San Beda College of Law: M A R L

San Beda College of Law
100
MEMORY AID
IN
REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
REMEDIAL LAW
101
MEMORY AID
SPECIAL PROCEEDINGS
SPECIAL PROCEEDINGS - A remedy by which a party
seeks to establish a status, a right or a particular fact.
(Rule 1, Section 3)
JURISDICTION
GENERAL RULE: Regional Trial Court
EXCEPTION: MTC has jurisdiction in the following
cases:
1. Probate proceedings whether testate or intestate
where the gross value of the estate does NOT
exceed P300,000 or P400,000 in Metro Manila,
EXCLUSIVE of interest, damages of whatever kind,
attorneys fees, litigation expenses and costs.
2. DELEGATED JURISDICTION
in Cadastral and Land Registration Cases
covering lots where there is no controversy or
opposition or contested lots where the value of
which does not exceed P 100T.
appeal is taken to the CA, not to the RTC
since MTC is equal to RTC in this instance.
3. SPECIAL JURISDICTION
petitions for writ of Habeas Corpus in case of
absence of RTC judges.
SC and CA have original jurisdiction over Habeas
Corpus cases, concurrent with the RTC.
ORDINARY
ACTION
SPECIAL
PROCEEDING
to protect or
enforce a right or
prevent or redress a
wrong
involves the
establishment of the
right, status or fact
involves two or
more parties
may involve only

one party
governed by
ordinary rules
governed by special
rules supplemented
supplemented by
special rules
by ordinary rules
heard by courts of
general jurisdiction
heard by courts of
limited jurisdiction
Initiated by a
pleading and parties
respond through an
answer
Initiated by means of
a petition and parties
respond by means of
an opposition
DIFFERENT MODES OF SETTLEMENT OF ESTATE OF

DECEASED PERSON
1. Extrajudicial Settlement of Estate (Section 1,
Rule 74)
2. Partition (Rule 69)
3. Summary Settlement of Estate of Small Value
(Section 3, Rule 74)
4. Probate of Will (Rule 75 to 79)
5. Petition for letters of Administration in cases of
Intestacy (Rule 79)
IN
REMEDIAL LAW
PROCEDURE IN SETTLEMENT PROCEEDINGS

Probate of the Will if
any (Rule 75 76)
Issuance of Letters
Testamentary/Administration
(A special administrator may be
appointed) (Rule 77-80)
Filing of Claims
(Rule 86)
Payment of Claims
Sale/Mortgage/Encumbrance
of Properties of the Estate
Distribution of Residue, if any

(But this can be made even before
payment if a bond is filed by the heirs)
RULE 73
VENUE AND PROCESS
VENUE
INHABITANT OF PHILIPPINES (whether citizen or
alien) Court of province/city where he resides
at the time of death.
INHABITANT OF FOREIGN COUNTRY RTC of any
province wherein he had his estate.
Residence means his personal, actual or physical
habitation, his actual residence or place of abode.
(Fule vs. CA, L-40502, Nov. 29, 1976)
Where estate of deceased persons settled. (Sec.1)
2 KINDS OF SETTLEMENT
A. EXTRAJUDICIAL SETTLEMENT (Rule 74, Section 1)
B. JUDICIAL SETTLEMENT - Testate or Intestate
Proceedings instituted in the country where
decedent has his residence
EXTENT OF JURISDICTION
Probate courts are courts of LIMITED jurisdiction. It
may only determine and rule upon issues relating to the
settlement of the estate, namely:
1. administration of the estate;
2. liquidation of the estate; and
3. distribution of the estate.
GENERAL RULE: Probate court cannot determine issue
of ownership.
EXCEPTIONS:
1. Provisionally, ownership may be determined for the
purpose of including property in inventory, without

prejudice to its final determination in a separate

action; or
2. When all the parties are heirs and they submit the
issue of ownership to the probate court provided
that the rights of third parties are not prejudiced.
(Bernardo vs. CA, L-18148, Feb. 28, 1963)
EXAMPLES OF OTHER QUESTIONS WHICH THE
PROBATE COURT CAN DETERMINE
1. Who are the heirs of the decedent;
2. The recognition of a natural child;
3. The validity of disinheritance effected by the
testator;
4. Status of a woman who claims to be the lawful
wife of the decedent;
5. The validity of a waiver of hereditary rights;
6. The status of each heir;
7. Whether property in inventory is conjugal or
exclusive property of deceased spouse;
8. All other matters incidental or collateral to the
settlement and distribution of the estate.
PRINCIPLE OF EXCLUSIONARY RULE
The court first taking cognizance of the settlement of
the estate of the decedent, shall exercise jurisdiction
to the exclusion of all other courts.
The probate court acquires jurisdiction from the
moment the petition for the settlement is filed with
said court. It cannot be divested of such jurisdiction by
the subsequent acts of the parties as by entering into
extrajudicial partition of the estate (Sandoval vs.
Santiago, 88 PHIL 784); or filing another petition for
settlement in a proper court of concurrent venue (De
Boria vs. Tan, 77 Phil 872).
EXCEPTION:
Estoppel by LACHES
Jurisdiction under Rule 73 Sec. 1 does NOT relate to
jurisdiction per se but to venue. Hence, institution in
the court where the decedent is neither an inhabitant
or have his estate may be waived. (Uriarte vs. CFI, L21938-39, May 29, 1970)
Improper venue must be seasonably raised. (Eusebio
v. Eusebio, 100 PHIL 593)
REMEDY IF THE VENUE IS IMPROPERLY LAID
ORDINARY APPEAL not certiorari or mandamus UNLESS
want of jurisdiction appears on the record of the case.
RTC may issue writs and processes. (Sec.3, Rule 73)
GENERAL RULE: Probate court cannot issue writs of
execution.
Reason: its orders usually refer to the adjudication of
claims
against
the
estate
which
the
executor/administrator may satisfy without the need of
executory process.
EXCEPTIONS: EXCLUSIVE (expressio unius est exclusio
alterius)
1. To satisfy the contributive share of the
devisees, legates and heirs when the latter had
entered prior possession over the estate. (Sec.
6, Rule 88)
102
MEMORY AID IN REMEDIAL LAW

2. To enforce payment of the expenses of
partition. (Sec. 3, Rule 90)
Where the estate settled upon dissolution of
marriage (Sec.2)
Upon the death of either the husband or the wife, the
partnership affairs must be liquidated in the testate or
intestate proceedings of the deceased husband or wife.
If both have died, liquidation may be made in the
testate or intestate proceedings of either.
RULE 74
SUMMARY SETTLEMENT OF ESTATE
GENERAL RULE: If a person dies, his estate is
submitted to a judicial settlement proceeding.
EXCEPTION: The heirs may resort to:
1. Extrajudicial settlement of estate; or
2. Summary settlement of estate must be conducted
in accordance with regular procedure NOT under
rules of summary procedure. (Regalado)
In these exceptions an administrator or executor
need not be appointed.
EXTRAJUDICIAL
SETTLEMENT
BY
AGREEMENT
BETWEEN HEIRS (Sec.1)
Requisites:
A. Substantive
1. The decedent left a) no will
b) no debts
2. The heirs are all of age or the minors are
represented by their judicial or legal
representatives duly authorized for the
purpose
B. Procedural
1. Division of estate must be in a PUBLIC
INSTRUMENT or by AFFIDAVIT of ADJUDICATION
in the case of a sole heir.
2. Filed with proper Registry of Deeds
3. Publication of notice of the fact of
extrajudicial settlement once a week for 3
CONSECUTIVE WKS.
4. Bond filed equivalent to the value of PERSONAL
property.
The bond is required only when personalty is involved
or the real estate is subject to a lien in favor of
creditors, heirs or other persons for the full period of 2
years from such distribution and such lien cannot be
substituted by a bond.
The bond is the value of the personal property
certified by the parties under oath and CONDITIONED
upon payment of just claims filed under Sec. 4, Rule
74.
BOND
1. equivalent to the value of personal property
2. certified by parties under oath by an affidavit
3. conditioned upon the payment of just claims
filed under Sec. 4.

If they cannot agree to the manner of partition among

themselves, they may resort to Ordinary Action of
Partition. If
despite the institution of such action they subsequently
arrived at an agreement, they may enter into the
corresponding stipulation and register the same with
the Register of Deeds. (Regalado)
Is a Public Instrument necessary for the validity of an
extrajudicial settlement?
NO. Private instrument/document or Oral agreement
of partition is valid among the heirs who participated in
the extrajudicial settlement. The requirement under
Sec. 1, Rule 74 that it must be in public instrument is
NOT constitutive of the validity but is merely
evidentiary in nature. (Hernandez vs Andal)
However, Reformation may be compelled. (Regalado)
EXTRAJUDICIAL
SETTLEMENT
JUDICIAL
SETLLEMENT
No court intervention
requires summary
judicial adjudication
gross estate must not
exceed P10T
allowed in both
testate and intestate
available even if
there are debts; it is
the court which will
make provision for
its payment
May be instituted by
ANY INTERESTED
PARTY even a
creditor of the
estate without the
consent of all heirs
bond to be
determined by the
court
value of the estate

immaterial
allowed only in
intestate succession
there must be no
outstanding debts of
the estate at the
time of settlement
resorted at the
instance and by
agreement of ALL
heirs
amount of bond is
equal to the value of
personal property
While the Rules provide that the decedent must not

have left any debts, it is sufficient if any debts he may
have left have been paid at the time of the
extrajudicial settlement is entered into. (Guico vs.
Bautista, 110 Phil 584)
DISPUTABLE PRESUMPTION THAT DECEDENT LEFT NO
DEBTS
If no creditor files a petition for letters of
administration within 2 years after the death of the
decedent.
SUMMARY SETTLEMENT OF ESTATE OF SMALL VALUE
(Sec.2)
GROSS VALUE of the estate must NOT EXCEED P10, 000.
This is jurisdictional. (Del Rosario vs. Conanan, L37903, March 30, 1977)
103

