.
Cadapan & Empeno, G.R. Nos. 184461-62 , May 31, 2011)

Contents of the petition:

Rule on the Writ of Amparo - in line with the extraordinary character of the writ and the reasonable
certainty that its issuance demands - requires that every petition for the issuance of the Writ must be
supported by justifying allegations of fact, to wit:

"(a) The personal circumstances of the petitioner;
(b) The name and personal circumstances of the respondent responsible for the threat, act or
omission, or, if the name is unknown or uncertain, the respondent may be described by an assumed
appellation;
(c) The right to life, liberty and security of the aggrieved party violated or threatened with violation by
an unlawful act or omission of the respondent, and how such threat or violation is committed with the attendant
circumstances detailed in supporting affidavits;
(d) The investigation conducted, if any, specifying the names, personal circumstances, and addresses of
the investigating authority or individuals, as well as the manner and conduct of the investigation, together with
any report;
(e) The actions and recourses taken by the petitioner to determine the fate or whereabouts of the
aggrieved party and the identity of the person responsible for the threat, act or omission; and
(f) The relief prayed for. (Section 5, A.M. No. 07-9-12-SC)

When can the court issue a writ of amparo?

The writ shall issue if the Court is preliminarily satisfied with the prima facie existence of the
ultimate facts determinable from the supporting affidavits that detail the circumstances of how and to what
extent a threat to or violation of the rights to life, liberty and security of the aggrieved party was or is being
committed. (Tapuz vs. Del Rosario, G.R. No. 182484, June 17, 2008)


WHAT NEEDS TO BE PROVED
Allegation and proof that the persons subject thereof are missing are not enough
x x x for the protective writ of amparo to issue, allegation and proof that the persons subject thereof
are missing are not enough. 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. x x x (Egardo Navia, Ruben Dio
and Andrew Buising vs. Virginia Pardico, for and in behalf in representation of Benhur Pardico., G.R. No.
184467, June 19, 2012)

Petitioner must prove the existence of a continuing threat
In cases where the violation of the right to life, liberty or security has already ceased, it is necessary
for the petitioner in an amparo action to prove the existence of a continuing threat.
[
Thus, this Court held in
its Resolution in Razon v. Tagitis:

Page 50 of 69
Manalo is different from Tagitis in terms of their factual settings, as enforced disappearance was no
longer a problem in that case. The enforced disappearance of the brothers Raymond and Reynaldo
Manalo effectively ended when they escaped from captivity and surfaced, while Tagitis is still nowhere
to be found and remains missing more than two years after his reported
disappearance. An Amparo situation subsisted in Manalo, however, because of the continuing threat to
the brothers right to security; the brothers claimed that since the persons responsible for their enforced
disappearance were still at large and had not been held accountable, the former were still under the threat of
being once again abducted, kept captive or even killed, which threat constituted a direct violation of their
right to security of person. (Emphasis supplied.) (RODOLFO NOEL LOZADA, JR., VIOLETA LOZADA and
ARTURO LOZADA, vs. PRESIDENT GLORIA MACAPAGAL ARROYO, EDUARDO ERMITA, AVELINO RAZON,
ANGEL ATUTUBO and SPO4 ROGER VALEROSO,
*
G.R. Nos. 184379-80, April 24, 2012)
Issuance of writ cannot be justified in the absence of continuing restraint on a persons liberty
As previously discussed, there is no basis to grant Lozada the privilege of the writ of amparo,
considering that the illegal restraint alleged in this case had already ceased and there is no imminent or
continuing restriction on his liberty. In Castillo v. Cruz, this Court held as follows:
Although respondents release from confinement does not necessarily hinder supplication for the
writ of amparo, absent any evidence or even an allegation in the petition that there is undue and
continuing restraint on their liberty, and/or that there exists threat or intimidation that destroys the
efficacy of their right to be secure in their persons, the issuance of the writ cannot be justified. (Emphasis
supplied.) (RODOLFO NOEL LOZADA, JR., VIOLETA LOZADA and ARTURO LOZADA, vs. PRESIDENT GLORIA
MACAPAGAL ARROYO, EDUARDO ERMITA, AVELINO RAZON, ANGEL ATUTUBO and SPO4 ROGER
VALEROSO,
*
G.R. Nos. 184379-80, April 24, 2012)
Actual threat from all the facts and circumstances of the case can qualify as a violation that may be
addressed under the rule on the writ of amparo
The alleged threat to herein petitioners' rights to life, liberty and security must be actual, and not
merely one of supposition or with the likelihood of happening. And, when the evidence adduced establishes
the threat to be existent, as opposed to a potential one, then, it goes without saying that the threshold
requirement of substantial evidence in Amparo proceedings has also been met. Thus, in the words of Justice
Brion, in the context of the Amparo rule, only actual threats, as may be established from all 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 Ladaga Vs.
Major General Reynaldo Mapagu, Commanding General of the Philippine Army's 10th Infantry Division,
et al./In the Matter of the Petition for the Issuance of a Writ of Amparo in Favor of Angela A. Librado-
Trinidad Vs. Major General Reynaldo Mapagu, Commanding General of the Philippine Army's 10th
Infantry Division, et al.In the Matter fo the Petition for the Issuance of a Writ of Amparo in Favor of
Carlos Isagani T. Zarate Vs. Major General Reynaldo Mapagu, Commanding General of the Philippine
Army's 10th Infantry Division, et al. G.R. No. 189689/G.R. No. 189690/G.R. No. 189691, November 13,
2012)

4.14.5. CONTENTS OF RETURN:

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


Page 51 of 69
a) The lawful defenses to show that the respondent did not violate or threaten with violation the
right to life, liberty and security of the aggrieved party, through any act or omission;
b) The steps or actions taken by the respondent to determine the fate or whereabouts of the
aggrieved party and the person or persons responsible for the threat, act or omission;
c) All relevant information in the possession of the respondent pertaining to the threat, act or
omission against the aggrieved party; and
d) If the respondent is a public official or employee, the return shall further state the actions that
have been or will still be taken:

i. to verify the identity of the aggrieved party;
ii. to recover and preserve evidence related to the death or disappearance of the person identified in
the petition which may aid in the prosecution of the person or persons responsible;
iii. to identify witnesses and obtain statements from them concerning the death or disappearance;
iv. to determine the cause, manner, location and time of death or disappearance as well as any
pattern or practice that may have brought about the death or disappearance;
v. to identify and apprehend the person or persons involved in the death or disappearance; and
vi. to bring the suspected offenders before a competent court.

The return shall also state other matters relevant to the investigation, its resolution and the prosecution
of the case.

A general denial of the allegations in the petition shall not be allowed. (Section 9, A.M. No. 07-9-12-
SC)


4.14.6. EFFECTS OF FAILURE TO FILE RETURN

In case the respondent fails to file a return, the court, justice or judge shall proceed to hear the
petition ex parte (Section 12, A.M. No. 07-9-12-SC )


The return is the proper responsive pleading; memorandum is a prohibited pleading.

