SPECIAL PROCEEDINGS the whole

world,
Special proceedings: A remedy by which a party as majority of
seeks to establish a status, right or a particular fact special
(Rule 1, Sec. 3(c)). proceedings
are in
SECTION 1. SUBJECT MATTER OF SPECIAL rem.
PROCEEDINGS
Special proceedings enumerated in the Rules of Purpose To protect or To establish a
Court enforce a right or right, status
(J-CRASHED-CHAG) prevent or or
1. Judicial approval of voluntary recognition of minor redress a wrong. fact.
natural children;
2.Change of name; Governing It is governed by It is governed
3.Rescission and revocation of adoption; Rules ordinary rules by
4.Adoption; supplemented by special rules
5. Settlement of estate of deceased persons; special rules. supplemented
6.Habeas corpus; by
7. Escheat; ordinary
8.Declaration of absence and death; rules.
9. Cancellation and correction of entries in the civil
registry; Court with It is heard by It is heard by
10.Hospitalization of insane persons; Jurisdiction courts of general courts of
11.Adoption; jurisdiction. limited
12.Guardianship and custody of children; jurisdiction.

Other Special Proceedings (LCR-VA) How Initiated by a Initiated by

1. Liquidation proceedings; initiated pleading and means
2.Corporate rehabilitation; parties respond of a petition
3.Recognition and enforcement of arbitration clause or through an and
award; answer after parties
4. Vacation, setting aside, correction or modification of being served with respond by
an arbitral award; summons. means of an
5.Any application with a court for arbitration assistance opposition
and supervision. after
notice and
Note: The list under Sec. 1, Rule 72 is not exclusive. publication
Any petition which has for its main purpose the are
establishment of a status, right or a particular fact may made.
be included as a special proceeding (Festin, Special
Proceedings, A Foresight to the Bar Exam: Question and Applicability Parties are Law on
Answer Notes, Bar Questions, Cases, Updated Laws and of pleadings generally allowed pleadings
Rules, 2011 to file an answer, generally not
ed., p. 1). counterclaim, applicable.
cross-claim and
SECTION 2. APPLICABILITY OF RULES OF CIVIL third-party
ACTIONS complaint
In the absence of special provisions, the rules provided Appeal The period to The period to
for in ordinary actions shall be, as far as practicable, appeal is only 15 appeal is 30
applicable in special proceedings. days and notice days
of appeal suffices. and aside
from a
Ordinary Action Special Proceeding notice of
appeal, a
record on
Ordinary Action Special appeal
Proceeding is required.

Nature Generally Generally no

adversarial in definite Action - formal demand of one‘s right in a court of
nature. There are adverse justice in the manner prescribed by the court or by the
definite parties – party because law (Herrera).
plaintiff vs. it is
defendant. directed Special proceeding - application or proceeding to
against establish the status or right of a party, or particular fact.
No formal pleadings are required, unless the statute enforceable
expressly so provides (Herrera). anywhere in
the
Venues and Jurisdictions for Special Proceedings Philippines)

Special Venue Jurisdiction RTC (on any

Proceeding day and at
Settlement Province of decedent’s MTC – If any time,
of Estate residence at the time estate’s gross enforceable
(Rules 73- of value does only
90) death not exceed within its
PhP300K judicial
(PhP400K in district)
Metro Manila
Escheat If decedent dies Family Court
intestate (on custody
and without heirs – of minors,
Province enforceable
where decedent last within its
resided territorial
or where estate is jurisdiction,
If reversion – Province [Sec. 20, AM
where No. 03-04-
land lies 04-SC])
wholly/partially Writ of Where the threat or SC, CA,
Guardianshi Where ward resides or Family Court Amparo act/commission or any Sandiganbay
p where his property is – If minor of its an,
located Ward elements occurred RTC
(if non-resident) Writ of Petitioner’s residence RTC
RTC – If Habeas or RTC
other than Data where the place the SC, CA,
minor information is Sandiganbay
ward gathered/collected/st an -
Trusteeship Where the will was RTC ored, at If the action
allowed the petitioner’s option concerns
or where the property public data
affected by the trust is files of
located government
Adoption If domestic – where Family Court offices
adopter or Inter- Change of If judicial - Where the RTC
Resides Country Name person
Adoption applying for the
If inter-country – Board change of
where Family Court his name resides
adoptee resides (if
filed with Family If administrative - a) Local civil
Court) Local registry or
Habeas Where detainee is SC (on any civil registry where the Philippine
Corpus detained day and at record consulate
(if filed in RTC) any time, sought to be changed
enforceable is kept
anywhere in b) Local civil registry
the of the
Philippines) place of residence of
interested party (only
Sandiganbay if
an (only in petitioner migrated to
aid of its another place in the
appellate Philippines and it
jurisdiction) would be
impractical to file in
CA (in the place
instances where records sought
authorized by to be
law, changed are kept) c)
 Philippine consulates March 15, 2003);
(only 4. Rule on Custody of Minors and Writ of Habeas
for Philippine citizens Corpus in Relation to Custody of Minor Children (A.M.
who No. 03-04-04, April 22, 2003);
reside in foreign 5.Summary of Judicial Proceedings under the Family
countries Code (Arts. 238-253, New Civil Code)
Declaration Where absentee last RTC b. Proceedings for protection orders under the Violence
of Absence resided against Women and their Children Act (R.A. No. 9262)
and 1. Rule on Violence against Women and Children (A.M.
Appointmen No. 04-10-11, October 19, 2004)
t of their c. Proceedings under the Arbitration Law (R.A. No. 876)
representati and Alternative Dispute Resolution Act (R.A. No. 9285)
ve 1. Arbitration; court-annexed mediation and judicial
Cancellation If judicial – where the RTC dispute resolution (A.M. No. 01-10-5-SC-PHILJA,
or concerned civil October 16, 2001).
Correction registry is
of entries in located RULES 73-90
the Civil Different modes of settlement of estate of a
Registry If administrative - Local civil deceased
a) Local civil registry registry or person/presumed dead
where Philippine
the record sought to Consulate 1. Extrajudicial Settlement of Estate (Section 1, Rule
be 74);
changed is kept b) 2.Summary Settlement of Estate of Small Value
Local civil (Section
registry of the place of 2, Rule 74);
residence of 3. Partition (Rule 69);
interested party 4. Probate of Will (Rule 75 to 79);
(only if petitioner 5. Petition for Letters of Administration in cases of
migrated to Intestacy (Rule 79);
another place in the
Philippines and it Procedure in settlement proceedings (Judicial)
would be
impractical to file in Petition for Probate of will, if any (Rule 75-76)
the place Court order fixing the time and place for probate.
where records sought Publication of hearing for 3 successive weeks. Notice
to be shall also be given to the designated/known heirs,
changed are kept) c) legatees and devisees, and the executor if the one
Philippine consulates petitioning for allowance of the will is not the testator
(only Issuance of Letters
for Philippine citizens Testamentary/Administration (A special
who administrator may be appointed) (Rules 77-80)
reside in foreign Publication of Notice for Filing Claims
countries) Filing of Claims (Rule 86)
Petition Where petitioner or Family Court Issuance of Order of Payment or Sale of
for respondent has been Properties
declaratio residing for at least 6 Payment of Claims:
n of months prior to the Sale/Mortgage/Encumbrance of estate
nullity, date of filing If non- properties.
annulment resident petitioner,
, legal where he may be Distribution of remainder, if any
separation found at the election (But this can be made even before payment if
of the petitioner a bond is filed by the heirs).