a) shall be set by court not less than 1 MONTH
nor more than 3MONTHS from date of last
publication of notice;
b) published, ONCE A WEEK FOR 3
CONSECUTIVE WKS in a newspaper of
general circulation.
3. Notice shall be served upon such interested
persons as the court may direct.
4. Bond - amount fixed by the court (not value of
personal prop) conditioned upon payment of
just claims under Sec.4.
LIABILITY OF DISTRIBUTEES AND ESTATE (Sec.4)
REQUISITES OF TWO-YEAR PERIOD LIEN
1. persons have taken part or have notice of
extrajudicial partition
2. compliance with the provisions of Sec.1, Rule
74 (Sampilo vs. CA)
BASIS TO COMPEL SETTLEMENT OF THE ESTATE
1. undue deprivation of lawful participation in the
estate.
2. existence of debts against the estate or undue
deprivation of lawful participation payable in
money.
REMEDIES
1. WITHIN 2 YRS. - claim against the bond or the
real estate.
2. Action to Annul a deed of extrajudicial
settlement on the ground of FRAUD within 4
YEARS from the discovery of fraud.
3. Reconveyance of real property.
Where the estate has been summarily settled, the
unpaid creditor may, within 2 years, file a motion in
the court wherein such summary settlement was had,
for the payment of his credit.
EXCEPTION: If on the date of the expiration of the
two-year period, the creditor or heir is a) A minor or incapacitated, or
b) In prison or
c) Outside the Philippines,
he may present his claim within one year after such
disability is removed. (Sec. 5 Rule 75)
The 2-year lien upon the real property distributed by
extrajudicial or summary settlement shall be annotated
on the title issued to the distributees and after 2 years
will be cancelled by the register of deeds without need
of court order (LRC CIRCULAR 143)
Such lien cannot be discharged nor the annotation be
cancelled within the 2 year period even if the
distributees offer to post a bond to answer for
contingent claims from which lien is established.
(Rebong vs. Ibanez, 79 Phil 324)
IMPORTANT REQUIREMENTS
1. Application must contain allegation of gross
value of estate.
2. Date for hearing
104

5. the name of the person having custody of the
will if has not been delivered to the court.
RULE 75
PRODUCTION OF WILL/ ALLOWANCE OF WILL
NECESSARY
Section 1. Allowance necessary, conclusive as to
execution.
NATURE OF PROBATE PROCEEDINGS
1. IN REM -binding on the whole world.
2. MANDATORY - no will shall pass either real or
personal property unless it is proved and
allowed in the proper court. HOWEVER, it has
been held in one case that a will may be
sustained on the basis of Article 1080 of the
Civil Code which reads as follows:
If the testator should make a partition of his
properties by an act inter vivos, or by will, such
partition shall stand in so far as it does not
prejudice the legitime of the forced heir.
(Mang-Oy vs. CA, 144 SCRA 33).
3. IMPRESCRIPTIBLE because of the public policy
to obey the will of the testator.
4. The DOCTRINE OF ESTOPPEL does not apply.
Reason: presentation and probate of will is
required by public policy and involves public
interest. (Fernandez vs. Dimagiba)
RULE 76
ALLOWANCE OR DISALLOWANCE OF WILL
Probate or Allowance of Wills - act of proving in a
court a document purporting to be the last will and
testament of a deceased person in order that it may be
officially recognized, registered and its provisions
carried insofar as they are in accordance with law.
Who may petition for allowance of will? (Sec.1)
1. any creditor - as preparatory step for filing of
his claim therein (Regalado, p.26)
2. devisee or legatee named in the will
3. person interested in the will (e.i., heirs)
4. testator himself during his lifetime the
possession of the will is not necessary
Who may be a party in probate?
Generally, any person having a direct and material
interest in the will or estate.
CONTENTS OF THE PETITION (Sec.2)
1. the jurisdictional facts death of the testator
and his residence at the time of death or the
province where estate was left by the decedent
who is a non-resident;
2. the names, ages, and residences of the heirs,
legatees, devisees of the testator or decedent;
3. the probable value and character of the
property of the estate;
4. the name of the person for whom the letters
are prayed;
But no defect in the petition shall render void the

allowance of the will, or the issuance of letters
testamentary or of administration with the will
annexed.
EFFECT OF THE PROBATE OF A WILL
It is conclusive as to the EXECUTION and the VALIDITY
of the will (even against the state). Thus, a criminal
case against the forger may not lie after the will has
been probated.
ISSUE IN THE PROBATE OF A WILL GENERAL RULE:
Only determination of the extrinsic validity not the
intrinsic validity or testamentary dispositions.
EXCEPTION: Where the entire or all testamentary
dispositions are void and where the defect is apparent
on its face. (Acain vs. IAC GR No. 72706, Oct. 27,
1987; Nepumuceno vs. CA, 139 SCRA 206)
EXTRINSIC VALIDITY - means due execution of the will.
MEANING AND EXTENT DUE EXECUTION
Due execution means that:
1. the testator is of sound and disposing mind
when he executed the will;
2. the will was NOT executed under duress, fraud
or other circumstances that vitiates consent;
3. the required formalities have been strictly
complied with; and
4. the will is genuine and not a forgery.
COURT APPOINTS TIME FOR PROVING WILL. NOTICE
THEREOF TO BE PUBLISHED (Sec.3)
When does court acquire jurisdiction over interested
persons and res?
Upon PUBLICATION for 3 WKS successively of the order
setting the case for hearing AND sending NOTICES to all
persons interested.
NOTICES MUST BE GIVEN TO:
1. designated or known heirs, legatees and
devisees; and
2. executor and co-executor if not the petitioner.
MODES OF NOTIFYING
By mail: 20 days before hearing
Personal notice: 10 days before hearing
3 weeks successively is not strictly 21 days.
ANTE MORTEM
If petition for probate is on testators own initiative
during his lifetime 1. no publication is necessary; and
2. notice shall be made only to the compulsory
heirs.
PROOF OF HEARING (Sec.5)
At the hearing, compliance of Publication and Notice
must first be shown before introduction of testimony in
support of the will.

105
MEMORY AID
EVIDENCE in support of will:

1. UNCONTESTED WILL (Sec.5)
a) Notarial Wills - testimony of at least 1 of the
subscribing witnesses is allowed.
- if all subscribing witnesses reside outside
the province deposition is allowed.
- if subscribing witnesses reside is dead,
insane, or none reside in the Philippines Court
may admit testimony of the witnesses to prove
the sanity of the testator, and the due
execution of the will, and as evidence of the
execution of the will, it may admit proof of the
handwriting of the testator and of the
subscribing witnesses or of any of them.
b) Holographic Wills - the testimony of 1 witness
who knows the handwriting and signature of
the testator. In the absence thereof, testimony
of an expert witness.
2. CONTESTED (Sec.11)
a) Notarial Wills - ALL subscribing witnesses AND
notary public.
HOWEVER, if any or all the witnesses (i)
testify against the execution of the will, (ii) do
not remember attesting thereto, or (iii) of
doubtful credibility, the will may be allowed if
the court is satisfied from the testimony of
other witnesses and from all the evidence
presented that the will was executed and
attested in the manner required by law.
b) Holographic Wills - 3 witnesses who knows the
handwriting of testator. In the absence thereof,
testimony of an expert witness may be resorted
to.
HOWEVER, in Codoy vs. Calugay, GR NO.
123486, Aug. 12, 1999, the SC ruled that if the
holographic will is contested, 3 witnesses who
know the handwriting and signature of the
testator are now required/mandatory to prove
its authenticity and for its allowance.
GENERAL RULE: Holographic will if destroyed CANNOT
be probated.
EXCEPTION: If there exists a Photostat or Xerox copy
thereof. (Gan vs. Yap, 104 Phil 509)
Proof of lost or destroyed will (Sec.6)
Facts which should be proved in order that a lost or
destroyed will may be allowed:
1. due execution and validity of the will;
2. will was in existence when testator died, or if
it was not, that it has been fraudulently or
accidentally destroyed in the lifetime of the
testator without his knowledge; and
3. the provisions of the will are clearly
established by at least two credible witnesses.
IN REMEDIAL LAW
RULE 77
ALLOWANCE OF WILL PROVED OUTSIDE OF
PHILIPPINES AND ADMINISTRATION OF ESTATE
THEREUNDER
A will allowed or probated in a foreign country, must be

RE-PROBATED in the Philippines. If the decedent owns
properties
in
different
countries,
separate
administration proceedings must be had in said
countries.
TWO TYPES OF ESTATE PROCEEDINGS:
1. Domicilliary administration - the proceeding
instituted in last residence of the decedent.
2. Ancillary administration - the administration
proceedings where he left his estate.
REQUISITES OF ANCILLARY ADMINISTRATION (Sec.2)
1. there must be a will (inferred from the
wordings of Rule 77);
2. filing of:
a) copy of the will executed in
foreign
country;
b) order or decree of foreign court allowing
such will; and
c) authentication of requisites a and b above;
3. notice of time and place of hearing;
4. hearing; and
5. certificate of allowance.
Can a will executed and proved in a foreign country
be allowed in the Philippines under Rule 77?
YES. Provided that the following must be proved:
1. foreign court must have jurisdiction over the
proceeding;
2. domicile of testator/decedent in the foreign
country and not in the Philippines;
3. that the will has been admitted to probate in
such country;
4. it was made with the formalities prescribed by
the law of the place in which the decedent
resides, or according to the formalities
observed in his country, or in conformity with
the formalities prescribed by our Civil Code;
and
5. due execution of the will in accordance with
the foreign laws. (Regalado)
EFFECTS
1. the will shall have the same effect as if
originally proved and allowed in court of the
Philippines.
2. letters testamentary or administration with a
will annexed shall extend to all estates of the
Philippines.
3. Residue of estate after payment of debts, etc.
shall be disposed of as provided by law in cases
of estates in Philippines belonging to persons
who are inhabitants of another state or
country.
RULE 78
LETTERS TESTAMENTARY AND OF ADMINISTRATION
WHEN AND TO WHOM ISSUED

106
PERSONS WHO CAN ADMINISTER THE ESTATE

1. Executor;
2. Administrator, regular or special (Rule 80); and
3. Administrator with a will annexed (Rule 79,
Section 1).