First the insistence on filing an Answer was inappropriate. It is the Return that serves as the responsive
pleading for petitions for the issuance of Writs of Amparo. The requirement to file an Answer is contrary to
the intention of the Court to provide a speedy remedy to those whose right to life, liberty and security are
violated or are threatened to be violated. In utter disregard of the Rule on the Writ of Amparo, Judge Pampilo
insisted on issuing summons and requiring an Answer.
x x x
The Return in Amparo cases allows the respondents to frame the issues subject to a hearing. Hence, it should
be done prior to the hearing, not after. A memorandum, on the other hand, is a synthesis of the claims of the
party litigants and is a final pleading usually required before the case is submitted for decision. One cannot
substitute for the other since these submissions have different functions in facilitating the suit.
More importantly, a memorandum is a prohibited pleading under the Rule on the writ of Amparo. (Secretary
Leila M. De Lima, Director Nonnatus R. Rojas and Deputy Director Reynaldo O. Esmeralda v. Magtanggol
B. Gatdula; G.R. No. 204528. February 19, 2013


4.14.7. OMNIBUS WAIVER RULE

The respondent must plead all his defenses in the return. Failure to do so shall operate as a waiver of
such defense not therein pleaded. (Section 10, A.M. No. 07-9-12-SC)

Page 52 of 69


4.14.8. PROCEDURE FOR HEARING

SUMMARY HEARING (Sec. 13) - The hearing on the petition shall be summary in nature. However,
the court, justice or judge may call for a preliminary conference. It shall be from day to day until completed
and given the same priority as petitions for habeas corpus.

4.14.9. INSTITUTION OF SEPARATE ACTION

This Rule on Writ of Amparo shall not preclude the filing of separate criminal, civil or administrative
actions. (Section 21, A.M. No. 07-9-12-SC)

4.14.10. EFFECT OF FILING OF A CRIMINAL ACTION

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 this Rule shall
govern the disposition of the reliefs available under the writ of Amparo. (Section 22, A.M. No. 07-9-12-SC)

4.14.11. CONSOLIDATION:

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. (Section 23 of A.M. No. 07-9-12-SC)

4.14.12. INTERIM RELIEFS AVAILABLE TO PETITIONER AND RESPONDENT

Interim Reliefs for Petitioner: Upon filing of the petition or at anytime before final judgment, the
court, justice or judge may grant any of the following reliefs:

(a) 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.

The Supreme Court shall accredit the persons and private institutions that shall extend temporary
protection to the petitioner or the aggrieved party and any member of the immediate family, in accordance
with guidelines which it shall issue.
The accredited persons and private institutions shall comply with the rules and conditions that may be
imposed by the court, justice or judge.

(b) 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.

The motion shall state in detail the place or places to be inspected. It shall be supported by affidavits
or testimonies of witnesses having personal knowledge of the enforced disappearance or whereabouts of the
aggrieved party.


Page 53 of 69
If the motion is opposed on the ground of national security or of the privileged nature of the
information, the court, justice or judge may conduct a hearing in chambers to determine the merit of the
opposition.

The movant must show that the inspection order is necessary to establish the right of the aggrieved
party alleged to be threatened or violated.

The inspection order shall specify the person or persons authorized to make the inspection and the
date, time, place and manner of making the inspection and may prescribe other conditions to protect the
constitutional rights of all parties. The order shall expire five (5) days after the date of its issuance, unless
extended for justifiable reasons.

(c) 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.

The motion may be opposed on the ground of national security or of the privileged nature of the
information, in which case the court, justice or judge may conduct a hearing in chambers to determine the
merit of the opposition.

The court, justice or judge shall prescribe other conditions to protect the constitutional rights of all
the parties.

(d) 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, pursuant to Republic Act No. 6981.

The court, justice or judge may also refer the witnesses to other government agencies, or to
accredited persons or private institutions capable of keeping and securing their safety.
Interim Reliefs to Respondent: Upon verified motion of the respondent and after due hearing, the court,
justice or judge may issue an inspection order or production order under paragraphs (b) and (c) of the
preceding section.

A motion for inspection order under this section shall be supported by affidavits or testimonies of
witnesses having personal knowledge of the defenses of the respondent. (Section 14-15 of A.M. No. 07-9-12-
SC)

Writ is an interlocutory order

The Decision dated 20 March 2012 assailed by the petitioners could not be the judgment or final order that
is appealable under Section 19 of the Rule on the Writ of Amparo. x x x

This Decision pertained to the issuance of the writ under Section 6 of the Rule on the Writ of
Amparo, not the judgment under Section 18. The Decision is thus an interlocutory order, as suggested by
the fact that temporary protection, production and inspection orders were given together with the decision.
The temporary protection, production and inspection orders are interim reliefs that may be granted by the
court upon filing of the petition but before final judgment is rendered.( Secretary Leila M. De Lima, Director
Nonnatus R. Rojas and Deputy Director Reynaldo O. Esmeralda v. Magtanggol B. Gatdula; G.R. No.
204528. February 19, 2013)

Difference between the privilege of the writ of amparo and the actual order called the writ of
amparo.


Page 54 of 69
The privilege of the Writ of Amparo should be distinguished from the actual order called the Writ
of Amparo. The privilege includes the availment of the entire procedure outlined in A.M. No. 07-9-12-SC, the
rule on the Writ of Amparo. After examining the petition and its attached affidavits, the Return and the
evidence presented in the summary hearing, the judgment should detail the required acts from the
respondent that will mitigate, if not totally eradicate, the violation of or threat to the petitioners life, liberty
or security.

A judgment which simply grants the privilege of the writ cannot be executed. It is tantamount to a
failure of the judge to intervene and grant judicial succor to the petitioner. Petitions filed to avail of the
privilege of the Writ of Amparo arise out of very real and concrete circumstances. Judicial responses cannot
be as tragically symbolic or ritualistic as granting the privilege of the Writ ofAmparo. (Secretary Leila M. De
Lima, Director Nonnatus R. Rojas and Deputy Director Reynaldo O. Esmeralda v. Magtanggol B.
Gatdula; G.R. No. 204528. February 19, 2013)


4.14.13. QUANTUM OF PROOF IN APPLICATION FOR ISSUANCE OF WRIT OF AMPARO

Section 17 of A.M. No. 07-9-12-SC provides that the parties shall establish their claims by
substantial evidence. The respondent who is a private individual or entity must prove that ordinary diligence
as required by applicable laws, rules and regulations was observed in the performance of duty. The
respondent who is a public official or employee must prove that extraordinary diligence as required by
applicable laws, rules and regulations was observed in the performance of duty. The respondent public
official or employee cannot invoke the presumption that official duty has been regularly performed to evade
responsibility or liability.

