REMEDIAL LAW REVIEWER

227

2012 UP LAW
BAR REVIEWER
REMEDIAL
Special Proceedings LAW
REMEDIAL LAW TEAM 2012
BAR OPERATIONS COMMISSION 2012
Subject Head | Eden Mopia

EXECUTIVE COMMITTEE SpecPro Subject Head |

Ramon Carlo Marcaida |Commissioner Margeline Carrasco
Raymond Velasco • Mara Kriska Chen |Deputy Commissioners Contributors | Cyril Arnesto •
Barbie Kaye Perez |Secretary
Carmen Cecilia Veneracion |Treasurer Kristine Camille Umali
Hazel Angeline Abenoja|Auditor
LAYOUT TEAM 2012
COMMITTEE HEADS Layout Artists | Alyanna
Eleanor Balaquiao • Mark Xavier Oyales | Acads Apacible • Noel Luciano • RM
Monique Morales • Katleya Kate Belderol • Kathleen Mae Tuason (D) • Rachel Meneses • Jenin Velasquez •
Miranda (D) |Special Lectures Mara Villegas • Naomi
Patricia Madarang • Marinella Felizmenio |Secretariat Quimpo • Leslie Octaviano •
Victoria Caranay |Publicity and Promotions
Loraine Saguinsin • Ma. Luz Baldueza |Marketing
Yas Refran • Cris Bernardino
Benjamin Joseph Geronimo • Jose Lacas |Logistics
Layout Head| Graciello
Angelo Bernard Ngo • Annalee Toda|HR
Timothy Reyes
Anne Janelle Yu • Alyssa Carmelli Castillo |Merchandise
Graciello Timothy Reyes |Layout
Charmaine Sto. Domingo • Katrina Maniquis |Mock Bar
Krizel Malabanan • Karren de Chavez |Bar Candidates’ Welfare
Karina Kirstie Paola Ayco • Ma. Ara Garcia |Events

OPERATIONS HEADS
Charles Icasiano • Katrina Rivera |Hotel Operations
Marijo Alcala • Marian Salanguit |Day-Operations
Jauhari Azis |Night-Operations
Vivienne Villanueva • Charlaine Latorre |Food
Kris Francisco Rimban • Elvin Salindo |Transpo
Paula Plaza |Linkages

UP LAW BAR OPERATIONS COMMISSION

 REMEDIAL LAW REVIEWER

strictly applicable to orders in special

228
Special Proceedings proceedings. Rule 109 specifies the orders from
which appeals may be taken (Regalado).
REMEDIAL LAW  Rule 33 regarding judgment on demurrer to
Criminal Procedure Preliminary Matters evidence is applicable to special proceedings
Civil Procedure [Matute v. CA (1969)].
Evidence I. Settlement of estate of deceased
Special Proceedings Subject Matter and Applicability of General Rules
persons, venue and process Rules of special proceedings are provided for in the
II. Summary settlement of estates following cases:
III. Production and probate of will (1) Settlement of estate of deceased persons
IV. Allowance or disallowance of (2) Escheat
will (3) Guardianship and custody of children
V. Letters testamentary and of (4) Trustees
administration (5) Adoption
(6) Rescission and revocation of adoption
VI. Claims against the estate
(7) Hospitalization of insane persons
VII. Actions by and against executors (8) Habeas corpus
and administrators (9) Change of name
VIII. Distribution and partition (10) Voluntary dissolution of corporations
IX. Trustees (11) Judicial approval of voluntary recognition of
X. Escheat minor natural children
XI. Guardianship (12) Constitution of family home
XII. Adoption (13) Declaration of absence and death
XIII. Writ of habeas corpus (14) Cancellation of correction of entries in the civil
registry.
XIV. Writ of Amparo (A.M. No. 07-9-
12-SC) In the absence of special provisions, the rules
XV. Change of name provided for in ordinary actions shall be, as far as
XVI. Absentees practicable, applicable in special proceedings.
XVII. Cancellation or correction of
entries in the civil registry Difference Between Action and Special Proceeding
XVIII. Appeals in special proceeding
Ordinary Action Special Proceeding
To protect/enforce a To establish a
PRELIMINARY MATTERS right or prevent/ right/status/fact
redress a wrong
Special proceedings: A remedy by which a party Involves 2 or more May involve only 1 party
seeks to establish a status, right or a particular fact parties
(Rule 1, Sec. 3(c)). Governed by ordinary Governed by special
rules supplemented by rules, supplemented by
Applicable rules special rules ordinary rules
 If special rules are provided, they shall apply. Initiated by pleading, Initiated by petition,
But in the absence of such special provisions, and parties respond parties respond through
the rules applicable in special proceedings shall through an answer an opposition
be applied (Rule 72, Sec. 2).
 There are special proceedings which are not Action - formal demand of one‘s right in a court of
part of the ROC (e.g. Writs of amparo and justice in the manner prescribed by the court or by
habeas data). the law (Herrera).
 The State has an overriding interest in each
special proceeding, and the matter is not a Special proceeding - application or proceeding to
controversy between private parties purely establish the status or right of a party, or particular
(Bautista). fact. No formal pleadings are required, unless the
 The distinction between final and interlocutory statute expressly so provides (Herrera).
orders in civil actions for purposes of
determining the issue of applicability is not
 REMEDIAL LAW REVIEWER

Venues and Jurisdictions for Special Proceedings

Special Proceeding Venue Jurisdiction
Settlement of the Estate Residence of the decedent MTC if gross value of the
229
of a Deceased Person If non-resident, place where he had an estate estate does not exceed
P300,000, or does not
exceed P400,000 in
Metro Manila
otherwise, RTC
Escheat Person dies intestate leaving no heir – Residence of the RTC
decedent or if non-resident, place where he had estate
Reversion – where land lies in whole or in part RTC
Unclaimed Balances Act – where deposits are located RTC
Appointment of Where minor resides Family Court
Guardians Where incompetent resides RTC
Appointment of Trustees Where will was allowed or RTC
Where the property or portion thereof affected by the
trust is situated
Adoption Domestic – where adopter resides Family Court
Inter-country Adoption – ICAB or, where adoptee resides ICAB or Family Court
if filed with the Family Court
Rescission of Adoption Where adoptee resides Family Court
Habeas Corpus If filed with RTC, where detainee is detained SC, CA, RTC, MTC in the
province or city in case
there is no RTC judge
Sandiganbayan, only in
aid of its appellate
jurisdiction
For the custody of minors, where petitioner resides or Family Court, CA, SC
where minor may be found
Habeas Data Where the petitioner or respondent resides, or that which RTC generally
has jurisdiction over the place where the data or If concerning public data
information is gathered, collected, or stored, at the files or government
option of the petitioner offices, SC, CA or
Sandigabayan
Amparo Where the threat, act or omission was committed or any RTC, Sandiganbayan, CA,
of its elements occurred SC or any justice thereof
Change of Name Judicial - where petitioner resides RTC
Administrative: Local Civil Registry/
 Local civil registry where the record sought to be Philippine consulate
changed is kept
 Local civil registry of the place of residence of the
interested party (only if petitioner migrated to
another place in the Philippines and it is impractical
to file where records sought to be changed are kept)
 Philippine consulates only for non-resident citizen
Appointment of Where Absentee resides before his disappearance RTC
Representative of
Absentee/ Declaration of
Absence
Cancellation / Correction Judicial - Where corresponding civil registry is located RTC
of Entries in Civil Administrative - Same as change of name Local Civil Registry/
Registries Philippine consulate
Petition for declaration Where petitioner or respondent has been residing for at Family Court
of nullity, annulment, least 6 months prior to the date of filing
legal separation If non-resident petitioner, where he may be found at the
election of the petitioner
 REMEDIAL LAW REVIEWER

I. SETTLEMENT OF ESTATE OF property, not by virtue of any right of inheritance

from the deceased but by title adverse to that of the
230 DECEASED PERSONS, VENUE AND deceased and his estate, such questions cannot be
determined in the courts of administration
PROCESS proceedings. It must be settled in a separate action.
A. Which court has jurisdiction
B. Venue in judicial settlement of estate Exceptions:
C. Extent of jurisdiction of Probate Court (1) Probate court may pass judgment upon the title
but such determination is provisional, not
D. Powers and Duties of Probate Court
conclusive, and is subject to final decision; or
(2) With consent of all the parties, without
A. Which court has jurisdiction prejudice to third persons [Trinidad v. CA
(1991)]
Decedent Venue
Inhabitant of the RTC of the province in D. Powers and Duties of Probate
Philippines at time of which he resides
death (citizen/alien)
Court
Inhabitant of foreign RTC of any province in
country which he had estate Dariano vs. Fernandez Fidalgo (1909): It is the
duty of courts of probate jurisdiction to guard
jealously the estates of the deceased person by
Jurisdiction: court first taking cognizance shall
intervening in the administration thereof in order to
exercise jurisdiction to the exclusion of all other
remedy or repair any injury that may be done
courts. [Sec. 1, Rule 73]
thereto
General Rule: The jurisdiction assumed by a court,
In Re: Baldomero Cosme (1937: There seems,
so far as it depends on the place of residence of the
however, to be a general tendency, in the absence
decedent, or of the location of his estate, shall not
of express and specific restrictions to the contrary,
be contested in a suit or proceeding,
to uphold the exercise by the probate court of such
incidental powers as are, within the purview of their
Exceptions:
grant of authority, reasonably necessary to enable
(1) In an appeal from that court, in the original
them to accomplish the objects for which they were
case, OR
invested with jurisdiction and to perfect the same.
(2) When the want of jurisdiction appears on the
record.

Jurisdiction of RTCs II. SUMMARY SETTLEMENT OF

When the value of the estate exceeds P300,000 or
P400,000 in Metro Manila. ESTATES
A. Extrajudicial settlement by agreement
Jurisdiction of MTCs between heirs, when allowed
When the value of the estate does not exceed B. Two-year prescriptive period
P300,000 or P400,000 in Metro Manila.
C. Affidavit of Self-adjudication by sole heir
D. Summary settlement of estates of small
B. Venue in judicial settlement of value, when allowed
estate E. Remedies of aggrieved parties after extra-
judicial settlement of estate
Rule 73 relates to venue and not to jurisdiction
The place of residence of the deceased in
settlement of estates, probate of will, and issuance Extrajudicial Summary Settlement
of letters of administration does not constitute an Settlement
element of jurisdiction over the subject matter. It is No will (intestate) Will may or may not
only constitutive of venue. exist (intestate/testate)
No debts Debts may or may not
Meaning of term ―resides‖ exist
Resides - in the section is viewed in its popular Gross value of estate Gross value of estate
sense, meaning, the personal, actual or physical may exceed P10,000 may not exceed P10,000
habitation of a person, actual residence of place of
abode. [Garcia Fule v. CA (1976)] A. Extrajudicial settlement
by agreement between
C. Extent of jurisdiction of
heirs, when allowed
Probate Court
Requisites
Probate court is of limited jurisdiction (1) No will
General rule: When questions arise as to ownership (2) No debts OR the heirs have already paid such at
of property alleged to be part of the estate of the the time of partition
deceased but claimed by some other person to be his
 REMEDIAL LAW REVIEWER

(3) Heirs are all of age or the minors are Sec. 1, Rule 74 does not preclude the heirs from
represented by their judicial or legal instituting administration proceedings, even if the
representatives estate has no debts or obligations, if they do not
desire to resort for good reasons to an ordinary 231
Procedure action for partition. While Sec. 1 allows the heirs to
Death of the decedent divide the estate among themselves as they may see
 fit, or to resort to an ordinary action for partition,
Division of estate in public instrument or affidavit of the said provision does not compel them to do as if
adjudication they have good reasons to take a different course of
 action. [Pereira v CA (1989)]
Filing of the public instrument or affidavit of
adjudication with the proper Registry of Deeds B. Two-year prescriptive
 period
Publication of notice of the fact of extrajudicial
settlement once a week for 3 consecutive weeks in a Claim by creditors and deprived heirs must be filed
newspaper of general circulation within 2 years from the time of distribution/
 publication.
Filing of bond equivalent to the value of personal
property Presumption of no debts
It shall be presumed that the decedent left no debts
If there is no The parties may divide the estate if no creditor files a petition for letters of
disagreement among themselves by means of a administration within 2 years after the death of the
between the public instrument filed in the decedent. [Sec. 4, Rule 74]
heirs office of register of deeds.
If there is They may divide the estate in an C. Affidavit of Self-
disagreement ordinary action of partition.
adjudication by sole heir
He may adjudicate to himself the
If only one entire estate by means of an
If there is only one heir, he may adjudicate to
heir affidavit filed in the Registrar of
himself the entire estate by means of an affidavit
Deeds.
filed in the office of register of deeds.
Bond Requirement
Bond Requirement
File a bond equal to the value of the personal
File a bond equal to the value of the personal
property involved as certified to under oath by the
property involved as certified to under oath by the
parties, conditioned upon the payment of any just
parties, conditioned upon the payment of any just
claim that may be filed of deprived heirs and
claim that may be filed
creditors. [Sec. 1, Rule 74]

Publication D. Summary settlement of

Fact of the extrajudicial settlement shall be estates of small value,
published in a newspaper of general circulation 3 when allowed
times a week, once each week. [Sec. 1, Rule 74]
This shall be applicable to testate or intestate
Not binding on any person who:
proceedings.
(1) Has not participated in the extrajudicial
settlement; or
When Allowed
(2) Had no notice thereof. [Sec. 1, Rule 74]
(1) Gross value of estate: x < P300,000 outside
Metro Manila and x < 400,000 in Metro Manila
Validity of oral partition
(2) Fact is made to appear to the RTC
Such is VALID, because there is no law that requires
(3) Through petition of an interested person
partition among heirs to be in writing to be valid.
(4) Upon hearing
[Pada Kilario v. CA (2000)]
 Held not less than 1 month nor more than 3
months
Requirement under Rule 74.1 is merely for the
 Counted from the date of the last publication
protection of creditors and the heirs themselves
of a notice
against tardy claims. Where there are no creditors,
(5) Notice
the requirements no longer apply.
 Which shall be published once a week for 3
consecutive weeks
Validity of compromise agreement
 In a newspaper of general circulation in the
Such is VALID, binding upon the parties as
province
individuals, upon the perfection of the contract,
 It is not required that publication be for a
even without previous authority of the court to enter
complete 21 days. What is required is that it
into such agreement.
be published for once a week for 3
consecutive weeks.
No preclusion from instituting administration
proceedings
 REMEDIAL LAW REVIEWER

(6) Notice to interested persons as the court may If it shall appear within 2 years after the summary
direct. settlement and distribution that there is an heir or
232 other person who
Upon fulfillment of the requisites, the court may (1) has been unduly deprived of his lawful
proceed summarily without the appointment of an participation in the estate:
executor/administrator and without delay,  He shall have a right to compel the
settlement of the estate in the courts for
(7) to grant, if proper, allowance of the will, if any the purpose of satisfying such lawful
there be participation
(8) to determine who are persons legally entitled to (2) has been unduly deprived of his lawful
participate in the estate participation payable in money: The court
(9) to apportion and divide among them after the having jurisdiction of the estate may, by order
payment of such debts of the estate for that purpose, after hearing,
(10) persons in own right if of lawful age, or their  settle the amount of such debts or lawful
guardians, will be entitled to receive and enter participation, and
into possession of the portions of the estate so  order how much and in what manner each
awarded to them respectively distributee shall contribute in the payment
thereof, and
Procedure  may issue execution, if circumstances
require, against the bond provided in the
Death of the decedent preceding section or against the real estate
 belonging to the deceased, or both.
Application for summary settlement with an
allegation that the gross value of the estate does not Such bond and real estate shall remain charged with
exceed P10K a liability to creditor, heirs or other persons for the
 full period of 2 years after such distribution,
Publication of notice of the fact of extrajudicial notwithstanding any transfers of real estate that
settlement once a week for 3 consecutive weeks in a may have been made.
newspaper of general circulation (the court may also
order notice to be given to other persons as such Heir/person deprived of Heir/person deprived of
court may direct) lawful participation in lawful participation in
estate PAYABLE IN MONEY

Hearing to be held not less than 1 month nor more REMEDY within 2 yr. REMEDY within 2 yr.
than 3 months from the date of the last publication period: May compel the period: court may order
of notice settlement of the estate after hearing, the
in the courts in the settlement of the debt

manner hereinafter or lawful participation
Court to proceed summarily, without appointing an
provided for the purpose and order how much and
executor/administrator (executor/administrator),
of satisfying such lawful in what manner each
and to make orders as may be necessary
participation. distribute shall
 contribute in the
Grant allowance of the will, if any payment thereof and
 may issue execution,
Determine persons entitled to estate (1) against bond, or
 (2) against the real
Pay debts of estate which are due estate belonging to
 the deceased, or
Filing of bond fixed by the court (3) both.
 [Sec. 4, Rule 74].
Partition of estate
Period for Claim of Minor or Incapacitated Person
Notes: There is no requirement regarding the lack of If on the date of the expiration of the period of 2
debts (unlike extrajudicial partition) in summary years prescribed in the preceding section the person
settlement of estates of small value since the court authorized to file a claim is:
will make provisions for such in its resolution of the (1) a minor or mentally incapacitated, or is in
proceedings. prison or
(2) outside the Philippines,
E. Remedies of aggrieved he may present his claim within 1 year after such
parties after extra- disability is removed.
judicial settlement of
Duty of the court
estate (1) Hear the case
(2) Settle the amount
Two-Year Period for Liability of Distributees and (3) Order how much and in what manner each
Estate for Claims of Deprived Heirs or Unpaid distribute shall contribute in the payment
Creditors thereof