ANY one or more of the PRINCIPAL CREDITORS,
if competent and willing to serve.
3. If there is no such creditor competent and
willing to serve, it may be granted to such
other person as the court may select.
(STRANGER)
Executor - The one named by the testator in his will

for the administration of his property after his death.
The Order of appointment of Regular administrator is

final and appealable.
Administrator - One appointed by the Court in

accordance with the Rules or governing statutes to
administer and settle the intestate estate or such
testate estate, where the testator did not name any
executor or that the executor so named refuses to
accept the trust, or fails to file a bond, or is otherwise
incompetent.
Administrator with a will annexed - one appointed by
the court in cases when, although there is a will, the
will does not appoint any executor, or if appointed,
said person is either incapacitated or unwilling to serve
as such.
WHO MAY SERVE AS EXECUTOR/ ADMINISTRATOR?
Any COMPETENT person may serve as executor or
administrator.
WHO
ARE
INCOMPETENT
TO
SERVE
AS
EXECUTOR/ADMINISTRATOR?
1. a minor
2. a non-resident
3. one who in the opinion of the court is unfit to
exercise the duties of the trust by reason of:
a) drunkenness
b) improvidence
c) want of understanding and integrity
d) conviction for an offense involving moral
turpitude
Executor of executor shall not, as such, administer
the estate of the first testator. (Sec. 2)
Letters testamentary - Authority issued to an executor
named in the will to administer the estate.
Letters of administration Authority issued by the
court to a COMPETENT person to administer the estate
of the deceased who died intestate.
TO WHOM LETTERS OF ADMINISTRATION GRANTED
Order Of Preference
1. The surviving husband or wife or the next of
kin, or both in the discretion of the court, or to
such person as such surviving spouse or next of
kin, request to have appointed, if competent
and willing to serve. (SURVIVING SPOUSE OR
NOMINEE)
2. If the surviving spouse or the next of kin or the
person selected by them be incompetent or
unwilling to serve, or if the surviving spouse or
next of kin neglects for 30 days after the death
of the decedent to apply for administration,
BASIS FOR THE PREFERENTIAL RIGHT

The underlying assumption is that those who will reap
the benefits 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 higher interest and most
influential motive to administer the estate correctly.
RULE 79
OPPOSING ISSUANCE OF LETTERS TESTAMENTARY
PETITION AND CONTENTS FOR LETTERS OF
ADMINISTRATION
What is the MAIN ISSUE in an administration
proceeding?
Who is the person rightfully entitled to administration.
Who may oppose the issuance of letters?
GENERAL RULE: Any person interested in the will.
(Section 1)
EXCEPTION: Even where a person who had filed a
petition for the allowance of the will of the deceased
person had no right to do so in view of his lack of
interest in the estate, nevertheless, where the
interested persons did not object to its application, the
defect in the petition would be deemed cured. The
filing of the petition may be considered as having been
ratified by the interested parties. (Eusebio vs.
Valmores 97 PHIL 163)
Petition for Opposition may at the same time be filed
for Letters of Administration with the will annexed.
Contents of a petition for letters of administration:
(Sec.2)
a) jurisdictional facts;
b) name, age, residence of heirs and creditors;
c) probable value and character of the estate;
and
d) name of the person for whom letters is prayed
for.
No defect in the petition shall render void the issuance
of the letters of administration.
Grounds for Opposition:
1. In Letters Testamentary
a) incompetence
2. In Letters of Administration
a) incompetence;
b) preferential right of the heir under Sec. 6,
Rule 78.

Publication for 3 Weeks and notice to heirs, creditors

and other persons believed to have an interest in the
estate is required before hearing.
Letters can be granted to any person or any other
applicant even if other competent persons are present
if the latter fail to claim their letters when notified by
the court. (Sec. 6, Rule 79)
107

difference between the powers and duties of the two
positions.
RULE 81
BONDS OF EXECUTOR AND ADMINISTRATOR
BOND OF EXECUTOR/ADMINISTRATOR
(Sec.1)
When filed?
Before an executor or administrator enters upon
execution of his trust
Amount? Fixed by the court
RULE 80
SPECIAL ADMINISTRATOR
When may a probate court appoint a special
administrator?
1. Delay in granting of letters including appeal in
the probate of the will.
2. Executor is a claimant of the estate he
represents.
- in this second instance, the administrator
shall have the same powers as that of a
general administrator.
ORDER OF APPOINTMENT DISCRETIONARY
The preference accorded by Sec. 6 of Rule 78 of the
Rules of Court to surviving spouse refers to the
appointment of a regular administrator, NOT to that of
special administrator, and that the order appointing the
later lies within the discretion of the probate court,
and is not appealable. (Pijuan vs. De Gurrea, 124 Phil.
1527)
POWERS AND DUTIES
1. Possession and charge of the goods, chattels,
rights, credits, and estate of the deceased;
2. Commence and maintain suit for the estate;
3. Sell ONLY
a) perishable property; and
b) those ordered by the court;
4. Pay debts ONLY as may be ordered by the court.
DURATION OF POWER OF SPECIAL ADMINISTRATOR
Until questions causing the delay is decided and the
regular administrator is appointed.
When does the power of a special administrator
cease?
After the questions causing the delay are resolved and
letters are granted to regular executor or
administrator.
Is appointment of special administrator appealable?
NO, the same is INTERLOCUTORY. However,
appointment of a REGULAR ADMINISTRATOR is
appealable because it is a final order.
It is possible for the executor or administrator whose
appointment is challenged by appeal to be appointed
also as the special administrator pending such appeal.
There is no harm in appointing the same person as
special administrator because there is a vast of
CONDITIONS
1. Make an INVENTORY of property which came to
his knowledge and possession within 3 MONTHS.
2. ADMINISTER the estate and from the proceeds
pay all debts and charges.
3. Render an ACCOUNT within ONE YEAR
4. Perform all orders of the court.
ADMINISTRATORS BOND STATUTORY BOND
Conditions prescribed by statute forms part of bond
agreement.
Terms and effectivity of bond does not depend on
payment of premium and does not expire until the
administration is closed. As long as the probate court
retains jurisdiction of the estate, the bond
contemplates a continuing liability. (Luzon Surety vs.
Quebrar, 127 SCRA 295).
BOND OF SPECIAL ADMINISTRATOR (Sec.4)
Conditions
1. make inventory.
2. render accounting when required by court.
3.
deliver the same to person appointed
executor or administrator or other authorized
persons.
The bond is effective as long as the court has
jurisdiction over the proceedings.
RULE 82
REVOCATION OF ADMINISTRATION, DEATH,
RESIGNATION AND REMOVAL OF EXECUTORS AND
ADMINISTRATORS
If after letters of administration have been granted on
the estate of the decedent as if he had died intestate,
his will is allowed and proved by the court, the letters
of administration shall be revoked and all powers
thereunder cease, and the administrator shall forthwith
surrender the letters to the court, and render his
account within such time as the court may direct.
The discovery of a will does NOT ipso facto nullify the
letters of administration already issued until the will
has been proved and allowed pursuant to Rule 82 Sec.
1. (De Parreno vs. Aranzanso, GR No. L-27657, Aug. 30,
1982)

RESIGNATION
OR
REMOVAL
OF
EXECUTOR/
ADMINISTRATOR (SEC.2)
Grounds
1. neglect to render accounts; (w/in 1 YEAR or
when the court directs);
2. neglect to settle estate according to these
rules;
3. neglect to perform an order or judgment of the
court or a duty expressly provided by these
rules;
4. absconding; or
5. insanity or incapability or unsuitability to
discharge the trust. (Sec. 2)
These grounds are EXCLUSIVE.

Lawful acts of an administrator or executor before the
revocation, resignation, or removal are valid unless
proven otherwise. (Sec.3)
POWERS OF NEW EXECUTOR OR ADMINISTRATOR (Sec.
4)
1. collect and settle the estate not administered;
2. prosecute or defend actions commenced by or
against the former executor or administrator;
and
3. recover execution on judgments in the name of
former executor or administrator.
RULE 83
INVENTORY AND APPRAISAL PROVISION FOR SUPPORT
OF FAMILY
Inventory and appraisal must be made within 3 MONTHS
from the grant of letters testamentary or of
administration. (Sec.1)
Approval of an inventory is not a conclusive
determination of what assets constituted the
decedents estate and of the valuation thereof. Such
determination is only provisional and a prima facie
finding of the issue of ownership.
ALLOWANCE TO WIDOW AND FAMILY (Sec.3)
Allowance - monetary advances subject to collation
and deductible from their share in the estate of the
decedent.
Who are entitled to allowance during proceedings?
1. Legitimate surviving spouse (Nepomuceno vs CA);
and
2. Children of the decedent.
According to Art. 188 of the Civil Code, the children
need not be minors or incapacitated to be entitled to
allowance. (Santero vs CFI of Cavite, GR No. 61700-03,
Sept. 24, 1987)
Grandchildren are NOT entitled to allowance under
Rule 83. (Heirs of Ruiz vs CA)
108