Requires only substantial evidence to make the appropriate interim and permanent reliefs available
to petitioner

x x x The writ of amparo partakes of a summary proceeding that requires only substantial evidence to
make the appropriate interim and permanent reliefs available to the petitioner. As explained in the Decision,
it is not an action to determine criminal guilt requiring proof beyond reasonable doubt, or liability for
damages requiring preponderance of evidence, or even administrative responsibility requiring substantial
evidence. The totality of evidence as a standard for the grant of the writ was correctly applied by this Court. x
x x (IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND HABEAS DATA IN FAVOR OF
NORIEL RODRIGUEZ, petitioner vs. GLORIA MACAPAGALARROYO, GEN. VICTOR S. IBRADO, PDG JESUS AME
VERSOZA, LT. GEN. DELFIN BANGIT, MAJ. GEN. NESTOR Z. OCHOA, P/CSUPT. AMETO G. TOLENTINO,
P/SSUPT. JUDE W. SANTOS, COL. REMIGIO M. DE VERA, an officer named MATUTINA, LT. COL. MINA,
CALOG, GEORGE PALACPAC under the name "HARRY," ANTONIO CRUZ, ALDWIN "BONG" PASICOLAN and
VINCENT CALLAGAN,respondents G.R. No. 191805)

Substantial evidence required to warrant a finding that the state has violated amparo

The Court may be more yielding to the use of circumstantial or indirect evidence and logical inferences,
but substantial evidence is still the rule to warrant a finding that the State has violated, is violating, or is
threatening to violate, amparo petitioners' right to life, liberty or security. (In the Matter of the Petition for
the Issuance of a Writ of Amparo in Favor of Lilibeth Ladaga Vs. Major General Reynaldo Mapagu,
Commanding General of the Philippine Army's 10th Infantry Division, et al./In the Matter of the Petition
for the Issuance of a Writ of Amparo in Favor of Angela A. Librado-Trinidad Vs. Major General Reynaldo
Mapagu, Commanding General of the Philippine Army's 10th Infantry Division, et al.In the Matter fo the
Petition for the Issuance of a Writ of Amparo in Favor of Carlos Isagani T. Zarate Vs. Major General
Reynaldo Mapagu, Commanding General of the Philippine Army's 10th Infantry Division, et al. G.R. No.
189689/G.R. No. 189690/G.R. No. 189691, November 13, 2012)

STANDARD OF RELAXED ADMISSIBILITY OF EVIDENCE

Page 55 of 69
Thus, in Razon, Jr. v. Tagitis, the Court laid down a new standard of relaxed admissibility of evidence
to enable Amparo petitioners to meet the required amount of proof showing the State's direct or indirect
involvement in the purported violations and found it a fair and proper rule in amparo cases to consider all
the pieces of evidence adduced in their totality and to consider any evidence otherwise inadmissible
under our usual rules to be admissible if it is consistent with the admissible evidence adduced. Put
simply, evidence is not to be rejected outright because it is inadmissible under the rules for as long as it
satisfies the most basic test of reason i.e., relevance of the evidence to the issue at hand and its consistency
with all other pieces of adduced evidence. (In the Matter of the Petition for the Issuance of a Writ of
Amparo in Favor of Lilibeth Ladaga Vs. Major General Reynaldo Mapagu, Commanding General of the
Philippine Army's 10th Infantry Division, et al./In the Matter of the Petition for the Issuance of a Writ of
Amparo in Favor of Angela A. Librado-Trinidad Vs. Major General Reynaldo Mapagu, Commanding
General of the Philippine Army's 10th Infantry Division, et al.In the Matter fo the Petition for the
Issuance of a Writ of Amparo in Favor of Carlos Isagani T. Zarate Vs. Major General Reynaldo Mapagu,
Commanding General of the Philippine Army's 10th Infantry Division, et al. G.R. No. 189689/G.R. No.
189690/G.R. No. 189691, November 13, 2012)


Writ of amparo available in case of extrajudicial killings and forced disappearance:

Writ of Amparo is swift, it is resolved through summary proceedings and the availability of
appropriate interim and permanent reliefs under the Amparo Rule, this hybrid writ of the common law and
civil law traditions - borne out of the Latin American and Philippine experience of human rights abuses -
offers a better remedy to extralegal killings and enforced disappearances and threats thereof. The remedy
provides rapid judicial relief as it partakes of a summary proceeding that requires only substantial evidence
(Secretary of Defense vs. Manalo, G.R. No. 180906, October 7, 2008)

4.15. WRIT OF HABEAS DATA (A.M. NO. 08-1-16-SC)


NATURE OF THE WRIT: AN INDEPENDENT AND SUMMARY REMEDY

The writ of habeas data is an independent and summary remedy designed to protect the image, privacy,
honor, information, and freedom of information of an individual, and to provide a forum to enforce ones right
to the truth and to informational privacy. It seeks to protect a persons right to control information regarding
oneself, particularly in instances in which such information is being collected through unlawful means in
order to achieve unlawful ends. It must be emphasized that in order for the privilege of the writ to be granted,
there must exist a nexus between the right to privacy on the one hand, and the right to life, liberty or security
on the other. (MARYNETTE R. GAMBOA vs. P/SSUPT. MARLOU C. CHAN, in his capacity as the PNP-
Provincial Director of Ilocos Norte, and P/SUPT. WILLIAM 0. FANG, in his capacity as Intelligence
Division, PNP Provincial Office, Ilocos Norte., G.R. No. 19636, July 24, 2012)

4.15.1. SCOPE OF WRIT

Section 1 of the Rule on the Writ of Habeas Data provides:

Section 1. Habeas Data. The writ of habeas data is a remedy available to any person whose right
to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public
official or employee or of a private individual or entity engaged in the gathering, collecting or storing of
data or information regarding the person, family, home and correspondence of the aggrieved party.

The habeas data rule, in general, is designed to protect by means of judicial complaint the image,
privacy, honor, information, and freedom of information of an individual. It is meant to provide a forum to
enforce ones right to the truth and to informational privacy, thus safeguarding the constitutional guarantees

Page 56 of 69
of a persons right to life, liberty and security against abuse in this age of information technology. (Meralco vs
Lim, G.R. No. 18476, October 5, 2010)

It bears reiteration that like the writ of amparo, habeas data was conceived as a response, given the
lack of effective and available remedies, to address the extraordinary rise in the number of killings and
enforced disappearances. Its intent is to address violations of or threats to the rights to life, liberty or security
as a remedy independently from those provided under prevailing Rules. (Meralco vs Lim, G.R. No. 18476,
October 5, 2010)

4.15.2. AVAILABILITY OF WRIT

The writ can be invoked by such person to:

1) Find out the information collated about him, particularly by law enforcement agencies, and

2) Compel them to disclose the use and purpose of such information.

4.15.3. DISTINGUISHED FROM HABEAS CORPUS AND AMPARO (See matrix of distinctions between
Habeas Corpus, Amparo and Habeas Data)

4.15.4. CONTENTS OF THE PETITION

A verified written petition for a writ of habeas data should contain:

(a) The personal circumstances of the petitioner and the respondent;
(b) The manner the right to privacy is violated or threatened and how it affects the right to life,
liberty or security of the aggrieved party;
(c) The actions and recourses taken by the petitioner to secure the data or information;
(d) The location of the files, registers or databases, the government office, and the person in charge,
in possession or in control of the data or information, if known;
(e) The reliefs prayed for, which may include the updating, rectification, suppression or destruction
of the database or information or files kept by the respondent.