(4) If circumstances require, issue execution against
the bond, or the real estate belonging to the
deceased, or both
Bond and real estate remain charged
Bond charged with a liability to creditors, heirs, or
other persons for the full period of 2 years after such
distribution, notwithstanding any transfers of real
estate that may have been made
Rule not applicable:
(1) To persons who have participated or taken part
or had notice of the extrajudicial partition
(2) When the provisions of Sec. 1 of Rule 74 have
been strictly complied with (all persons or heirs
of the decedent have taken part in the
extrajudicial settlement or are represented by
themselves or through guardians)
This is only a Bar against the parties who had
taken part in the extrajudicial proceedings, but
not against third persons not parties thereto
Action to Annul a Deed of Extrajudicial
Partition
Prescriptive period
Action to annul a deed of extrajudicial settlement
upon the ground of fraud may be filed within 4 years
from the discovery of the fraud (deemed to have
taken place when said instrument was filed with the
Register of Deeds and new certificates of title were
issued in the name of respondents respectively).
HOWEVER in Amerol v. Bagumbaran (1987), the
Court applied the New Civil Code. Under Article 1144
(NCC), the following actions must be brought within
10 years from the time the right of action accrues:
(1) upon a written contract (2) upon an obligation
created by law (3) upon a judgment.
Since implied or constructive trusts are obligations
created by law, then the prescriptive period to
enforce the same prescribes in 10 years. Thus, an
action for reconveyance based on an implied or
constructive trust must perforce prescribe in 10
years and not otherwise.
Exception
Prescriptive period for the filling of the action for
reconveyance based on implied trust should be
reckoned from the actual discovery of the fraud
where the registration where there was bad faith in
securing the certificates of titles and, is therefore a
holder of the said certificate in bad faith. The
Torrens title does not furnish a shield for fraud.
III. PRODUCTION AND PROBATE
OF WILL
A. Nature of probate proceeding
B. Who may petition for probate; persons
entitled to notice
REMEDIAL LAW REVIEWER
A. Nature of probate
proceeding
233
General Rule: A probate proceeding only looks at
extrinsic validity and not intrinsic validity. Probate
is merely the determination of whether or not the
testator, being of sound mind, freely executed the
will in accordance with the formalities prescribed by
law
Exception: Under exceptional circumstances, the
probate court is not powerless to do what the
situation constrains it to do and pass upon certain
provisions of the will. It may pass upon the intrinsic
validity of the will because there is apparent defect
in its face – this is also known as the principle of
practical consideration [Nepomuceno v CA (1985)].
(Ex. When on the face of the will the petitioner
appears to be preterited)
But the remedy of certiorari is available, where the
grounds for dismissal are indubitable (e.g. grave
abuse of discretion of the judge when there is
clearly preterition and the said judge still continues
the probate proceedings)
Decree of probate is conclusive as to its due
execution, subject to the right of appeal
Suit for forgery of a will, which has been duly
probated and such order becoming final, Bars such
suit because the will is conclusively deemed as duly
executed.
Rodelas v Aranza (1982):
General Rule: If a holographic will has been lost or
destroyed and no other copy is available, the will
cannot be probated because the best and only
evidence is the handwriting of the testator in said
will.
Exception: A photostatic copy or Xerox of the
holographic will may be allowed because comparison
can be made with the standard writings of the
testator.
B. Who may petition for
probate; persons entitled
to notice
Petitioner for the allowance of the will
(1) Executor
(2) Devisee
(3) legatee
(4) other person interested in the estate
(5) testator himself, during his lifetime
Meaning of interest in estate
In order that a person may be allowed to intervene
in a probate proceeding he must have an interest in
the estate, or in the will, or in the property to be
affected by it either as executor or as a claimant of
the estate and an interested party is one who would
be benefited by the estate such as an heir or one
who has claim against the estate like a creditor.
 REMEDIAL LAW REVIEWER
Jurisdiction, how acquired
234 (1) Attaching a mere copy of will or
(2) Delivery of will, even if no petition is filed or
(3) Filing of the original petition and compliance
with Sec 3-4 Rule 76.
IV. ALLOWANCE OR
DISALLOWANCE OF WILL
A. Contents of petition for allowance of will
B. Grounds for disallowing a will
C. Reprobate; Requisites before will proved
outside allowed in the Philippines; effects
of probate
A. Contents of petition for
allowance of will
(1) Jurisdictional facts
(a) Death of the decedent
(b) Residence at the time of death in the
province where the probate court is sitting
(c) Or if he is an inhabitant of a foreign
country, his leaving his estate in such
province
(2) Names, ages, and residences of the heirs,
legatees, and devisees of the testator or
decedent
(3) Probable value and character of the property of
the estate
(4) Name of the person for whom letters are prayed
(5) If the will has not been delivered to the court,
the name of the person having custody of it.
Defect in petition
Defect in petition will not void the allowance of the
will, or the issuance of letters testamentary or of
administration with the will annexed.
B. Grounds for disallowing a will
(1) If not executed and attested as required by law
(2) If the testator was insane, or otherwise mentally
incapable to make a will, at the time of its
execution
(3) If executed under duress, or the influence of
fear, or threats
(4) If procured by undue and improper pressure and
influence, on the part of the beneficiary, or of
some other person for his benefit
(5) If the signature of the testator was procured by
fraud or trick, and he did not intend that the
instrument should be his will at the time of
fixing his signature thereto
Note: The grounds for disallowance of will are
exclusive.
C. Reprobate; Requisites before
will proved outside allowed in
the Philippines; effects of
probate
Reprobate
Wills proved and allowed in a foreign country,
according to the laws of such country, may be
allowed, filed, and recorded by the proper Court of
First Instance in the Philippines.
Requisites for Allowance
(1) Copy of the will
(2) Order or decree of the allowance in foreign
country
(3) Filed with a petition for allowance in the
Philippines by executor or other person
interested
(4) Court shall fix a time and place for the hearing
(5) Cause notice thereof to be given as in case of an
original will presented for allowance.
Effect
The will shall have the same effect as originally
proven and allowed by such court
V. ALLOWANCE OR
DISALLOWANCE OF WILL
A. When and To whom letters of
administration granted
B. Order of preference
C. Opposition to issuance of letters
testamentary; simultaneous filing of
petition for administration
D. Powers and duties of Executors and
Administrators; restrictions on the powers
E. Appointment of Special Administrator
F. Grounds for removal of administrator
A. When and To whom
letters of
administration granted
When Granted
(1) No executor named or
(2) Executor or executors are incompetent, refuse
the trust, or fail to give bond or
(3) Or person dies intestate.
To Whom Granted
Discretionary upon the probate court
B. Order of preference
Order of preference in the grant of administration
(1) Surviving spouse or next of kin, or both, or to
such person as the surviving spouse, or next of
kin requests to have appointed, if competent
and willing to serve.
(2) If those in (a) be incompetent or unwilling, or if
the husband or widow, or next of kin, neglects
for 30 days after the death of the person to
apply for administration or to request that
administration be granted to some other person,
it may be granted to one or more of the
principal creditors, if competent and willing to
serve.

(3) If there is no (b), it may be granted to such
other person as the court may select.
Reason for order of preference
Those who would reap the benefit of a wise, speedy
and economical administration of the estate, or, on
the other hand, suffer the consequences of waste,
improvidence or mismanagement, have the highest
interest and most influential motive to administer
the estate correctly.
Mere failure to apply for letters of administration
does not remove preference.
Order of Preference NOT Absolute
A probate court cannot arbitrarily disregard the
preferential rights of the surviving spouse to the
administration of the estate of a deceased person
but if the person enjoying such preferential rights is
unsuitable the court may appoint another person.
[Silverio v. CA (2007)]
The order of preference is not absolute for it
depends on the attendant facts and circumstances of
each case. The selection of an administrator lies in
the sound discretion of the trial court. [In Re Suntay
(2007)]
30-day period may be waived
Just as the order of preference is not absolute and
may be disregarded for valid cause, so may the 30-
day period be likewise waived under the permissive
tone in paragraph (b) of said rule which merely
provides that said letters as an alternative, ―may be
granted to one or more of the principal creditors.‖
Co-administrators may be appointed.
Court may reject order of preference when
circumstances warrant.
C. Opposition to issuance
of letters testamentary;
simultaneous filing of
petition for
administration
Opposition to issuance of letters
testamentary
Who may oppose: Any person interested in will
Form required: State in writing the grounds why
letter should not issue; the court shall then hear and
pass upon sufficiency of such grounds.
Simultaneous filing of Opposition and Petition: A
petition may, at the same time, be filed for letters
of administration with the will annexed.
Lack of interest in the proceedings is equal to lack of
legal capacity to institute proceedings.
Opposition to petition for letters
administration
Grounds
REMEDIAL LAW REVIEWER
(1) Incompetency of the person for whom letters
are prayed, or
(2) Contestant‘s own right to the administration
235
Simultaneous Filing of Letters
He may pray that letters issue to himself, or to any
competent person or person named in the
opposition.
D. Powers and duties of
Executors and
Administrators;
restrictions on the
powers
General Powers and Duties of
Executors and Administrators
1. Executor or Administrator to Have
Access to Partnership Books and
Property at All Times
(a) Have access to, and may examine and take
copies of, books and papers relating to the
partnership business,
(b) Examine and make invoices of the property
belonging to such partnership
(c) The surviving partner or partners, on request,
shall exhibit to him all such books, papers, and
property in their hands or control.
Court‘s duty: order any such surviving partner or
partners to freely permit the exercise of the rights,
and to exhibit the books, papers, and property, as in
this section provided, and may punish any partner
failing to do so for contempt.
2. Keep Buildings in Tenantable
Repair
(a) Houses and other structures and fences
belonging to the estate, and
(b) Deliver the same in such repair to the heirs or
devisees when directed so to do by the court.
3. Right to Possession and
Management of the Real and
Personal Properties
(a) So long as it is necessary for the payment of the
debts and the expenses of administration
(b) Administrator cannot exercise the right of legal
redemption over a portion of the property
owned in common sold by one of the other co-
owners since this is not within the powers of
administrator.
Note: When the estate of a deceased is already
subject of a testate or intestate proceeding, the
administrator cannot enter into any transaction
of involving it without any prior approval of the Court.
 REMEDIAL LAW REVIEWER
The right of an executor/administrator to the
possession and management of the real and personal
236 properties of the deceased is not absolute and can
only be exercised so long as it is necessary for the
payment of the debts and expenses of administration
Restrictions on Powers of Executors
and Administrators
1. Executor or Administrator
Chargeable with all Estate and
Income
Chargeable in his account with the whole of the
estate which has come into his possession, at the
value of the appraisement contained in the
inventory:
(a) With all the interest,
(b) Profit
(c) Income of such estate and
(d) With the proceeds of as much of the estate as is
sold by him, at the price at which it was sold.
2. Prohibited from Profiting by
Increase or Losing by Decrease in
Value
(a) No executor/administrator shall profit by the
increase, or suffer loss by the decrease or
destruction, without his fault, of any part of the
estate
(b) Account for the excess (when sold for more)
(c) If sold for less, not responsible for loss, if in
good faith
(d) If settled claim for less - He is entitled to
charge in his account only the amount he
actually paid on the settlement
(e) Not accountable For debts due the deceased
which remain uncollected without his fault
3. Accountable for Income from
Realty Used by Him
If the executor/administrator uses or occupies any
part of the real estate himself, he shall account for
it as may be agreed upon between him and the
parties interested, or adjusted by the court with
their assent and if the parties do not agree upon the
sum to be allowed, the same may be ascertained by
the court, whose determination in this respect shall
be final
4. Accountable if He Neglects or
Delays to Raise or Pay Money
(a) Neglects or unreasonably delays to raise money,
by collecting the debts or selling the real or
personal estate of the deceased, or
(b) Neglects to pay over the money he has in his
hands, and the value of the estate is thereby
lessened or unnecessary cost or interest
accrues, or the persons interested suffer loss.
(c) Executor‘s/administrator‘s responsibility for
damages incurred cannot be shifted to the
intestate estate.
5. Only Necessary Expenses shall be
allowed
(a) The amount paid by an executor/administrator
for costs awarded against him shall be allowed
in his administration account
(b) Unless it appears that the action or proceeding
in which the costs are taxed was prosecuted or
resisted without just cause, and not in good
faith.
(c) Administrator may not recover attorney‘s fees
from estate
Necessary expenses: Such expenses as are entailed
for the preservation and productivity of the estate
and for its management for purpose of liquidation,
payment of debts, and distribution of the residue
among persons entitled thereto
6. Executor or Administrator to
Render Account
Accounting
- Within 1 year from the time of receiving letters
testamentary or of administration
- Unless the court otherwise directs because of
extensions of time for presenting claims against,
or paying the debts of, the estate, or for disposing
of the estate
Further accounts - If court requires
- The rendering of an accounting by an
administrator of his administration within 1 year
from his appointment is mandatory. The only
exception is when the court otherwise directs
because of extensions of time for presenting
claims against the estate or for paying the debts
or disposing the assets of the estate
- The fact that the heirs of the estate have entered
into an extrajudicial settlement and partition in
order to put an end to their differences cannot in
any way be interpreted as a waiver of the
objections of the heirs to the accounts submitted
by the administrator not only because to so hold
would be a derogation of the pertinent rules but
also because there is nothing provided in said
partition that the aforesaid accounts shall be
deemed waived or condoned.
Examination on Oath by Court
- As to the correctness of his account before the
same is allowed, except when no objection is
made to the allowance of the account and its
correctness is satisfactorily established by
competent proof
- The heirs, legatees, distributees, and creditors of
the estate shall have the same privilege as the
executor/administrator of being examined on oath
on any matter relating to an administration
account.

E. Appointment of Special
Administrator
When appointed
(1) When there is delay in granting letters
testamentary or administration, or
(2) By any cause, including an appeal from
allowance or disallowance of a will.
Duties
Will take possession and charge of the estate until:
(1) the questions causing the delay are decided and
(2) executor/administrator appointed
Procedure for appointment
There must first be notice and publication. Notice
through publication of the petition is a jurisdictional
requirement even in the appointment of a special
administrator.
Appointment of special administrator lies entirely in
the sound discretion of the court.
Powers and Duties of Special Administrator
(1) Take possession and charge of the goods,
chattels, rights, credits, and estate of the
deceased and
(2) Preserve the same for the
executor/administrator afterwards appointed,
(3) and for that purpose may commence and
maintain suits as administrator.
(4) May sell only such perishable and other property
as the court orders sold.
(5) Not liable - to pay any debts of the deceased
unless so ordered by the court.
When Special Administrator Ceases Duties
When letters testamentary/administration are
granted on the estate of the deceased
(1) He shall deliver to the executor/administrator
the goods, chattels, money, and estate of the
deceased in his hands.
(2) The executor/administrator may prosecute to
final judgment suits commenced by such SA.
F. Grounds for removal of
administrator
Grounds for removal of executor or administrator
(1) Neglects to:
(a) Render his account
(b) Settle the estate according to law
(c) Perform an order or judgment of the court,
or a duty expressly provided by these rules
(2) Absconds
(3) Becomes insane or
(4) Becomes incapable or unsuitable to discharge
the trust.
Effect of Removal
(1) The remaining executor/administrator may
administer the trust alone, unless the court
grants letters to someone to act with him.
(2) If there is no remaining executor/administrator,
administration may be to any suitable person.
REMEDIAL LAW REVIEWER
VI. CLAIMS AGAINST THE ESTATE 237
A. Time within which claims shall be filed;
exceptions
B. Statute of Non-claims
C. Claim of Executor or administrator against
the Estate
D. Payment of Debts
Estate burdened with lien of creditors
Upon the death of the person, all his property is
burdened with all his debts, his debts creating an
equitable lien thereon for the benefit of the
creditors.
And such lien continues until the debts are
extinguished either by the payment, prescription, or
satisfaction in one of the modes recognized by law
Purpose of presentation of claims against estate
(1) To protect the estate of the deceased.
(2) That way, the executor/administrator will be
able to examine each claim, determine whether
it is a proper one which should be allowed.
(3) The primary object of the provisions requiring
presentation is to appraise the administrator
and the probate court of the existence of the
claim so that a proper and timely arrangement
may be made for its payment in full or by pro-
rata portion in the due course of the
administration, inasmuch as upon the death of a
person, his entire estate is burdened with the
payment of his debts and no creditor shall enjoy
any preference or priority all of them shall share
pro-rata in the liquidation of the estate of the
deceased
A. Time within which
claims shall be filed;
exceptions
Claims must be filed within the time specified by the
court in its notice which shall not be less than 6
months nor more than 12 months from the date of
the first publication of the notice
B. Statute of Non-claims
Claims Covered
(1) Claims for money against the decedent arising
from contract
- Express or implied
- Due or not
- Contingent or not
(2) Claims for funeral expenses
(3) Expenses for the last sickness
(4) Judgment for money against the decedent.
The period, once fixed by the courts, is mandatory
 REMEDIAL LAW REVIEWER
Effect of non-claim – forever barred
Failure to make the claim within the time fixed by
238 the Courts will result in barring any recovery.
Purpose: to settle the estate with dispatch, so that
the residue may be delivered to the persons entitled
thereto without their being afterwards called upon
to respond in actions for claims, which, under the
ordinary statute of limitations have not yet
prescribed.
De Bautista v De Guzman (1983): Rule 86.5 is
mandatory so that the estate of the deceased can be
protected against fraudulent complaint. Thus, upon
the dismissal of the first complaint, the plaintiffs
should have presented their claims before the
intestate proceedings then pending in the same
court. The failure to present their claims before the
intestate proceedings of the estate of decedent
within the prescribed period constituted a bar to a
subsequent claim against the estate or a similar
action of the same import.
EXCEPTION:
(1) When set forth as counterclaims in any action
that the executor/administrator may bring
against the claimants
(2) If the decedent is a creditor and the executor or
administrator commences an action or continues
the action - the debtor may set forth by answer
the claims he has against the decedent, instead
of presenting them independently to the court.
Mutual claims may be set off against each other in
such action.
Effect if a debtor obtains a favorable judgment
against the estate: the amount shall be considered
the true balance against the estate, as though the
claim had been presented directly before the court
in the administration proceedings
Rule on belated claims
The Court has the discretion to allow contingent
claims
The law gives the probate court discretion to allow
claims presented beyond the period previously fixed
provided they are filed within 1 month from the
expiration of such period but in no case beyond the
date of entry of the order of distribution.
The presentation of money claim may be waived.
C. Claim of Executor or
administrator against
the Estate
Procedure to follow if the executor or
administrator has a claim against the estate he
represents
(1) Executor/Administrator shall give notice
thereof, in writing, to the court
(2) The court shall appoint a special administrator
who shall have the same powers and liabilities
as the general executor/administrator in the
adjustment of such claim.
(3) The court may order the executor or
administrator to pay to the special administrator
necessary funds to defend such claim.
D. Payment of Debts
Debts Paid in Full if Estate Sufficient
(1) After all money claims heard and ascertained;
and
(2) It appears that there are sufficient assets to pay
the debts
Executor/administrator shall pay the same within
the time limited for that purpose.
The probate court may hold in abeyance intestate
proceedings pending determination of a civil case
against the administratrix.
The heirs of the estate may not demand the closing
of an intestate proceeding at anytime where there is
a pending case against the administrator of the
estate. The court can rightfully hold in abeyance
until the civil case is settled.
Part of Estate from Which Debt Paid When
Provision Made by Will
(1) Testator provided for payment of debt
Expenses of administration, or family expenses
shall be paid according to such provisions
(2) If not sufficient
The part of the estate not disposed of by will
shall be appropriated for the purpose
Personally First Chargeable for Debts, Then Realty
General Rule: Personal estate not disposed of by
will shall be FIRST chargeable
Exception
(1) Not sufficient for the purpose; or
(2) Its sale will redound to the detriment of the
participants for the estate
In which case—
- The whole of the real estate not dispose of by
will, or so much thereof as is necessary, may
be sold, mortgaged, or otherwise
encumbered for that purpose by the
executor/administrator,
- Court approval must be obtained first
- Any deficiency shall be met by contributions
in accordance with the provisions of S6 of this
rule.
Estate to Be Retained to Meet Contingent Claims
If court is satisfied that such claim is valid:
(1) It may order the executor/administrator to
retain in his hands sufficient estate
(2) For the purpose of paying the contingent claim
when such becomes absolute.
If estate insolvent - Retain a portion equal to the
dividend of the other creditors.