When liabilities exceed the asset of the estate, his
widow and children are not entitled to support pending
the liquidation of the intestate estate, on the ground
that such support, having the character of an advance
payment to be deducted from the respective share of
each heir during distribution. (Wagner vs. Moore)
RULE 84
GENERAL POWERS OF EXECUTORS AND
ADMINISTRATORS
POWERS OF EXECUTOR/ ADMINISTRATOR OF THE
ESTATE
1. To have access to, and examine and take copies
of books and papers relating to the partnership
in case of a deceased partner;
2. To examine and make invoices of the property
belonging to the partnership in case of a
deceased partner;
3. To make improvements on the properties under
administration with the necessary court
approval except for necessary repairs;
4. To possess and manage the estate when
necessary:
a) for the payment of debts; and
b) for
payment
of
expenses
of
administration;
5. To maintain in tenantable repairs houses and
other structures and fences and to deliver the
same in such repair to the heirs or devisees
when directed so to do by the court.
SOME
RESTRICTIONS
ON
POWER
OF
ADMINISTRATOR/EXECUTOR
1. Cannot acquire by purchase, even at public or
judicial auction, either in person or mediation
of another, the property under administration.
2. Cannot borrow money without authority of the
court.
3. Cannot
speculate
with
funds
under
administration.
4. Cannot lease the property for more than one
year.
5. Cannot continue the business of the deceased
unless authorized by the court.
6. Cannot profit by the increase or decrease in
the value of the property under administration.
RULE 85
ACCOUNTABILITY AND COMPENSATION OF EXECUTORS
AND ADMINISTRATORS
GENERAL RULE: The executor or administrator is
accountable for the whole estate of the deceased.
EXCEPTION: He is not accountable for properties which
never came to his possession.
EXCEPTION TO THE EXCEPTION: When through
untruthfulness to the trust or his own fault or for lack
of necessary action, the executor or administrator
failed to recover part of the estate which came to his
knowledge.

Administrator or executor shall not profit by the

increase of the estate nor be liable for any decrease
which the estate, without his fault, might have
sustained.
EXPENSES OF ADMINISTRATION: those necessary for
the management of the property, for protecting it
against destruction or deterioration, and possibly for
the production of fruits.
When shall executor or administrator render an
account? (Sec.8)
RULE: Within one year from the time of receiving
letters testamentary or letters of administration.
EXCEPTION: An extension of time is allowed for
presenting claims against or paying the debts of the
estate for disposing of the estate but even in such
cases, the administration should be terminated in not
more than two-years and a half.
RULE 86
CLAIMS AGAINST ESTATE
Claim - any debt or pecuniary demand against the
decedents estate.
When may a court issue notices to creditors to file
their claims?
Immediately issued after granting letters testamentary
or of administration.
PURPOSE: for the speedy settlement of the affairs of
the deceased person and early delivery of the property
of the estate into the hands of the persons entitled to
receive it.
Claims
except
a)
b)
arising AFTER his death cannot be presented

for:
funeral expenses; and
expenses of the last sickness of the decedent.
Claims for taxes (inheritance and estate) due and

assessed after the death of the decedent need not be
presented in the form of a claim. The court in the
exercise of its administrative control over the executor
or administrator may direct the latter to pay such
taxes. And the heirs, even after distribution are liable
for such taxes.
STATUTE OF NON-CLAIMS (Sec.2)
When should the claims be filed?
GENERAL RULE: Within in the time fixed in the notice
which shall not more than 12 MONTHS nor less than 6
MONTHS after the date of the FIRST PUBLICATION.
Otherwise, they are BARRED FOREVER.
Even if the testator acknowledged the debt in his will
and instructed the executor to pay the debt, the
statute of non-claims must still be complied with;
otherwise the claim may also be barred.
EXCEPTION: Belated Claims.
109

Belated Claims are claims not filed within the original
period fixed by the court. On application of a creditor
who has failed to file his claim within the time
previously limited, at ANY TIME BEFORE an order of
distribution is entered, the court MAY, for cause shown
and on such terms as are equitable, allow such claim to
be filed within a time NOT EXCEEDING 1 MONTH from
the order allowing belated claims.
Statute of Non-Claims supersedes the Statute of
Limitations insofar as the debts of deceased persons
are concerned. However, BOTH statute of Non-Claims
and Statute of Limitations MUST CONCUR in order for a
creditor to collect.
Claims which are not filed within the Statute of NonClaims are barred forever (Sec.5)
Claims referred to under this section refer to claims for
the recovery of money and which are not secured by a
lien against the property of the estate. (Olave vs.
Carlos, 208 Phil 678)
Claims which should be filed under the Statute of
Non-claims?
1. Money claims, debts incurred by deceased
during his lifetime arising from contract
2. express or implied
3. due or not due
4. absolute or contingent
5. Claims for funeral expenses and for the last
illness of the decedent.
6. Judgment for money against decedent.
Contingent Claim conditional claim or claim that are
subject to the happening of a future uncertain event.
Claims not yet due or contingent may be approved at
their present value.
HOWEVER, a creditor barred by the Statute of Nonclaims may file a claim as a COUNTERCLAIM in any suit
that the executor or administrator may bring against
such creditor.
SOLIDARY OBLIGATION OF DECEDENT (Sec.6)
Claim should be filed against decedent as if he were
the only debtor without prejudice on the part of the
estate to recover contribution from the other debtor.
(Jaucian vs Quero, 38 Phil 707l)
Joint obligation of decedent
The claim must be confined to the portion belonging to
the decedent.
MORTGAGE DEBT DUE FROM ESTATE (Sec.7)
ALTERNATIVE REMEDIES Of The Creditor Holding A
Claim Secured By A Mortgage Or Other Collateral
Security
1. ABANDON security and prosecute his claim
against the estate and share in the same
general distribution of the assets of the estate;
2. FORECLOSE his mortgage or realize upon his
security by action in court making executor or
administrator a party defendant and if there is

judgment for DEFICIENCY, he may file a claim

(contingent) against the estate within the
statute of non-claims.
Agency coupled with an interest
The power to foreclose a mortgage is not an
ordinary agency that contemplates exclusively the
representation of the principal by the agent but is
primarily an authority conferred upon the
mortgagee for latters own protection. That power
survives the death of the mortgagor. (Bicol Savings
and Loan Association vs. CA)
3. RELY SOLELY ON HIS MORTGAGE and foreclose
the name at anytime within the period of the
statute of limitation but he cannot be admitted
as creditor and shall not receive in the
distribution of the other assets of the estate;
These remedies are alternative, the availment of one
bars the availment of other remedies.
JUDGMENT ALLOWING CLAIM (Sec.13)
Judgment against executor and administrator shall not
create any lien upon the property of the estate or does
not constitute a specific lien which may be registered
on such property.
Judgment of a probate court approving or disapproving
a claim is appealable.
The mode of appeal is record on appeal and must be
filed within 30 DAYS from notice of judgment.
RULE 87
ACTIONS BY AND AGAINST EXECUTORS AND
ADMINISTRATORS
Actions which may or may not be brought against
executor and administrator (Sec.1)
Independent and separate of the probate proceeding:
1. recovery of real or personal property or any
interest therein from the estate
2. enforcement of a lien thereon
3. action to recover damages for any injury to
person or property, real or personal (tortuous
acts)
These are actions that survive the death of the
decedent.
An action for revival of money judgment may be filed
against the administrator to preempt prescription of
judgment. (Romualdez vs. Tiglao, 105 SCRA 762).
Heir may not sue until share assigned (Sec.3)
Before distribution is made or before any residue is
known, the heirs and devisees have no cause of action
against the executor or administrator for recovery of
the property left by the decedent.
Proceedings when property concealed, embezzled or
fraudulently conveyed (Sec.6)
PURPOSE: To elicit information or to secure evidence
from those persons suspected as having possessed or
110

having knowledge of properties belonging to deceased,
or of having concealed, embezzled or conveyed away
any properties of the deceased.
GENERAL RULE: The probate court has no authority to
decide whether or not the properties belong to the
estate or to the person being examined since probate
courts are courts of limited jurisdiction.
EXCEPTIONS:
1. Provisional determination of ownership for
inclusion in the inventory; or
2. Submission to the courts jurisdiction (Bernardo
vs. CA, GR No. 82483, Sept. 26, 1990)
Embezzlement before letters issued (Sec.8)
The responsible person shall be liable to an action in
favor of the executor or administrator of the estate for
double the value of the property sold, embezzled, or
alienated, to be recovered for the benefit of the
estate.
Property fraudulently conveyed by the deceased may
be recovered. When executed or administered must
bring action (Sec.9)
This provision applies when there is a deficiency of
assets in the hands of the executor or administrator for
the payment of the debts and expenses for
administration
administration for it is under this circumstance that
there may be conveyances made by the deceased with
intent to defraud the creditor.
REQUISITES BEFORE ACTION MAY BE FILED
1. deficiency in assets
2. the conveyance made is void (when there are
badges of fraud)
3. subject of conveyance is liable for attachment in
lifetime of decedent.
When creditor may bring action. Lien for costs
(Sec.10)
When a grantee in a fraudulent conveyance is OTHER
THAN THE EXECUTOR OR ADMINISTRATOR, a creditor
may commence and prosecute the action if the
following requisites are present:
1. That the executor or administrator has shown
to have no desire to file the action or failed to
institute the same within the reasonable time;
2. Leave is granted by court to creditor to file the
action;
3. Bond is filed by creditor as prescribed in this
provision; and
4. Action by creditor is in the name of the
executor or administrator.
These requisites need not be complied with if the
grantee of the fraudulent conveyance is the executor
or administrator himself, in which event the action
should be in the name of all creditors.
RULE 88
Debts paid in full if estate sufficient (Sec.1)
If estate is insolvent, as in liabilities are more than the
assets, Sec.7 in relation to Art. 1059 and 2239 to 2251