In case of threats, the relief may include a prayer for an order enjoining the act complained of; and
(f) Such other relevant reliefs as are just and equitable. (Section 6, A. M. No. 08-1-16-SC)

Threat must be supported by independent and credible evidence
It must be stressed, however, that such threat must find rational basis on the surrounding
circumstances of the case. In this case, the petition was mainly anchored on the alleged threats against his life,
liberty and security by reason of his inclusion in the militarys order of battle, the surveillance and monitoring
activities made on him, and the intimidation exerted upon him to compel him to be a military asset. While as
stated earlier, mere threats fall within the mantle of protection of the writs of amparo and habeas data, in the
petitioners case, the restraints and threats allegedly made allegations lack corroborations, are not supported
by independent and credible evidence, and thus stand on nebulous grounds. (In the matter of the petition
for the writ of Amparo and the writ of Habeas Data in favor of Francis Saez, petitioner vs. GLORIA
MACAPAGAL ARROYO, GEN. HERMOGENES ESPERON, P/DIR. GEN. AVELINO RAZON, 22Nn MICO, CAPT.
LAWRENCE BANAAG, SGT. CASTILLO, CAPT. ROMMEL GUTIERREZ, CAPT. JAKE OBLIGADO, CPL. ROMAN
ITO QUINT ANA, PVT. JERICO DUQUIL, CPL. ARIEL FONTANILLA, A CERTAIN CAPT. ALCA YDO, A CERTAIN
FIRST SERGEANT, PVT. ZALDY OSlO, A CERTAIN PFC. SONNY, A CERTAIN CPL. JAMES, A CERTAIN JOEL,
RODERICK CLANZA and JEFFREY GOMEZ, respondents, G.R. No. 183533, September 25, 2012)

SUFFICIENT COMPLIANCE FOR ISSUANCE OF WRIT

Page 57 of 69
In the present case, the Court notes that the petition for the issuance of the privilege of the writs of
amparo and habeas data is sufficient as to its contents. The petitioner made specific allegations relative to his
personal circumstances and those of the respondents. The petitioner likewise indicated particular acts, which
are allegedly violative of his rights and the participation of some of the respondents in their commission. As
to the prerequisite conduct and result of an investigation prior to the filing of the petition, it was explained
that the petitioner expected no relief from the military, which he perceived as his oppressors, hence, his
request for assistance from a human rights organization, then a direct resort to the court.
Anent the documents sought to be the subject of the writ of habeas data prayed for, the Court finds
the requirement of specificity to have been satisfied. The documents subject of the petition include the order
of battle, those linking the petitioner to the CPP and those he signed involuntarily, and military intelligence
reports making references to him. Although the exact locations and the custodians of the documents were not
identified, this does not render the petition insufficient. Section 6(d) of the Rule on the Writ of Habeas Data is
clear that the requirement of specificity arises only when the exact locations and identities of the custodians
are known. The Amparo Rule was not promulgated with the intent to make it a token gesture of concern for
constitutional rights. Thus, despite the lack of certain contents, which the Rules on the Writs of Amparo and
Habeas Data generally require, for as long as their absence under exceptional circumstances can be
reasonably justified, a petition should not be susceptible to outright dismissal.
From the foregoing, the Court holds that the allegations stated in the petition for the privilege of the
writs of amparo and habeas data filed conform to the rules. However, they are mere allegations, which the
Court cannot accept hook, line and sinker, so to speak, and whether substantial evidence exist to warrant
the granting of the petition is a different matter altogether. (In the matter of the petition for the writ of
Amparo and the writ of Habeas Data in favor of Francis Saez, petitioner vs. GLORIA MACAPAGAL
ARROYO, GEN. HERMOGENES ESPERON, P/DIR. GEN. AVELINO RAZON, 22Nn MICO, CAPT. LAWRENCE
BANAAG, SGT. CASTILLO, CAPT. ROMMEL GUTIERREZ, CAPT. JAKE OBLIGADO, CPL. ROMAN ITO QUINT
ANA, PVT. JERICO DUQUIL, CPL. ARIEL FONTANILLA, A CERTAIN CAPT. ALCA YDO, A CERTAIN FIRST
SERGEANT, PVT. ZALDY OSlO, A CERTAIN PFC. SONNY, A CERTAIN CPL. JAMES, A CERTAIN JOEL, RODERICK
CLANZA and JEFFREY GOMEZ, respondents, G.R. No. 183533, September 25, 2012)


4.15.5. CONTENTS OF RETURN

The respondent shall file a verified written return together with supporting affidavits within five (5)
working days from service of the writ, which period may be reasonably extended by the Court for justifiable
reasons. The return shall, among other things, contain the following:

(a) The lawful defenses such as national security, state secrets, privileged communications,
confidentiality of the source of information of media and others;

(b) In case of respondent in charge, in possession or in control of the data or information subject of
the petition;
(i) a disclosure of the data or information about the petitioner, the nature of such data or
information, and the purpose for its collection;
(ii) the steps or actions taken by the respondent to ensure the security and confidentiality of
the data or information; and,
(iii) the currency and accuracy of the data or information held; and,

(c) Other allegations relevant to the resolution of the proceeding.

A general denial of the allegations in the petition shall not be allowed. (Section 10, A. M. No. 08-1-16-
SC)

4.15.6. INSTANCES WHEN PETITION MAY BE HEARD IN CHAMBERS


Page 58 of 69
A hearing in chambers may be conducted where the respondent invokes the defense that the release
of the data or information in question shall compromise national security or state secrets, or when the data or
information cannot be divulged to the public due to its nature or privileged character. (Section 12, A. M. No.
08-1-16-SC)

4.15.7. CONSOLIDATION

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. (Section 21, A. M. No. 08-1-16-SC)

4.15.8. EFFECT OF FILING OF A CRIMINAL ACTION

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. (Section 22, A. M. No. 08-1-16-SC)

4.15.9. INSTITUTION OF SEPARATE ACTION

The filing of a petition for the writ of habeas data shall not preclude the filing of separate criminal,
civil or administrative actions. (Section 20, A. M. No. 08-1-16-SC)

4.15.10. QUANTUM OF PROOF IN APPLICATION FOR ISSUANCE OF WRIT OF HABEAS DATA

As to the Writ of Habeas Data, it is indispensable requirement before the privilege of the writ may be
extended is the showing, at least by substantial evidence, of an actual or threatened violation of the right to
privacy in life, liberty or security of the victim. This, in the case at bench, the petitioner failed to do. (Roxas vs.
Macapagal-Arroyo, G.R. No. 189155, September 7, 2010)