Special Proceedings under various laws and SC

Circulars
RULE 73
VENUE AND PROCESSES
a. Petitions under the Family Courts Act (R.A. No. 8369)
1. Rule on Declaration of Absolute Nullity of Void PERSONS SETTLED
Marriages and Annulment of Voidable Marriages Jurisdiction: It depends upon the gross value of the
(A.M. No. 02-11-10-SC, March 15, 2003); estate of the decedent:
2. Rule on Legal Separation (A.M. No. 02-11-11-SC, 1. In Metro Manila – MTC: gross value does not exceed
March 15, 2003); PhP400,000.00, otherwise, RTC;
3.Rule on Provisional Orders (A.M. No. 02-11-12-SC, 2. Outside Metro Manila – MTC: gross value does not
exceed PhP300, 000.00, otherwise, RTC (Sec. 19(4),
Sec. 33(1), B.P. Blg. 129).
.
Note: Jurisdiction over the subject matter is determined
by the allegations in the petition; (Cadimas v. Carrion,
G.R. No. 180394, September 29, 2008); hence, it is not
the actual gross value of the estate, which is the basis
of jurisdiction but the alleged gross value of the
estate.
Venue
1. Inhabitant (Resident) of the Philippines (whether
citizen or alien) – Court of the province/city where he
resides at the time of death.
2. Inhabitant (Resident) of Foreign Country – Court of
any province wherein he had his estate (Sec. 1, Rule
73).
Residence
Residence means his personal, actual or physical
habitation, his actual residence or place of abode (Fule
v. Court of Appeals, G.R. No. L-40502, November 29,
1976).Where the proceeding was commenced with a
court of improper venue, as where the decedent was
neither a resident at the time of his death nor had estate
therein, and such objection was seasonably raised in the
probate court, the petition should be dismissed and the
proceedings should be instituted in the proper court
(Eusebio v. Eusebio, et. al,. G.R. No. L-8409, December
28, 1956).
Remedy if venue is improperly laid
General Rule: Ordinary appeal not certiorari or
prohibition.
Exception: If want of jurisdiction appears on the record
of the case (Sec. 1, Rule 73).
The judicial settlement of a decedent’s estate is a
proceeding in rem.
Two kinds of settlement
1. Extrajudicial settlement – a proceeding where the
decedent had left no will and no debts, and the heirs
adjudicate the estate among themselves without
seeking letters of administration (Sec. 1, Rule 74).
2. Judicial settlement – Testate or intestate
proceeding instituted in the country where decedent had
his residence at the time of his death or had estate if a
nonresident (Sec. 2, Rule 74).
a. Summary judicial proceedings (if the value of estate
is below PhP10,000);
b. Regular settlement proceedings
Extent of jurisdiction: Probate courts are courts of
limited jurisdiction. It may only determine and rule upon
issues relating to the settlement of the estate, namely:
(LAD)
1. Liquidation of the estate;
2.Administration of the estate; and
3.Distribution of the estate (Herrera, Special
Proceedings and Special Rules Implementing the Family
Courts Act of 1997, 2005 ed., p. 12).
General Rule: Probate court cannot determine issue of
ownership.
Exceptions:
1. Ownership may be provisionally determined for the
purpose of including property in inventory, without
prejudice to its final determination in a separate action
(Vda. De Valera, et al., v. Inserto et al., G.R. No. 56504,
May 7,1987);
2. When all the parties are heirs and they submit the
issue of ownership to the probate court provided that
the rights of third parties are not prejudiced (Bernardo
v. Court of Appeals, G.R. No. L-18148, Feb. 28, 1963);
3. Question is one of collation or advancement (Coca, et
al., v. Pangilinan et al., G.R. No. L-27082, Jan. 31,
1978).
The RTC acting in its general jurisdiction is devoid of
authority to render adjudication and resolve the issue of
advancement of the real property in favor of an heir
since reconveyance and annulment of title with
damages is not the proper vehicle to thresh out said
question (Natcher v. Court of Appeals, G.R. No. 133000,
October 2, 2001).
Other questions which the probate court can
Determine
1. Who the heirs of the decedent are;
2. The recognition of a natural child;
3. The validity of disinheritance effected by the testator;
4. Status of a woman who claims to be the lawful wife
of the decedent;
5. The validity of a waiver of hereditary rights;
6. The status of each heir;
7. Whether property in inventory is conjugal or exclusive
property of deceased spouse;
8. Matters incidental or collateral to the settlement and
distribution of the estate (Regalado, Remedial Law
Compendium Vol. II, 2008 ed., p. 13).
Exclusionary Rule
General Rule: The court first taking cognizance of the
settlement of the estate of the decedent shall exercise
jurisdiction to the exclusion of all other courts.
The probate court acquires jurisdiction from the
moment the petition for the settlement of estate is filed
with said court. It cannot be divested of such jurisdiction
by the subsequent acts of the parties as by entering into
extrajudicial partition of the estate (Sandoval v.
Santiago, G.R. No. L-1723, May 30, 1949); or by filing
another petition for settlement in a proper court of
concurrent venue (Rodriguez v. De Borja, G.R. No. L-
21993, June
21, 1966).
Exception: Estoppel by Laches
SECTION 2. WHERE THE ESTATE SETTLED UPON
DISSOLUTION OF MARRIAGE
Upon the death of either the husband or the wife, the
partnership affairs must be liquidated in the testate or
intestate proceedings of the deceased husband or wife.
If both have died, liquidation may be made in the testate
or intestate proceedings of either (Bernardo, et. al. v. affidavit of adjudication must
Court of Appeals, et. al., G.R. No, L-18148, February 28, be filed with the proper
1963). Registry of Deeds
Publication of notice of the
Exceptions: (CEE) fact of extrajudicial settlement
1. To satisfy the contributive share of the devisees, once a week for 3 consecutive
legatees and heirs when the latter had entered prior weeks in a newspaper of
possession over the estate (Sec. 6, Rule 88); general circulation
2. To enforce payment of the expenses of partition (Sec. Filing of bond equivalent to
3, Rule 90); the value of personal property
3. To satisfy the costs when a person is cited for with the proper Registry of
examination in probate proceedings (Sec. 13, Rule Deeds
142).
Requisites:
Under the rule of inclusio unius est exclusio alterius, A. Substantive
these should be the only instances when the probate 1. The decedent left -
court can issue writ of execution (Vda. De Valera, et al., a. No will;
v. Ofilada, et al., G.R. No. L-27526, Sept. 12, 1974). b. No debts.
2. The heirs are all of age or the minors are represented
SECTION 4. PRESUMPTION OF DEATH by their judicial or legal representatives duly authorized
There is no need for an independent action for for the purpose.
Declaration of Presumptive Death for purposes of
Succession. B. Procedural
The returning absentee’s recovery of his estate is 1. Division of estate must be in a public instrument or
subject to the following conditions: by affidavit of self-adjudication in the case of a sole
heir;
1. All his debts must have been paid; 2. Filed with proper Registry of Deeds;
2. He shall recover his property in the condition in which 3. Publication of notice of the fact of extrajudicial
it may be found together with the price of any property settlement once a week for 3 consecutive weeks;
that may have been alienated or the property acquired 4. Filing of the bond with the Register of Deeds
therewith; equivalent to the value of personal property. (Sec.
3. He is not entitled to the fruits of the rent (Art. 392, 1, Rule 74).
New
Civil Code) Note: The bond is required only when personalty is
involved. If it is a real estate, it shall be subject to a lien
RULE 74 in favor of creditors, heirs or other persons for the full
period of 2 years from such distribution and such lien
SUMMARY SETTLEMENT OF
cannot be substituted by a bond (Rebong v. Ibañez,
ESTATES G.R. No. L- 1578, September 30, 1947).

General Rule: The settlement of the estate of the The bond is the value of the personal property certified
decedent should be judicially administered through an by the parties under oath and conditioned upon
administrator or executor. payment of ust claims filed under Sec. 4, Rule 74.

Exception: Affidavit of Self Adjudication

The heirs may resort to: An affidavit required by Sec 1 of Rule 74 to be executed
1. Extrajudicial settlement of estate (Sec.1); by the sole heir of a deceased person in adjudicating to
2. Summary settlement of estates of small value (Sec. himself the entire estate left by the decedent.
2).
Is a public instrument necessary for the validity of
Note: In both exceptional circumstances, an an extra-judicial settlement?
administrator or executor need not be appointed.
No. A private instrument/document or oral agreement
SECTION 1. EXTRAJUDICIAL SETTLEMENT BY of partition as well as a compromise agreement entered
AGREEMENT BETWEEN HEIRS without previous authority of the court is valid among
the heirs who participated in the extrajudicial
Extrajudicial Settlement settlement. The requirement under Sec. 1, Rule 74 that
Procedure in extrajudicial settlement by it must be in a public instrument is not constitutive of
agreement the validity but is merely evidentiary in nature
Between/among heirs (Hernandez v. Andal, G.R. No. L-273, March 29, 1947).