Contingent Claim When Allowed
(1) When it becomes absolute;
(2) Presented to the court or
executor/administrator within 2 years from the
time limited for other creditors to present their
claims; and
(3) Not disputed by executor/administrator
If disputed
It may be proved and allowed or disallowed by the
court as the facts may warrant
Court ruling: Allowance of contingent claim or
Disallowance
If allowed - Creditor shall receive payment to the
same extent as the other creditors if the estate
retained by the executor/administrator is sufficient.
Claim not presented after becoming absolute and
allowed within 2 year period
The assets retained in the hands of the
executor/administrator, not exhausted in the
payment of claims, shall be distributed by the order
of the court to the persons entitled
But the assets so distributed may still be applied to
the payment of the claim when established, and the
creditor may maintain an action against the
distributees to recover the debt, and such
distributees and their estates shall be liable for the
debt in proportion to the estate they have
respectively received.
Court to Fix Contributive Shares Where Devisees,
Legates, or Heirs Have Been in Possession
(1) Possession before debts and expenses paid
Court shall
- Hear and settle the amount of their several
liabilities
- Order how much and in what manner each
shall contribute
- May issue execution as circumstances require.
(2) Liability of heirs and distributes
Heirs are not required to respond with their own
property for the debts of their deceased
ancestors. But after partition of an estate, the
heirs and distributees are liable individually for
the payment of all lawful outstanding claims
against the estate in proportion to the amount
or value of the property they have respectively
received from the estate
Order of Payment if Estate Is Insolvent
Executor/administrator pays the debts against the
estate, observing the provisions of Articles 1059 and
2239 to 2251 of the Civil Code. (Preference of
credits)
Dividends to Be Paid in Proportion to Claims
Each creditor within such class shall be paid dividend
in proportion to his claim. No creditor of any one
class shall receive any payment until those of the
preceding class are paid.
REMEDIAL LAW REVIEWER
Insolvent Non-Resident
His estate found in the Philippines shall be so
disposed of that his creditors here and elsewhere
may receive each an equal share, in proportion to 239
their respective credits.
Insolvent Resident with Foreign Creditors and
Foreign claims proven in another country
(1) Executor/administrator in the Philippines had
knowledge of the presentation of such claims in
such country; and
(2) Executor/administrator had opportunity to
contest such allowance
The court shall:
(1) Receive a certified list of such claims, when
perfected in such country,
(2) And add the same to the list of claims proved
against the deceased person in the Philippines
(3) So that a just distribution of the whole estate
may be made equally among all its creditors
But the benefit of this and the preceding sections
shall not be extended to the creditors in another
country if the property of such deceased person
there found is not equally apportioned to the
creditors residing in the Philippines and the other
creditor, according to their respective claims
Order of Payment of Debts
Before the expiration of the time limited for the
payment of the debts
(1) The court shall order the payment thereof, and
the distribution of the assets received by the
executor/administrator for that purpose among
the creditors,
(2) As the circumstances of the estate require and
in accordance with the provisions of this rule
Appeal Taken From a Decision of the Court
Concerning the Claim
The court may:
(1) Suspend the order for payment or order the
distribution among creditors whose claims are
definitely allowed
(2) Leave in the hands of executor/administrator
sufficient assets to pay the claim disputed and
appealed.
When a disputed claim is finally settled  court
shall order the claim to be paid out of the assets
retained to the same extent and in the same
proportion with the claims of other creditors.
Time to Time Further Orders of Distribution
(1) Whole of the debts not paid on first distribution;
and
(2) If the whole assets not distributed or other
assets afterwards come to the hands of
executor/administrator.
Creditors to Be Paid in Accordance With Terms of
Order
When an order is made for the distribution of assets
among creditors, the executor or administrator shall,
as soon as the time of payment arrives, pay the
creditors the amounts of their claims, or the
 REMEDIAL LAW REVIEWER

dividend thereon, in accordance with the terms of

such order. An administrator may not pull a third person against
240 his will into the administration proceedings by mere
Court Shall Allow Executor or Administrator a Time motion for a demand of rentals, but must do so in a
for Disposing the Estate and Paying Debts and separate action
Legacies
 Period: x < 1 year Actions which may NOT brought against
- Court may extend the time to x < 6 months Administrators
per extension Claim for the recovery of money or debt or interest
- Whole period to the original executor/ cannot be brought against executors/administrators.
administrator MUST be only x < 2 years
Executor or Administrator may Bring or Defend
 Requisites Actions Which Survive
(1) Executor/administrator must apply. For the recovery or protection of the property or
(2) Notice must be given as to time and place rights of the deceased
of hearing.  Covers injury to property i.e. not only limited to
(3) Court must hear the application. injuries to specific property, but extends to
other wrongs by which personal estate is injured
Ground for Extension or diminished.
(1) Original executor/administrator dies
(2) New administrator appointed When Recovery of Property Fraudulently
Conveyed by Deceased May be Recovered
Consequence: The court may extend the time (1) There is deficiency of assets and the deceased,
allowed for the payment of the debts or legacies in his lifetime, had conveyed real or personal
beyond the time allowed to the original property, right or interest therein, or debt or
executor/administrator credit with intent to defraud his creditors or
- x < 6 months avoid any right, debt or duty; or
- Not exceeding 6 months at a time and not (2) Had so conveyed such property, right, interest,
exceeding 6 months beyond the time which the debt or credit that by law the conveyance would
court might have allowed to such original be void as against the creditors; and
executor/administrator (3) The subject of the attempted conveyance would
- Notice shall be given of the time and place for be liable to attachment by any of them in his
hearing such application, as required in the last lifetime.
preceding section.
Duty of executor/administrator
(1) Commence and prosecute to final judgment an
VII. ACTIONS BY AND AGAINST action for the recovery of such property, right,
interest, debt or credit for benefit of the
EXECUTORS AND creditors
(2) Provided, creditors making the application pay
ADMINISTRATORS such part of the costs and expenses or give
A. Actions that may be brought against executors security therefor.
and administrators
B. Requisites before creditor may bring an action If a person before granting letters testamentary or
for recovery of property fraudulently administration
conveyed by the deceased (1) Embezzles or alienates
(2) Any of the money, goods, chattels, or effects of
such deceased
A. Actions that may be
brought against Consequence: Such person shall be liable to an
executors and action in favor of the executor/administrator of the
estate for double the value of the property sold,
administrators embezzled, or alienated, to be recovered for the
benefit of such estate.
Actions Which May and Which May Not Be
Brought AGAINST the Executor or
Administrator B. Requisites before
creditor may bring an
Actions to be brought against Administrators action for recovery of
(1) Recover real or personal property or interest
therein property fraudulently
(2) Or to enforce a lien thereon and conveyed by the
(3) Actions to recover damages for an injury to a deceased
person or property
Any creditor may commence and prosecute to final
Claims against the administrator may be presented judgment a like action for the recovery of the
in the administration proceedings but not against
third persons.

subject of the conveyance or attempted conveyance
if the following requisites are satisfied:
Allowed in Two Instances
(1) If executor/administrator failed to commence
such action
(a) With court permission
(b) In the name of the executor/administrator
(c) He files a bond, conditioned to indemnify
the executor/administrator against the cost
and expenses incurred by such action
(2) If conveyance or attempt is made in favor of
executor/administrator
- No need for court permission
- No need for Bond.
- Action shall be brought in the name of all the
creditors
Effect
Such creditor shall have a lien upon any judgment
recovered by him in the action for such costs and
other expenses incurred therein as the court deems
equitable.
VIII. DISTRIBUTION AND
PARTITION
A. Liquidation
B. Project of Partition
C. Remedy of an heir entitled to residue but
not given his share
D. Instances when probate court may issue
writ of execution
Before there could be a distribution of estate, the
following stages must be followed:
(1) Liquidation of the estate i.e. payment of
obligations of the deceased.
(2) Declaration of heirs  to determine to whom
the residue of the estate should be distributed.
Afterwards, the residue may be distributed and
delivered to the heirs.
- Determination the right of a natural child
- Determination of proportionate shares of
distributes.
A. Liquidation
Before an order of distribution or assignment of the
estate of the decedent among or to those entitled
thereto by will or by law shall be made to close the
proceedings for the settlement, it must be shown
that the ―debts, funeral expenses and expenses of
administration, allowances, taxes, etc., chargeable
to the estate‖ have been paid.
General Rule: The following must be paid before
distribution:
(1) Debts
(2) Funeral charges
(3) Expenses of administration
(4) Allowance to the widow
(5) Inheritance tax.
REMEDIAL LAW REVIEWER
Exception: The distributees give a bond conditioned
on the payment of above obligations
241
B. Project of Partition
A project of partition is merely a proposal for the
distribution of the hereditary estate which the court
may accept or reject.
The executor/administrator has no duty to prepare
and present the same under the Rules.
The court may, however, require him to present
such project to better inform itself of the condition
of the estate.
It is the court that makes that distribution of the
estate and determines the persons entitled thereto
(1) On application of executor/administrator or
person interested in the estate
(2) Notice
(3) Hearing
Court shall assign the residue of the estate to the
persons entitled to the same, naming them and the
proportions, or parts, to which each is entitled.
Such persons may demand and recover their
respective shares from the executor/administrator,
or any other person having the same in his
possession.
If there is a controversy as to who are heirs or shares
 heard and decided as in ordinary cases
Effect of Final Decree of Distribution
(1) In rem and binding against the whole world.
(2) All persons having interest in the subject matter
involved, whether they are notified or not, are
equally bound.
(3) The court acquires jurisdiction over all persons
interested, through the publication of the notice
prescribed and any order that may be entered
therein is binding against all of them.
(4) The only instance where a party interested in a
probate proceeding may have a final liquidation
set aside is when he is left out by reason of
circumstances beyond his control or through
mistake or inadvertence not imputable to
negligence.
Uriarte vs. CFI (1970): A special proceeding
intended to effect the distribution of the estate of a
deceased person is a "probate matter" or a
proceeding for the settlement of his estate.
It is equally true, however, that testate proceedings,
for the settlement of the estate of a deceased
person take precedence over intestate proceedings
for the same purpose.
Thus, if in the course of intestate proceedings
pending before a court of first instance, it is found
that the decedent had left a last will, proceedings
for the probate of the latter should replace the
 REMEDIAL LAW REVIEWER
intestate proceedings even if at that stage an
administrator had already been appointed, the latter
242 being required to render final account and turn over
the estate in his possession to the executor
subsequently appointed. This, however, is
understood to be without prejudice; that should the
alleged last will be rejected or is disapproved, the
proceeding shall continue as an intestacy.
C. Remedy of an heir
entitled to residue but
not given his share
The better practice for the heir who has not
received his share is to demand his share through a
proper motion in the same probate or administrative
proceedings, or for reopening of the probate or
administrative proceedings if it had already been
closed, and not through an independent action.
[Guilas v. Judge of the CFI of Pampanga, (1972)]
D. Instances when probate
court may issue writ of
execution
(1) To satisfy the contributive shares of devisees,
legatees and heirs in possession of the
decedent‘s assets
(2) To enforce payment of expenses of partition
(3) To satisfy the costs when a person is cited for
examination in probate proceedings
IX. TRUSTEES
A. Distinguished from executor/
administrator
B. Conditions of the Bond
C. Requisites for the removal and resignation
of a trustee
D. Grounds for removal and resignation of a
trustee
E. Extent of authority of trustee
A. Distinguished from
executor or
administrator
Araneta v. Perez (1962)]: A trustee, like an
executor/administrator, holds an office of trust,
particularly when the trustee acts as such under
judicial authority.
The duties of executor/administrator are however,
fixed and/or limited by law whereas those of the
trustee of an express trust are, usually governed by
the intention of the trustor or the parties, if
established by contract. Besides, the duties of
trustees may cover a wider range than those of
executor/administrator of the estate of deceased
persons.
B. Conditions of the Bond
Trustee must file bond before performing Duties
(1) Filed with the clerk of court
(2) Amount fixed by the judge
(3) Payable to the government of Philippines
(4) Sufficient and available for the protection of
any party in interest
If the trustee fails to furnish a bond as required by
the court, he fails to qualify as such. Nonetheless,
the trust is not defeated by such a failure to give
bond, he is considered to have declined or resigned
the trust.
When Exempt
(1) When testator has directed such exemption; or
(2) All persons beneficially interested in the trust,
request such exemption
Exemption may be cancelled at any time
Conditions
(1) Inventory
That the trustee will make and return to the
court, at such time as it may order, a true
inventory of all the real and personal estate
belonging to him as trustee, which at the time
of the making of such inventory shall have come
to his possession or knowledge.
Exemption from inventory:
(a) When trustee is not the original trustee
appointed
(b) Court‘s discretion
(c) If an inventory has already been filed
(2) Faithful management
That he will manage and dispose of all such
estate, and faithfully discharge his trust in
relation thereto, according to law and the will
of the testator or the provisions of the
instrument or order under which he is appointed
(3) Accounting
That he will render upon oath at least once a
year until his trust is fulfilled, unless he is
excused in any year by the court, a true account
of the property in his hands and the
management and disposition thereof, and will
render such other accounts as the court may
order
(4) Settlement of account and deliver estate.
That at the expiration of his trust he will settle
his account in court and pay over and deliver all
the estate remaining in his hands, or due from
him on such settlement, to the person or
persons entitled to thereto.
C. Requisites for the
removal and
resignation of a trustee
(1) Petition by parties beneficially interested
(2) Due notice to the trustee
(3) Hearing

D. Grounds for removal
and resignation of a
trustee
Grounds for removal (ESIINU)
(1) Removal appears ESsential in the interest of
petitioner.
(2) Trustee is Insane or
(3) Otherwise INcapable of discharging his trust or
(4) Evidently Unsuitable
Resignation
He may resign but the court will determine if
resignation is proper
E. Extent of authority of
trustee
Nature of Possession
The possession of the property by the trustee is not
an adverse possession, but only a possession in the
name and in behalf of the owner of the same.
A trustee may acquire the trust estate by
prescription provided there is a repudiation of the
trust, such repudiation being open, clear and
unequivocal, known to the cestui que trust [Salinas
v. Tuazon (1931)].
Territoriality of authority of trustee
The powers of a trustee appointed by a Philippine
court cannot extend beyond the confines of the
territory of the Republic.
This is based on the principle that his authority
cannot extend beyond the jurisdiction of the
Republic, under whose courts he was appointed.
X. ESCHEAT
A. When to file
B. Requisites for filing of petition
C. Remedy of respondent against petition;
period for filing a claim
Escheat
It is an incident or attribute of sovereignty and rests
on the principle of ultimate ownership by the state
of all property within its jurisdiction.
It is a substantial right of the state and is not a claim
based on charity, gratuity or unearned benefit.
A. When to file
(1) Person dies intestate;
(2) Seized of real property in the Philippines; and
(3) Leaves no heir or person by law entitled to the
same
B. Requisites for filing of
petition
REMEDIAL LAW REVIEWER
(1) A person died intestate
(2) He left no heirs or persons by law entitled to the
same 243
(3) Deceased left properties
Note:
Must be initiated by the Government through the
Solicitor General.
Fix a date and place for hearing, which shall not be
more than 6 months after the entry of the order
Direct a copy of the order to be published before the
hearing at least once a week for 6 successive weeks
in a newspaper of general circulation in the province
Court shall adjudge.
Procedure
Solicitor General or his representative in behalf of
the Republic of the Philippines to file the petition:
 Deceased was a resident of the Philippines—in
the RTC of the province where he last resided
 Deceased was a non-resident—in the RTC of the
province in which he had an estate
 Actions for reversion or escheat of properties
alienated in violation of the Constitution or of
any statute—in the province where the land lies
in whole or in part