Substantial evidence required
Given that the totality of the evidence presented by the petitioner failed to support his claims, the
reliefs prayed for, therefore, cannot be granted. The liberality accorded to amparo and habeas data cases does
not mean that a claimant is dispensed with the onus of proving his case. Indeed, even the liberal standard of
substantial evidence demands some adequate evidence. (In the matter of the petition for the writ of
Amparo and the writ of Habeas Data in favor of Francis Saez, petitioner vs. GLORIA MACAPAGAL
ARROYO, GEN. HERMOGENES ESPERON, P/DIR. GEN. AVELINO RAZON, 22Nn MICO, CAPT. LAWRENCE
BANAAG, SGT. CASTILLO, CAPT. ROMMEL GUTIERREZ, CAPT. JAKE OBLIGADO, CPL. ROMAN ITO QUINT
ANA, PVT. JERICO DUQUIL, CPL. ARIEL FONTANILLA, A CERTAIN CAPT. ALCA YDO, A CERTAIN FIRST
SERGEANT, PVT. ZALDY OSlO, A CERTAIN PFC. SONNY, A CERTAIN CPL. JAMES, A CERTAIN JOEL, RODERICK
CLANZA and JEFFREY GOMEZ, respondents, G.R. No. 183533, September 25, 2012)
Compliance with technical rules of procedure is ideal but it cannot be accorded primacy
Among the grounds cited by the CA in denying the petition for the issuance of the writs of amparo
and habeas data was the defective verification which was attached to the petition. In Tagitis, supporting
affidavits required under Section 5(c) of the Rule on the Writ of Amparo were not submitted together with
the petition and it was ruled that the defect was fully cured when the petitioner and the witness personally
testified to prove the truth of their allegations in the hearings held before the CA. In the instant case, the
defective verification was not the sole reason for the CAs denial of the petition for the issuance of the writs of

Page 59 of 69
amparo and habeas data. Nonetheless, it must be stressed that although rules of procedure play an important
rule in effectively administering justice, primacy should not be accorded to them especially in the instant case
where there was at least substantial compliance with the requirements and where petitioner himself testified
in the hearings to attest to the veracity of the claims which he stated in his petition.
To conclude, compliance with technical rules of procedure is ideal but it cannot be accorded
primacy. In the proceedings before the CA, the petitioner himself testified to prove the veracity of his
allegations which he stated in the petition. Hence, the defect in the verification attached to the petition. Hence,
the defect in the verification attached to the petition was deemed cured. (In the matter of the petition for
the writ of Amparo and the writ of Habeas Data in favor of Francis Saez, petitioner vs. GLORIA
MACAPAGAL ARROYO, GEN. HERMOGENES ESPERON, P/DIR. GEN. AVELINO RAZON, 22Nn MICO, CAPT.
LAWRENCE BANAAG, SGT. CASTILLO, CAPT. ROMMEL GUTIERREZ, CAPT. JAKE OBLIGADO, CPL. ROMAN
ITO QUINT ANA, PVT. JERICO DUQUIL, CPL. ARIEL FONTANILLA, A CERTAIN CAPT. ALCA YDO, A CERTAIN
FIRST SERGEANT, PVT. ZALDY OSlO, A CERTAIN PFC. SONNY, A CERTAIN CPL. JAMES, A CERTAIN JOEL,
RODERICK CLANZA and JEFFREY GOMEZ, respondents, G.R. No. 183533, September 25, 2012)






WRIT OF HABEAS
CORPUS
WRIT OF AMPARO WRIT OF HEAS DATA
LEGAL BASIS

RULE 102 OF THE REVISED
RULES OF COURT

A.M. No. 07-9-12-SC A. M. No. 08-1-16-SC

DATE OF
EFFECTIVITY

July 1, 1997 October 24, 2007 February 2, 2008
DEFINITION
A command directed to
the person detaining another,
requiring him to produce the
body of the person detained
at a designated time and
place, and to produce and to
show cause and to explain the
reason for detention.
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.

A remedy available to any
person whose right to privacy
in life, liberty or security is
violated or threatened by an
unlawful act or omission of a
public official or employee, or of
a private individual or entity
engaged in the gathering,
collecting or storing of data or
information regarding the
person, family, home and
correspondence of the
aggrieved party.

SCOPE
1. To all cases of illegal
confinement or detention by
Extralegal killings and enforced
disappearances or threats thereof.

1. To all cases of violation or
SUMMARY OF DISTINCTIONS BETWEEN THE WRIT OF AMAPARO, WRIT OF
HABEAS CORPUS AND WRIT OF HABEAS DATA

Page 60 of 69
which any person is deprived
of his liberty;
2. To all cases where the
rightful custody of any person
is withheld thereto.
threat to the privacy of a
person, his family, home and
correspondence
2. To all habeas corpus and
amparo cases. (It complements
the two writs by helping
produce or correct data that is
relevant to protect the rights of
a person who disappeared or is
a victim of extrajudicial killing)


WHO MAY FILE

The most basic criterion for
the issuance of the writ,
therefore, is that the
individual seeking such relief
be illegally deprived of his
freedom of movement or
placed under some form of
illegal restraint. If an
individual's liberty is
restrained via some legal
process, the writ of habeas
corpus is unavailing. (In Re
Reynaldo De Villa, G.R. No.
158802, November 17,
2004)


The petition may be filed by the
aggrieved party or by any qualified
person or entity in the following
order:
(a) Any member of the immediate
family, namely: the spouse,
children and parents of the
aggrieved party;
(b) 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
(c) Any concerned citizen,
organization, association or
institution, if there is no known
member of the immediate family
or relative of the aggrieved party.

The exclusive and successive order
mandated by the above-quoted
provision must be followed to
prevent the indiscriminate and
groundless filing of petitions for
amparo which may even prejudice
the right to life, liberty or security
of the aggrieved party." (Boac,
Et.Al. vs.. Cadapan & Empeno, G.R.
Nos. 184461-62 , May 31, 2011)


The writ of habeas data is a
remedy available to any
person whose right to privacy
in life, liberty or security is
violated or threatened by an
unlawful act or omission of a
public official or employee or of
a private individual or entity
engaged in the gathering,
collecting or storing of data or
information regarding the
person, family, home and
correspondence of the
aggrieved party.

WHERE TO FILE
1. Regional Trial Court

2. Court of Appeals or any
member thereof

3. Supreme Court or any
member thereof

1. RTC of the place where the
threat, act or omission was
committed or any of its elements
occurred.

2. Sandiganbayan,
3. CA or any of its Justices
4. SC or any of its Justices

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

2. SC or the CA or the
Sandiganbayan when the action
concerns public data files of
government offices.
WHEN TO FILE
-NOTHING IS STATED IN
THE RULE-
Within 72 hours after service of the
writ, with supporting affidavit

Within 5 working days from
service of the writ, with
supporting affidavit (may be

Page 61 of 69
extended by the Court for
justifiable reasons)


PUNISHMENT FOR
REFUSAL OR FILING
OF FALSE RETURN


Forfeit to the party aggrieved
the sum of one thousand
pesos (P1000) or have the
party failing to file the return
be cited for Contempt.
Imprisonment or Fine for Contempt
Imprisonment or Fine for
Contempt

Sources and Legal Basis: Rule 102, A.M. NO. 07-9-12-SC, A.M. NO. 08-1-16-SC, Special Proceedings by
Gemylito Festin)