Division of estate in public Under the new Rules, it would appear that a public
instrument or affidavit of instrument is now required for registration. If the
adjudication settlement is in a private instrument, it is believed that
The public instrument or
the same is still valid and reformation of the instrument
may be compelled (Arts. 1359, et. seq., New No. Extrajudicial settlement under Sec. 1 of Rule 74 is
Civil Code). an ex parte proceeding, and the rule plainly states that
persons who do not participate or had no notice of an
Extra Judicial Summary extrajudicial settlement will not be bound thereby, and
No court intervention. Requires summary contemplates a notice that has been sent out or issued
judicial before any deed of settlement or partition is agreed
adjudication. upon, and not after such agreement has already been
Value of the estate is Gross estate must not executed. The publication of the settlement does not
immaterial. exceed PhP10,000. constitute constructive notice to the heirs who had no
Allowed only in intestate Allowed in both testate knowledge or did not take part because the same was
succession. and notice after the fact of execution. The requirement of
intestate publication is geared for the protection of creditors and
There must be no It is available even if was never intended to deprive heirs of their lawful
outstanding debts of the there participation in the estate (Benatiro v. Heirs of Cuyos,
estate at the time of are debts; it is the court G.R. No. 161220, July 28, 2008).
settlement. which will make provision
for its payment Note: The other heirs are also not bound by thE
Resorted at the instance May be instituted by any extrajudicial settlement should the Deed of Extrajudicial
and by agreement of all interested party even by Partition or Affidavit of Self-Adjudication be false (Sec.
heirs. a 4 in relation to Sec. 1).
credit of the estate
without Remedies of the Aggrieved Parties after
the consent of all heirs. Settlement of the Estate
Amount of bond is equal Amount of bond is to be
to determined by the court. 1. Within 2 years - claim against the bond or the real
the value of personal estate or both (Sec.4, Rule 74);
property 2. Rescission in case of preterition of compulsory heir
Bond is filed with the Bond is filed with the in partition tainted with bad faith (Article 1104, NCC);
Register of Deeds. court. 3. Reconveyance of real property;
4. Action to annul a deed of extrajudicial settlement on
SECTION 2. SUMMARY SETTLEMENT OF ESTATES the ground of fraud which should be filed within 4 years
OF SMALL VALUE from the discovery of fraud;
5. Petition for Relief on the ground of FAME – fraud,
accident, mistake, excusable negligence – 60 days
The gross value of the estate must not exceed
after the petitioner learns of the judgment, final order
PhP10,000. In accordance with B.P. Blg. 129, the
or other proceeding to be set aside, and not more than
summary settlement of estates of small value is within
the jurisdiction of the MTCs. 6 months after such judgment or final order was entered
(Rule 38);
Important Requirements: 6. Reopening by Intervention within anytime before
1. Application must contain allegation of gross value of rendition of judgment, as long as it is within the
reglementary period of 2 years;
estate;
7. New action to annul settlement within reglementary
2. Date for hearing:
period of 2 years.
a. Shall be set by court not less than 1 month nor more
than 3 months from date of last publication of notice;
b. Order of hearing published, once a week for 3 An heir deprived of his share may file an action for
consecutive weeks in a newspaper of general reconveyance based on an implied or constructive trust
which prescribes 10 years from the date of registration
circulation.
or date of issuance of certificate of title or from actual
3. Notice shall be served upon such interested persons
discovery of fraud if the registration was made in bad
as the court may direct;
faith (Marquez v. Court of Appeals, G.R. No. 125715,
4. Bond in an amount fixed by the court (not value of
personal property) conditioned upon payment of just December 29, 1998)
claims under Sec. 4.
SECTION 5. PERIOD FOR CLAIM OF MINOR OR
INCAPACITATED PERSON
SECTION 3. BOND TO BE FILED BY DISTRIBUTEES
If on the date of the expiration of the two-year period,
The amount of bond required under a summary
the creditor or heir is:
settlement is determined by the court, unlike in an
extrajudicial settlement where the amount is equal to 1. A minor; or
the value of the personal property as established by the 2. Incapacitated; or
instrument of adjudication (Regalado, p. 21). 3. In prison; or
4. Outside the Philippines. He may present his claim
within one year after such disability is removed (Sec. 5
Is a person who had no knowledge or had not
Rule 75).
participated in the extrajudicial settlement bound
thereby by reason of constructive notice of
publication? RULE 75
PRODUCTION OF WILL
ALLOWANCE OF WILL NECESSARY
SECTION 1. ALLOWANCE NECESSARY.
CONCLUSIVE AS TO EXECUTION
Nature of probate proceedings
1. In Rem: binding on the whole world (Regalado, p.
31).
2. Mandatory: no will shall pass either real or personal
property unless it is proved and allowed in the proper
court (Sec. 1, Rule 75).
However, a will may be sustained on the basis of Article
1080 of the Civil Code which states that: “If the testator
should make a partition of his properties by an act inter
vivos, or by will, such partition shall stand in so far as it
does not prejudice the legitime of the forced heir”
(Mang-Oy v. Court of Appeals, G.R. No. L-27421,
September 12, 1986).
3. Imprescriptible – because of the public policy to
obey the will of the testator.
4. The doctrine of estoppel does not apply.
The presentation and probate of the will is required by
public policy. It involves public interest (Fernandez v.
Dimagiba, G.R. No. L-23638, October 12, 1967).
SECTION 2. CUSTODIAN OF WILL TO DELIVER
The custodian must deliver the will to the court or to the
executor within 20 days after he learns of the death of
the testator.
SECTION 3. EXECUTOR TO PRESENT WILL AND
ACCEPT OR REFUSE TRUST
The executor, within 20 days after he knows of the
testator’s death or after he knows that he is named an
executor if he knows it after the testator’s death, shall:
1. Present the will to the court (unless it has reached
the court in any other manner); and
2. Signify in writing his acceptance or refusal of the
trust.
Probate
The act of proving in a court a document purporting to
be the last will and testament of a deceased person in
order that it may be officially recognized, registered and
its provisions carried out insofar as they are in
accordance with the law (also referred to as allowance
of the will) (Jurado, Comments and Jurisprudence on
Succession,
2009, 9th Edition, p. 134).
RULE 78
LETTERS TESTAMENTARY AND OF
ADMINISTRATION, WHEN AND TO
WHOM ISSUED
Who can administer the estate?
1. Executor – the one named by the testator in his will
for the administration of his property after his death.
2. Administrator, regular or special – the one
appointed by the Court in accordance with the Rules or
governing
statutes to administer and settle the intestate estate
(Rule 80).
3. Administrator with a will annexed – the one
appointed by the court in cases when, although there is
a will, the will does not appoint any executor, or if
appointed, said person is either incapacitated or
unwilling to serve as such (Rule RUU, Section 1).
Who may serve as an executor or administrator?
Any competent person may serve as executor or
administrator
SECTION 1. WHO ARE INCOMPETENT TO SERVE AS
EXECUTORS OR ADMINISTRATORS
1. A minor;
2. A non-resident;
3. One who in the opinion of the court is unfit to exercise
the duties of the trust by reason of:
a. Drunkenness – when the habits of drink are carried
so far as to cloud the brain and weaken their respect for
honesty and integrity; The drunkenness contemplated
by this statute, undoubtedly, is that excessive,
inveterate and continued use of intoxicants, to such an
extent as to render the subject of the habit as unsafe
against to entrust with the care of property or the
transaction of business (Herrera, p.
78).
b. Improvidence – means the want of care and
foresight in the management of property which would
be likely to render the estate and effects of the intestate
unsafe and liable to be lost or diminished in value
(Black’s Law Dictionary, 5th ed., p.682).
c. Want of understanding – amounts to lack of
intelligence such as would or might subject one to
sinister influence or coercion against the general
interest of the estate (Herrera, p.80).
d. Want of integrity – integrity is synonymous to
probity, honesty and uprightness in business relations
with others. The accusation should be certain and
grave in its nature (Herrera, p.80).
e. Conviction for an offense involving moral
turpitude – an act of baseness, vileness or depravity in
the private and social duties which a man owes his
fellow men, to society in general, contrary to the
accepted and customary rule of right and duty between
man and woman or conduct contrary to Justice,
honesty, modesty or good morals (Zari v.
Flores, A.M. No. (2170-MC) P-1356 November 21,
1979).
4. The executor of an executor cannot administer the
estate of the first testator (Sec. 2).
Executor Administrator
Nominated by the Appointed by the court in
testator and appointed case the testator did not
by court. appoint an executor or if
the executor refused
appointment(administrator
with a will annexed) or if
the will was disallowed or if
 a person did not make a for 30 days after the death of the decedent to apply for
will (intestate succession). administration by them or their nominee, any one or
Must present will to the No such duty. more of the principal creditors, if competent and willing
court within 20 days to serve; However, neglect of such persons to apply for
after letters administration for 30 days after death is not
he knows of the death sufficient to exclude the widow from the administration
of of the estate of her husband. There must be a very
testator or after he strong case to justify the exclusion of the widow from
knew the administration (Herrera, p. 84).
that he was appointed 3. If there is no such creditor competent and willing to
as serve, it may be granted to such other person as the
executor (if he obtained court may select (stranger).
such knowledge after
death Note: As a general rule, the court cannot set aside the
of testator), unless the order of preference under Sec. 6 Rule 78.
will
has reached the court in Exception: In case the persons who have the
any manner preferential right to be appointed under the rule are not
Testator may provide Required unless exempted competent or are unwilling to serve, administration or
that he may serve by law they neglect to apply for letters of administration for 30
without a bond (but days after the decedent’s death, the letters may be
court may direct him to granted to such other person as the court may appoint.
give a bond conditioned The order of appointment of regular administrator is
only to pay debts). final and appealable.
Compensation may be Compensation is governed
provided for by the by Sec. 7, Rule 85. Scope or limits of administration: The general rule
testator in the will, is that administration extends only to the assets of a
otherwise Sec. 7, Rule decedent found within the state or country where it was
85 will be followed. granted, so that an administrator appointed in one state
or country has no power over the property in another
Testamentary Privilege state or country (Leon v. Manufacturers Life Insurance
The right given by law to a person to dispose of his Co., G.R.
property when he dies. No. L-3677, November 29, 1951).

Letters Testamentary Note: A party indebted to the decedent’s estate cannot

An authority issued to an executor named in the will to
administer the estate (Festin, p. 46).
Letters of Administration
An authority issued by the court to a competent person
to administer the estate of the deceased who died
intestate
(Festin, p. 46).
compatibly perform the duties of an administrator and
should not be appointed as such (Lim v. Diaz-Millarez,
G.R. No. L-17633, October 19, 1966). Where such fact
of indebtedness was only subsequently discovered after
the administrator had been duly appointed, he should
not be removed, absent any other lawful ground
(Dalisay, etc. v. Consolacion, etc., G.R. No. L-44702,
July 30, 1979).