If the petition is sufficient in form and substance,
the court shall fix a date and place for the hearing

The court shall direct a copy of the order to be
published before the hearing at least once a week
for 6 consecutive weeks in some newspaper of
general circulation published in the province, as the
court shall deem best

The court shall hear the case and judge whether or
not the estate shall be escheated

If the court rules in favor of the Republic,
 It shall assign the personal estate to the
municipality or city where the deceased last
resided, and the real estate to the municipalities
or cities, respectively, in which the same is
situated.
 If the deceased never resided in the Philippines,
the whole estate may be assigned to the
respective municipalities or cities where the same
is located.
Such estate shall be for the benefit of public
schools, and public charitable institutions and
centers in said municipalities or cities.
Effect if Escheat is Granted
Personal estate  goes to the municipality or city of
last residence
Real estate  goes to the municipality or city where
same is situated
 REMEDIAL LAW REVIEWER
C. Remedy of respondent
against petition; period
244
for filing a claim
Period to appeal and claim the estate
Appeal must be made within 5 years from date of
judgment; otherwise, barred forever
Filed by whom
 Devisee, legatee, heir, widow, widower, or other
person entitled to such estate appears
 Such person shall have possession of and title to
the same, or if sold, the municipality or city shall
be accountable to him for the proceeds after
deducting reasonable charges for the care of the
estate
Period for filing claim
5 years from date the property was delivered to the
state
XI. GUARDIANSHIP
A. General powers and duties of guardians
B. Conditions of the bond of the guardian
C. Rule on Guardianship over minor
Guardianship
The power of protective authority given by law and
imposed on an individual who is free and in the
enjoyment of his rights, over one whose weakness on
account of his age or other infirmity renders him
unable to protect himself [Herrera].
Guardian
A person lawfully invested with power and charged
with the duty of taking care of a person who for
some peculiarity or status or defect of age,
understanding or self-control is considered incapable
of administering his own affairs [Herrera].
Basis: Parens Patriae
It is the State‘s duty to protect the rights of
persons/individuals who because of age/incapacity
are in an unfavorable position vis-à-vis other parties
[Nery v. Lorenzo (1972)].
Kinds of Guardians (Regalado)
1. Legal Guardian – deemed as guardian by
provision of law, without need of court
appointment (Art. 320, CC; Art. 225, FC)
2. Guardian ad Litem – appointed by the court to
prosecute or defend a minor, insane or person
declared to be incompetent, in a court action.
3. Judicial Guardian – appointed by the court in
pursuance to law, as guardians for insane
persons, prodigals, minor heirs of deceased war
veterans and other incompetent persons.
a. Guardian over the person.
b. Guardian of the property.
c. General Guardian – has custody and care of
the ward‘s person and property.
A. General powers and
duties of guardians
 Care and custody of the person of his ward and
management of his property.
 Management of his property only.
 Management of property within the Philippines
(in case of non-resident ward).
B. Conditions of the bond of
the guardian
(Applicable for both Guardianship of Minors and
incompetents)
(1) To make and return to the court, within three
months after the issuance of his letters of
guardianship, a TRUE AND COMPLETE
INVENTORY of all the real and personal property
of his ward which shall come to his possession or
knowledge or to the possession or knowledge of
any other person in his behalf
(2) To FAITHFULLY EXECUTE THE DUTIES OF HIS
TRUST, to manage and dispose the property
according to this rule for the best interests of
the ward, and to provide for his proper care,
custody and education
(3) To render a TRUE AND JUST ACCOUNT of all the
property of the ward in his hands, and of all
proceeds or interest derived from them, and of
the management and disposition of the same, at
the time designated by this rule and such other
times as the court directs and at the expiration
of his trust, to settle his accounts with the court
and deliver and pay over all the property,
effects, and monies remaining in his hands, or
due from him on such settlement, to the person
lawfully entitled thereto
(4) To perform all orders of the court and such
other duties as may be required by law.
C. Rule on Guardianship
over minors
Parents as Legal Guardians (Art. 225, FC)
The father and the mother shall jointly exercise
legal guardianship over the property of their
unemancipated common child without the necessity
of a court appointment.
Where the market value of the property or the
annual income of the child exceeds P50,000:
(1) The parent concerned shall be required to
furnish a bond in such amount as the court may
determine, but not less than 10% of the value of
the property or annual income.
(2) A verified petition for approval of the bond shall
be filed in the Family Court of the place where
the child resides, or if the child resides in a
foreign country, in the proper court of the place
where the property or any part thereof is
situated.
In case of disagreement, the father‘s decision shall
prevail, unless there is a judicial order to the
contrary.
 REMEDIAL LAW REVIEWER

(3) Remarriage of his surviving parent, if the latter

Bautista vs. Bautista (1952): A father or mother,
as the natural guardian of the minor under parental
authority, does not have the power to dispose or
encumber the property of the latter. Such power is
granted by law only to a judicial guardian of the
ward‘s property and only with court‘s approval.
Valencia vs. Lagdameo (): The remedy of vendees
prejudiced by the illegal transactions of a natural
guardian involving the property of the minor child
lies only against the natural guardian, not however
to recover ownership and possession of the
properties sold but only to recover damages.
Rule on Guardianship of Minors (A.M.
No. 03-02-05-SC)
Scope and Applicability
The father and the mother shall jointly exercise
legal guardianship over the person and property of
their unemancipated common child without the
necessity of a court appointment [Sec. 1]. However,
if the market value of the property or the annual
Income of the child exceeds P50,000.00, the parent
concerned shall furnish a bond [Sec. 16].
The Rule on Guardianship of Minors applies to
petitions for guardianship over the person or
property, or both, of a minor.
The Rules on Guardianship (Rules 92-98, RoC) apply
only to guardianship of incompetents other than a
minor.
Petition for Appointment of Guardian
Who may file
(1) Resident minor
(a) Any relative or other person on behalf of a
minor
(b) The minor himself, if 14 years of age or
over
(c) The Secretary of DSWD or the Secretary of
DOH, in the case of an insane minor who
needs to be hospitalized.
is found unsuitable to exercise parental
authority
(4) When the best interests of the minor so require. 245
Contents of petition
(1) Jurisdictional facts
(2) Name, age and residence of the prospective
ward
(3) Ground rendering the appointment necessary or
convenient
(4) Death of the parents of the minor or the
termination, deprivation or suspension of their
parental authority
(5) Remarriage of the minor‘s surviving parent
(6) Names, ages, and residences of relatives within
the 4th civil degree of the minor, and of persons
having him in their care and custody
(7) Probable value, character and location of the
property of the minor
(8) Name, age and residence of the person for
whom letters of guardianship are prayed.
The petition shall be verified and accompanied by a
certification against forum shopping.
No defect in the petition or verification shall render
void the issuance of letters of guardianship.
Who may file Opposition
(1) Any interested person
(2) The social worker ordered to make the case
study report, if he finds that the petition for
guardianship should be denied (Sec. 9).
How: By filing a written opposition.
Grounds for filing
(1) Majority of the minor
(2) Unsuitability of the person for whom letters are
prayed.

(2) Non-resident minor

(a) Any relative or friend of such minor
(b) Anyone interested in his property, in
expectancy or otherwise.

Where to file
 Resident minor - Family Court of the province or
city where the minor actually resides

 Non-resident minor - Family Court of the province

or city where his property or any part thereof is
situated

Grounds for filing

(1) Death, continued absence, or incapacity of his
parents
(2) Suspension, deprivation or termination of
parental authority
 REMEDIAL LAW REVIEWER
Procedure
246 Filing of petition.
 (5) Availability to exercise the powers and duties of
Court shall fix a time and place for hearing.
 guardianship
Notice requirement
Court shall cause reasonable notice to be given to:
 The persons mentioned in the petition
 The minor, if he is 14 years of age or over
- For non-resident minors, notice shall be given
to the minor by publication or any other
means as the court may deem proper.
The court may also direct other general or special
notice to be given.

Case Study Report
Court shall order a social worker to conduct a case
study of the minor and all the prospective guardians
and submit his report and recommendation to the
court for its guidance before the scheduled hearing.
 same is sufficient
Hearing
 Compliance with notice requirement must be
shown.
 The prospective ward shall be presented to the
court. If the minor is non-resident, the court
may dispense with his presence.
 At the discretion of the court, the hearing on
guardianship may be closed to the public.
 The records of the case shall not be released
without court approval.
 actions and special proceedings, unless
Issuance or denial of letters of guardianship.
 frugally and without waste, and apply the
Service of final and executory judgment or order
upon the Local Civil Registrar of the municipality or
city where the minor resides and the Register of
Deeds of the place where his property or part
thereof is situated, who shall annotate the same in
the corresponding title, and report to the court their
compliance within fifteen days from receipt of the
order.
The Guardian
Order of Preference of Appointment (in default of
parents or a court-approved guardian)
(1) The surviving grandparent. In case several
grandparents survive, the court shall select any
of them taking into account all relevant
considerations.
(2) The oldest brother or sister of the minor over 21
years of age, unless unfit or disqualified.
(3) The actual custodian of the minor over 21 years
of age, unless unfit or disqualified.
(4) Any other person, who in the sound discretion of
the court, would serve the best interests of the
minor
Qualifications
The court shall consider the guardian‘s:
(1) Moral character
(2) Physical, mental and psychological condition
(3) Financial status
(4) Relationship of trust with the minor
a guardian for the full period of the
(6) Lack of conflict of interest with the minor
(7) Ability to manage the property of the minor.
Powers and Duties
 In general
(1) Guardian of resident minor: Care and
custody of the person of his ward and the
management of his property, or only the
management of his property.
(2) Guardian of non-resident minor:
Management of all his property within the
Philippines
 Specific duties
(1) To pay the just debts of the ward out of:
(a) Personal property and the income of
the real property of the ward, if the
(b) Real property of the ward upon
obtaining an order for its sale or
encumbrance.
(2) To settle all accounts of his ward
(3) To demand, sue for, receive all debts due
him, or, with the approval of the court,
compound for the same and give discharges
to the debtor on receiving a fair and just
dividend of the property and effects
(4) To appear for and represent the ward in all
another person is appointed for that
purpose
(5) To manage the property of the ward
income and profits thereon, insofar as may
be necessary, to the comfortable and
suitable maintenance of the ward. If such
income and profits be insufficient for that
purpose, to sell or encumber the real or
personal property, upon being authorized
by the court to do so
(6) To consent to a partition of real or personal
property owned by the ward jointly or in
common with others, upon:
(a) Authority granted by the court after
hearing
(b) Notice to relatives of the ward, and
(c) A careful investigation as to the
necessity and propriety of the proposed
action.
(7) To submit to the court a verified inventory
of the property of the ward:
(a) Within three months after his
appointment
(b) Annually, and
(c) Whenever required upon the
application of an interested person.
(8) To report to the court any property of the
ward not included in the inventory which is
discovered, or succeeded to, or acquired by
the ward within 3 months after such
discovery, succession, or acquisition

(9) To render to the court for its approval an
accounting of the property:
(a) One year from his appointment
(b) Every year thereafter, and
(c) As often as may be required.
Bonds of Guardians
When filed: Before a guardian enters upon the
execution of his trust, or letters of guardianship
issue.
Amount: As determined by the Court.
Conditions: The guardian is:
(1) To make and return to the court, within three
months after the issuance of his letters of
guardianship, a true and complete inventory of
all the real and personal property of his ward
which shall come to his possession or knowledge
or to the possession or knowledge of any other
person in his behalf
(2) To faithfully execute the duties of his trust, to
manage and dispose the property according to
this rule for the best interests of the ward, and
to provide for his proper care, custody and
education
(3) To render a true and just account of all the
property of the ward in his hands, and of all
proceeds or interest derived from them, and of
the management and disposition of the same, at
the time designated by this rule and such other
times as the court directs and at the expiration
of his trust, to settle his accounts with the court
and deliver and pay over all the property,
effects, and monies remaining in his hands, or
due from him on such settlement, to the person
lawfully entitled thereto
(4) To perform all orders of the court and such
other duties as may be required by law.
Posting of new bond
Whenever necessary, the court may require the
guardian to post a new bond and may discharge from
further liability the sureties on the old bond.
Requirements
(1) Due notice to interested persons
(2) No injury must result to those interested in the
property.
Liability: In case of breach of any of its conditions,
the guardian may be prosecuted in the same
proceeding for the benefit of the ward or of any
other person legally interested in the property.
Reimbursement of Reasonable Expenses and
Payment of Compensation
The court may authorize reimbursement to the
guardian, other than a parent, of reasonable
expenses incurred in the execution of his trust.
The court may allow payment of compensation for
his services as the court may deem just, not
exceeding 10% of the net income of the ward, if any
otherwise, in such amount the court determines to
be a reasonable compensation for his services.
REMEDIAL LAW REVIEWER
Embezzlement, Concealment, or Conveyance of
Ward’s Properties
The court may require any person suspected of 247
having embezzled, concealed, or disposed of any
money, goods or interest, or a written instrument
belonging to the ward or his property to appear for
examination concerning any thereof and issue such
orders as would secure the property against such
embezzlement, concealment or conveyance, upon
complaint of:
(1) The guardian or ward, or
(2) Any person having actual or prospective interest
in the property of the ward.
Selling and Encumbering the Property of the Ward
Grounds
(1) When the income of a property under
guardianship is insufficient to maintain and
educate the ward
(2) When it is for the benefit of the ward that his
personal or real property or any part thereof be
sold, mortgaged or otherwise encumbered, and
the proceeds invested in safe and productive
security, or in the improvement or security of
other real property.
How: Verified petition filed by the guardian.
Order to Show Cause
The court shall order the ward‘s next of kin and all
persons interested in the property to appear at a
reasonable time and place and show cause why the
petition should not be granted.
At the time and place designated in the order to
show cause, the court shall hear the allegations and
evidence of the petitioner and next of kin, and other
persons interested, together with their witnesses,
and grant or deny the petition as the best interests
of the ward may require.
Order for Sale or Encumbrance
Contents:
(1) Grounds for the sale or encumbrance.
(2) Manner of sale (public or private)
(3) Time and manner of payment
(4) Security, if payment deferred
(5) Additional bond from guardian, if required.
Duration: Not more than 1 year, unless renewed.
Investment of Proceeds and Management of
Property
The court may authorize and require the guardian to
invest the proceeds of sales or encumbrances, and
any other money of his ward in his hands, in real or
personal property, for the best interests of the
ward.
The court may make such other orders for the
management, investment, and disposition of the
property and effects, as circumstances may warrant.
 REMEDIAL LAW REVIEWER
Removal, Resignation, and Termination of
248 Guardianship
Removal
 How: Upon reasonable notice to the guardian.
 Grounds: The guardian:
(1) Becomes insane or otherwise incapable of
discharging his trust
(2) Is found to be unsuitable
(3) Wasted or mismanaged the property of the
ward
(4) Failed to render an account or make a
return for thirty days after it is due.
Resignation
 Ground: Any justifiable cause.
Upon the removal or resignation of the
guardian, the court shall appoint a new one.
No motion for removal or resignation shall be
granted unless the guardian has submitted the
proper accounting of the property of the ward
and the court has approved the same.
Termination
 Grounds
(1) The ward has come of age.
(2) The ward has died.
 How
(1) Court motu proprio terminates guardianship
(2) Upon verified motion of any person allowed
to file a petition for guardianship.
The guardian shall notify the court of the fact of
coming of age or death of the ward within 10 days of
its occurrence.
The final and executory judgment or order removing
a guardian or terminating the guardianship shall be
served upon the Local Civil Registrar of the
municipality or city where the minor resides and the
Register of Deeds of the province or city where his
property or any part thereof is situated, who shall
enter the final and executory judgment or order in
the appropriate books in their offices.
XII. ADOPTION
A. Distinguish domestic adoption from inter-
country adoption
B. Domestic Adoption Act
C. Inter-country Adoption
Adoption
A juridical act which creates between two persons a
relation similar to that which results from filiation.
Lahum vs. Sibulo (2003): Adoption is a privilege
governed by the state‘s determination of what is for
the best welfare of the child.
A. Distinguish domestic
adoption from inter-country
adoption
See Annex A.
B. Domestic Adoption Act
RA 8552 (Domestic Adoption Act) and the Rule on
Adoption govern the domestic adoption of Filipino
children.
Effects of adoption
Parental Authority (Sec.16)
All legal ties bet. biological parents and adoptee are
severed, and the same shall be vested on the
adopter, except if the biological parent is the spouse
of the adopter
Legitimacy (Sec.17)
The adoptee shall be considered legitimate
son/daughter of the adopter for all intents and
purposes, and entitled to all rights and obligations
provided by law to legitimate children born to them
without discrimination of any kind. Adoptee is
entitled to love, guidance, and support.
Succession (Sec.18)
Adopter and adoptee shall have reciprocal rights of
succession without distinction from legitimate
filiation, in legal and intestate succession. If
adoptee and his/her biological parents had left a
will, the law on testamentary succession shall
govern.
Book of Adoptions
The Clerk of Court shall keep a book of adoptions
showing the date of issuance of the decree in each
case, compliance by the Civil Registrar with the
court‘s order, and all incidents arising after the
issuance of the decree.
Confidentiality of Adoption Proceedings
All hearings in adoption cases, after compliance with
the jurisdictional requirements shall be confidential
and shall not be open to the public.
If the court finds that the disclosure of the
information to a third person is necessary for
security reasons or for purposes connected with or
arising out of the adoption and will be for the best
interests of the adoptee, the court may, upon proper
motion, order the necessary information to be
released, restricting the purposes for which it may
be used.
Instances when adoption may be rescinded
Rescission of Adoption of the Adoptee
 Who may file
(1) Adoptee who is over 18 years of age
(2) If the adoptee is a minor, with the
assistance of the DSWD
(3) If the adoptee is over 18 years of age but
incapacitated, by his guardian or counsel.