4.16. CHANGE OF NAME

In special proceedings for change of name, what is involved is not a mere matter of allowance or
disallowance of the request, but a judicious evaluation of the sufficiency and propriety of the justifications
advanced in support thereof, mindful of the consequent results in the event of its grant and with the sole
prerogative for making such determination being lodged in the courts. (RP vs. CA & Maximo Wong, G.R. No.
97906 May 21, 1992)

4.16.1. DIFFERENCES UNDER RULE 103, R.A. NO. 9048 AND RULE 108




Rule 103 Rule 108 RA 9048

Name of Law

Change of Name
Cancellation or Correction of
Entries in the Civil Registry
Clerical Error Law
Subject Matter
Change of full name (Substantial
corrections)
Change or correction in the civil
registry (Substantial
corrections)

Change of first name and nickname
and civil entries (only typographical
or Clerical errors)

Who may File
A person desiring to change his
name (Section 1)

Any person interested in any act,
event, order or decree
concerning the civil status of
persons which has been
recorded in the civil register.
(Section 1)



Any person having direct and
personal interest in the correction of
a clerical or typographical error in an
entry and/or change of first name or
nickname. (Section 3)

Venue
RTC of the province in which
petitioner resides for three years
prior to filing, or, in the City of
Manila, to the Juvenile and
Domestic Relations Court.
RTC of City or province where
the corresponding civil registry
is located.

1.) Local civil registry office of
the city or municipality where the
record being sought to be corrected
or changed is kept.
2.) Local civil registrar of the
place where the interested party is
presently residing or domiciled.
Philippine Consulates. (Section 3)

Contents of the
Petition

A petition for change of name
shall be signed and verified by the

(a) That the petitioner has been
a bona fide resident of the

The petition shall be in the form
of an affidavit, subscribed and sworn
SUMMARY OF DISTINCTIONS BETWEEN RULE 103, RULE 108 AND RA 9048

Page 62 of 69
person desiring his name
changed, or some other person on
his behalf, and shall set forth:

(a) That the petitioner has been a
bona fide resident of the province
where the petition is filed for at
least three (3) years prior to the
date of such filing;
(b) The cause for which the
change of the petitioner's name is
sought;
(c) The name asked for. (Section
2)
province where the petition is
filed for at least three (3) years
prior to the date of such filing;
(b) The cause for which the
change of the petitioner's name
is sought;
(c) The name asked for. (Section
2)
to before any person authorized by
the law to administer oaths. The
affidavit shall set forth facts
necessary to establish the merits of
the petition and shall show
affirmatively that the petitioner is
competent to testify to the matters
stated. The petitioner shall state the
particular erroneous entry or entries,
which are sought to be corrected
and/or the change sought to be
made.
The petition shall be supported
with the following documents:

1. A certified true machine
copy of the certificate or of the page
of the registry book containing the
entry or entries sought to be
corrected or changed.
2. At least two (2) public or
private documents showing the
correct entry or entries upon which
the correction or change shall be
based; and
3. Other documents which the
petitioner or the city or municipal
civil registrar or the consul general
may consider relevant and necessary
for the approval of the petition.

The petition and its supporting
papers shall be filed in three (3)
copies to be distributed as follows:
first copy to the concerned city or
municipal civil registrar, or the
consul general; second copy to the
Office of the Civil Registrar General;
and third copy to the petitioner.
(Section 5)
Grounds

(a) when the name is ridiculous,
dishonorable or extremely
difficult to write or pronounce;
(b) when the change results as a
legal consequence such as
legitimation;
(c) when the change will avoid
confusion;
(d) when one has continuously
used and been known since
childhood by a Filipino name, and
was unaware of 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;
Upon good and valid grounds,
the entries in the civil register
may be cancelled or corrected.
(Section 2)

The petition for change of first name
or nickname may be allowed in any
of the following cases:
1. The petitioner finds the
first name or nickname to be
ridiculous, tainted with dishonor or
extremely difficult to write or
pronounce.
2. The new first name or
nickname has been habitually and
continuously used by the petitioner
and he has been publicly known by
that by that first name or nickname
in the community: or
3. The change will avoid
confusion.
(Section 4)

Page 63 of 69
and
(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. (RP vs. Coseteng-
Magpayo, G.R. No. 189476,
February 2, 2011)


What kind of
Proceeding
Judicial Proceeding. (Hearing is
necessary)


Summary in nature if the
correction is clerical or
typographical only. Can be
converted to an adversarial
proceeding if there are
substantial changes and effect to
the status of an individual.
(Hearing is necessary)

Administrative proceeding. (Only an
investigation may be conducted.)
What to File A signed and verified petition.

File a verified petition for the
cancellation or correction of any
entry.
File an affidavit.
Notice and
Publication

Once a week for three
consecutive weeks in a
newspaper of general circulation.
(notice of hearing)
** hearing shall not be conducted
w/in 30 days prior to election nor
w/in 4 months after last
publication of notice**
Once a week for three
consecutive weeks in a
newspaper of general
circulation. (notice of hearing)

At least once a week for two
consecutive weeks in a newspaper of
general circulation. Furthermore, the
petitioner shall submit a certification
from the appropriate law
enforcement agencies that he has no
pending case or no criminal record
(publish the whole affidavit)

Posting No posting No posting

Duty city or municipal civil registrar
or the consul general to whom the
petition is presented shall examine
the petition and its supporting
documents. He shall post the petition
in a conspicuous place provided for
that purpose for ten (10) consecutive
days after he finds the petition and
its supporting documents sufficient
in form and substance.
Participant from
the Government

The Solicitor General must be
notified by service of a copy of the
The Civil Registrar concerned is
made a party to the proceedings
as respondent.
The Civil Registrar or the Consul.

Page 64 of 69
petition.

Where to
Appeal
Appeal the Decision to the Court
of appeals, fifteen (15) days from
receipt of judgment.

Appeal the Decision to the Court
of appeals, fifteen (15) days
from receipt of judgment.

Appeal decision to the To the Civil
Register General (Head of NCSO)
Sources and Legal Basis: RULE 103, RULE 108 AND RA 9048, Special Proceedings 2011 by Gemilito
Festin

4.16.2. GROUNDS FOR CHANGE OF NAME

SECTION 4. Grounds for Change of First Name or Nickname. The petition for change of first
name or nickname may be allowed in any of the following cases:

(1) The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or
extremely difficult to write or pronounce;
(2) The new first name or nickname has been habitually and continuously used by the
petitioner and he has been publicly known by that first name or nickname in the community; or
(3) The change will avoid confusion. (Section 4, Rule 108)

However, a change of name does not alter ones legal capacity or civil status. RA 9048 does not
sanction a change of first name on the ground of sex reassignment. Rather than avoiding confusion, changing
petitioners first name for his declared purpose may only create grave complications in the civil registry and
the public interest. (Silverio vs. CA G.R. No. 174689, October 22, 2007)

Intersex a ground for change of name:

Where the person is biologically or naturally intersex the determining factor in his gender
classification would be what the individual, like respondent, having reached the age of majority, with good
reason thinks of his/her sex. Respondent here has simply let nature take its course and has not taken
unnatural steps to arrest or interfere with what he was born with. (People vs. Cagandahan, G.R. No. 166676,
September 12, 2008)