111
MEMORY AID
of the Civil Code must apply. Use rule on preference of
creditors If it is sufficient to satisfy claims of a class.
When the will provides for payment of debts, Section
2 must be followed.
Although testator acknowledged a specific debt on his
will, the creditor must still file his claim in the testate
or intestate proceedings, otherwise his claim will be
barred.
Estate to be retained to meet contingent claims
(Sec.4)
If the court is satisfied that contingent claim duly filed
is valid, it may order the executor or administrator to
retain in his hands sufficient estate to pay a portion
equal to the dividend of the creditors.
REQUISITES
1. contingent claim is duly filed;
2. court is satisfied that the claim is valid; and
3. The claim has become absolute.
Is execution a proper remedy to satisfy an approved
claim?
NO, because:
1. Payment approving a claim does not create a
lien upon a property of the estate.
2. Special procedure is for the court to order the
sale to satisfy the claim.
How contingent claim becoming absolute in two
years allowed and paid (Sec.5)
If such contingent claim becomes absolute and is
presented to the court, or to the executor or
administrator, within two years from the time limited
for other creditors to present their claims. The residual
funds within the estate, although already in the
possession of the universal heirs, are funds of the
estate. The Court has jurisdiction over them and it
could compel the heirs to deliver to the administrator
of the estate the necessary portion of such funds for
the payment of any claims against the estate. (In re
Testate Estate of Margarita David, Sison vs. Teodoro,
98 Phil 680)
If the contingent claim matures after the expiration of
the two years, the creditors may sue the distributees,
who are liable in proportion to the shares in the estate
respectively received by them. (Jaucian vs. Querol,
supra)
It has been ruled that the only instance wherein a
creditor can file an action against a distributee of the
debtors assets is under Sec. 5, Rule 88 of the Rules of
Court. The contingent claims must first have been
established and allowed in the probate court before
the creditors can file an action directly against the
distributees. (De Bautista vs. De Guzman, 125 SCRA
682)
Estate of Insolvent nonresident, how disposed (Sec.9)
In the administration taken in the Philippines of the
estate of the INSOLVENT his estate in the Philippines
shall be disposed of that his creditors in and outside in
the Philippines in proportion to their respective credits.
IN
REMEDIAL LAW
When and how claim proved outside the Philippines

against insolvent residents estate paid (Sec.10)
Claims proven outside the Philippines where the
executor had knowledge and
opportunity to contest its allowance therein may be
added to the list of claims in the Philippines against the
estate of an INSOLVENT RESIDENT and the estate will be
distributed equally among those creditors.
However the benefit of Sections 9 and 10 cannot be
extended to the creditors of foreign country where the
property of the deceased therein is not equally
apportioned to creditors residing in the Philippines and
other creditors.
Time for paying Debts and Legacies (Sec.15)
Need not exceed 1 year in the first instance. But court
extend on application of executor or administrator and
after hearing and notice thereof.
Extension must not exceed six months for single
extension. Whole period allowed to the original
executor or administrator shall not exceed 2 years
(section 15) successor of dead executor or
administrator may be given an extension not to exceed
6 months.
RULE 89
SALES, MORTGAGE AND OTHER ENCUMBRANCES OF
THE PROPERTY OF THE DECEASED
Order of sale of personalty (Sec.1)
The court may order the whole or part of the personal
estate to be sold if necessary:
1. to pay debts and expense of administration;
2. to pay legacies; or
3. to cover expenses for the preservation of the
estate.
When court may authorize sale, mortgage or other
encumbrances of realty to pay debts and legacies
though personality not exhausted? (Sec. 2)
1. If personal estate is NOT sufficient to pay
debts, expenses of administration and legacies;
2. If sale of personal estate may injure the
business or interests of those interested in the
estate;
3. If testator has NOT made sufficient provision
for payment of such debts, expenses and
legacies;
4. If deceased was in his lifetime under contract,
binding in law to deed real property to
beneficiary; (Section 8)
5. If the deceased during his lifetime held real
property in trust for another person. (Section
9)
REQUISITES
a) application of Executor/Administrator;
b) written notice to person interested; and
c) hearing


Assets in the hands of executor/administrator will not
be reduced to prevent a creditor from receiving his full
debt or diminish his dividends.
Without notice and hearing, the sale, mortgage or
encumbrance
is
void.
Notice
is
mandatory.
Noncompliance therewith under the sale is null and
void.
Reason: The reason behind this requirement is that the
heirs are the presumptive owner. Since they succeed to
all the rights and obligation of the deceased from the
moment of the latters death, they are the person
directly affected by the sale or mortgage and therefore
cannot be deprived of the property, except in the
manner provided by law. (Maneclang vs. Baun, 208
SCRA 179)
112

The probate court lose jurisdiction over the settlement
proceedings only upon payment of all debts and
expenses of the obligor and delivery of the entire
estate to all the heirs. (Timbol vs. Cano, 1 SCRA 1271)
CONDITIONS PRECEDENT to be complied with for the
issuance of an order of distribution
1. Showing that the executor, administrator or
person interested in the estate applied for
such; and
2. The requirements as to notice and hearing upon
such application have been fulfilled.
Application for authority to sell, mortgage or encumber

property of the estate may be denied by the court if:
1. the disposition is not for any of the reasons
specified by the rules; OR
2. under Section 3 Rule 89, any person interested
in the estate gives a bond conditioned to pay
the debts, expenses of administration and
legacies.
PROHIBITION AGAINST INTERFERENCE BY OTHER

COURTS
As long as the order of distribution of the estate has
not been complied with, the probate
probate proceedings cannot be deemed closed and
terminated, because a judicial partition is not final and
conclusive and does not prevent the heirs from bringing
an action to obtain his share, provided the prescriptive
period therefore has not elapsed. The better practice,
however, for the heir who has not received his
share, is to demand his share through proper motion in
the same probate or administrative proceedings, or for
the reopening of the probate or administrative
proceedings if it had already been closed, and not
through an independent action, which would be tried
by another court or judge which may thus reverse a
decision or order of the probate or intestate court
already final and executed and re-shuffle properties
long ago distributed and disposed of. (Timbol vs. Cano,
supra).
RULE 90
DISTRIBUTION AND PARTITION OF THE ESTATE
RULE 91
ESCHEATS
May the court authorize sale, mortgage or other

encumbrance of estate to pay debts and legacies in
other countries? (Sec. 5)
When it appears from records and proceedings of a
probate court of another country that the estate of the
deceased in foreign country is not sufficient to pay
debts and expenses.
Liquidation means the determination of all assets of

the estate and payment of all debts and expenses.
When order for distribution of residue made (Sec.1)
RULE: ORDER OF DISTRIBUTION shall be made AFTER
payments of all debts, funeral expenses, expenses for
administration, allowance of widow and inheritance tax
is effected.
In these proceedings, the court shall:
1. collate;
2. determine heirs; and
3. determine the share of each heir.
A separate action for the declaration of heirs is not
necessary.
When is title vested?
From FINALITY of order of distribution.
Only after partition is approved and not before, the
court may order the delivery to the heirs of their
respective shares except when the heir file a bond
conditioned to pay the debts.
An order which determines the distributive shares of
heirs is appealable. If not appealed, it becomes final.
3 INSTANCES of ESCHEATS
1. When a person dies intestate leaving no heir
but leaving property in the Philippines (Section
1)
2. REVERSION PROCEEDINGS Sale in violation of
the Constitutional provision
3. Unclaimed Balance Act under Banking Laws
What is the basis of the states right to receive
property in escheat?
Order of succession under the Civil Code, the STATE is
the last heir of the decedent.
Who files?
Solicitor General or his representative in behalf of the
Philippines.
Where to file?
RTC of last residence or of location of his estate in the
Philippines if he is a non-resident.
If petition is sufficient in FORM and SUBSTANCE the
court shall:
1. Make an ORDER OF HEARING hearing shall not
be more than 6 MONTHS AFTER ENTRY OF
ORDER.

113
MEMORY AID
2. Direct publication of the copy of order at
least once a week for 6 CONSECUTIVE WEEKS.
REQUISITES
1. publication of the order
2. person died intestate
3. he is seized of real/personal property in the
Philippines
4. he left no heir or person entitled to such
property
5. there is no sufficient cause to the contrary
The court, at the instance of an interested party, or on
its own motion, may order the establishment of a
PERMANENT TRUST, so that only the income from the
property shall be used.
CLAIM BY PERSONS ENTITLED TO THE ESTATE (Sec. 4)
Who?
By devisee, legatee, heir, widow/er, or other person
entitled thereto)
When to file?
- Within 5 YEARS FROM DATE OF JUDGEMENT
otherwise forever barred.
OTHER ACTIONS FOR ESCHEATS (Sec. 5)
- actions for reversion of property alienated in
violation of Constitution or any statute.
- These shall be governed by Rule 91. HOWEVER,
the action must be instituted in the province
where the land lies in whole or in part.
Period: Within 5 years from the date of judgment;
(under ART. 1014 of the Civil Code, the 5-year period is
reckoned from the date the property was delivered to
the State and further provides that if the property had
been sold, the municipality or city shall be accountable
only for such part of the proceeds as may not have
been lawfully spent.)
By whom: person of interest
TO WHOM WILL THE PROPERTY ESCHEATED BE
ASSIGNED: (Sec. 3)
1. if personal property, in the municipality or city
where he last resided.
2. if real property, where the property is situated.
3. if deceased never resided in the Philippines,
where the property may be found.
Can court convert escheat proceedings into ordinary
special proceedings or vice-versa?
NO. This is not allowed for the two actions have
different requirements in acquiring jurisdiction. In
special proceedings, publication is once a week for 3
weeks while in escheat, once a week for 6 weeks.
RULE 92
GUARDIANSHIP
IN
REMEDIAL LAW
Guardianship of minors is now governed by the Rule

on Guardianship of Minors (A.M. No. 03-02-05-SC)
which took effect on May 1, 2003. While
guardianship of incompetents is still governed by
the provisions of the Rules of Court on
Guardianship (Rule 92 to Rule 97).
MINOR
1.
2.
INCOMPETENT
any relative; or
other person on
behalf of a minor;
or
3. the
minor
himself if 14 years
of age or over; or
4. the Secretary of
1.
2.
3.
any relative;
friend; or
other person on
behalf
of
the
resident incompetent who has no
parents or lawful
guardian; or
Social Welfare and