 Grounds: Committed by the adopter
(1) Repeated physical and verbal maltreatment
despite having undergone counseling
(2) Attempt on the life of the adoptee
(3) Sexual assault or violence
(4) Abandonment or failure to comply with
parental obligations.
Adoption, being in the best interests of the
child, shall not be subject to rescission by
the adopter.
However, the adopter may disinherit the
adoptee for causes provided in Article 919
of the Civil Code.
 Where to file: Family Court of the city or
province where the adoptee resides.
 When to file:
(1) Within 5 years after reaching age of
majority
(2) If he was incompetent at the time of the
adoption, within 5 years after recovery
from such incompetency.
Effects of rescission of adoption
(1) RESTORATION OF PARENTAL AUTHORITY to
original parent if adoptee is a minor.
(2) RECIPROCAL RIGHTS AND OBLIGATIONS of
adopter and adoptee are EXTINGUISHED .
(3) CANCELLATION of amended birth certificate and
RESTORE ORIGINAL.
(4) SUCCESSIONAL RIGHTS SHALL REVERT to its
status PRIOR TO ADOPTION, as of the date of
final judgment of rescission.
(5) VESTED RIGHTS shall be RESPECTED.
C. Inter-country
Adoption
RA 8043 (Inter-country Adoption Act) governs the
adoption of Filipino children by:
(1) Foreign nationals, and
(2) Filipino citizens permanently residing abroad.
When allowed
Inter-country Adoption as the Last Resort
The Inter-country Adoption Board (ICAB) shall ensure
that all possibilities for adoption of the child
under the Family Code (domestic adoption) have
been exhausted and that inter-country adoption is
in the best interest of the child (Sec. 7, RA 8043).
Functions of the RTC
(1) Filing of petition may be made with the Family
Court having jurisdiction over the place where
the child resides or may be found.
(2) Court shall determine whether or not petition is
sufficient in form and substance and a proper
case for inter-country adoption.
(3) Transmit the petition to the ICAB for
appropriate action.
REMEDIAL LAW REVIEWER
―Best interest of the minor‖ standard
The Inter Country Adoption Board shall ensure that
all possibilities for adoption of the child under the
Family Code have been exhausted and that inter- 249
country adoption is in the best interest of the child.
XIII. WRIT OF HABEAS CORPUS
A. Contents of the petition
B. Contents of the Return
C. Distinguish peremptory writ from
preliminary citation
D. When not proper/applicable
E. When writ disallowed/discharged
F. Distinguish from writ of Amparo and
Habeas Data
G. Rules on Custody of Minors and Writ of
Habeas Corpus in Relation to Custody of
Minors (AM No. 03-04-04-SC)
WRIT OF HABEAS CORPUS
Essentially a writ of inquiry, granted to test the right
under which a person is detained, and to relieve a
person if such restrain is illegal
Can only be suspended in cases if in cases or
rebellion or invasion and when public interest
requires it (Art. III Sec. 15)
Vital purposes:
In General
(1) To obtain relief from illegal confinement
(2) To liberate those who may be imprisoned
without sufficient cause
(3) To deliver them from unlawful custody
In the case of minors
(1) To enable parents to regain custody of a minor
daughter, even though the latter be in the
custody of a third person of her own free will
(2) To resolve questions of custody of a minor
The underlying rationale is not the illegality if the
restraint but the right of custody
Who may issue the writ
(1) The SC,CA, and RTC have concurrent jurisdiction
to issue WHC
(2) Family courts have jurisdiction to hear petitions
for custody of minors and the issuance of the
WHC in relation to custody of minors
Moncupa v. Enrile (1986)
(a) Where a person continued to be unlawfully
denied one or more of his constitutional rights
(b) Where there is present denial of due process
(c) Where the restraint is not merely involuntary
but appear to be unnecessary
(d) Where a deprivation of freedom originally valid
has in light of subsequent developments become
arbitrary
The person concerned or those applying in his behalf
may still avail themselves of the privilege of the
 REMEDIAL LAW REVIEWER

writ.
A. Contents of the
250 Extends to all cases of illegal confinement or
Petition
detention by which any person any person is
deprived of his liberty, or by which the rightful
Application for the writ shall be by petition signed
custody of any person is withheld from the person
and verified by the party for whose relief it is
entitled thereto.
intended, or by some person on his behalf
 Some person – any person who has a legally
Prime specification of the application for a writ of
justified interest in the freedom of the person
habeas corpus is restraint of liberty.
whose liberty is restrained or who shoes some
authorization to make the application
Not an inquisition between private parties, but an
inquisition by the government proceedings in habeas
Shall set forth:
corpus are separate and distinct from the main case
(1) That the person in whose behalf the application
from which the proceedings spring
is made is imprisoned or restrained of his liberty
 Ex parte Bollman: the question whether one
(2) The officer or name of the person by whom he is
shall be imprisoned is always distinct from the
so imprisoned or retrained or if both are
question of whether the individual shall be
unknown or uncertain, such officer or person
convicted or acquitted of the charge on which
may be described by an assumed appellation,
he is tried, and therefore these questions are
and the person who is served with the writ shall
separate, and may be decided in different
be deemed the person intended
courts
(3) The place where he is so imprisoned or
 In the case if People v. Valte (1922), it was
restrained, if known
stated that the writ of habeas corpus is not
(4) A copy of the commitment or cause of detention
designed to interrupt the orderly administration
of such person, if it can be procured without any
of the laws by a competent court acting within
legal authority, such fact shall appear.
the limits of its jurisdiction, but is available only
for the purpose relieving from illegal restraint
Procedure:
(1) Application for the writ by petition
Proceedings on habeas corpus to obtain release from
(2) Grant by court or judge
custody under final judgment being in the nature of
(3) Clerk of Court issues the writ under the seal of
collateral attack, the writ deals only with such
court (in case of emergency, by the judge
radical defects as render the proceeding or
himself)
judgment absolutely void, and cannot have the
(4) Service:
effect of appeal, writ of error or certiorari, for the
- By whom: sheriff or other proper officer
purpose of reviewing mere error and irregularities in
- How: leaving the original with the person to
the proceedings.
whom it is directed and preserving a copy
on which to make return
A release that renders a petition for a writ of habeas
- To whom: officer in custody or any officer
corpus moot and academic must be one which is free
(when in custody of person other than an
from involuntary restraint.
officer)
(5) Execution – officer bring the person before the
WHC may be used with writ of certiorari for purposes
judge
of review:
 The two writs may be ancillary to each other
where necessary to give effect to the B. Contents of the
supervisory powers of higher courts Return
 WHC reaches the body of the jurisdictional
matters, but not the record. Writ of certiorari Made by the person or officer in whose custody the
reaches the record but not the body prisoner is found:
 While generally, the WHC will not be granted (1) Whether he has or has not the party in his
when there is and adequate remedy like writ of custody or power, or under restraint
error, appeal, or certiorari, it may still be (2) If he has the party in his custody or power, or
available in exceptional cases under restraint, the authority and the true and
 Generally, WHC is not the proper remedy for the whole cause thereof, set forth at large, with a
correction of errors of fact or law copy of the writ, order execution, or other
Exception: Error affects court‘s jurisdiction process, if any, upon which the party is held
(making the judgment void) (3) If the party is in his custody or power or is
 WHC does not lie where the petitioner has the restrained by him, and is not produced,
remedy of appeal or certiorari particularly the nature and gravity of the
 WHC is not proper: sickness or infirmity of such party by reason of
- To assert or vindicate denial of right to bail which he cannot, without danger, be bought
- For correcting errors in appreciation of fact before the court or judge
or law (4) If he has had the party in his custody or power,
or under restraint, and has transferred such
HC and not prohibition is the proper remedy for custody or restraint to another, particularly to
reviewing proceedings for deportation of aliens

whom, at what time, for what cause, and by
what authority such transfer was made.
The return or statement shall be signed by the
person who makes it; and shall also be sworn by him
if the prisoner is not produced, and in all other
cases, unless the return is made and signed by a
sworn public officer in his official capacity.
If it appears that the prisoner is in custody under a
warrant of commitment in pursuance of law, the
return shall be considered prima facie evidence of
the cause of restraint, but if he is restrained of his
liberty by any alleged private authority, the return
shall be considered only as a plea of the facts
therein set forth, and the party claiming the custody
must prove such facts.
C. Distinguish
Peremptory Writ from
Preliminary Citation
Preliminary citation – requires the respondent to
appear and show cause why the peremptory writ
should not be granted
Peremptory writ – unconditionally commands the
respondent to have the body of the detained person
before the court at a time and place therein
specified
D. When Writ Not Proper
or Applicable
WHC will not issue where:
(1) The person alleged to be restrained of his
liberty is in custody of an officer
(2) Under process issued by the court or judge
(3) By virtue of a judgment or order of a court of
record
(4) The Court or judge had which has jurisdiction to
issue the process, render the judgment or make
the order.
The operative act is detention or restraint (whether
or not physical). If there is none, no WHC will issue
despite the possibility of respondent being liable to
civil, criminal, or administrative action
Judicial discretion is exercised in issuance of the
writ, and will not issue as a matter of course
General Rule: the release, whether permanent or
temporary, of a detained person renders the petition
for habeas corpus moot and academic
Exception: Unless 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
General Rule: WHC will not issue where the person
alleged to be restrained of his liberty is in custody of
an officer under a process issued by the court which
has jurisdiction to do so
REMEDIAL LAW REVIEWER
Even if the arrest of a person is illegal, supervening
events may Bar his release or discharge form
custody 251
 The legality of the detention is inquired into at
the earliest, the application for a WHC
 Among the supervening events is the issuance of
a judicial process (defined as a writ, warrant,
subpoena, or other formal writing issued by
authority of law)
 Another supervening event is the filing before a
trial court a complaint which issued a hold
departure order and denied motion to dismiss
and to grant bail (Velasco v. CA,1995)
 Filing of an information for the offense for
which the accused is detained Bars the
availability of WHC
Improper arrest or lack of preliminary investigation
is not a valid ground for the issuance of WHC. The
proper remedy is a motion to quash warrant of arrest
and/or information before the trial court
Posting of a bail is not a waiver of the right to
challenge the validity of the arrest, and therefore
the right to resort to WHC (Revised Rules of Crim Pro
Sec. 26)
A person discharged on bail is not entitled to WHC,
because such person is not imprisoned or restrained
of his liberty in such a way as to entitle him to the
WHC
E. When Discharge Not
Authorized
Discharge from custody will not be allowed if:
(1) Jurisdiction appears after the writ is allowed,
despite any informality or defect in the process,
judgment, or order.
(2) Person is charged with or convicted of an
offense in the Philippines
(3) Person is suffering imprisonment under lawful
judgment
(4) If it appears that the prisoner was lawfully
committed, and is plainly and specifically
charged in the warrant of commitment with an
offense punishable by death
(5) Even if the arrest of a person is illegal, due to
supervening events
(a) Issuance of a judicial process (defined as a
writ, warrant, subpoena, or other formal
writing issued by authority of law)
(b) Another supervening event is the filing
before a trial court a complaint which
issued a hold departure order and denied
motion to dismiss and to grant bail (Velasco
v. CA,1995)
(c) Filing of an information for the offense for
which the accused is detained bars the
availability of WHC
Improper arrest or lack of preliminary investigation
is not a valid ground for the issuance of WHC
Proper remedy is a motion to quash warrant of arrest
 REMEDIAL LAW REVIEWER
and/or information before the trial court
252 A person discharged on bail is not entitled to WHC,
because such person is not imprisoned or restrained
of his liberty in such a way as to entitle him to the
WHC
F. Distinguished from
Mandatory pre-trial
Writ of Amparo and
Habeas Data
See Annex B.
G. Custody of Minors and
Writ of Habeas Corpus
in Relation to Custody
of Minors (A.M. No.
03-04-04-SC)
Applicability
 Applies to petitions for custody of minors and
writs of habeas corpus in relation thereto.
 Rules of Court shall apply suppletorily.
Petition for Rightful Custody
 Verified petition for the rightful custody of a
minor may be filed by any person claiming such
right.
 Party against whom it may be filed shall be
designated as the respondent.
 Filed with the Family Court of the province or
city where the petitioner resides or where the
minor may be found.
Contents:
(1) The personal circumstances of the petitioner
and of the respondent
(2) The name, age and present whereabouts of the
minor and his or her relationship to the
petitioner and the respondent
(3) The material operative facts constituting
deprivation of custody
(4) Such other matters which are relevant to the
custody of the minor
Verified and accompanied with a certificate against
forum shopping signed by the petitioner personally.
If court is satisfied that the petition is sufficient in
form and substance, it shall direct the clerk of court
to issue summons, which shall be served together
with a copy of the petition personally on the
respondent.
Answer to the Petition
General rule: Motion to dismiss the petition is not
allowed. Any other ground that might warrant the
dismissal of the petition may be raised as an
affirmative defense in the answer.
Exception: On the ground of lack of jurisdiction over
the subject matter or over the parties.
 Personally verified and filed within 5 days after
service of summons.
 Upon the filing of the verified answer or the
expiration of the period to file it, the court may
order a social worker to make a case study of
the minor and the parties and to submit to the
court at least 3 days before pre-trial.
 Notice - 15 days after the filing of the answer or
the expiration of the period to file answer, the
court shall issue an order:
(1) Fixing a date for the pre-trial conference
(2) Directing the parties to file and serve their
respective pre-trial briefs
(3) Requiring the respondent to present the
minor before the court.
The notice of its order shall be served
separately on both the parties and their
respective counsels.
 Pre-trial brief contains the following:
(1) A statement of the willingness of the
parties to enter indicating its terms
(2) A concise statement of their respective
claims
(3) Admitted facts and proposed stipulations of
facts
(4) The disputed factual and legal issues
(5) All the evidence to be presented
(6) The number and names of the witnesses and
their respective affidavits
(7) Such other matters as the court may require
to be included.
Failure to file the pre-trial brief or to comply
with its required contents has same effect as
failure to appear at the pre-trial.
If the petitioner fails to appear personally at the
pre-trial, the case shall be dismissed.
Unless his counsel or a duly authorized
representative appears in court and proves a
valid excuse for the non-appearance of the
petitioner.
If the respondent has filed his answer but fails
to appear at the pre-trial, the petitioner shall
be allowed to present his evidence ex parte.
The Court shall then render judgment on the
basis of the pleadings and the evidence thus
presented.
At the pre-trial, the parties may agree on the
custody of the minor. If the parties fail to agree,
the court may refer the matter to a mediator
who shall have 5 days to effect an agreement
between the parties. If the issue is not settled
through mediation, the court shall proceed with
the pre-trial.
 After an answer has been filed or after
expiration of the period to file it, the court may
issue a provisional order awarding custody of the
minor to:
(1) Both parents jointly