Letters of Administration with a Will Annexed RULE 86

An authority issued by the court to a competent person CLAIMS AGAINST ESTATE
to administer the estate of the deceased if the executor
named in the will refused to accept the office or if the
SECTION 1. NOTICE TO CREDITORS TO BE ISSUED
person name is incompetent.
BY COURT
Money Claims
Order of preference in granting letters of
Claims for money, debt or interest thereon upon a
administration
liability contracted by the decedent before his death
(Festin, p. 75).
1. The surviving husband or wife or the next of kin, or
both in the discretion of the court, or to such person as
When may the court issue notices to creditors to
such surviving spouse or next of kin, requests to have
file their claims? Immediately after granting letters
appointed, if competent and willing to serve (surviving
testamentary or of administration. Claims arising after
spouse or next of kin or their nominee);
his death cannot be presented except for:
1. Funeral expenses; and
Next of Kin
2. Expenses of the last sickness of the decedent. Claims
Those persons who are entitled by law to receive the
for taxes (inheritance and estate) due and assessed
decedent’s property (Regalado, p. 46).
after the death of the decedent need not be presented
2. If the surviving spouse or the next of kin or the
in the form of a claim. The court in the exercise of its
person selected by them be incompetent or unwilling to
administrative control over the executor or
serve, or if the surviving spouse or next of kin neglects
administrator may direct the latter to pay such taxes
(Pineda v. CFI of Tayabas, G.R. No. L-30921, February
16, 1929).
Statute of Non-Claims
The period fixed by the rule for the filing of the claims
against the estate.
Reason for the rule: For the speedy settlement of the
affairs of the deceased and the early delivery of the
property to the distributees, legatees or heirs.
Where to File Claims: All money claims must be
entertained by Settlement Court regardless of amount.
(Sec. 1) In other words, B.P. Blg. 129 is not applicable.
When to file claims
General Rule: Within the time fixed in the notice which
shall not be more than 12 months nor less than 6
months after the date of the first publication. Otherwise,
they are barred forever. Even if the testator
acknowledged the debt in his will and instructed the
executor to pay the debt, the statute of nonclaims must
still be complied with; otherwise the claim may also be
barred.
Exception: Belated claims
Belated Claims
Claims not filed within the original period fixed by the
court. On application of a creditor who has failed to file
his claim within the time previously limited, at any time
before an order of distribution is entered, the court may,
for cause shown and on such terms as are equitable,
allow such claim to be filed within a time not exceeding
1 month from the order allowing belated claims.
Note: The statute of non-claims supersedes the statute
of limitations insofar as the debts of deceased persons
are concerned because if a creditor fails to file his claim
within the time fixed by the court in the notice, then the
claim is barred forever. However, both statute of non-
claims and statute of limitations must concur in order
for a creditor to collect; thus, a creditor cannot claim,
even if within the statute of non-claims, if his claim has
already prescribed under the statute of limitations.
However, a creditor barred by the Statute of Non-claims
may file a claim as a counterclaim in any suit that the
executor or administrator may bring against such
creditor (Sec 5).
Good excuse for late filing
The pendency of the action before the regular courts
was cited as a good excuse for the tardiness of the claim
(Echaus v. Blanco, G.R. No. L-30453, December 4,
1989).
SECTION 5. CLAIMS WHICH MUST BE FILED
UNDER NOTICE. IF NOT FILED, BARRED;
EXCEPTIONS.
Claims referred to under this section refer to claims for
the recovery of money and which are not secured by a
lien against the property of the estate (Olave v. Canlas,
G.R. No. L-12709, February 28, 1962). If the claim is
secured; apply Sec. 7 of this Rule.
Claims which should be filed under the Statute of
Non-claims
1. Money claims, debts incurred by deceased during his
lifetime arising from contract:
a. Express or implied;
b. Due or not due;
c. Absolute or contingent.
2. Claims for funeral expenses;
3. For the last illness of the decedent;
4. Judgment for money against decedent.
Note: The enumeration is exclusive (Festin, p. 75).
A money claim arising from a crime of quasi-delict
committed by the decedent is not included in the
concept of claims which have to be filed under this Rule
but should be the subject of an action against the
executor or administrator (Sec. 1, Rule 87) or against
the heirs (Belamala v. Polinar, G.R. No. L- 24098,
November 18, 1967).
Unpaid taxes are not covered by the statute of non-
claims as these are monetary obligations created by law
(Vera, et al. v. Fernandez, et al., G.R. No. L- 31364,
March 30,
1979).
Absolute Claim
Such a claim as, if contested between living persons,
would be proper subject of immediate legal action and
would supply a basis of a judgment for a sum certain.
Contingent Claim
A conditional claim or claim that is subject to the
happening of a future uncertain event.
It has reference to the uncertainty of liability, and not
to uncertainty of collection (Gaskell v. Tan Sit, G.R. No.
18405, September 23, 1922). Claims not yet due or
contingent may be approved at their present value.
A deficiency judgment is a contingent claim and
therefore, must be filed with the probate court where
the settlement of the deceased is pending, within the
period fixed for the filing of claims (First National City
Bank of New York v.
Cheng Tan, G.R. No. L-14234, February 28, 1962).
Claims extinguished by Actions which survive
death
Personal to either of the Claim is not extinguished
parties and is by death but shall be
extinguished by death prosecuted as a money
claim against the estate
of the deceased
Examples: legal Example: contractual
separation, annulment of money claim
marriage, declaration of
nullity of marriage
Where the defendant dies while the action for a sum of
money is pending against him in the Court of Appeals,
he shall be substituted therein by his legal
representative but the final judgment of the appellate
court shall not be enforceable by a writ of execution but
should be filed in the probate court as a money claim in
accordance with Sec. 5 of Rule 86 (Paredes, et al. v.
Moya, G.R. No. L- 38051, December 26, 1973). If none
of the heirs is willing to be substituted defendant, the
creditor has to procure the appointment of an
executor/administrator (Sec. 16,
Rule 3).
If a final judgment had already been rendered against
the decedent prior to his death, but without levy on
execution having been effected against his property,
such judgment must also be filed as a claim against the
estate in the manner provided for by this Rule. If levy
has already been made before his death, execution shall
proceed (Sec. 7
[c], Rule 39).
SECTION 6. SOLIDARY OBLIGATION OF
DECEDENT
Claim should be filed against decedent as if he were the
only debtor without prejudice on the part of the estate
to recover contribution from the other debtor.
Joint obligation of decedent
The claim must be confined to the portion belonging to
the decedent.
Creditor holding a claim secured by a mortgage or
other collateral security
Alternative remedies: (AFR)
1.Abandon or waive the security and prosecute his claim
against the estate and share in the general distribution
of the assets of the estate;
2. Foreclose his mortgage or realize upon his security
by action in court making the executor or administrator
a party defendant and if there is judgment for
deficiency, he may file a claim (contingent) against the
estate within the statute of non-claims;
3.Rely solely on his mortgage and foreclose (judicially
or extrajudicially) the same at anytime within the period
of the statute of limitations but he cannot be admitted
as creditor and shall not receive in the distribution of the
other assets of the estate.
Note: The mortgage creditor can avail of only one of the
three remedies and if he fails to recover under that
remedy he can not avail of any of the other two
remedies (Bachrach Motor Co., Inc., v. Icarangal, G.R.
No. L-45350,
May 29,1939).
The rule reserves a right to the executor or
administrator of an estate to redeem a mortgaged or
pledged property of a decedent which the mortgage or
pledgee has opted to foreclose, instead of filing a money
claim with the probate court, under said Section 7 of
Rule 86. While the redemption is subject to the approval
of the probate court, the exercise of the right is
discretionary upon the said executor or administrator
and may not be ordered by the Probate court upon its
own motion (Manalansan v. Castaneda, G.R. No. L-
43607, June 27, 1978).
SECTION 8. CLAIM OF EXECUTOR OR
ADMINISTRATOR AGAINST AN ESTATE
This is one of the instances where a special
administrator is appointed. The special administrator
will have authority to act only with respect to the claim
of the regular administrator or the executor (Regalado,
p. 83).
SECTION 9. HOW TO FILE A CLAIM. CONTENTS
THEREOF. NOTICE TO EXECUTOR OR
ADMINISTRATOR
How to file a claim:
1. Deliver the claim with the necessary vouchers to the
clerk of court;
2. Serve a copy thereof on the executor or
administrator;
3. If the claim is due, it must be supported by an
affidavit
stating the amount due and the fact that there has been
no offsets;
4. If the claim is not due or contingent, it must be
accompanied by an affidavit stating the particulars
thereof.
RULE 91
ESCHEATS
Escheat
The proceeding whereby the real and personal property
of a deceased person in the Philippines, who dies
without leaving any will (or if the will was not allowed,
hence, intestacy) and without any legal heirs, becomes
the property of the State upon his death.
Nature of escheat proceedings: Escheat is not an
ordinary civil action but a special proceeding that should
be commenced not by complaint but by petition
(Municipal Council of San Pedro, Laguna v. Colegio de
San Jose,G.R. No. L-45460, February 25, 1938).
Three instances of escheats
1. When a person dies intestate leaving no heir but
leaving property in the Philippines (Section 1);
2. Reversion Proceedings – Sale in violation of the
Constitutional provision; This shall be governed by Rule
91. However, the action must be instituted in the
province where the land lies in whole or in part.
Note: Reversion will not be allowed even if the original
buyer was an alien, if later on the title to the property
was transferred by succession to the buyer’s heirs who
are qualified parties, i.e. Philippine citizens (see
Republic v. Registry of Deeds of Roxas City, G.R. No.
158230, 16 July 2008).
3. Unclaimed Balances Act (dormant accounts for 10
years shall be escheated).
Escheat under the Unclaimed Balances Acts must be
filed in the RTC of the place where the dormant
deposits are found.
What is the basis of the state’s right to receive
property in escheat? Order of succession under the
Civil Code, the state is the last heir of the decedent.
Who is the real party in interest? In all actions for
the reversion to the Government of lands of the public
domain or improvements thereon, the Republic of the
Philippines is the real party in interest. The action shall
be instituted
by the Solicitor General or the officer acting in his stead,
In behalf of the Republic of the Philippines (Luis B.
Manese,
et. al. v. Sps. Velasco, et. al., G.R. No. 164024, January
29, 2009).
Where to file:
Resident – RTC of last residence.
Non-Resident – RTC of the place where his estate is
Located
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.
ORDER FOR HEARING
If the petition is sufficient in form and substance the
court shall:
1. Make an order of hearing – hearing shall not be more
than 6 months after entry of order;
2. Direct the publication of a copy of the order – at least
once a week for 6 consecutive weeks.
Remedy of respondent: When the petition does not
state facts which entitle the petitioner to the remedy
prayed for, the respondent may file a Motion to Dismiss
the petition
(Herrera, p.227).
HEARING AND JUDGMENT
Requisites:
1. Publication of the order;
2. Person died intestate;
3. He is seized of real/personal property in the
Philippines;
4. He left no heir or person entitled to such property;
and
5. There is no sufficient cause to the contrary.
To whom the property escheated will be assigned:
1. If personal property – to the municipality or city
where he last resided;
2. If real property – to the municipality or city where the
property is situated;
3. If deceased never resided in the Philippines – to the
municipality or city where the property may be found.
The court, at the instance of an interested party, or on
its own motion, may order the establishment of a
permanent trust, so that only the income from the
property shall be used (Sec. 3, Rule 91).
The right to escheat may be waived expressly or
impliedly (Herrera, p.229)
Who may file a claim on the escheated property:
Any devisee, legatee, heir, widow/er, or other person
entitled thereto.
When to File: Within 5 years from date of judgment,
otherwise it will be barred forever.
Rationale: To encourage would-be claimants to be
punctual in asserting their claims (Festin, p.103).
Period of filing claim: Within 5 years from the date of
judgment.
Note: Under Art. 1014 of the Civil Code, the 5-year
period is reckoned from the date the property was
delivered to the state and further provides that if the
property had been sold, the municipality or city shall be