Development AND
by the Secretary of
Health in case of an
insane minor who
needs
to
be
hospitalized. (Sec.
2 AM 03-02-05-SC)
4.
the Director of
Health in favor of
an insane person
who
should
be
hospitalized or in
favor of an isolated
leper. (Sec. 1)
5. any one interested

in the estate of a
non-resident
incompetent
(Sec.12)
5. any one interested

in the estate of a
non-resident
incompetent (Sec.
6)
Jurisdiction:
Incompetents RTC of his residence or where

his property is located in case of non-residents
(Sec. 1)
Minor Family Court of his residence or where

his property is located in case of non-resident (Sec.
3, AM 03-02-08)
KINDS OF GUARDIANS
A. According to scope:
1. General - over the person of the
ward or over his property
2. Limited - over the property only
B. According to constitution:
1. general guardian
2. legal guardian
3. guardian ad litem
INCOMPETENT includes: (Sec. 2)
1. those suffering from penalty of civil
interdiction
2. hospitalized lepers
3. prodigals
4. deaf and dumb who are unable to read and
write
5. those of unsound mind though they have lucid
intervals
6. persons not of unsound mind but by reason of
age, disease, weak mind and other similar

causes cannot take care of themselves or

manage their property.
RULE 93
APPOINTMENT OF GUARDIANS
Who may petition for appointment of guardian?
The father and the mother shall jointly exercise legal
guardianship over the person and property of their
minor without the necessity of a court appointment. In
such case, this Rule shall be suppletory to the
provisions of the Family Code on Guardianship.
Contents of Petition
MINOR
a)
b)
c)
d)
e)
f)
g)
h)
the
jurisdictional
facts;
the name, age
and residence
of
the
prospective
ward;
the
ground
rendering
the
appointment
necessary
or
convenient;
the death of
the parents of
the minor or
the
termination,
deprivation or
suspension
of
their parental
authority;
the remarriage
of the minors
surviving
parent;
the
names,
ages,
and
residences
of
relative within
the 4th civil
degree
of
minor, and of
persons having
him in their
care
and
custody;
the
probable
value,
character and
location of the
property of the
minor; and
the name, age
and residence
of the person
for
whom
letters
of
guardianship
are prayed.
INCOMPETENT
a)
b)
c)
d)
e)
f)
the
jurisdictional
facts;
the minority or
incompetency
rendering
the
appointment
necessary
or
convenient;
the
probable
value
and
character of his
estate;
the
names,
ages,
and
residences
of
the relatives of
the minor or
incompetent,
and of the
persons having
him in their
care;
the name of the
person
for
whom letters of
guardianship.
(Sec. 2 Rule 93)
114

The petition involving minors is required to be
VERIFIED and accompanied by certification against
FORUM SHOPPING while that involving incompetent
must be verified only. HOWEVER, no defect in the
petition or verification shall render void the issuance of
letters of guardianship.
There is NO requirement for PUBLICATION, only notice
EXCEPT in case of nonresident minor/incompetent.
HOWEVER, service of NOTICE upon minor if 14 years of
age or over, or upon incompetent is mandatory and
jurisdictional.
If the person is insane, service of notice upon the
Director of Hospital where hospitalized is sufficient.
OPPOSITION TO PETITION (Sec. 4)
Grounds
1. majority of alleged minor
2. competency of alleged incompetent
3. unsuitability of the persons for whom letters
are prayed
Procedure
a. filing of petition
b. court shall set the case for hearing
c. cause notices to be served to the persons
mentioned in the petition, including minor, if
14 years and above
d. court shall receive evidence
e. declaration of the propriety of the petition
f. issue letters of guardianship
BONDS OF GUARDIANS
Before an appointed guardian enters upon the
execution of his trust, he shall give a BOND (Sec. 1 Rule
94).
SELLING AND ENCUMBERING PROPERTY OF WARD:
A. Grounds
1. when income of estate is insufficient to
maintain ward and family or to maintain and
educate ward when a minor; or
2. when it appears that it is for the benefit of
the ward.
B. Requirements
1. petition must be verified;
2. notice must be given to the next of kin; and
3. hearing so that they may show cause why
petition should not be granted.
Notice to next of kin and interested persons is

JURISDICTIONAL.
Next of kin - pertains to those relatives who are
entitled to share in the estate of the ward under the
Law on Intestate succession including those who inherit
per stirpes or by right of representation.
Sale of the wards realty by the guardian without
authority from the court is VOID. Under the law, a
parent acting merely as legal administrator of the
property of his/her children, does NOT have the power
to dispose of, or alienate, the property of said minor

without judicial approval (Lindain vs. CA, GR No.

95305, Aug. 20, 1992).
The Order of Sale must specify the grounds.
C. Duration of the order for sale and encumbrance
of property - Within 1 year from the granting of
the order. It is presumed that if the property was
not sold within 1 year, the ward has sufficient
income.
The authority to sell or encumber shall not extend
beyond 1 year unless renewed by the court.
GENERAL POWERS AND DUTIES OF GUARDIANS
1. have the care and custody of the person of the
ward, and the management of his estate, or
the management of the estate only, as the case
may be;
2. pay the debts of the ward;
3. settle accounts, collect debts and appear in
actions for ward;
4. manage the estate of the ward frugally, and
apply the proceeds to maintenance of the
ward;
5. render verified inventory verified within 3
MONTHS after his appointment and annually
thereafter upon application of interested
persons; and
6. render to court for its approval an accounting
of the property for 1 YEAR from his
appointment & every year thereafter.
115

A. Grounds for Petition (Sec. 4)
1. Continued Absence, or Incapacity or Death of
his parents; (AID)
2. Suspension, Termination or Deprivation of
parental authority; (STD)
3. Remarriage of his surviving parent, if the latter
is found unsuitable to exercise parental
authority;
4. When the best interest of the minor so
requires.
B. Qualifications of Guardians (Sec. 5)
1. Moral character
2. Physical, mental and psychological condition
3. Financial status
4. Relationship of trust with the minor
5. Availability to exercise the powers and duties
of a guardian for the full period of guardianship
6. Lack of conflict of interest with the minor
7. Ability to manage the property of the minor.
C. Who may be appointed guardian of the person or
property, or both, of a minor (Sec.6)
In default of parents or a court appointed guardian,
the court may the following observing as far as,
practicable, the ORDER OF PREFERENCE:
1. the SURVIVING GRANDPARENT and 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 twenty-one years of age, unless unfit or
disqualified;
3. the ACTUAL CUSTODIAN of the minor over
twenty-one years of age, unless unfit or
disqualified; and
4. any OTHER PERSON, who in the sound
discretion of the court would serve the best
interests of the minor.
TERMINATION OF GUARDIANSHIP
A. Grounds for termination
MINOR
INCOMPETENT
1. The ward has
1. competency
come of age; or
2. has died
of the ward has

been judicially
determined
2. guardianship
is no longer
necessary
B. Grounds for removal of a guardian:

1. insanity;
2. incapability or unsuitability to discharge
functions;
3. wastage or mismanagement of the property of
the ward; and
4. failure to render an account or make a return
within 30 days after it was due.
SALIENT FEATURES and SPECIAL RULES FOUND IN THE
RULE ON GUARDIANSHIP OF MINORS (A.M. No. 03-0205-SC, effective May 1, 2003)
D. Case Study Report (Sec. 9)

The court shall order a social worker to conduct a
case study of the minor and all prospective
guardians and submit report and recommendation
to the court for its guidance before the scheduled
hearing.
E. Bond of parents as guardians of property of minor
(Sec. 16)
If the market value of the property on the annual
income of the child exceeds P50,000, the parent
concerned shall furnish a bond in such amount as
the court may determine, but in no case less than
10% of the value of such property or income, to
guarantee the performance of the obligations
prescribed for general guardians.
A verified petition for approval of the bond shall be
filed in the Family Court of the place where the child
resides or, if the child resides in a foreign country, in
the Family court of the place where the property or
any part thereof is situated.
The petition shall be docketed as a summary special
proceeding in which all incidents and issues regarding