Factors to be considered in case of change of name:

The reasons offered for changing the name of petitioner's daughter are: (1) that "her daughter grew
up with, and learned to love and recognize Alfredo de la Cruz as her own father"; (2) to afford her daughter a
feeling of security; and (3) that "Alfredo de la Cruz agrees to this petition, and has signified his conformity at
the foot of this pleading". Clearly, these are not valid reasons for a change of name. (RP vs. Hon. Marcos &
Pang Cha Quen, G.R. No. L-31065, February 15, 1990)

An illegitimate child cannot use the surname of his father:

An illegitimate child whose filiation is not recognized by the father bears only a given name and his
mother surname, and does not have a middle name. The name of the unrecognized illegitimate child
therefore identifies him as such and it is only when the illegitimate child is legitimated by the subsequent
marriage of his parents or acknowledged by the father in a public document or private handwritten
instrument that he bears both his mothers surname as his middle name and his fathers surname as his
surname. (RP vs. Capote, G.R. No. 157043, February 2, 2007)

4.17. ABSENTEES


Page 65 of 69
Appointment of representative in favor of the absentee:

The law (see Articles 381, 382 and 383) requires the judge to appoint a representative for the
absentee precisely to safeguard the property or interest of the latter. It is thus imperative that the declaration
of absence be for a specific purpose, and that purpose can be no other than the protection of the interest or
property of the absentee. (In Re Petition for Declaration Of Absence Of Roberto Reyes vs. Alejandro, G.R.
No. L-32026 January 16, 1986)

Requirements for representation:

There must be an immediate necessity for the representation of the absentee in some specific urgent
matters. (Castan Commentary)


Reason for the declaration of absence:

The need to have a person judicially declared an absentee is when he has properties which have to be
taken cared of or administered by a representative appointed by the Court (Article 384, Civil Code) The
petition to declare the husband an absentee and the petition to place the management of the conjugal
properties in the hands of the wife may be combined and adjudicated in the same proceedings. (Peyer vs.
Martinez, 88 Phil. 72, 80)

4.17.1. PURPOSE OF THE RULE:

A perusal of Rule 107 of the Rules of Court on absentees reveals that it is based on the provisions of
Title XIV of the New Civil Code on absence. And the reason and purpose of the provisions of the New Civil
Code on absence (Arts. 381 to 396) are:

(1) The interest of the person himself who has disappeared;
(2) The rights of third parties against the absentee, especially those who have rights which would
depend upon the death of the absentee; and
(3) The general interest of society which may require that property does not remain abandoned
without someone representing it and without an owner (Civil Code by Francisco, Vol. 2, pp. 930- 931, 1953
Ed.) (In Re Petition For Declaration Of Absence Of Roberto Reyes Vv Alejandro, G.R. No. L-32026 January
16, 1986)

4.17.2. WHO MAY FILE; WHEN TO FILE

WHO MAY FILE PETITION?

a) Spouse present;
b) Heirs instituted in a will;
c) Relatives who would succeed intestate;
d) Those who have over the absentees property some right subordinated to the condition of his
death.

WHEN TO FILE PETITION?

a) After the lapse of two (2) years from his disappearance or since the receipt of the last news about
the absentee; or
b) After the lapse of five (5) years from such disappearance, if the absentee has left a person to
administer his property. (Section 2, Rule 107)

Title XI of the Family Code is entitled SUMMARY JUDICIAL PROCEEDING IN THE FAMILY LAW
contains the following provision, inter alia:

Page 66 of 69

Art. 238. Unless modified by the Supreme Court, the procedural rules in this Title shall apply in all
cases provided for in this Code requiring summary court proceedings. Such cases shall be decided in an
expeditious manner without regard to technical rules. (Art. 238, Title XI of the Family Code)

There is no doubt that the petition of Apolinaria Jomoc required, and is, therefore, a summary
proceeding under the Family Code, not a special proceeding under the Revised Rules of Court appeal for
which calls for the filing of a Record on Appeal. It being a summary ordinary proceeding, the filing of a Notice
of Appeal from the trial courts order sufficed. (RP vs CA, G.R. No. 163604. May 6, 2005)

4.18. CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY:

Substantive basis of correction or alteration of entries in the Civil Registry:

Article 412 of the New Civil Code is the only substantial law covering the alteration or correction of
entries in the civil register which alteration or correction can only be effected through a judicial order.

When petition involves substantial and controversial alterations
It is clear from the foregoing discussion that when a petition for cancellation or correction of an entry in the
civil register involves substantial and controversial alterations, including those on citizenship, legitimacy of
paternity or filiation, or legitimacy of marriage, a strict compliance with the requirements of Rule 108 of the
Rules of Court is mandated. If the entries in the civil register could be corrected or changed through mere
summary proceedings and not through appropriate action wherein all parties who may be affected by the
entries are notified or represented, the door to fraud or other mischief would be set open, the consequence of
which might be detrimental and far reaching. (Republic of the Philippines vs. Dr. Norma S. Lugsanay Uy.,
G.R. No. 198010, August 12, 2013)

Changes in citizenship or status are substantial changes:

Changes in the citizenship of a person or in his status from legitimate to illegitimate or from married
to not married are substantial as well as controversial, which can only be established in an
appropriate adversary proceeding. (Rosales vs Castillo-Rosales, G.R. No. L-31712 September 28, 1984)

Clerical or typographical error can be subject of administrative correction:

Clerical or typographical errors in entries of the civil register are now to be corrected and changed
without need of a judicial order and by the city or municipal civil registrar or consul general. What is left for
the scope of operation of Rule 108 are substantial changes and corrections in entries of the civil register. (Lee
v. CA, G.R. No. 118387, October 11, 2001)

Requirement of two (2) notice of hearing to different potential oppositors
The fact that the notice of hearing was published in a newspaper of general circulation and notice
thereof was served upon the State will not change the nature of the proceedings taken. A reading of Sections
4 and 5, Rule 108 of the Rules of Court shows that the Rules mandate two sets of notices to different
potential oppositors: one given to the persons named in the petition and another given to other
persons who are not named in the petition but nonetheless may be considered interested or affected
parties. Summons must, therefore, be served not for the purpose of vesting the courts with jurisdiction but to
comply with the requirements of fair play and due process to afford the person concerned the opportunity to
protect his interest if he so chooses.