accountable only for such part of the proceeds as may
not have been lawfully spent.
By whom: A person with interest.
Proceedings in escheat cannot be converted into
settlement of the estate. For the distribution of the
estate of the decedent to be instituted, the proper
petitions must be presented and the proceedings should
comply with the requirements of the Rule. An escheat
court does not have the power to order or proceed with
the distribution of the estate of a decedent in escheat
proceedings and adjudicate the properties to the
oppositors (Municipality of Magalloon, Negros Occ. v.
Ignatius Henry Bezore, G.R. No. L- 14157, October 26,
1960).
RULES ON DOMESTIC ADOPTION
(Secs. 1-25, A.M. No. 02-6-02)
Procedure for Domestic Adoption under AM-02-6-
02-
SC
Petition for Domestic
Adoption
Order of Hearing by the
court
Child and Home Study
Reports by the Social
Worker
Hearing on the Petition for
Adoption
Supervised Trial Custody
Adoption Decree issued
by the court
Who may adopt (Sec.4)
A.Any Filipino Citizen –
1. Of legal age;
2. In possession of full civil capacity and legal rights;
3. Of good moral character;
4. Has not been convicted of any crime involving moral
turpitude;
5. Emotionally and psychologically capable of caring for
children;
6. At least 16 years older than the adoptee.
Except: when the adopter is the adoptee’s biological
parent or the spouse of the adoptee’s parent; and
7. In a position to support and care for his/her children
inkeeping with the means of the family.
B.Any alien possessing the same qualifications as
above, Provided:
1. That his country has diplomatic relations with the
Philippines;
2. That he has been living in the Philippines for at least
3 continuous years prior to the filing of the application
for adoption;
3. Maintains residence until the adoption decree is
entered;
4. Certified by his diplomatic or consular office or any
appropriate government agency to have legal capacity
to adopt by his country; and
5. That his government allows the adoptee to enter his
country as his adopted child.
The requirements on residency and certification of
the alien’s qualification to adopt in his country
may be waived for the following:
a. A former Filipino citizen who seeks to adopt a relative
within the 4th degree of consanguinity or affinity; or
b. One who seeks to adopt the legitimate child of his
Filipino spouse; or
c. One who is married to a Filipino citizen and seeks to
adopt jointly with his spouse a relative within the 4th
degree of consanguinity or affinity of the Filipino
spouse.
d. guardian with respect to the ward after the
termination of the guardianship and clearance of his
financial accountabilities.
Who may be adopted (Sec. 5)
1. Any person below 18 years of age who has been
judicially declared available for adoption or voluntarily
committed to DSWD;
2. The legitimate child of one spouse, by the other
spouse;
3. An illegitimate child, by a qualified adopter to raise
the status of the former to that of legitimacy;
4. A person of legal age regardless of civil status, if,
prior to the adoption, said person has been consistently
considered and treated by the adopters as their own
child since minority;
5. A child whose adoption has been previously
rescinded;
6. A child whose biological or adoptive parents have
died, but no proceedings shall be initiated within 6
months from the time of death of said parents;
7. A child not otherwise disqualified by law or these
rules.
“A child legally available for adoption”
It refers to a child who has been voluntarily or
involuntarily committed to the DSWD or to a duly
licensed and accredited child-placing or child caring
agency, freed of the parental authority of his biological
parents, or in case or rescission of adoption, his
guardian or adopter/s (Sec.
3).
Two ways to commit a child
1. Administrative/Voluntary: In this case, the parent
or guardian of the child voluntarily committed him to the
DSWD or any duly licensed child placement or child
caring agency. The child must be surrendered in writing.
Such written instrument must be notarized and signed
in the presence of an authorized representative of the
department after counseling has been made to
encourage the parents to keep the child (Sec. 5, AM 02-
1-19-SC).
2. Judicial/Involuntary: Follow the procedure in
Proposed Rule on Commitment of Children (AM 02-1-
19-SC) under special laws
Joint adoption of spouses
General rule: Husband and wife shall jointly adopt (Art.
185, Family Code).
Exceptions:
1. If one spouse seeks to adopt the legitimate child of
the other;
2. If one spouse seeks to adopt his own illegitimate
son/daughter, provided that the other spouse has
signified his consent thereto;
3. If the spouses are legally separated from each other
(Sec. 4, A.M. 02-6-02-SC).
This is in consonance with the concept of joint parental
authority over the child which is the ideal situation. As
the child to be adopted is elevated to the level if
illegitimate child, it is but natural to require both the
spouses to adopt jointly (Republic v. Toledano, G.R. No.
9447, June 8,
1994).
Venue (Sec.6)
Family Court where the prospective adoptive parents
reside.
Contents of the petition (Sec.7)
A.If the adopter is a Filipino citizen, the petition
shall
allege the following:
1. The jurisdictional facts;
2. That the petitioner is of legal age, in possession of
full civil capacity and legal rights; is of good moral
character; has not been convicted of any crime involving
moral turpitude; is emotionally and psychologically
capable of caring for children; is at least 16 years older
than the adoptee, unless the adopter is the biological
parent of the adoptee or is the spouse of the adoptee’s
parent; and is in a position to support and care for his
children in keeping with the means of the family and has
undergone pre-adoption services as required by
Section 4 of R.A. No. 8552.
B.If the adopter is an alien, the petition shall
allege the following:
1. The jurisdictional facts
2. Sub-paragraph A.2 above;
3. That his country has diplomatic relations with the
Republic of the Philippines;
4. That he has been certified by his diplomatic or
consular office or any appropriate government agency
to have the legal capacity to adopt in his country and
his government allows the adoptee to enter his country
as his adopted child and reside there permanently as an
adopted child; and
5. That he has been living in the Philippines for at least
three (3) continuous years prior to the filing of the
petition and he maintains such residence until the
adoption decree is entered.
C.If the adopter is the legal guardian of the
adoptee:
The petition shall allege that guardianship had been
terminated and the guardian had cleared his financial
accountabilities.
D.If the adopter is married, the spouse shall be a
copetitioner for joint adoption except if:
1. One spouse seeks to adopt the legitimate child of the
other; or
2. One spouse seeks to adopt his own illegitimate child
and the other spouse signified written consent thereto;
or
3. The spouses are legally separated from each other.
E.If the adoptee is a foundling:
The petition shall allege the entries which should appear
in his birth certificate, such as name of child, date of
birth, place of birth, if known; sex, name and citizenship
of adoptive mother and father, and the date and place
of their marriage.
F.If the petition prays for a change of name:
It shall also state the cause or reason for the change of
name.
All petitions shall allege:
1. The first name, surname or names, age and residence
of the adoptee as shown by his record of birth, baptismal
or foundling certificate and school records;
2. That the adoptee is not disqualified by law to be
adopted;
3. The probable value and character of the estate of the
adoptee;
4. The first name, surname or names by which the
adoptee is to be known and registered in the Civil
Registry.
The petition shall be verified with a certificate of
nonforum shopping and specifically state at the heading
of the initiatory pleading whether the petition contains
an application for a change of name, rectification of
simulated birth, voluntary or involuntary commitment of
children, or declaration of child as abandoned,
dependent or neglected.
Adoption of a foundling, an abandoned, dependent
or neglected child
The petition shall allege:
1. The facts showing that the child is a foundling,
abandoned, dependent or neglected;
2. The names of the parents, if known, and their
residence. If the child has no known or living parents,
then the name and residence of the guardian, if any;
3. The name of the duly licensed child-placement
agency or individual under whose care the child is in
custody; and
4. That the Department, child-placement or child-caring
agency is authorized to give its consent (Sec. 9).
Abandonment
In its ordinary sense, it means to forsake entirely, to
renounce utterly (Herrera, p. 351).
In reference to abandonment of a child by his parent,
the act of abandonment imports “any conduct of the
parent which evinces a settled purpose to forego all
parental duties and relinquish all parental claims to the
child.” It means “neglect or refusal to perform the
natural and legal obligations of care and support, which
parents owe their children” (Cang v. Court of Appeals,
G.R. No. 105308,
September 25, 1998).
Confidentiality of proceedings and records
General Rule: After compliance with jurisdictional
requirements, all adoption hearings shall be confidential
and shall not be open to the public. All related records
shall be kept strictly confidential (Sec. 18).
Exception: For security reasons or for the best interest
of the child, the Court may, upon meritorious grounds
allow the release of the information with restrictions, if
necessary (Herrera, p. 348).
Effects of adoption
1. Adopter will exercise parental authority;
2. All legal ties between biological parents and the
adoptee shall be severed, except when biological parent
is spouse of adopter;
3. Adoptee shall be considered legitimate child of
adopter for all intents and purposes;
4. Adopters shall have reciprocal rights of succession
without distinction from legitimate filiation.
The decree of adoption shall have a retroactive effect
from the time of the petition.
“It is a settled rule that adoption statutes, being human
and salutary, should be liberally construed to carry out
the beneficent purposes of adoption. x x x. Hence, since
there is no law prohibiting an illegitimate child adopted
by her natural father, x x x, to use, as middle name her
mother’s surname, we find no reason why she should
not be allowed to do so” (In Re: Adoption of Stephanie
Nathy Garcia, G.R. No. 148311, March 31, 2005).
Who may rescind the adoption? The adopter cannot
rescind the adoption, only the adoptee may rescind
within 5 years from reaching the age of majority or after
recovery from incompetency. Such a petition for
rescission shall be filed in the Family Court where the
adoptee resides. In case of a minor, he shall be assisted
by a social work from DSWD or by the minor’s guardian,
if he is over 18 years of age but is incapacitated.
The adopter may not rescind the adoption; however, he
may disinherit the adopted child (Art. 919, Civil Code).
Grounds for rescission (Sec. 19)
1. Repeated physical and verbal maltreatment despite
having undergone counseling;
2. Attempt on the adoptee’s life;
3. Sexual assault or violence;
4. Abandonment or failure to comply with parental
obligations.
INTER-COUNTRY ADOPTION
Objectives
1. To consider inter-country adoption as an alternative
means of child care, if the child cannot be placed in a
foster/adoptive family or cannot be cared for in the
Philippines;
2. To ensure that the child enjoys the same protection
accorded to children in domestic adoption;
3. To ensure that the placement does not result in
improper financial gain for those involved (Sec. 27).
Where to file petition
1. A verified petition to adopt a Filipino child may be congenial to the survival, protection, and feelings of
filed by a foreign national or Filipino citizen permanently security of the minor encouraging to his physical,
residing abroad with the Family Court having jurisdiction psychological and emotional development. It also
over the place where the child resides or may be found; means the least detrimental available alternative for
2. It may be filed directly with the Inter-Country safeguarding the growth and development of the minor
Adoption Board (Sec. 28). (Sec. 14 A.M. No. 03-04-04-SC 2003-04-22).
Who may adopt:
1. Any alien or Filipino citizen permanently residing RULE 102
abroad who is at least twenty-seven (27) years of age; HABEAS CORPUS
2. Other requirements are the same as with R.A. No.
8552. Writ of Habeas Corpus
Who may be adopted: Only a child legally available A writ directed to the person detaining another and
for domestic adoption may be the subject of inter- commanding him to produce the body of the prisoner at
country adoption (Sec.29). a certain time and place, with the day and the cause of
his caption and detention, to do, submit to, and receive
A child under the Inter-Country Adoption Act is whatsoever the court or judge awarding the writ shall
defined as any person below fifteen (15) years of consider in that behalf (Ilusorio v. Bildner, G.R. No.
age. In domestic adoption “Child” is defined a person 139789, May 12, 2000).
below 18 years of age.
The function of the special proceeding of habeas corpus
The Board shall ensure that all possibilities for adoption is to inquire into the legality of one’s detention. In all
of the child under the Family Code have been exhausted petitions for habeas corpus, the court must inquire into
and that inter-country adoption is in the best interest of every phase and aspect of petitioner’s detention – from