the performance of the obligations of a general

guardian shall be heard and resolved.
REMOVAL OR RESIGNATION OF GUARDIAN (Sec. 24)
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.
Grounds for termination of guardianship (Sec. 25).
The court motu propio or upon verified motion of any
person allowed to file a petition for guardianship may
terminate the guardianship on the ground that the
ward has COME OF AGE or has DIED. The guardian shall
notify the court of such fact within 10 days of its
occurrence.
RULE 98
TRUSTEES
Jurisdiction: RTC in which the will was allowed, if it be
a will allowed in the Philippines, otherwise by the RTC
of the province in which the property, or some portion
thereof, affected by the trust is situated.
A trustee is necessary to carry into effect:
a) A will where the testator omitted to appoint a
trustee in the Philippines (Testamentary
Trust); and
b) Other written instruments where the trustee
therein declines, resigns, dies, or is removed
before accomplishment of trust (Contractual
Trust).
No persons succeeding to a trust as executor or
administrator of a formal trustee shall be required to
accept such trust.
TRUSTEE APPOINTED ABROAD (Sec. 4)
When land in the Philippines is held in trust for a
resident by a trustee who derives his authority from
abroad, such trustee must petition the RTC where the
land is situated, otherwise, the trust will be vacant and
a new trustee will be appointed.
When a trust is created abroad for property in the
Philippines, judicial approval is still needed though
trustor is alive.
BOND OF TRUSTEES (Sec. 5)
Neglect of trustees to file a bond will be interpreted by
the court as resignation or decline to accept the trust.
However, he may be exempted from bond when
requested by:
a. testator;
b. All persons beneficially interested in the trust.
However, the court may cancel such exemption
anytime.
REMOVAL OR RESIGNATION OF THE TRUSTEE (Sec. 8)
REQUISITES
1. Petition filed by parties beneficially interested;
2. Notice to trustee; and
3. Hearing.
116
MEMORY AID IN
Who may petition?
Parties beneficially interested.
REMEDIAL LAW
Grounds
1. essential in the interest of petitioners
2. insanity
3. incapability of discharging trustee
4. unsuitability
Rules on Sale and Encumbrance of Trust Estate shall
conform as nearly as may be to the provisions on Sale
and Encumbrance by Guardians.
ADOPTION AND CUSTODY OF MINORS
The provisions of the Rules of Court on Adoption have
been amended by the Domestic Adoption Act of 1998
and the Intercountry Adoption Act of 1995
EXCEPT: Secs 6 & 7 of Rule 99
Effective August 22, 2002, there is a new Rule on
Adoption.
NATURE AND CONCEPT OF ADOPTION
Adoption is a juridical act, a proceeding IN REM, which
creates between two persons a relationship similar to
that which results from legitimate paternity and
filiation.
Only an adoption made through the court, or in
pursuance with the procedure laid down under Rule on
Adoption is valid in this jurisdiction.
PURPOSE OF ADOPTION
The promotion of the welfare of the child and the
enhancement of his opportunities for a useful and
happy life, and every intendment is sustained to
promote that objective.
WHAT DOES THE COURT DETERMINE IN ADOPTION
CASES
1. capacity of the adopters
2. whether the adoption would be the best
interest of the child
Adoption is strictly personal between the adopter and
the adopted. (Teofico vs. Del Val)
RULES ON ADOPTION (Secs. 1-25)
DOMESTIC ADOPTION
WHO MAY ADOPT
1. Any Filipino Citizen a) of legal age;
b) in possession of full civil capacity and legal
rights;
c) of good moral character;
d) has not been convicted of any crime involving
moral turpitude;
e) emotionally and psychologically capable of
caring for children;
f) in a position to support and care for his/her
children in keeping with the means of the
family; and
g) at least 16 YEARS older than the adoptee.

2. Any alien possessing the same qualifications as

above; provided:
a) That his/her country has diplomatic relations
with the PHILIPPINES;
b) That he/she has been living in the Philippines
for at least 3 CONTINUOUS YEARS prior to the
filing of the application for adoption;
c) Maintains residence until the adoption decree
is entered;
d) Certified to have legal capacity to adopt, by
his/her country; and
e) That his/her government allows the adoptee to
enter his/her country as his/her adopted
son/daughter.
3. The guardian with respect to the ward after the
termination of the guardianship and clearance of
his financial accountabilities.
The requirement of 16 YEARS difference between the
adopter and the adoptee is NOT applicable if the
adopter is:
1. the biological parent of the adoptee
2. the spouse of the adoptees parent
The requirement on residency and certification of
aliens qualification to adopt may be WAIVED for the
following:
1. The adoptee is a former Filipino citizen who
seeks to adopt a relative within the 4 th degree
of consanguinity or affinity.
2. One who seeks to adopt the legitimate
son/daughter of his/her Filipino spouse.
3. One who is married to a Filipino citizen and
seeks to adopt jointly with his/her spouse a
relative within the 4th degree of consanguinity
or affinity of the Filipino spouse.
WHO MAY BE ADOPTED
1. Any person below eighteen (18) years of age
who has been judicially declared available for
adoption OR voluntarily committed to DSWD.
2. The legitimate child of one spouse by the other
spouse.
3. An illegitimate child by a qualified adopter to
raise the status to that of legitimacy.
4. A person of legal age regardless of civil
status, if, prior to the adoption, said person has
been consistently considered and treated by
the adopters as their own child since minority.
5. A child whose adoption has been previously
rescinded.
6. A child whose biological or adoptive parents
have died.
7. A child not otherwise disqualified by law or
these rules.
GENERAL RULE: Husband and wife shall jointly adopt.
EXCEPTIONS:
1. If one spouse seeks to adopt the legitimate
son/daughter of the other.
2. If one spouse seeks to adopt his/her own
illegitimate son/daughter.
3. If the spouses are legally separated from each
other.
117

VENUE (Sec.6)
Family Court where the prospective adoptive parents
reside.
Petition shall be verified and specifically state at the
heading of the initiatory pleading whether the petition
contains an application for a change of name,
rectification of simulated birth, voluntary or
involuntary commitment of children, or declaration of
child as abandoned, dependent or neglected.
A certification of non-forum shopping shall be included
pursuant to Section 5, Rule 7 of the 1997 Rules of Civil
Procedure.
PROCEDURE
A. ORDER OF HEARING (Sec.12)
- must be published at least once a week for 3
CONSECUTIVE WKS.
- at the discretion of the court, copies of the
order of hearing shall be furnished to the office
of the Sol.Gen. through the provincial or city
prosecutor, the DSWD and the biological
parents of the adoptee, IF KNOWN.
- if a change in the name of the adoptee is
prayed for in the petition, notice to the Sol.
Gen. Shall be MANDATORY.
B. CHILD & HOME STUDY REPORTS (Sec.13)
- social worker verifies with the Civil Registry the
real identity and the name of adoptee and the
fact that he is legally available for adoption.
- social worker may make recommendations to the
court if he finds some grounds to deny the
petition.
C. HEARING (sec.14)
- to be held within 6 MONTHS from the date of
issuance of the order
EXCEPT: in case of APPLICATION FOR CHANGE OF
NAME which hearing must not be within 4 MONTHS
after LAST PUBLICATION nor within 30 DAYS prior
to election.
- the petitioner and the adoptee must personally
appear and the former must testify in court.
D. SUPERVISED TRIAL CUSTODY (STC) (Sec.15)
Before issuance of decree of adoption the court
shall give the adopter trial custody of the adoptee
for at least 6 MONTHS.
Reason: So the parties will adjust psychologically
and emotionally to each other and establish a
bonding relationship.
Court may reduce or exempt parties from STC.
GENERAL RULE:
Alien adopter must complete the 6 MONTHS STC.
EXCEPTION:
Same as Exemptions from requirements of residency
and certification.
E. DECREE OF ADOPTION
If issued, this will take effect as of the date of
filing of the original petition.

In case of change of name, the decree shall be

submitted to the Civil Registrar where the court
issuing the same is situated.
An amended birth certificate shall be issued. The
original birth certificate shall be stamped
cancelled and shall be sealed in the Civil Registry
records.
The new birth certificate to be issued to the adoptee
shall not bear any notation that it is an amended issue.
EFFECTS OF ADOPTION
1. adopter will exercise parental authority.
2. all legal ties between biological parents and
the adoptee shall be severed, except when
biological parent is spouse of adopter.
3. adoptee shall be considered legitimate child of
adopter for all intents and purposes.
4. adopters shall have reciprocal rights of
succession without distinction from legitimate
filiation.
All hearings and records are confidential. (Sec.18)

INTER COUNTRY ADOPTION
(Secs. 26-32)
Where to file Petition?

- A verified petition to adopt a Filipino child may be
filed by a foreign national or Filipino citizen
permanently residing abroad with the Family Court
having jurisdiction over the place where the child
resides or may be found.
- It may be filed directly with the Inter-Country
Adoption Board.
WHO MAY ADOPT
1. any alien or Filipino citizen permanently
residing abroad who is at least twenty-seven
(27) years of age;
2. other requirements same as with RA 8552.
WHO MAY BE ADOPTED

Only a legally free child may be the subject of intercountry adoption.
A child under the Inter-Country Adoption Act is
defined as any person below fifteen (15) years of age.
RESCISSION AND REVOCATION OF ADOPTION
Under the Domestic Adoption Act of 1998, the
ADOPTER CAN NO LONGER REVOKE the adoption, he
can merely disinherit the adoptee in accordance with
the provisions of the Civil Code.
In revocation, it relates only as to the date of the
judgment. Hence in revocation, vested rights prior to
rescission should be respected.
Who files?
1. ADOPTEE
118

a) over 18 years of age or
b) if minor with assistance of DSWD
2. GUARDIAN if over 18 but incapacitated or
COUNSEL
Grounds
1. repeated physical violence and verbal
maltreatment by the adopter despite having
undergone counseling;
2. attempt on the life of the adopter;
3. sexual assault or violence; or
4. abandonment or failure to comply with
parental obligations.
Venue
FAMILY COURT of the city or province where the
adoptee resides. (Sec. 20)
Period within which to file VERIFIED petition (Sec. 21)
5 YEARS from reaching age of majority or from recovery
of incompetency.
Adverse party shall file his ANSWER within 15 days from
receipt of order of court requiring him to answer. (Sec.
22)
EFFECTS OF JUDGMENT OF RESCISSION
1. parental authority or legal custody will be
restored
2. reciprocal rights of adoptee and adopter will be
extinguished
3. vested rights required prior to judicial
rescission shall be respected
4. adoptee shall use the name stated in his
original borth or foundling certificate
5. civil registrar will reinstate his original birth or
foundling certificate
Unlike in revocation of guardianship, revocation of
adoption is a separate proceeding from the adoption.
RULE 99, SECTIONS 6 & 7
Sections 6 and 7 of Rule 99 of the Rules of Court
referring to Custody of Minors are still valid provisions.
Rule 99, Section 6. Proceedings as to child whose
parents are separated.
The question as to the care and custody and control of
a child or children of their marriage is brought before a
Regional Trial Court by Petition or as an incident to any
other proceedings.
When
child
1.
2.
3.
4.
parents considered unfit to take charge of the
ORDER
1.
2.
3.
4.
by reason of moral depravity

habitual drunkenness
incapacity
poverty
OF PREFERENCE in case the parents are unfit
Parental/Maternal grandparents
Childs oldest brother or sister
Some reputable or discreet person
Any suitable asylum, childrens home or
benevolent society.