(2) Either parent
(3) The grandparent, or if there are several
grandparents, the grandparent chosen by
the minor over 7 years of age and of
sufficient discernment
(4) The eldest brother or sister over 21 years of
age
(5) The actual custodian of the minor over 21
years of age
(6) Any other person or institution the court
may deem suitable.
Interim Reliefs
 Temporary visitation rights - court shall provide
in its order awarding provisional custody
appropriate visitation rights to the non-custodial
parent or parents.
Unless the court finds said parent or parents
unfit or disqualified.
The temporary custodian shall give the court
and non custodial parent or parents at least 5
days' notice of any plan to change the residence
of the minor or take him out of his residence for
more than 3 days
 Hold Departure Order – the minor child shall
not be brought out of the country without prior
order from the court while the petition is
pending.
- The Court, motu proprio or upon application
under oath, may issue ex parte a hold
departure order, addressed to the Bureau of
Immigration and Deportation (BID), directing
it not to allow the departure of the minor
from the Philippines without court permission.
- The Family Court issuing the hold departure
order shall furnish the DFA and the BID of the
DOJ a copy of the hold departure order within
24 hours from its issuance.
- The court may recall the hold departure order
motu proprio or upon verified motion of any
of the parties after summary hearing.
 Protection Order (PO)- court may issue a PO
requiring any person:
(1) To stay away from the home, school,
business, or place of employment of the
minor, other parent or any other party, or
from any other specific place
(2) To cease and desist from harassing,
intimidating, or threatening such minor or
the other parent or any person to whom
custody of the minor is awarded
(3) To refrain from acts or omission that create
an unreasonable risk to minor
(4) To permit a parent, or a party entitled to
visitation by a court order or a separation
agreement, to visit the minor at stated
periods
(5) To permit a designated party to enter the
residence during a specified period of time
in order to take personal belongings not
contested in a proceeding pending with the
Family Court
REMEDIAL LAW REVIEWER
(6) To comply with such other orders as are
necessary for the protection of the minor.
Judgment 253
Court shall render judgment awarding the custody of
the minor to the proper party considering the best
interests of the minor.
If both parties are unfit to have the care and custody
of the minor, the court may designate either the
paternal or maternal grandparent of the minor, or
his oldest brother or sister, or any reputable person
to take charge of such minor, or commit him to any
suitable home.
Court may order either or both parents to give an
amount necessary for the support, maintenance and
education of the minor, irrespective of
custodianship.
The court may also issue any order that is just and
reasonable permitting the parent who is deprived of
the care and custody of the minor to visit or have
temporary custody.
Appeal
Appeal from the decision shall be allowed, unless
the appellant has filed a motion for reconsideration
or new trial within 15 days from notice of judgment.
An aggrieved party may appeal from the decision by
filing a Notice of Appeal within 15 days from notice
of the denial of the motion for reconsideration or
new trial and serving a copy on the adverse parties.
Writ of Habeas Corpus in Relation to Custody of
Minors
A verified petition for a writ of habeas corpus
involving custody of minors filed with the Family
Court. The writ shall be enforceable within the
judicial region the Family Court belongs.
However, the petition may be filed with a regular
court in the absence of the presiding judge of the
Family Court provided that the regular court shall
refer the case to the Family Court as soon as its
presiding judge returns to duty.
Petition may also be filed with the appropriate
regular courts in places where there are no Family
Courts.
The petition may be filed with the SC, CA, or with
any of its members and shall be enforceable
anywhere in the Philippines. The writ may be made
returnable to a Family Court or to any regular court
within the region where the petitioner resides or
where the minor may be found for hearing and
decision on the merits.
Upon return of the writ, the court shall decide the
issue on custody of minors.
 REMEDIAL LAW REVIEWER
254
XIV. WRIT OF AMPARO
A. Coverage
B. Distinguish from habeas corpus and
habeas data
C. Differences between Amparo and search
warrant
D. Who may file
E. Contents of return
F. Effects of failure to file return
G. Omnibus waiver rule
H. Procedure for hearing
I. Institution of separate action
J. Effect of filing of a criminal action
K. Consolidation
L. Interim reliefs available to petitioner and
respondent
M. Quantum of proof in application for
issuance of writ of Amparo
WRIT OF AMPARO
 Literally means to protect
 Came originally from Mexico and evolved into
many forms
(1) Amparo libertad – for protection of personal
freedom
(2) Amparo contra leyes – for judicial review of
the constitutionality of statutes
(3) Amaparo casacion – judicial review of
constitutionality and legality of judicial
decisions
(4) Amparo agrario – for protection of
peasants‘ rights
 AM No 7-9-12-SC (Rules on the Writ of Amparo)
was promulgated by the Supreme Court by
virtue of the 1987 Constitution stating that the
SC has the power to ―[p]romulgate rules
concerning the protection and enforcement of
constitutional rights…‖ (Art VIII Sec. 5).
- Interpreted as the additional power to
promulgate rules to protect and enforce rights
guaranteed by the fundamental law of the
land.
Yano v. Sanchez (2010): The failure to establish
that the public official observed extraordinary
diligence in the performance of duty does not result
in the automatic grant of the privilege of the amparo
writ. It does not relieve the petitioner from
establishing his or her claim by substantial evidence.
The omission or inaction on the part of the public
official provides, however, some basis for the
petitioner to move and for the court to grant certain
interim reliefs.
A. Coverage
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
(1) Extralegal killings (killings committed without
due process of law) and
(2) Enforced disappearances (Sec. of National
Defense v. Manalo 2008), the elements of which
are:
(a) An arrest, detention or abduction of a
person by a government official or
organized groups or private individuals
acting with the direct or indirect
acquiescence of the government
(b) The refusal of the State to disclose the fate
or whereabouts of the person concerned or
a refusal to acknowledge the deprivation of
liberty which places such persons outside
the protection of law
Enumerates the constitutional rights protected by
the writ, which is only the right to life, liberty and
security of persons.
Limits the coverage because other constitutional
rights are already protected through different
remedies.
However, the coverage is still broader compared to
other jurisdictions:
(1) Philippine writ covers both actual and
threatened violations of constitutional rights
(2) Covers not only the public but also private
individual and entities
―Right to security‖ as a guarantee of protection by
the government, is violated by the apparent threat
to the life, liberty and security of their person.
Secretary of Justice v. Manalo (supra): Even if the
respondents have escaped from captivity and are
physically free, there is a continuing violation of
their right to security because there is a violation of
freedom from threat by the apparent threat to
life, liberty and security of their person from the
following facts:
(1) Threat of killing their families if they tried
to escape
(2) Failure of the military to protect them from
abduction
(3) Failure of the military to conduct effective
investigation
B. Distinguish from Writ of Habeas
Corpus and Habeas Data
See Annex C
C. Distinguish Writ of Amparo
From Search Warrant
Secretary of Defense v. Manalo (2008): The
production order under the Amparo Rule should not
be confused with a search warrant for law
enforcement under Article III, Section 2 of the 1987
Constitution.

The Constitutional provision is a protection of the
people from the unreasonable intrusion of the
government, not a protection of the government
from the demand of the people such as respondents.
Instead, the Amparo production order may be
likened to the production of documents or things
under Section 1, Rule 27 of the Rules of Civil
Procedure i.e. ―Upon motion of any party showing
good cause therefor, the court in which an action is
pending may (a) order any party to produce and
permit the inspection and copying or photographing,
by or on behalf of the moving party, of any
designated documents, papers, books of accounts,
letters, photographs, objects or tangible things, not
privileged, which constitute or contain evidence
material to any matter involved in the action and
which are in his possession, custody or control...”
D. Who may file
(1) Aggrieved party
(2) Any member of the immediate family namely:
the spouse, children and parents of the
aggrieved party
(3) 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
(4) Any concerned citizen, organization, association
or institution if there is no known member of
the immediate family or relative of the
aggrieved party.
Petition may be filed by the aggrieved party or by
any qualified person or entity
The filing of a petition by the aggrieved party
suspends the right of all other authorized parties to
file similar petitions
Order which must be followed by those who can sue
for the writ i.e. filing of the petition by an
authorized party on behalf of the aggrieved party
suspends the right of all others. This provides for the
order which must be followed by those who can sue
for the writ
(1) Necessary for the prevention of indiscriminate
and groundless filing of petitions for amparo
which may even prejudice the right to life,
liberty or security of the aggrieved party
(2) Untimely resort to the writ by a non-member of
the family may endanger the life of the
aggrieved party
If authorized by (1) or (2), (3) may file
Canlas v. NAPICO (2008): The claim to dwelling,
assuming there is still a right despite the adverse
final and executory judgment, does not constitute
right to life, liberty and security. There is,
therefore, no legal basis for the issuance of the writ
of amparo.
Where:
REMEDIAL LAW REVIEWER
(1) RTC where the threat, act or omission was
committed or any of its element occurred
(2) Sandiganbayan—unlike the writ of habeas
corpus, because public officials and employees 255
will be respondents in amparo petitions
(3) Court of Appeals
(4) Supreme Court
(5) Any justice of such courts
May be filed or any day, including Saturdays,
Sundays, and holidays; from morning until evening
Contents:
(1) The personal circumstances of the petitioner;
(2) The name and personal circumstances of the
respondent responsible for the threat, actor
omission or if the name is unknown or uncertain,
the respondent may be described by an assumed
appellation;
(3) The right to life, liberty and security of the
aggrieved party violated or threatened with
violation by an unlawful act or omission of the
respondent, and how such threat or violation is
committed with the attendant circumstances
detailed in supporting affidavits;
(4) The investigation conducted, if any, specifying
the names, the personal circumstances and
addresses of the investigating authority or
individuals, as well as the manner and conduct
of the investigation, together with any report;
(5) The actions and recourses taken by the
petitioner to determine the fate or whereabouts
of the aggrieved party and the identity of the
person responsible for the threat, act or
omission; and
(6) The relief prayed for.
May include a general prayer
Signed and verified
E. Contents of Return
The respondent shall file a verified written return
together with supporting affidavits within 72 hours
after service of the writ.
Contents:
(1) The lawful defenses to show that the
respondent did not violate or threaten with
violation the right to life, liberty and security of
the aggrieved party, through any act or omission
(2) The steps or actions taken by the respondent to
determine the fate or whereabouts of the
aggrieved party and the person responsible for
the threat, act or omission
(3) All relevant information in the possession of the
respondent pertaining to the threat, act or
omission against the aggrieved party and
(4) If the respondent is a public official or employee
the return shall further state the actions that
have been or will still be taken[...].
(5) The return shall also state matters relevant to
the investigation, its resolution and the
prosecution of the case.
 REMEDIAL LAW REVIEWER
F. Omnibus Waiver Rule
256
Defenses not pleaded deemed waived.
All defenses shall be raised in the return, otherwise,
they shall be deemed waived.
G. Effect of Failure to File a
Return
In case the respondent fails to file a return, the
court, justice or judge shall proceed to hear the
petition ex parte.
H. Procedure for Hearing on the
Writ
Summary Hearing
Hearing on the petition shall be summary.
BUT: The court, justice, or judge may call for a
preliminary conference to simplify the issues and
determine the possibility of obtaining stipulations
and admissions from the parties.
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.
Allows motion for new trial and petition for relief
from judgment
I. Institution of Separate Actions
The Rule shall not preclude the filing of separate
criminal, civil or administrative actions.
Neither does the writ of amparo suspend the filing of
criminal, civil or administrative actions
But a claim for damages should instead be filed in a
proper civil action.
If the evidence so warrants, the amparo court may
refer the case to the Department of Justice for
criminal prosecution, because the amparo
proceeding is not criminal in nature and will not
determine the criminal guilt of the respondent.
J. Effect of Filing of a Criminal
Action
When a criminal action has been commenced, NO
SEPARATE PETITION for the writ shall be filed.
Reliefs under the writ shall be available by motion in
a criminal case.
Procedure under this Rule shall govern the
disposition of the reliefs available under the writ of
amparo.
K. 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.
After consolidation, the procedure under this Rule
shall continue to apply to the disposition of the
reliefs on the petition.
L. Interim Reliefs Available to
Petitioner and Respondent
 Upon filing of the petition or at any time before
final judgment
Interim Reliefs available to the Petitioner
(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 concerned.
The SC shall accredit the persons and private
institutions that shall extend temporary
protection to the petitioner or aggrieved party
and any member of the immediate family, in
accordance to the guidelines which it shall
issue.
The accredited persons and private persons and
private institutions shall comply with the rules
and conditions that may be imposed by the
court, justice or judge.
- Different from the inspection and production
order in that the temporary protection order
and the witness protection order do not need
a verification and may be issued motu proprio
or ex parte
(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.
The motion shall state in detail the place or
places to be inspected. It shall be supported by
affidavits or testimonies of witnesses having
personal knowledge of the enforced
disappearances or whereabouts of the aggrieved
party.
If the motion is opposed on the ground of
national security or of the privileged nature of
the information, the court, justice or judge may
conduct a hearing in chambers to determine the
merit of the opposition.
The movant must show that the inspection order
is necessary to establish the right of the
aggrieved party alleged to be threatened or
violated.
The inspection order shall specify the person or
persons authorized to make the inspection and
the date, time, place and manner of making the
inspection and may prescribe other conditions to
protect the constitutional rights of all parties.
The order shall expire five (5) days after the day
of its issuance, unless extended for justifiable
reasons.
- Requires hearing, may be availed of both the
petitioner and the respondent
- If the court, justice or judge gravely abuses
his or her discretion in issuing the inspection
order, the aggrieved party is not precluded
from filing a petition for certiorari with the
Supreme Court
(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.
The motion may be opposed on the ground of
national security or of the privileged nature of
the information, in which case the court, justice
or judge may conduct a hearing in chambers to
determine the merit of the opposition.
The court, justice or judge shall prescribe other
conditions to protect the constitutional rights of
all the parties.
- Only granted upon motion and hearing
- Not the same as search warrant for law
enforcement under Art. III, Sec. 2 of the
Constitution since the latter is a protection of
the people from unreasonable intrusion of the
government, not a protection of the
government from the demand of the people
such as respondents
REMEDIAL LAW REVIEWER
- More similar to production of documents or
things under Sec. 1 Rule 27 of Rules of Civil
Procedure
257
(4) Witness Protection Order. – The court, justice
or judge, upon motion or motu proprio, may
refer the witnesses to the Department of Justice
for admission to the Witness Protection,
Security and Benefit Program, pursuant to
Republic Act No. 6981.
The court, justice or judge may also refer the
witnesses to other government agencies, or to
accredited persons or private institutions
capable of keeping and securing their safety.
Interim Reliefs available to the Respondent
 Inspection Order
 Production Order
Requisites:
(1) Verified motion of the respondent
(2) Due hearing
(3) Affidavits or testimonies of witnesses having
personal knowledge of the defenses of the
respondent.
M. Quantum of Proof in Application
for Issuance of Writ: Substantial
Evidence
The parties shall establish their claims by substantial
evidence.
Respondent public official or employee cannot
invoke the presumption that official duty has been
regularly performed to evade responsibility or
liability
Respondent who is a private individual or entity must
prove that ordinary diligence as required by
applicable laws, rules and regulations was observed
in the performance of duty.
Respondent who is a public official or employee
must prove that extraordinary diligence as required
as required by the applicable laws, rules and
regulations was observed in the performance of
duty.
Sec. of Justice v. Manalo (supra): With the secret
nature of an enforced disappearance and the torture
perpetrated on the victim during detention, it
logically holds that much of the information and
evidence of the ordeal will come from the victims
themselves
Their statements can be corroborated by other
evidence such as physical evidence left by the
torture or landmarks where detained.
 REMEDIAL LAW REVIEWER
XV. CHANGE OF NAME AND
258 CANCELLATION OR CORRECTION
OF ENTRIES IN THE CIVIL
REGISTRY
A. Differences under Rule 103, RA 9048 and
Rule 108
B. Grounds for change of name
A. Differences under the
Applicable Rules (Rule 103,
Rule 108, RA 9048)
See Annex D
B. Grounds for change of name
See Annex D
Jurisprudence
Laperal vs. Republic (1962): Legal separation is not
a ground for the female spouse to apply for a change
of name under Rule 103.
No Yao Siong v. Republic (1966): The name that
can be changed is the name that appears in the civil
register, and not in the baptismal certificate or that
which the person is known in the community.
Ong Huan Tin v. Republic (1967): An alien may
petition for change of name but he must be
domiciled in the Philippines.
Oshito vs. Republic (1967): Verification is a formal,
not a jurisdictional, requirement. The lack of
verification is not a ground for dismissing the
petition. However, before setting the petition for
hearing, the court should have required the
petitioner to have the petition verified.
Go Chiung Beng vs. Republic (1972): All aliases of
the applicant must be set forth in the petition‘s
title. Such defect is fatal, even if said aliases are
contained in the body of the petition.
Secan Kok vs. Republic (1973): A change of name
granted by the court affects only a petitioner. A
separate petition for change of name must be filed
for his/her spouse and children.
Silverio vs. Republic (2007): A person‘s first name
cannot be changed on the ground of sex
reassignment. RA 9048 does not sanction a change of
first name on the ground of sex reassignment. Before
a person can legally change his given name, he must
present proper or reasonable cause or any
compelling reason justifying such change. In
addition, he must show that he will be prejudiced by
the use of his true and official name. Silverio failed
to show, or even allege, any prejudice that he might
suffer as a result of using his true and official name.
Rather than avoiding confusion, changing
petitioner‘s first name may only create grave
complications in the civil registry and the public
interest.
No law allows the change of entry in the birth
certificate as to sex on the ground of sex
reassignment. RA 9048 only allows correction of
clerical or typographical errors. A correction in the
civil registry involving the change of sex is not a
mere clerical or typographical error. The birth
certificate of petitioner contained no error. All
entries therein, including those corresponding to his
first name and sex, were all correct. No correction is
necessary.
People vs. Cagandahan (2008): Intersexuality is a
valid ground for change of name and change of entry
of sex in the civil registry. 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 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.
Failure to implead the local civil registrar as well as
all persons who have or claim any interest did not
render the petition fatally defective. Cagandahan
furnished the local civil registrar a copy of the
petition, the order to publish, and all pleadings,
orders or processes in the course of the proceedings.
There was therefore substantial compliance of the
provisions of Rules 103 and 108 of the Rules of
Court.
XVI. ABSENTEES
A. Purpose of the Rule
B. Who may file; when to file
A. Purpose of the Rule
IN RE: PETITION FOR DECLARATION OF ABSENCE
OF ROBERTO L. REYES (1986): The declaration of
absence made in accordance with the provisions of
the Civil Code has for its SOLE PURPOSE to enable
the taking of the necessary precautions for the
administration of the estate of the absentee.
There is a need to have a person judicially declared
an absentee when:
(1) he has properties which have to be taken cared
of or administered by a representative
appointed by the Court (Article 384, Civil Code);
(2) the spouse of the absentee is asking for
separation of property (Article 191, Civil Code);
or
(3) his wife is asking the Court that the
administration of an classes of property in the
marriage be transferred to her (Article 196, Civil
Code).