Page 67 of 69
While there may be cases where the Court held that the failure to implead and notify the affected or
interested parties may be cured by the publication of the notice of hearing, earnest efforts were made by
petitioners in bringing to court all possible interested parties. Such failure was likewise excused where the
interested parties themselves initiated the corrections proceedings; when there is no actual or presumptive
awareness of the existence of the interested parties; or when a party is inadvertently left out. (Republic of
the Philippines vs. Dr. Norma S. Lugsanay Uy., G.R. No. 198010, August 12, 2013)

Nature of the proceedings under R.A. 9048 and 108:

Due to RA 9048, Rule 108 ceases to be summary in nature and takes on the character of an
appropriate adversary proceeding. RA 9048 now embodies the summary procedure, while Rule 108 provides
for the adversary proceeding. (Lee v. CA, G.R. No. 118387, October 11, 2001)

4.18.1. ENTRIES SUBJECT TO CANCELLATION OR CORRECTION UNDER RULE 108, IN RELATION TO R.A.
NO. 9048
1. Births
2. Marriages
3. Deaths
4. Legal separations
5. Judgments of annulments of marriage
6. Judgments of declaration of nullity of marriage
7. Legitimations
8. Adoptions
9. Acknowledgments of natural children
10. Naturalization
11. Election, loss or recovery of citizenship
12. Civil interdiction
13. Judicial determination of filiation
14. Voluntary emancipation of a minor; and
15. Changes of names (Section 2, Rule 108)

The civil registrar and all persons who have or claim any interest which would be affected by such
correction or cancellation shall be made parties (Section 3, Rule 108).

WHAT CORRECTIONS CAN BE MADE BY RA 9048?

RA 9048 allows these corrections:

1) Correction of clerical or typographical errors in any entry in civil registry documents, EXCEPT
corrections involving the change in sex, age, nationality and status of a person.

2) Change of a person's first name in his/her civil registry document under certain grounds specified
under the law through administrative process. (Civil Registration - Primer for RA 9048).

What is clerical error?

A clerical or typographical error refers to an obvious mistake committed in clerical work, either
in writing, copying, transcribing, or typing an entry in the civil register that is harmless and innocuous, such
as a misspelled name or misspelled place of birth and the like, and can be corrected or changed only by
reference to other existing record or records. (Section 2, RA 9048)

Sexual reassignment not a ground for change of name:


Page 68 of 69
A persons first name cannot be changed on the ground of sex reassignment. No law allows the
change of an entry in the birth certificate of petitioner as to sex on the ground of sex reassignment of the
applicant. Also, all entries in the birth certificate of petitioner were correct since the sex of a person is
determined at birth (Silverio vs. Republic, G.R. No. 174689, Oct. 22, 2007).

4.18.2: CORRECTIONS UNDER R.A. 10172:

a) Birth date;
b) month
c) gender except sexual reassignment;


4.18.3 CONSTITUTION OF FAMILY HOME: RULES ON CONSTITUTION OF FAMILY HOMES, FOR
PURPOSES OF EXEMPTION FROM EXECUTION
First, family residences constructed before the effectivity of the Family Code or before August 3,
1988 must be constituted as a family home either judicially or extrajudicially in accordance with the
provisions of the Civil Code in order to be exempt from execution;
Second, family residences constructed after the effectivity of the Family Code on August 3, 1988 are
automatically deemed to be family homes and thus exempt from execution from the time it was constituted
and lasts as long as any of its beneficiaries actually resides therein;
Third, family residences which were not judicially or extrajudicially constituted as a family home
prior to the effectivity of the Family Code, but were existing thereafter, are considered as family homes by
operation of law and are prospectively entitled to the benefits accorded to a family home under the Family
Code.
Here, the subject property became a family residence sometime in January 1987. There was no showing,
however, that the same was judicially or extrajudicially constituted as a family home in accordance with the
provisions of the Civil Code. Still, when the Family Code took effect on August 3, 1988, the subject
property became a family home by operation of law and was thus prospectively exempt from
execution. The petitioners were thus correct in asserting that the subject property was a family home.
(SPOUSES ARACELI OLIVA-DE MESA and ERNESTO S. DE MESA, vs. SPOUSES CLAUDIO D. ACERO, JR. and
MA. RUFINA D. ACERO,SHERIFF FELIXBERTO L. SAMONTE and REGISTRAR ALFREDO SANTOS., G.R. No.
185064, January 16, 2012)

4.19. APPEALS IN SPECIAL PROCEEDINGS:

Generally, in the absence of statutory provisions directing otherwise, any order, judgment or decree
of the probate court capable of being enforced, or taking effect without further order, may be appealed from;
and that no action of the probate court can be appealed from which requires a subsequent order or judgment
to give it effect. (Woerner, The American Law of Administration, Vol. 3, pp. 1860-61.)

An order directing one to appear and submit to an examination touching any property in his possession
belonging to an intestate, otherwise, he shall be committed to prison, is APPEALABLE. (Intestate of the
deceased Kaw Singco (alias Co Chi Seng) vs. Quirico Abeto G.R. No. L-47631 April 25, 1941)


4.19.1. JUDGMENTS AND ORDERS FOR WHICH APPEAL MAY BE TAKEN


Page 69 of 69
An interested person may appeal in special proceedings from an order or judgment rendered by a
Court of First Instance or a Juvenile and Domestic Relations Court, where such order or judgment:

(a) Allows or disallows a will;
(b) Determines who are the lawful heirs of a deceased person, or the distributive share of the estate
to which such person is entitled;
(c) Allows or disallows, in whole or in part, any claim against the estate of a deceased person, or any
claim presented on behalf of the estate in offset to a claim against it;
(d) Settles the account of an executor, administrator, trustee or guardian;
(e) Constitutes, in proceedings relating to the settlement of the estate of a deceased person, or the
administration of a trustee or guardian, a final determination in the lower court of the rights of the party
appealing, except that no appeal shall be allowed from the appointment of a special administrator; and
(f) Is the final order or judgment rendered in the case, and affects the substantial rights of the person
appealing unless it be an order granting or denying a motion for a new trial or for reconsideration. (Section 1,
Rule 109)

4.19.2. WHEN TO APPEAL
Appeals in special proceedings necessitate a record on appeal as the original record should remain
with the trial court. Hence, the reglamentary period of thirty (30) days is provided for the perfection of
appeals in special proceedings. (Section 2, Rule 40)

4.19.3. MODES OF APPEAL

While under the concept in ordinary civil actions some of the orders stated in Sec. 1 may be
considered interlocutory, the nature of special proceedings declares them as appealable orders, as exceptions
to the provisions of Sec.2, Rule 41. Thus:

a) Ordinary appeal. The appeal to the CA in cases decided by the RTC in the exercise of its original
jurisdiction shall be taken by filing a notice of appeal with the court which rendered the judgment or final
order appealed from and serving a copy thereof upon the adverse party. No record on appeal shall be
required except in special proceedings and other cases of multiple or separate appeals where the law or the
Rules so require. In such cases, the record on appeal shall be filed and served in like manner.

b) Petition for review. The appeal to the CA in cases decided by the RTC in the exercise of its
appellate jurisdiction shall be by petition for review in accordance with Rule 42.

c) Petition for review on certiorari. In all cases where only questions of law are raised or involved,
the appeal shall be to the SC by petition for review on certiorari in accordance with Rule 45.

4.19.4. RULE ON ADVANCE DISTRIBUTION:

Notwithstanding a pending controversy or appeal in proceedings to settle the estate of a decedent,
the court may permit the part of the estate not affected by the controversy or appeal to be distributed among
the heirs or legatees, in accordance with the Rule 90. (Section 2, Rule 109)