the child (Section 7, R.A. No. 8043). the moment petitioner was taken into custody up to the
moment the court passes upon the merits of the petition
Contents of petition and “only after such a scrutiny can the court satisfy itself
Petitioner must allege: that the due process clause of our Constitution has been
1. His age and the age of the child to be adopted, satisfied (Bernarte v. Court of Appeals, G.R. No.
showing that he is at least twenty-seven (27) years of 107741. October 18, 1996).
age and at least sixteen (16) years older than the child
to be adopted at the time of application, unless the
petitioner is the parent by nature of the child to be Certiorari, Prohibition, Habeas Corpus
adopted or the spouse of such parent, in which case the Mandamus
age difference does not apply; Special Civil Action (Rule Special Proceeding
2. If married, the name of the spouse who must be 65)
joined as co-petitioner except when the adoptee is a It reaches the record but It reaches the body but
legitimate child of his spouse; not the body; concerned not
3. That he has the capacity to act and assume all rights with errors committed by the record; inquiry on the
and responsibilities of parental authority under his a legality of the detention.
national laws, and has undergone the appropriate court.
counseling from an accredited counselor in his country; Direct attack. Collateral attack.
4. That he has not been convicted of a crime involving Failure of respondent to Failure to file return
moral turpitude; file constitutes contempt
5. That he is eligible to adopt under his national law; comment will not be (indirect).
6. That he can provide the proper care and support and punished by contempt
instill the necessary moral values and example to all his and
children, including the child to be adopted; will not even be declared
7. That he agrees to uphold the basic rights of the child, in
as embodied under Philippine laws and the U.N. default.
Convention on the Rights of the Child, and to abide by Court and prevailing Respondent is the
the rules and regulations issued to implement the party detainer
provisions of R.A. No. 8043; are named as
8. That he comes from a country with which the respondents
Philippines has diplomatic relations and whose
government maintains a similarly authorized and Kinds of Writ of Habeas Corpus
accredited agency and that adoption of a Filipino child is 1. Preliminary citation – If the person is detained
allowed under his national laws; and under governmental authority and the illegality of his
9. That he possesses all the qualifications and none of detention is not patent from the petition for the writ, the
the disqualifications provided in this Rule, in R.A. No. court issues the citation to the government officer
8043 and in all other applicable Philippine laws (Sec. having custody to show cause why the writ of habeas
30). corpus should not issue.
2. Peremptory writ – If the cause of the detention
“Best interest of the minor” standard appears to be patently illegal. Noncompliance with this
“Best interest of the minor” standard refers to the is punishable.
totality ofthe circumstances and conditions as are most
TO WHAT HABEAS CORPUS EXTENDS
1. Cases of illegal confinement or detention by which a
person is deprived of his liberty; and
2. Cases by which the rightful custody of the person is
withheld from the person entitled thereto.
Note: Actual physical restraint is not required; any
restraint which will prejudice freedom of action is
sufficient
(Moncupa v. Enrile, G.R. No. 63345, January 30, 1986).
When availed of (As a consequence of a judicial
proceeding):
1. There has been a deprivation of a constitutional right
resulting in the restraint of a person;
2. The court had no jurisdiction to impose the sentence;
3.An excessive penalty has been imposed, as such
sentence is void as to such excess;
4. Where the law is amended, as when the penalty is
lowered. Obtain freedom after serving minimum
sentence when the penalty under an old law has been
reduced by an amendatory law (Cruz v. Director of
Prisons, G.R. No. L-6497, November 3, 1910);
5. Denial of right to a speedy trial (since it is
jurisdictional);
6. Where the results of post-conviction DNA testing are
favorable to the convict.
7. Enable the parents to regain custody of a minor child,
even if the latter be in the custody of a third person of
her own free will (Salvaña v. Gaela, G.R. No. L-341155,
February 21, 1931);
8. In determining the constitutionality of a statute
(People of the Philippines v. Vera, G.R. No. L-45685,
November 16,1937);
9.When testing the legality of an alien‘s confinement
and proposed expulsion from the Philippines (Lao Tang
Bun v. Fabre, G.R. No. L-1673, October 22, 1948);
10.In permitting an alien to land in the Philippines (Lim
Cheng v. Insular Collector of Customs, G.R. No.
16406, September 13, 1920);
11.In determining the legality of an extradition (United
States v. Rauscher, 7 S. Ct. 234, 30 L. Ed. 425,
December 6, 1886).
Nature of the petition: Petition for habeas corpus,
which is an inquisition by the government, at the
suggestion and instance of an individual, most probably,
but still in the name and capacity of the sovereign is like
a proceeding in rem. It is also instituted for the purpose
of fixing the status of a person and that there can be no
judgment entered against anybody since there is no real
plaintiff and defendant (Alimpoos v. Court of Appeals,
G.R. No. L- 27331, July 30, 1981).
1. It is not in the nature of a writ of error; nor intended
as substitute for the trial court’s function. The writ
cannot be used to investigate and consider questions of
error that might be raised relating to procedure or on
the merits.
2. It cannot take the place of appeal, certiorari or writ
of error.
3. The inquiry in a habeas corpus proceeding is
addressed to the question of whether the proceedings
and the assailed order are, for any reason, null and
void.
4. The writ is not ordinarily granted where the law
provides for other remedies in the regular course, and
in the absence of exceptional circumstances.
5. Habeas corpus should not be granted in advance of
trial.
6. Habeas corpus is a summary remedy.
7. The writ of habeas corpus does not act upon the
prisoner who seeks relief, but upon the person who
holds him in what is alleged to be the unlawful authority.
Hence, the only parties before the court are the
petitioner (prisoner) and the person holding the
petitioner in custody, and the only question to be
resolved is whether the custodian has authority to
deprive the petitioner of his liberty. The writ may be
denied if the petitioner fails to show facts that he is
entitled thereto ex merito justicias.
8. A writ of habeas corpus, which is regarded as a
“palladium of liberty” is a prerogative writ which does
not issue as a matter of right but in the sound discretion
of the court. It is, however, a writ of right on proper
formalities being made by proof. Resort to the writ is
not to inquire into the criminal act of which a complaint
is made but unto the right of liberty, notwithstanding
the act, and the immediate purpose to be served is relief
from the illegal restraint.
Purpose: The essential object and purpose of the writ
of involuntary restraint as distinguished from voluntary,
and to relieve a person therefrom if such restraint is
illegal (Moncupa v. Enrile, G.R. No. 63345, January 30,
1986).
The ultimate purpose of the writ of habeas corpus is to
relieve a person from unlawful restraint (Castriciones v.
Chief of Staff of Armed forces of the Philippines, G.R.
No. 65731, September 28, 1989).
The writ of habeas corpus was devised and exists as a
speedy and effectual remedy to relieve persons from
defense of personal freedom. And any further rights of
the parties are left untouched by decision on the writ,
whose principal purpose is to set the individual at liberty
(Villavicencio v. Lukban, G.R. No. L-14639, March 25,
1919).
Grounds for suspension of the privilege of the writ
of habeas corpus under the Constitution
1. Invasion, when public safety requires it;
2. Rebellion, when public safety requires it (Article VII,
Section 18 of the 1987 Constitution)
In cases of illegal confinement or detention
General rule: The release, whether permanent or
temporary, of a detained person renders the petition for
habeas corpus moot and academic.
Exception: When there are restraints attached to his
release which precludes freedom of action, in which case
the court can still inquire into the nature of his
involuntary restraint (Villavicencio v. Lukban, G.R. No.
L- 14639, March 25, 1919).
In Bagtas v. Hon. Ruth C. Santos, et al., (G.R. No.
166682, November 27, 2009), the Court held that the
mere production of child in the habeas corpus case does
not warrant outright dismissal. A trial to determine who
had rightful custody over the child should be conducted
by the court.
Voluntary Restraint
General Rule: Writ not available if restraint is voluntary
(Kelly v. Director of Prisons, G.R. No. L-20478, March
14, 1923).
Exception: Writ will lie to enable the parents (or person
having substituted parental authority) to recover
custody of a minor child although she is in custody of a
3rd person on her own volition (Tijing v. Court of
Appeals, G.R. No. 125901, March 8, 2001).
Note: Voluntariness is viewed from the point of view of
the person entitled to custody.
When petition for habeas corpus not proper:
1. For asserting or vindicating denial of right to bail;
2.For correcting errors in appreciation of
facts/appreciation of law.
Whether the petition for the writ of habeas corpus
may be properly filed together with the petition
for certiorari and mandamus: The writs of habeas
corpus and certiorari may be ancillary to each other
where necessary to give effect to the supervisory
powers of the higher courts.
Hence, a writ of habeas corpus may be used with the
writ of certiorari for the purpose of review (Galvez v.
Court of Appeals, G.R. No. 114046, October 24, 1994).
WHO MAY GRANT THE WRIT
The RTC, CA, and SC have concurrent jurisdiction to
issue writs of habeas corpus.
The MTC, by virtue of
special jurisdiction under B.P. Blg. 129, can issue the
writ in case there is no available RTC judge.
Hierarchy of courts is not observed.
The writ issued by the RTC is enforceable within its
territorial jurisdiction. While the writ issued by CA or Sc
is enforceable anywhere in the Philippines.
The Sandiganbayan may issue writs of habeas corpus
only if it is in aid of its appellate jurisdiction. This
provision is another exception to the rule that processes
of the Regional Trial Court are enforceable throughout
the Philippines (Regalado, p. 176). Family Courts have
exclusive jurisdiction to issue writs of habeas corpus
involving custody of minors.
The use of habeas corpus, not a petition for mandamus,
to test the legality of an alien’s detention and proposed
because aside from being thorough and complete, it
affords prompt relief from unlawful imprisonment
(Bisschop v. Galang, G.R. No. L-18365, May 31, 1963).
A petition for habeas corpus cannot be granted if the
accused has only served the minimum of his sentence
as he must serve his sentence up to its maximum term
(Office of the Court Administrator v. Judge Perello, A.M.
No. RTJ-05-1953, 24 December 2008).
Scope of effectivity
Collegiate Court RTC
Enforceable throughout Enforceable only within
the their respective judicial
Philippines. region.
Returnable to any court. Returnable only to itself.
REQUISITES FOR APPLICATION
THEREFOR
Who may apply:
1. Party for whose relief it is intended; or
2. Some person on his behalf.
Verified petition must set forth:
1. That the person in whose behalf the application is
made is imprisoned or restrained of his liberty;
2. The name of the person detaining another;
3.The place where he is imprisoned or restrained of his
liberty;
4. The cause of his detention;
5. The verified petition must be signed.
Note: The formalities required for petitions for habeas
corpus must be construed liberally. Strict compliance
with the technical requirements for a habeas corpus
petition may be dispensed with where the allegations in
the application are sufficient to make out a case for
habeas corpus (Fletcher v. Director of Bureau of
Corrections, UDK-14071, July 17, 2009).
WHEN WRIT NOT ALLOWED OR
DISCHARGED AUTHORIZED
(JUCIT)
1. If jurisdiction appears after the writ is allowed;
2. If the person is in the custody of an officer under
process issued by a court or by virtue of a judgment or
order of a court of record which has jurisdiction to issue
the process, render the judgment or make the order;
3. If the person is charged with or convicted of an
offense in the Philippines;
4. If the person is suffering imprisonment under lawful
judgment.
5. Three (3)-day detention of a suspect for three (3)
days without charge (Sec. 18, Ra No. 9372 “Human
Security Act of 2007” to take effect on July 14, 2007).
Supervening events may bar release: Even if the
arrest of a person is illegal, supervening events may bar
release or discharge from custody. What is to be
inquired into is the legality of his detention as of, at the
earliest, the filing of the application for the writ of
habeas corpus, for even if the detention is at its
inception illegal, it may, by reason of some supervening
events such as the instances mentioned in Sec. 4, be no
longer illegal at the time of the filing of the application
(Velasco v. Court of Appeals, G.R.
No. 118644, July 7, 1995).
Note: Posting of bail is not a waiver. Under the Revised
Rules on Criminal Procedure, as application for bail is
not necessarily a bar to challenge the validity of the
arrest
(Sec. 26, Rule 114).