B. Who may file; when to
file
Who may file
 Petition for Appointment of a Representative
(1) Any interested party
(2) Relative
(3) Friend
 Petition for Declaration of Absence and
Appointment of Trustee or Administrator
(1) The spouse present
(2) The heirs instituted in a will, who may
present an authentic copy of the same
(3) The relatives who would succeed by the law
of intestacy
(4) Those who have over the property of the
absentee some right subordinated to the
condition of his death.
When to file
 Petition for Appointment of a Representative -
When a person:
(1) Disappears from his domicile, his
whereabouts being unknown
(2) Has not left an agent to administer his
property or the power conferred upon the
agent has expired.
 Petition for Declaration of Absence and
Appointment of Trustee or Administrator
- After 2 years:
(1) From the disappearance of and without
any news from the absentee OR
(2) Since the receipt of the last news about
him.
- After 5 years, if the absentee left an
administrator of his property.
XVII. CANCELLATION OR
CORRECTION OF ENTRIES IN THE
CIVIL REGISTRY
A. Entries subject to cancellation or
correction under Rule 108, in relation to
RA 9048
A. Entries subject to cancellation
or correction under Rule 108,
in relation to RA 9048
Under RULE 108: SUBSTANTIAL CHANGES in entries
in the civil registry, excluding name which is
governed by Rule 103.
Substantial Change – change that affects the civil
status, citizenship, or nationality of a party.
(1) Births
(2) Marriage
(3) Deaths
(4) Legal separations
(5) Judgments of annulments of marriage
REMEDIAL LAW REVIEWER
(6) Judgments declaring marriages void from the
beginning
(7) Legitimations
(8) Adoptions 259
(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) Changes of name
Under RA 9048: CLERICAL or TYPOGRAPHICAL
ERRORS
Clerical Error: A mistake committed in the
performance of clerical work in writing, copying,
transcribing or typing an entry in the civil register
that:
(1) Is harmless and innocuous.
(2) Is visible to the eyes or obvious to the
understanding (Patent)
(3) Can be corrected or changed only by reference
to other existing record or records
(4) Does not involve the change of nationality, age,
status or sex of the petitioner.
Such changes have public interest implications and
must only be made upon approval of the Court.
Silverio vs. Republic (2007): RA 9048 now governs
the change of first name. It vests the power and
authority to entertain petitions for change of first
name to the city or municipal civil registrar or consul
general concerned. Under the law, jurisdiction over
applications for change of first name is now
primarily lodged with the aforementioned
administrative officers. The intent and effect of the
law is to exclude the change of first name from the
coverage of Rules 103 and 108, until and unless an
administrative petition for change of name is first
filed and subsequently denied. It likewise lays down
the corresponding venue, form and procedure. In
sum, the remedy and the proceedings regulating
change of first name are primarily administrative in
nature, not judicial.
NOTE: The procedure recited in Rule 103 regarding
change of name and in Rule 108 concerning the
cancellation or correction of entries in civil registry
are separate and distinct. They may not be
substituted one for the other. If both reliefs are to
be sought in the same proceedings all the
requirements of Rule 103 and 108 must be complied
with. [Republic v. Valencia (1986)]
XVIII. APPEALS IN SPECIAL
PROCEEDING
A. Judgments and orders for which appeal
may be taken
B. When to appeal
C. Modes of appeal
D. Rule on Advance Distribution
 REMEDIAL LAW REVIEWER

D. Rule on Advance Distribution

A. Judgments and orders for
260 which appeal may be taken Notwithstanding a pending controversy/appeal in
estate settlement proceedings, the court may permit
(1) If it allows or disallows a will that the estate‘s parts which are not affected by the
(2) If it wholly determines who are the lawful heirs controversy/appeal be distributed, upon compliance
or the distributive shares with Rule 90.
(3) If it wholly or partially allows or disallows a
claim against a decedent‘s estate, or any claim
presented on the decedent‘s estate, or any
claim presented on the estate‘s behalf on offset
to claim against it
(4) If it settles the account of an
executor/administrator/trustee/guardian
(5) If it constitutes a final determination in the
lower court of the rights of the party appealing
in proceedings relating to estate settlement or
administration of a trustee/guardian

Exception: Appointment of a special

administrator is not appealable
- Remedy: Petition for certiorari under Rule 65,
if there is grave abuse of discretion.

(6) If it is the final order/judgment rendered in the

case, and affects the substantial rights of the
person appealing

Exception: Orders granting/denying a MFR/MNT

While some of the items in Rule 109. Sec. 1 may be

considered as interlocutory under ordinary special
actions, the nature of special proceedings declares
them as appealable as exceptions to Rule 41, Sec. 2.

B. When to appeal
In a special proceeding, the period of appeal is 30
days.

The appeal period may be interrupted by the filing

of an MFR/MNT. Once the appeal period expires
without an appeal/MF/MNT, the order becomes
final.

C. Modes of appeal
NOTICE and RECORD ON APPEAL REQUIRED.

Rule 109 contemplates multiple appeals during the

pendency of special proceedings. A record on appeal
– in addition to the notice of appeal – is thus
required to be filed as the original records of the
case should remain with the trial court to enable the
rest of the case to proceed in the event that a
separate and distinct issue is resolved by said court
and held to be final. However, a record on appeal is
not necessary where no other matter remained to be
heard and determined by the trial court after it
issued the appealed order granting the petition for
cancellation of birth record and change of surname
in the civil registry. [Republic v. Nishina (2010)]

Annex A
Domestic Adoption (RA 8552)
Governing Body DSWD
Adoption need not be the last resort
When may
adoption be
resorted to
(1) Any FILIPINO CITIZEN (regardless of
where residing)
(a) of legal age,
(b) at least sixteen (16) years older
than the adoptee, (may be waived
when the adopter is the biological
parent of the adoptee, or is the
spouse of the adoptee's parent)
(c) in possession of full civil capacity
and legal rights,
(d) of good moral character, has not
been convicted of any crime
involving moral turpitude,
emotionally and psychologically
capable of caring for children,
(e) who is in a position to support and
care for his/her children in
keeping with the means of the
family.
(2) Any ALIEN possessing the same
qualifications as above stated for
Filipino nationals: Provided,
(a) that he/she has been living in the
Philippines for at least three (3)
Who may adopt continuous years prior to the filing
of the application for adoption and
maintains such residence until the
adoption decree is entered,
(b) that his/her country has
diplomatic relations with the
Republic of the Philippines,
(c) he/she has been certified by
his/her diplomatic or consular
office or any appropriate
government agency that he/she
has the legal capacity to adopt in
his/her country, and
(d) that his/her government allows
the adoptee to enter his/her
country as his/her adopted
son/daughter:
(e) that the requirements on
residency and certification of the
alien's qualification to adopt in
his/her country may be waived for
the following:
(i) a former Filipino citizen who
seeks to adopt a relative
within the fourth (4th) degree
of consanguinity or affinity; or
(ii) one who seeks to adopt the
legitimate son/daughter of
his/her Filipino spouse; or
REMEDIAL LAW REVIEWER
261
Intercountry Adoption (RA 8043)
Inter-country Adoption Board (ICAB)
Adoption only as last resort: No child shall be
matched to a foreign adoptive family unless it
is satisfactorily shown that the child cannot
be adopted locally (Sec.11)
(1) FILIPINO CITIZEN permanently
residing abroad may file an
application for inter-country
adoption of a Filipino child if he/she:
(a) is at least twenty-seven (27)
years of age
(b) at least sixteen (16) years older
than the child to be adopted, at
the time of application unless
the adopter is the parent by
nature of the child to be
adopted or the spouse of such
parent:
(c) has the capacity to act and
assume all rights and
responsibilities of parental
authority under his national
laws, and has undergone the
appropriate counseling from an
accredited counselor in his/her
country;
(d) has not been convicted of a
crime involving moral turpitude;
(e) is in a position to provide the
proper care and support and to
give the necessary moral values
and example to all his children,
including the child to be adopted
(f) if married, his/her spouse must
jointly file for the adoption;
(g) is eligible to adopt under his/her
national law;
(h) agrees to uphold the basic rights
of the child as embodied under
Philippine laws, the U.N.
Convention on the Rights of the
Child, and to abide by the rules
and regulations issued to
implement the provisions of this
Act;
(i) comes from a country with
whom the Philippines has
diplomatic relations and whose
government maintains a similarly
authorized and accredited
agency and that adoption is
allowed under his/her national
laws;
 REMEDIAL LAW REVIEWER
(iii) one who is married to a
Filipino citizen and seeks to
262 adopt jointly with his/her
spouse a relative within the
fourth (4th) degree of
consanguinity or affinity of
the Filipino spouse; or
(3) The GUARDIAN with respect to the
ward after the termination of the
guardianship and clearance of his/her
financial accountabilities. ( Sec. 7)
(a) Any person below eighteen (18) years of
age who has been administratively or
judicially declared available for adoption;
(b) The legitimate son/daughter of one spouse
by the other spouse;
(c) An illegitimate son/daughter by a qualified
adopter to improve his/her status to that of
legitimacy;
Who may be (d) A person of legal age if, prior to the
adopted adoption, said person has been consistently
considered and treated by the adopter(s) as
his/her own child since minority;
(e) A child whose adoption has been
previously rescinded; or
(f) A child whose biological or adoptive
parent(s) has died: Provided, That no
proceedings shall be initiated within six (6)
months from the time of death of said
parent(s). (Sec. 8)
Petition for adoption shall be filed with
Family Court of the province or city where the
prospective adoptive parents reside (Rule on
Adoption, Sec. 6)
Venue
Trial Custody Takes place in Philippines
Only upon petition of adoptee, never by
adopters (Sec.19)
Rescission
(j) possesses all the qualifications
and none of the disqualifications
provided herein and in other
applicable Philippine laws.
(2) ALIEN with above qualifications
a) Filipino children (Sec. 3(a))
b) Below 15 years of age (Sec. 3(b))
c) Who are legally free, meaning children who
have been voluntarily or involuntarily
committed to the DSWD (Sec. 3(f) and Sec. 8)
IRR of 2004 adds that:
Any child who has been voluntarily or
involuntarily committed to the Department as
dependent, abandoned or neglected pursuant
to the provisions of the Child and Youth
Welfare Code may be the subject of Inter-
Country Adoption xxx (Sec. 26)
Either with the Philippine RTC having
jurisdiction over the child, or with the Inter-
country Board through an intermediate
agency, in the country of the adoptive
parents (Sec. 10)
IRR of 2004 provides that:
Application shall be filed with the Board or
the Central Authority or the Foreign Adoption
Agency in the country where the applicant
resides. In case of foreign nationals who file
petition for adoption under RA 8552 or
Domestic Adoption Law, the Court after
finding petition to be sufficient in form and
substance and proper case for inter-country
adoption shall immediately transmit the
petition to the board for appropriate action.
(Sec. 30)
Where adoptive parents reside
No provision limiting act of rescission only to
adoptee.
In IRR, the procedure is provided for when
adoption process is terminated:
SECTION 47. DISRUPTION AND TERMINATION
OF PLACEMENT. - In the event of serious
damage in the relationship between the child
and the applicant/s where the continued
placement of the child is not in his/her best
interests, the Central Authority and/or the
 REMEDIAL LAW REVIEWER

FAA shall take the necessary measures to

protect the child, in particular, to cause the
child to be withdrawn from the applicant/s
and to arrange for his/her temporary care. 263
The Central Authority and/or FAA shall
exhaust all means to remove the cause of the
unsatisfactory relationship which impedes or
prevents the creation of a mutually
satisfactory adoptive relationship. A complete
report should be immediately forwarded to
the Board with actions taken as well as
recommendations and appropriate plans.
Based on the report, the Board may terminate
the pre-adoptive relationship.

SEC. 48. NEW PLACEMENT FOR CHILD. In the

event of termination of the pre-adoptive
relationship, the Board shall identify from the
Roster of Approved Applicants a suitable
family with whom to place the child. The
Central Authority and/or the FAA may also
propose a replacement family whose
application shall be filed for the approval of
the Board. No adoption shall take place until
after the Board has approved the application
of such replacement family.
 REMEDIAL LAW REVIEWER
Annex B
COMPARATIVE TABLE ON HABEAS CORPUS and RULE ON CUSTODY OF MINORS
264 HABEAS CORPUS (RULE 102)
Rights Right to liberty
involved Rightful custody of the aggrieved party
Situations Actual violation of the aggrieved party‘s right Deprivation of rightful custody
applicable
Party Party for whose relief it is intended or by some
authorized to person in his behalf
file
Respondents May or may not be an officer
Before which (1) RTC or any judge thereof
court or (2) CA or any member thereof in instances
judicial authorized by law
authority (3) SC or any member thereof
filed (4) Special jurisdiction given to first level
courts in the absence of RTC judges in a
province or city (SECTION 35, BP 129)
(5) In aid of appellate jurisdiction of the
Sandiganbayan ( RA 8249 further
expanding its jurisdiction)
Contents of Signed, verified either by the party for whose
the petition relief it is intended, or by some person in his
behalf and shall set forth: (PDIC)
(1) That the person in whose behalf the
application is made is imprisoned or
restrained on his liberty;
(2) The officer or name of the person by
whom he is so imprisoned or restrained
or, if both are unknown or uncertain, such
officer or person may be described by an
assumed appellation, and the person who
is served with the writ shall be deemed
the person intended;
(3) The place where he is so imprisoned or
restrained, if known;
(4) A copy of the commitment or cause of
detention of such person, if it can be
procured without impairing the efficiency
of the remedy or, if the imprisonment or
restraint is without any legal authority,
such fact shall appear.
RULE ON CUSTODY AND HABEAS CORPUS FOR
MINORS (A.M. 03-04-04)
Petition for the rightful custody of a minor
A verified petition for a writ of habeas corpus
involving custody of minors shall be filed with
the Family Court. The writ shall be
enforceable within its judicial region to which
the Family Court belongs.
However, the petition may be filed with the
regular court in the absence of the presiding
judge of the Family Court, provided,
however, that the regular court shall refer the
case to the Family Court as soon as its
presiding judge returns to duty.
The petition may also be filed with the
appropriate regular courts in places where
there are no Family Courts.
The verified petition shall allege the following:
(PRMO)
(1) The personal circumstances of the
petitioner and of the respondent
(2) The name, age and present whereabouts
of the minor and his or her relationship
to the petitioner and the respondent
(3) The material operative facts constituting
deprivation of custody and
(4) Such other matters which are relevant to
the custody of the minor.
The verified petition shall be accompanied by
a certificate against forum shopping, which the
petitioner must sign personally.

Annex C
Writ Matrix (Comparison of the Writs)
WHC – Writ of Habeas Corpus
WD – Writ of Habeas Data
RWD – Rules on Habeas Data
CA - Court of Appeals
RTC – Regional Trial Court
Habeas Corpus
Nature, scope, All cases of illegal
function confinement and detention
which any person is deprived
of his liberty or rightful
custody of any person is
withheld from the person
entitled (102.1)
Actual violation before writ
issues. Note Villavicencio v.
Lukban on applicability of the
writ in case of constructive
restraint
Limitations May be suspended in cases of
invasion or rebellion when
public safety requires it
(Consti. Art. III Sec. 15)
Who may file By a petition signed and
verified by the party for
whose relief it is intended, or
by some person on his behalf
(102.3)
Where filed Granted by:
(1) SC or any member
thereof, on any day and
at any time
(2) CA or any member
thereof in instances
authorized by law
(3) RTC or a judge thereof,
on any day and at any
time, enforceable only
within his judicial
district (102.2)
(4) MTC OR FIRST LEVEL
COURTS in the absence
of RTC judges in a
judicial region (section
35 BP 129)
Where If SC or CA issued, anywhere
enforceable in the Philippines
WA – Writ of Amparo
RWA - Rules on the Writ of Amparo
SC – Supreme Court
SB – Sandiganbayan
CoC – Clerk of Court
Amparo
Involves right to life, liberty
and security violated or
threatened with violation by
an unlawful act or omission of
a public official or employee
or a private individual or
entity
It covers extralegal killings
and enforced disappearances
or threats thereof.
Shall not diminish, increase or
modify substantive rights
(RWA Sec. 23)
Petition filed by the
aggrieved party or by any
qualified person or entity in
the following order:
(1) Any member of the
immediate family
(2) Any ascendant,
descendant or collateral
relative of the
aggrieved within the 4th
civil degree of
consanguinity or affinity
(3) Any concerned citizen,
organization,
association or
institution
Filing by the aggrieved
suspends the right of all
others (RWA Sec. 2 )
Filed on any day and at any
time:
(1) SB, CA, SC, or any justice
of such courts
(2) RTC of place where the
threat, act, or omission
was committed or any
element occurred (RWA
Sec. 4)
Writ shall be enforceable
anywhere in the Philippines
REMEDIAL LAW REVIEWER
265
Habeas Data
Involves the right to privacy
in life, liberty or security
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.
Shall not diminish, increase or
modify substantive rights
(RWD Sec. 23)
Any aggrieved party may file
a petition for the WHD
However, in cases of
extralegal killings and
enforced disappearances, the
petition may be filed by (also
successive):
(1) Any member of the
immediate family of the
aggrieved
(2) Any ascendant,
descendant or collateral
relative of the
aggrieved party within
the fourth civil degree
of consanguinity or
affinity, (RWD Sec. 2)
Petition may be filed with
RTC where the petitioner or
respondent resides or that
which has jurisdiction over
the place where the data or
information is gathered,
collected or stored, at the
option of petitioner
If public data files of
government offices, petition
shall be filed with the SC, CA,
or SB (RWD Sec. 3)
Writ shall be enforceable
anywhere in the Philippines
 REMEDIAL LAW REVIEWER

Habeas Corpus Amparo Habeas Data

(RWA Sec. 4) (RWD Sec. 3)
266 If granted by the RTC or
judge thereof, it is
enforceable in any part of the
judicial region (Section 21, BP
129 which modified the term
judicial district in Section 2,
Rule 102 into judicial region)
where the judge sits
Where If the one that granted the If the one that granted the If issued by:
returnable writ: writ: (1) The SC or any of its
(1) Is the SC or CA, or a (1) Is the SC or any of its justices, before such
member thereof, justices, before such Court or any justice
returnable before such court or any justice thereof, or CA or SB or
court or any member thereof, or before the any of its justices, or
thereof or an RTC SB or CA or any of their the RTC of the place
(2) An RTC, or a judge justices, or to any RTC where the petitioner or
thereof, returnable of the place where the respondent resides /
before himself (102.2) threat, act or omission has jurisdiction over the
was committed or any place where the data or
of its elements occurred information is gathered,
(2) The SB or CA or any of stored or collected
their justices, before (2) The CA or SB or any of its
such court or any justices, before such
justice thereof, or to court or any justice
any RTC of the place thereof, or the RTC
where the threat, act, (same with scenario: SC
or omission was issued and then
committed or any of its returned in RTC)
elements occurred (RWA (3) RTC, returnable before
Sec. 3) such court or judge
(RWD Sec. 4)
Docket Fees upon the final disposition of Petitioner shall be exempted None for indigent petitioner
such proceedings the court or from the payment of the Petition shall be docketed
judge shall make such order docket and other lawful fees and acted upon immediately,
as to costs as the case - Court, justice or judge w/o prejudice to subsequent
requires (102.19) shall docket the petition submission of proof of
and act upon it indigency not later than 15
immediately (RWA Sec 4) days from filing (RWD Sec. 5)
Essential Signed and verified either by Signed and verified and shall Verified and written petition
allegations/ the party for whose relief it is allege: shall contain:
Contents of intended or by some person (1) The personal (1) Personal circumstances
petition on his behalf, setting forth: circumstances of the of petitioner and
(1) The person in whose petitioner respondent
behalf whose the (2) Name or appellation and (2) Manner the right to
application is made is circumstances of the privacy is violated or
imprisoned or restrained respondent threatened and its
of his liberty (3) The right to life, liberty, effects
(2) Name of the person and security violated or (3) Actions and recourses
detaining another or threatened with taken by the petitioner
assumed appellation violation, to secure the data or
(3) Place where he is (4) The investigation information
imprisoned or restrained conducted, if any, plus (4) The location of the files,
of his liberty circumstances of each registers, or databases,
(4) Cause of detention (5) The actions and the government office,
(102.3) recourses taken by the and the person in
petitioner charge or control
(6) Relief prayed for (5) The reliefs prayed for