TO WHOM WRIT DIRECTED, AND WHAT
TO REQUIRE
A.In case of imprisonment or restraint by an officer:
1. The writ shall be directed to him;
2.The officer shall produce the body of the person
before the court.
3. State the cause of detention and prove his authority.
B.In case of imprisonment or restraint by a person not
an officer:
1. The writ shall be directed to an officer;
2. The officer shall take and produce the body of the
person before the court;
3. The officer shall summon the person detaining
another to appear before the court to show the cause
of the imprisonment or restraint.
HOW WRIT EXECUTED AND RETURNED
General rule: Officer to whom writ is directed shall
convey the detained person on the day specified in the
writ:
1. Before the judge who allowed the writ;
2. If he is absent, before any judge of the same court.
Exception: If the person to be produced has sickness
or infirmity such that he cannot be brought before the
court without danger.
Officer shall:
1. Convey the person so imprisoned before the judge,
unless from sickness or infirmity, such person cannot,
without danger be brought before the court.
2. Make the return of the writ together with the day and
the cause of caption or restraint.
DEFECT OF FORM
No writ can be disobeyed for defect of form if it
sufficiently states:
1. The person in whose custody or under whose restraint
the party imprisoned or restraint is held; and
2. The court or judge before whom he is to be brought.
PERSON DISCHARGED NOT TO BE
AGAIN IMPRISONED
General Rule: A person who is set at liberty upon a writ
of habeas corpus shall not be again imprisoned for the
same offense.
Exception: He is imprisoned by virtue of lawful order
or process of court having jurisdiction of the offense or
cause.
Whether the State can reserve the power to re-
arrest a person for an offense after a court of
competent jurisdiction has absolved him of the
offense:
Ruling: Such a reservation is repugnant to the principle
that the government is one of laws and not of men.
Under this principle, the moment a person is acquitted
of a criminal charge he can no longer be detained or
rearrested for the same offense (Toyoto v. Ramos, G.R.
No. L-69270 October 15, 1985).
WHEN PRISONER MAY BE REMOVED
FROM ONE CUSTODY TO ANOTHER
1. By legal process;
2. Prisoner is delivered to an inferior officer to carry to
jail;
3. By order of proper court or judge directing that he be
removed from one place to another within the
Philippines for trial;
4. In case of fire, epidemic, insurrection or other
necessity or public calamity.
RULE ON WRIT OF AMPARO
(A.M. No. 07-9-12-SC, September 25,
2007)
Writ of Amparo
A remedy available to any person whose right to life,
liberty and security is violated or threatened with
violation by an unlawful act or omission of a public
official or employee, or of a private individual or entity.
It covers extralegal killings and enforced
disappearances or threats thereof (applicable in pending
cases due to the remedial nature of the writ).
Extralegal Killings
Killings committed without due process of law (e.g.
salvage, summary and arbitrary executions).
Enforced Disappearances
Arrest, detention or abduction of a person by a
government officer or organized groups or private
individuals acting with direct or indirect acquiescence of
the government; refusal of the state to disclose the fate
or whereabouts of the person concerned or refusal to
acknowledge the deprivation of liberty which places
such persons outside the protection of law.
1. Writ of Amparo (“to protect”) – originated in
Mexico;
2.Amparo Libertad – for the protection of personal
freedom equivalent to Habeas Corpus writ;
3.Amparo Contra Leyes – for judicial review of
constitutionality of statutes;
4.Amparo Casacion – for judicial review of
constitutionality and legality of judicial decisions;
5.Amparo Administrativo – for judicial review of
administrative actions; and
6.Amparo Agrario – protection of peasant’s rights
derived from agrarian reform process (Secretary of
National Defense v. Manalo, G.R. No. 180906, October
7, 2008).
Limited to life, liberty and security because there are
other enforced remedies.
Broad enough to encompass both actual and threatened
violation of human rights.
Who may file (order of preference): By the
aggrieved party or by any qualified person or entity in
the following order:
1. Any member of the immediate family, namely: the
spouse, children and parents of the aggrieved party;
2. Any ascendant, descendant or collateral relative of
the aggrieved party within the fourth civil degree of
consanguinity or affinity, in default of those mentioned
in the preceding paragraph; or
3. Any concerned citizen, organization, association or
institution, if there is no known member of the
immediate family or relative of the aggrieved party.
Filing of a petition by the aggrieved party suspends the
right of all other authorized parties to file similar
petitions. Likewise, the filing of the petition by an
authorized party on behalf of the aggrieved party
suspends the right of all others, observing the order
established herein (Sec. 2).
Ratio: 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.
Where to file:
1. Regional Trial Court where the threat, act or omission
was committed or any of its elements occurred;
2. With the Sandiganbayan, Court of Appeals, the
Supreme Court or any justice of such courts.
This writ shall be enforceable anywhere in the
Philippines.
Where returnable; enforceable
1. When issued by the RTC or an judge thereof, the writ
is returnable before such court or judge;
2. When issued by the Sandiganbayan, Court of Appeals
or any of their justices, it may be returnable to such
court or any justice thereof, or to any RTC where the
threat, act or omission was committed or any of its
elements occurred;
3.When issued by the Supreme Court or any of its
justices, it may be returnable to such Court or any
justice thereof, or before the Sandiganbayan or the
Court of Appeals or any of their justices, or to any RTC
in the place where the threat, act or omission was
committed or any of its elements took place (Sec.3).
Note: Due to the extraordinary nature of the writ, which
protects the mother of all rights –the right to life – the
petition may be filed on any day, including Saturdays,
Sundays and holidays; and at any time, from morning
until evening.
No docket fees
Ratio: The enforcement of these sacrosanct rights
should not be frustrated by lack of finances.
Issuance of the Writ: Upon the filing of the petition,
the court, justice or judge shall immediately order the
issuance of the writ if on its face it ought to issue. The
writ shall be served immediately. The writ should set the
date and time for a summary hearing of the petition
which shall not be later than seven (7) days from the
date of its issuance (Sec. 13).
Omnibus waiver rule
The respondent must plead all his defenses in the
return. Failure to do so shall operate as a waiver of such
defenses not therein pleaded (Sec. 10).
Prohibited pleadings and motions
1. Motion to dismiss;
2. Motion for extension of time to file return, opposition,
affidavit, position paper and other pleadings;
3. Dilatory motion for postponement;
4. Motion for a bill of particulars;
5. Counterclaim or cross-claim;
6. Third-party complaint;
7. Reply;
8. Motion to declare respondent in default;
9. Intervention;
10.Memorandum;
11.Motion for reconsideration of interlocutory orders or
interim relief orders; and
12.Petition for certiorari, mandamus or prohibition
against any interlocutory order (Sec. 11).
The filing of motion for new trial and petition for relief
from judgment are allowed because denial of these
remedies may jeopardize the rights of the aggrieved
party. (Annotation to the Writ of Amparo).
Interim reliefs available to petitioner (TIP)
1. 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.
2. 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.
3. 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.
Interim reliefs available to the respondent: Upon
verified motion of the respondent and after due hearing,
the court, justice or judge may issue an inspection
order or production order. A motion for inspection
order shall be supported by affidavits or testimonies of
witnesses having personal knowledge of the defenses of
the respondent.
Burden of proof and standard of diligence
required:
Parties shall establish their claims by substantial
evidence.
If respondent 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.
If a public official or employee, extraordinary
diligence is required.
Presumption of regularity in the performance of official
duty cannot be invoked which is in accord with current
jurisprudence on custodial interrogation and search
warrant cases.
There is no need to show that petitioner has exhausted
prior administrative remedies.
The privilege of the Writ of Amparo should be
distinguished from the actual order called the Writ of
Amparo. The prvilege includes availment of the entire
procedure outlined in AM No. 07-9-12-SC (De Lima v.
Gatdula, G.R. No. 204528, February 19, 2013). writ of
amparo shall not preclude the filing of separate criminal,
civil or administrative actions (Sec. 21).
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 the Rule on the Writ of Amparo shall govern the
disposition of reliefs available under the writ Sec. 22).
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 (Sec. 23).
Doctrine of command responsibility in amparo
proceedings: It would be inappropriate to apply to
these proceedings the doctrine of command
responsibility, as a form of criminal complicity through
omission, for the criminal liability is beyond the reach of
amparo.
It does not determine guilt nor pinpoint criminal
culpability for the disappearance, threats thereof or
extrajudicial killings; it determines responsibility, or at
least accountability, for the enforced disappearance,
threats thereof or extrajudicial killings for purposes of
imposing the appropriate remedies to address the
disappearance or extrajudicial killings.
If command responsibility were to be invoked and
applied to these proceedings, it should, at most, be only
to determine the author who, at the first instance, is
accountable for, and has the duty to address, the
disappearance or harassments complained of, so as to
enable the Court to devise remedial measures that may
be appropriate under the premises to protect rights
covered by the writ of amparo (Rubrico, et al. v.
Macapagal-Arroyo, et al., G.R. No. 183871, February
18, 2010).
Note: The writ of amparo, in its present form, is
confined only to these two instances of “extralegal
killings” and enforced disappearances” (Rev. Fr. Reyes
v. Court of Appeals, et al., G.R. No. 182161, December
3, 2009).
It is not a writ to protect concerns that are purely
property or commercial (Tapuz, et al. v. Judge Del
Rosario, G.R.
No. 182484, June 17, 2008).
RULE ON WRIT OF HABEAS DATA
A.M. No. 08-1-16-SC, January 22, 2008)
(Effectivity: February 2, 2008)
Writ of Habeas Data
A remedy available to any person whose right to
privacy in life, liberty or security is violated or
threatened by an unlawful act or omission of a public
official or employee, or of a private individual or entity
engaged in the gathering, collecting or storing of data
or information regarding the person, family, home and
correspondence of the aggrieved party (Sec. 1).
The writ in general is designed to safeguard individual
freedom from abuse in the information age by means of
an individual complaint presented in a constitutional
court. Specifically, it protects the image, privacy, honor,
information, self determination, and freedom of
information of a person (The Philippine Supreme Court’s
Bulletin, Benchmark Online November 2007).
Habeas data vis-à-vis amparo: Habeas data
essentially allows families of victims of enforced
disappearance to petition the courts to compel
government and security officials to allow access to
documents about the missing person. While amparo
denies state officials the defense of denial with which
they normally evade petitions for habeas corpus that
families of missing persons file, and compels them
instead to exert efforts to find these missing persons
or face sanctions (Festin, p.213).
Note: The writ of habeas data cannot be invoked in
labor disputes where there is no unlawful violation of the
right to life, liberty, or security (Meralco v. Lim, G.R. No.
184769, October 5, 2010).
Habeas data cannot be invoked when respondents in the
petition for issuance of the writ are not gathering,
collecting, or storing data or information (Castillo v.
Cruz, G.R. No. 182165, November 25, 2009).
Who may file: Any aggrieved party may file a petition
for the writ of habeas data. However, in cases of
extralegal killings and enforced disappearances, the
petition may be filed by:
1. Any member of the immediate family of the aggrieved
party, namely: the spouse, children and parents; or
2. 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 (Sec. 2).
Note: Unlike in amparo, human rights organizations or
institutions are no longer allowed to file the petition.
Where to file:
1. Regional Trial Court 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. Supreme Court or the Court of Appeals or the
Sandiganbayan when the action concerns public data
files of government offices (Sec. 3).
Note: The writ of habeas data shall be enforceable
anywhere in the Philippines.
Docket Fees: No docket and other lawful fees shall be
required from an indigent petitioner (Sec. 5).
Note: A petition for a writ of habeas data must be
verified.
Contents of the petition (P-MALRO)
1. Personal circumstances of the petitioner and
respondent;
2. The manner the right of privacy is violated or
threatened;
3.Actions and recourses taken by petitioner to secure
the
date or information;
4. Location of the files, registers or database, the
government office, person in charge, in possession and
control of the data, if known;
5.Reliefs prayed for; and
6.Other relevant reliefs as are just & equitable (Sec. 6).
Defenses available to respondent
1. National security;
2. State secrets;
3. Privileged communications;
4. Confidentiality of the source of information of media
and others (Sec. 12).
Note: Hearing in chambers may be conducted where
the respondent invokes the abovementioned defenses
(Sec.
12).
Prohibited pleadings and motions
1. Motion to dismiss;
2. Motion for extension of time to file return, opposition,
affidavit, position paper and other pleadings;
3. Dilatory motion for postponement;
4. Motion for a bill of particulars;
5. Counterclaim or cross-claim;
6. Third-party complaint;
7. Reply;
8. Motion to declare respondent in default;
9. Intervention;
10.Memorandum;
11.Motion for reconsideration of interlocutory orders or
interim relief orders; and
12.Petition for certiorari, mandamus or prohibition
against
any interlocutory order. (Sec. 13)
Hearing
Summary but the judge may call a preliminary
conference to simplify the issues and determine the
possibility of obtaining stipulations and admissions from
the parties.
When a court may hear the petition in chambers
Where the respondent invokes the defense that:
1. The release of the data or information in question
shall compromise national security or state secrets; or
2. The data or information cannot be divulged to the
public due to its nature or privileged character.
Judgment: Court to render judgment within ten (10)
days from the time the petition is submitted for decision.
If the allegations in the petition are proven by
substantial evidence, the court shall enjoin the act
complained of, or order the deletion, destruction, or
rectification of the erroneous data or information and
grant other relevant
reliefs as may be just and equitable otherwise, the
privilege of the writ shall be denied.
Upon its finality, judgment enforced within five (5)
working days.
Grant of the writ vs. Grant of the privilege of the
writ:
The grant of the writ refers to the decision of the court
to give due course to the petition, require respondents
to file their return and set the petition for hearing. The
grant of the privilege of the writ means that the
petition is found meritorious, the prayers therein are
granted and the petitioner is granted the relief sought.
RULE 108
CANCELATION OR CORRECTION
OF ENTRIES IN THE CIVIL
REGISTRY
Procedure for cancellation or
correction of entries
under Rule 108
Petition for Cancellation or Correction of any
entry relating to an act, event order or decree
concerning the civil status
Court order fixing the date and place for Hearing
Publication of the court order at least once a week for
3 successive weeks in a newspaper of general
circulation, with reasonable notice given to persons
named in the petition
Filing of opposition by the civil registrar and any
person
having/claiming interest under the entry whose
cancellation/correction is sought, within 15 days from
notice of the petition or from the last date of
publication
of the notice
Hearing on the petition
Judgment granting/denying the petition. Copy of
the judgment shall be served upon the civil
registrar, who shall annotate the same
WHO MAY FILE PETITION
Any person interested in any act, event, order or decree
concerning the civil status of persons recorded in the
civil registry.
Where filed: RTC of the province where the
corresponding civil registrar is located.
Proceedings under Rule 108 may be summary or
adversarial:
1. Summary – when the correction sought to be made
is a mere clerical error (now governed by R.A. No.
9048).
2. Adversarial - where the rectification affects civil
status, citizenship or nationality of a party or any other
substantial change.
Requisites of adversarial proceedings
1. Petition is filed before the court having jurisdiction
over the impleaded civil registrar and all interested
parties;
(Sec.3)
2. The order of the hearing must be published once a
week for three consecutive weeks;
3. Notice thereof must be given to the Civil Registrar
and all parties affected thereby;
4. The civil registrar and any person having or claiming
any interest under the entry whose cancellation or
correction is sought may, within 15 days from notice of
the petition or from the last date of publication of such
notice, file his opposition thereto;
5. Full blown trial.
Proceedings for the correction of entries should not be
considered as establishing one’s status in a manner
conclusively beyond dispute. The status corrected would
not have a superior quality for evidentiary purposes.
There is no increase or diminution of substantive right
(Chiao Ben Lim v. Zosa, G.R. No. L- 40252, December
29, 1986).
SECTION 2. ENTRIES SUBJECT TO CANCELLATION
OR CORRECTION
(BMD LAVLAA- NEC JVC)
1.Births;
2.Marriages;
3.Deaths;
4. Legal separations;
5. Judgments of annulments of marriage;
6. Judgments declaring marriages void from the
beginning;
7. Legitimations;
8.Adoptions;
9.Acknowledgments of natural children;
10.Naturalization;
11.Election, loss or recovery of citizenship;
12.Civil interdiction;
13.Judicial determination of filiation;
14.Voluntary emancipation of a minor;
15.Change of name.
Even substantial errors in a civil registry may be
corrected and the true facts established provided the
parties aggrieved by the error avail themselves of the
appropriate adversary proceedings (Republic of the
Philippines v. Valencia, G.R. No. L-32181, March 5,
1986).
Adversarial proceeding
One that has opposing parties; contested as
distinguished from an ex parte application, one of which
the party seeking relief has given legal warning to the
other party, and afforded the latter an opportunity to
contest it (Republic v. Valencia, supra).
Rule 108, when all the procedural requirements
thereunder are followed, is the appropriate adversary
proceeding to effect substantial correction and changes
in entries of the civil register (Lee v. Court of Appeals,
G.R. No. L-118387, Oct. 11, 2001).
Whether a petition under Rule 108 can be granted
by reason of “sex change” or “sec reassignment”:
No. Since the statutory language of the Civil Register
Law was enacted in the early 1900s and remains
unchanged, it cannot be argued that the terms “sex” as
used then is
something alterable through surgery or something that
allows a post-operative male-to-female transsexual to
be included in the category of “female” (Silverio v.
Republic of the Philippines, G.R. No. 174689, October
22, 2007).
Congenital Adrenal Hyperplasia (CAH)
This condition causes the early or “inappropriate”
appearance of male characteristics. x x x. CAH is one of
many conditions that involves intersex anatomy. During
the twentieth century, medicine adopted the term
“intersexuality” to apply to human beings who cannot
be classified as either male or female. The term is now
of widespread use. According to Wikipedia,
intersexuality “is the state of a living thing of a
gonochoristic species whose sex chromosomes,
genitalia, and/or secondary sex characteristics are
determined to be neither exclusively male nor female.
An organism with intersex may have biological
characteristics of both male and female sexes” (Republic
of the Philippines v. Jennifer Cagandahan, G.R.
No. 166676, September 12, 2008).
Principles laid down by the SC in Republic of the
Philippines v. Cagandahan:
1. Where the person is biologically or naturally intersex,
the determining factor in his gender classification would
be what the individual, having reached the age of
majority, with good reason thinks of his/her sex; sexual
development in cases of intersex persons makes the
gender classification at birth inconclusive – it is at
maturity that the gender of such persons is fixed.
2. To the person with CAH belongs the human right to
the pursuit of happiness and of health, and to him
should belong the primordial choice of what courses of
action to take along the path of his sexual development
and maturation.
3. There is merit in the change of name of a person with
CAH where the same is the consequence of the
recognition of his preferred gender.
PARTIES
1. Civil registrar;
2. All persons who have or claim any interest which
would be affected thereby.
NOTICE AND PUBLICATION
Order of hearing shall be published once a week for 3
consecutive weeks in a newspaper of general circulation
in the province and all persons named in the petition
shall be notified.
OPPOSITION
The following are entitled to oppose the petition:
1. The Civil Registrar; and
2.Any person having or claiming any interest under the
entry whose cancellation or correction is sought.
EXPEDITING PROCEEDINGS
The court may also grant preliminary injunction for the
preservation of the rights of the parties pending such
proceedings.