May include a general prayer Such other relevant reliefs as

When proper Court or judge must, when a
petition is presented and it
appears that it ought to issue,
grant the same and then:
for other just and equitable
reliefs (RWA Sec. 5)
Upon the filing of the
petition, the court, justice,
or judge shall immediately
order the issuance of the writ
are just and equitable (RWD
Sec. 6)
Upon filing of the petition,
the court, justice, or judge
shall immediately order the
issuance of the writ if on its

Habeas Corpus
 the clerk of court (CoC)
shall issue the writ under
the seal of the court or
 in case of emergency, the
judge may issue the writ
under his own hand, and
may depute any officer or
person to serve it (102.5)
Also proper to be issued when
the court or judge has
examined into the cause of
restraint of the prisoner, and
is satisfied that he is
unlawfully imprisoned (102.5)
How and who Writ may be served in any
serves province by the (a) sheriff,
(b) other proper officer, or
(c) or person deputed by the
court or judge
Service is made by leaving the
original with the person to
whom it is directed and
preserving a copy on which to
make return of service
 If that person cannot be
found, or has not the
prisoner in his custody,
service shall be made on
any other person having or
exercising such custody
(102.7)
Respondent May or may not be an officer
How executed The officer to whom the writ
and returned is directed shall convey the
person so imprisoned or
restrained before:
- the judge allowing the writ,
- or, in his absence or
disability, before some
other judge of the same
court
on the day specified in the
writ,
 unless person directed to
be produced is sick or
infirm, and cannot, without
danger, be brought therein
officer shall then make due
return of the writ, with the
day and cause of the caption
and restraint according to the
command thereof (102.8)
When to file On the day specified on the
return writ
Contents of When the person to be
return produced is imprisoned or
restrained by an officer the
person who makes the return
shall state, and in other cases
Amparo
if on its face it ought to issue
 CoC shall issue the writ
under the seal of the court
or
 In case of urgent necessity,
the justice or the judge
may issue the writ under
his or her own hand, and
may deputize any officer
or person to serve it
The writ shall be served upon
the respondent by a judicial
officer or by a person
deputized by the court,
justice or judge who shall
retain a copy on which to
make a return of service
 In case the writ cannot
be served personally on
the respondent, the rules
on substituted service
shall apply (RWA Sec. 8)
Respondent is a public official
or employee or private
individual or entity
Respondent files the return
Within 5 working days after
service of the writ
Within 5 working days after
service of the writ, the
respondent shall file a secrets,
verified written return
together with supporting
REMEDIAL LAW REVIEWER
Habeas Data
face it ought to issue.
 CIC shall issue the writ
under the seal of the court 267
and cause it to be served
within 3 days from issuance
or
 In case of urgent necessity,
the justice or judge may
issue the writ under his or
her own hand, and may
deputize any officer or
person to serve it (RWD
Sec. 7)
The writ shall be served upon
the respondent by a judicial
officer or by a person
deputized by the court,
justice or judge who shall
retain a copy on which to
make a return of service
In case the writ cannot be
served personally on the
respondent, the rules on
substituted service shall apply
(RWD Sec. 9)
A public official or employee
or a private individual or
entity engaged in gathering,
collecting or storing data
Respondent files the return
Same with WA
(1) Lawful defenses such as
national security, state
privileged
communications,
confidentiality of the
 REMEDIAL LAW REVIEWER

Habeas Corpus Amparo Habeas Data

the person in whose custody affidavits which shall, , source of information of
268 the prisoner is found shall contain: media etc.
state in writing to the court (1) Lawful defenses (2) In case of respondent in
or judge before whom the (2) The steps or actions charge, in possession or
writ is returnable: taken to determine the in control of the data or
(1) Truth of custody/power fate or whereabouts of information subject of
over the aggrieved the aggrieved party the petition:
(2) If has custody or power, (3) All relevant information (a) A disclosure of the
or under restraint, the in the possession of the data or information
authority and the cause respondent pertaining about the
thereof, with a copy of to the threat, act or petitioner, the
the writ, order, omission against the nature of such data
execution or other aggrieved party or information, and
process, if any upon (4) If the respondent is a the purpose for its
which the party is held public official or collection
(3) If the party is in his employee, the return (b) The steps or actions
custody or power, and is shall further state acts: taken by the
not produced, (a) To verify identity of respondent to
particularly the nature aggrieved party ensure the security
and gravity of the (b) To recover and and confidentiality
sickness or infirmity preserve evidence of the data or
(4) If he has had the party in (c) To identify and information
his custody or power, collect witness (c) The currency and
and has transferred such statements accuracy of the
custody or restraint to (d) To determine cause, data or information
another, particularly to manner, location, held
whom, at what time, for and time of death
what cause, and by or disappearance Other allegations relevant to
what authority such (e) To identify and the resolution of the
transfer was made. apprehend persons proceeding (RWD Sec.10)
(102.10) involved
(f) Bring suspected
offenders before a
competent court
(RWA Sec.9)
Formalities of Return or statement shall be … the respondent shall file a Respondent shall file a
return signed and sworn to by the verified written return verified written return
person who makes it if the together with supporting together with supporting …
prisoner is not produced, affidavits… (RWA Sec. 9) (RWD Sec. 10)
 Unless the return is made
and signed by a sworn
public officer in his official
capacity (102.11)
Penalties  CoC who refuses to issue  CoC who refuses to issue  COC who refuses to issue
the writ after allowance the writ after its the writ after its allowance,
For refusing to and demand, allowance, or or
issue or serve  Or a person to whom a writ  a deputized person who  a deputized person who
is directed, who: refuses to serve the same, refuses to serve the same,
(1)neglects/refuses to obey
or make return of the shall be punished by the shall be punished by the
same according to the court, justice or judge for court, justice, or judge for
command thereof, contempt without prejudice contempt without prejudice
(2)or makes false return, to other disciplinary actions to other disciplinary actions
For faulty (3)or upon demand made by (RWA Sec. 7) (RWD Sec. 8)
return or on behalf of the
prisoner, refuses to  The court, justice, or judge The court, justice, or judge
deliver to the person may order the respondent may punish with
demanding, within 6 who refuses to make a imprisonment or fine a
hours a true copy of the return, or who makes a respondent who commits
warrant or order of false return, or any person contempt by:
commitment, who otherwise disobeys or (1) Making a false return or
resist a lawful process or (2) Refusing to make a
shall forfeit to the party order of the court to be return or
aggrieved the sum of P1000, punished for contempt (3) Any person who
recoverable in a proper  Contemnor may be otherwise disobeys or
action, and may also be imprisoned or imposed a resists a lawful process
 REMEDIAL LAW REVIEWER

Habeas Corpus Amparo Habeas Data

punished for contempt fine (RWA Sec. 16) or order of the court
(102.16) (RWD Sec. 11)
Is period of No, not even on highly Yes, by the court, for 269
return meritorious grounds. justifiable reasons (RWD Sec.
extendable? 10)
Is a general Yes. No prohibition in Rule. No, by virtue if A.M. No. 07-9- No, by virtue of RWD Sec. 10,
denial 12-SC last sentence.
allowed?
Defenses not If not raised in return deemed
pleaded waived (RWA Sec 10)

Effect of Court or justice shall proceed Court, judge, or justice shall

failure to file to hear the petition ex parte hear the motion ex parte,
return (RWA Sec. 12) granting the petitioner such
reliefs as the petition may
warrant
Unless the court in its
discretion requires the
petitioner to submit evidence
(RWD Sec. 14)
Nature of Summary. However, the Summary. With possibility of
Hearing court, justice, or judge may preliminary conference
call for a preliminary similar to the writ of amparo
conference to simplify the (RWD Sec. 14)
issues and look at possibility Hearing on chambers may be
of obtaining stipulations and conducted where respondent
admissions from the parties. invokes the defense of
 Hearing shall be from day national security or state
to day until completed secrets, or the data is of
same priority as petitions public or privileged character
for WHC (RWD Sec. 12)

Date and time As specified in the writ Not later than 7 days from Not later than 10 working
of hearing the issuance of the writ days from the date of
issuance writ
Prohibited In custody of minors: a Motion to dismiss, Motion for Same as writ of amparo (RWD
pleadings motion to dismiss, except on extension of time to file Sec. 13)
the ground of lack of opposition, affidavit, position
jurisdiction paper and other pleadings,
Dilatory motion for
postponement, Motion for bill
of particulars, Counterclaims
or cross-claims, Third-party
complaint, Reply, Motion to
declare respondent in
default, Intervention,
Memorandum, Motion for
reconsideration of
interlocutory orders or
interim relief orders, petition
for certiorari, mandamus, or
prohibition (RWA Sec.11)
Burden of Preponderance of evidence Establish claims by substantial Substantial evidence required
Proof evidence to prove the allegations in the
 if respondent is a private petition (RWD Sec. 16)
individual or entity,
ordinary diligence
 if public official or
employee, extraordinary
diligence
Presumption of Yes. Consonant wit 102.13, Public official or employee
Official duty stating that if warrant of cannot invoke the
commitment is in pursuance presumption that official duty
with law, serves as prima has been regularly performed
facie cause of restraint (RWA Sec. 17)
 REMEDIAL LAW REVIEWER

Habeas Corpus Amparo Habeas Data

Judgment The court shall render Within 10 days from the time
270 judgment within 10 days from the petition is submitted for
the time the petition is decision (RWD Sec. 16)
submitted for
decision (RWA Sec. 18)
Appeals Within 48 hours from notice 5 working days from the date 5 working days from the date
of the judgment of final order of notice of adverse judgment of notice of adverse judgment
appealed Rule 45 filed with the SC Rule 45 filed with the SC
Consolidation May be consolidated with a May be consolidated with a
of actions criminal action filed criminal action filed
subsequent to the petition subsequent to the petition
(RWA Sec. 23) (RWD Sec. 21)
Effect of filing No more separate petition Same as WA
criminal action shall be filed. Reliefs
available by motion in the
criminal case (RWA Sec. 22)
 REMEDIAL LAW REVIEWER

Annex D
Rule 103 Rule 108 RA 9048
Applicability Substantial Changes Substantial changes in Change of First Names or 271
entries in the civil registry Nicknames
(other than name)
Change brought about by clerical or
typographical errors
Nature Judicial Judicial Administrative
Who May File 1. The person desiring to Natural person having direct A natural person having direct and
change his name and personal interest in the personal interest in the change of
2. Some other person on correction of error in an first name or nickname in the civil
his behalf entry in the civil register register.
Where Filed RTC of the province in RTC of the province where The local civil registry office of the
which the person desiring the civil registry is located city or municipality where the
to change his name record being sought to be
resides. corrected/changed is kept.

EXCEPTIONS:
 If the petitioner has already
migrated to another place in
the country, the petition shall
be filed with local civil
registrar of the place where
the interested party is
presently residing or domiciled
 If the petitioner is a Filipino
citizen presently residing or
domiciled in a foreign country,
the petition shall be filed in
the nearest Philippine
Consulate.

Rationale: It would not be practical

for him, in terms of transportation
expenses, time and effort, to
appear in person before the local
civil registrar keeping the
documents to be corrected or
changed
Standing of Not a party to the Made a party to the
the LCR proceeding proceeding as a respondent
Notice No mention of notice to be The court shall cause
requirement sent reasonable notice to be
given to persons named in
the petition
Contents of Title: In Re: Petition for 1. Facts necessary to establish
Petition Change of Name of X, also the merits of the petition.
known as Y and Z, to ABC.
X, Petitioner. 2. A showing that the petitioner is
competent to testify to the
Names or Aliases of the matters stated.
Applicant (must appear in
the caption of the 3. Particular erroneous entry or
petition) entries which are sought to be
 Omission is fatal to the corrected and/or the change
petition sought to be made.
 To allow a reader of
the published petition
to notice the said
aliases

Petitioner has been a

bona fide resident of the
province where the
petition is filed for at
least 3 years prior to the
 REMEDIAL LAW REVIEWER

Rule 103 Rule 108 RA 9048

date of such filing.
272
Cause for which the
change of the petitioner's
name is sought
 Petitioner must show a
proper or compelling
reason for the change
of name + the fact
that he will be
prejudiced by the use
of his official name.

Name asked for

Form of The petition shall be Verified petition 1. In the form of an affidavit
Petition signed and verified. 2. Verified
3. Subscribed and sworn to before
any person authorized by law
to administer oaths.
Procedure for 1. Filing of petition for 1. Filing of petition 1.Filing of petition and its
Changing of change of name. supporting papers in 3 copies to
Name 2. Court shall promulgate an be distributed to:
2. Court shall promulgate order fixing the time  The concerned city or
an order fixing a date and place for hearing municipal civil registrar or
and place for hearing the petition and cause the consul general
the petition. The date reasonable notice to be  The Office of the Civil
set for the hearing shall given to the persons Registrar General
not be: named in the petition.  The petitioner
 Within 30 days prior  Civil registrar and all
to an election AND persons who have or 2.The City or Municipal Registrar or
 Within 4 months claim any interest the Consul General shall post the
after the last which would be petition in a conspicuous place
publication of the affected thereby for ten 10 consecutive days after
notice. shall be made parties he finds the petition and its
to the proceeding supporting documents sufficient
3. Court shall direct a copy in form and substance.
of the order to be 3. Court shall direct a copy
published before the of the order to be 3.The petition shall be published at
hearing published before the least once a week for 2
 At least once a hearing consecutive weeks in a
week for 3  At least once a week newspaper of general circulation.
successive weeks for 3 successive
 In some newspaper weeks 4.The City or Municipal Registrar or
of general  In some newspaper the Consul General shall render a
circulation of general decision not later than 5
published in the circulation published working days after the
province. in the province. completion of the posting and/
or publication requirement. He
4. Hearing shall be 4. File opposition shall transmit a copy of his
conducted.  Within 15 days from decision together with the
 The SolGen or the notice of the petition records of the proceedings to the
proper provincial or or from the last date Office of the Civil Registrar
city fiscal shall of publication General within 5 working days
appear on behalf of from the date of the decision.
the Government of 5. Hearing shall be  Where the petition is denied
the Republic. conducted. by the city or municipal civil
 Court may expedite registrar or the consul
5. Judgment granting or the proceedings and general, the petitioner may
denying the change of also grant preliminary either appeal the decision to
name. injunction for the civil registrar general or
preservation of rights file the appropriate petition
6. Copy of judgments shall of the parties with the proper court.
be furnished the civil
registrar of the 6. Judgment granting or 5.The Civil Registrar General shall,
municipality or city denying the change of within 10 working days from
where the court issuing name. receipt of the decision granting a
 REMEDIAL LAW REVIEWER

Rule 103 Rule 108 RA 9048

the same is situated,
who shall forthwith
enter the same in the
civil register.
7. Copy of judgments shall
be furnished the civil
registrar concerned who
shall annotate the same
in the records
petition, exercise the power to
impugn such decision by way of
an objection. 273
 Grounds for objection
(a) The error is not clerical
or typographical
(b) The correction of an
entry or entries in the
civil register is
substantial or
controversial as it
affects the civil status
of a person
(c) The basis used in
changing the first name
or nickname of a person
does not fall under one
of the valid grounds.

If the civil registrar general fails to

exercise his power to impugn the
decision of the city or municipal
registrar or of the consul general
within the period, such decision
shall become final and executory.

6.The civil registrar general shall

immediately notify the city or
municipal civil registrar or the
consul general of the action
taken on the decision.

7.Upon receipt of the notice

thereof, the city or municipal
civil registrar or the consul
general shall notify the petitioner
of such action.

8.Appeal. The petitioner may seek

reconsideration with the civil
registrar general or file the
appropriate petition with the
proper court.
Opposition Any interested person Civil registrar and any N/A
person having or claiming NOTE: The Civil Registrar General is
interest under the entry given the power to object to the
whose cancellation or decision of the Local Civil Registrar.
correction is sought
Grounds for Republic v. Hernandez: Entries subject to Sec. 4: Grounds for Change of
Change of Valid Grounds for Change cancellation or correction: First Name or Nickname
Name of Name (1) Birth
(1) The name is (2) Marriage (1) The first name or nickname is
ridiculous, tainted (3) Death ridiculous, tainted with
with dishonor or (4) Legal separation dishonor or extremely difficult
extremely difficult to (5) Judgment of annulment to write or pronounce.
write or pronounce. (6) Judgment declaring
(2) Change results as a marriage null and void (2) The new first name or
legal consequence of (7) Legitimation nickname has been habitually
legitimation (8) Adoption and continuously used by the
(3) The change will avoid (9) Acknowledgment of petitioner and he has been
confusion. natural children publicly known by the first
(4) A sincere desire to (10) Naturalization name or nickname in the
adopt a Filipino name (11) Election, loss or community.
to erase signs of recovery of citizenship
 REMEDIAL LAW REVIEWER

Rule 103 Rule 108 RA 9048

former alienage (Ang (12) Civil interdiction (3) The change will avoid
274 Chay vs. Republic, (13) Judicial determination confusion.
1970) of filiation
(5) Having continuously (14) Voluntary
used and been known emancipation of minor
since childhood by a (15) Changes of name
Filipino name, having
been unaware of alien
parentage (Uy vs.
Republic, 1965)