No child under seven (7) years of age shall be

separated from its mother, unless the court fins there
are compelling reasons therefor.
Rule 99, Section 7. Custody of Vagrant or Abused
Child
Jurisdiction and Venue
Family Courts of the territory where the petitioner
resides.
Grounds
1. Parents of the minor are dead;
2. Parents have abandoned the child by reason of
long absence or legal or physical impossibility;
3. Parents cannot support the child;
4. Parents treat the child with excessive
harshness;
5. Parents give the child corrupting orders,
counsels or examples;
6. Parents cause or allow the child to engage in
begging;
7. Parents cause or allow child to commit offenses
against the law.
PROCEDURE
1. Filing of Petition by a reputable resident of
the province
2. Show Cause Order directed to parents or in
case the parents are dead or cannot be found,
requiring the fiscal of the province to show
cause, why the child should not be taken from
its parents, if living
3. Hearing and Order
4. Service of Judgment upon the Civil Registrar
of the city or municipality where the court
issuing the same is situated.
119

DISCHARGE OF INSANE (Sec. 4)
Director of Health may file this petition when he is of
the opinion that the person is permanently or
temporarily cured or may be released without danger
RULE 102
HABEAS CORPUS
Habeas corpus extends to: (Sec.1)
1. cases of illegal confinement or detention by which a
person is deprived of his liberty; and
2. cases by which the rightful custody of the person is
withheld from the person entitled thereto
The restraint must be actual, effective and
material. The person need not actually be confined as
long as freedom of action is limited. (Moncupa vs.
Enrile, GR No. 61107, Apr. 26, 1983)
Writ of Habeas Corpus - a command directed to the
person detaining another, requiring him to produce the
body of the person detained at a designated time and
place, and to produce and to show cause and to explain
the reason for detention.
PURPOSE
The essential object and purpose of the writ of habeas
corpus is to inquire into all manner of involuntary
restraint as distinguished from voluntary, and to relieve
a person therefrom if such restraint is illegal.
(Moncupa vs. Enrile, supra)
And any further rights of the parties are left untouched
by decision on the writ, whose principal purpose is to
set the individual at liberty. (Villavicencio vs. Lukban)
The privilege of writ is so sacred that, according to our
CONSTITUTION, it shall not be suspended except in
cases of invasion or rebellion when public security
requires it (Art. III, Sec. 15).
RULE 101
PROCEEDINGS FOR HOSPITALIZATION OF INSANE
PERSONS
Venue
RTC of province where the person alleged to be insane
is found.
Who files?
Director of Health with assistance of city or provincial
fiscal.
Requisites
1. Director of Health is of the opinion that the
commitment of the person alleged to be insane
is for PUBLIC WELFARE or for THE WELFARE of
said person
2. Such person or one having charge of him is
opposed or his being taken to hospital or
asylum
IN CASES OF ILLEGAL CONFINEMENT OR DETENTION

GENERAL RULE: The release, whether permanent or
temporary, of a detained person renders the petition
for habeas corpus moot and academic.
EXCEPTION: When there are restraints attached to his
release which precludes freedom of action, in which
case the court can still inquire into the nature of his
involuntary restraint. (Villavicencio vs. Lukban)
Whether the State can reserve the power to rearrest a person for an offense after a court of
competent jurisdiction has absolved him of the
offense.
We hold that such a reservation is repugnant to the
government of laws and not of men principle. Under
this principle, the moment a person is acquitted on a
criminal charge he can no longer be detained or rearrested for the same offense. (Moncupa vs. Enrile)
GROUNDS FOR RELIEF

1. deprivation of any fundamental or

constitutional right
2. lack of jurisdiction of the court to impose the
sentence
3. excessive penalty
Requisites for the issuance of the Writ in cases by
which the rightful custody of the person of a minor is
withheld from the person entitled thereto
1. that the petitioner has the right to the custody
over the minor
2. that the rightful custody of the minor is being
withheld from the petitioner by the respondent
3. that it is to the best interest of the minor
concerned to be in the custody of the
petitioner and not that of respondent.
(Sombong vs. CA, January 31, 1996)
Habeas Corpus can never be a substitute for appeal.
Whether the petition for the writ of habeas corpus
may be properly filed together with the petition for
certiorari and mandamus
The Court ruled that the writs of habeas corpus and
certiorari may be ancilliary to each other where
necessary to give effect to the supervisory powers of
the higher courts. A writ of habeas corpus reaches the
body and the jurisdictional matters, but not the record.
A writ of certiorari reaches the record but not the
body. Hence, a writ of habeas corpus may be used with
the writ of certiorari for the purpose of review.
However, habeas corpus does not lie where the
petitioner has the remedy of appeal or certiorari
because it will not be permitted to perform the
functions of a writ of error or appeal for the purpose of
reviewing mere errors or irregularities in the
proceedings of a court having jurisdiction over the
person and the subject matter. (Galvez, et al. vs. CA,
et al., 237 SCRA 685).
The person on bail is not entitled to habeas corpus
because his detention is legal and technical.
Does voluntary restraint constitute habeas corpus?
As a GENERAL RULE, NO. EXCEPT when a person
restrained is a minor and the petitioner is the father or
mother or guardian or a person having custody of the
minor.
Voluntariness is viewed from the point of view of the
person entitled to custody.
Supervening Events May Bar Release
Even if the arrest of a person is illegal, supervening
events may bar release of discharge from custody. What
is to be inquired into is the legality of detention as of,
at the earliest, the filing of the application for the writ
of habeas corpus. (Velasco vs. CA, July 7,1995).
Preliminary Citation - issued by the court to show
cause whether or not the writ should be issued
Who may grant the petition (Sec.2)
1. SC or any member thereon
2. CA or any member thereof
120
MEMORY AID IN REMEDIAL

3. RTC or any judge thereof
4. MTC - in the absence of RTC judges
LAW
Procedure for grant of writ

a. verified petition signed by the party for whose
relief it is intended; some other person in his
behalf;
b. allowance of writ;
c. command officer to produce;
d. service of writ by sheriff or other officer;
e. return; and
f. hearing on return.
To whom writ directed and what to require. (Sec.6)
Directed to officer and commands him to:
1. have the body of person before the court; and
2. show cause of the imprisonment or restraint.
How writ is executed and returned (Sec.8)
Officer shall:
1. Convey the person so imprisoned before the
judge, unless from sickness or infirmity, such
person cannot, without danger be brought
before the court.
2. Make the return of the writ together with the
day and the cause of caption or restraint.
Defect of form (Sec.9)
NO writ can be disobeyed for defect
sufficiently states:
1. person in whose custody or
restraint the party imprisoned
held, and
2. court or judge before whom
brought.
in form IF it
under whose
or restraint is
he is to be
When the return evidence, and when only a plea

(Sec.3)
If a prisoner is in custody under a warrant of
commitment in pursuance of law or under a judicial
order, the return shall be considered PRIMA FACIE
EVIDENCE OF THE CAUSE OF RESTRAINT, however it
shall only be plea of the facts set forth if restraint is by
private authority.
When prisoner discharged if no appeal. (Sec.15)
If one is unlawfully imprisoned, court shall order his
discharge but such discharge shall not be effective until
a copy of the order has been served on the office or
person detaining the prisoner. If person detaining him
does not appeal, the prisoner shall be released.
When prisoner may be removed from one custody to
another (Sec.18)
1. By legal process
2. Prisoner is delivered to an inferior officer to
carry to jail
3. By order of proper court or judge be removed
from one place to another within the Phil. for
trial.
4. In case of fire, epidemic, insurrection or other
necessity or public calamity.

When does court acquire jurisdiction over person of

respondent?
The writ itself plays the role as summon in ordinary
actions; court acquires jurisdiction over the person of
the respondent BY MERE SERVICE OF WRIT.
APPEAL IN HABEAS CORPUS CASES
The appeal in habeas corpus cases may be taken in the
name of the person detained or of the officer or person
detaining him.
An appeal in habeas corpus cases shall be perfected by
filing with the clerk of court or the judge, within 48
hours from notice of judgment, a notice of appeal.
RULE ON CUSTODY OF MINORS AND
WRIT OF HABEAS CORPUS
IN RELATION TO THE CUSTODY OF MINORS (A.M. No.
03-04-04-SC)
Who may file Petition? (Sec.3)
- A verified petition for the rightful custody of a
minor may be filed by any person claiming such right.
Where to file petition? (Sec.3)
- Family Court of the province or city where the
petitioner resides or where the minor may be found.
Provisional Order Awarding Custody (Sec.13)
As far as practicable, the following order of
preference shall be observed in the award of custody:
a. Both parents jointly;
b. Either parent, taking into account all relevant
considerations, especially the choice of the
minor over seven years of age and of sufficient
discernment unless the parent chosen unfit;
c. The grandparent or if there are several
grandparents, grandparent chosen by the minor
over seven years of age and of sufficient
discernment, unless the grandparent chosen is
unfit or disqualified;
d. The eldest brother or sister over twenty years
of age unless he or she is unfit or disqualified;
e. The actual custodian of the minor over twenty
years of age, unless the former is unfit or
disqualified; or
f. Any other person or institution the court may
deem suitable to provide proper care and
guidance for the minor.
121

that the regular court shall refer the case to
the family Court as soon as its presiding judge
returns duty.
petition may also be filed with the SC, CA, or
with any of its members and, if so granted the
writ 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.
RULE 103
CHANGE OF NAME
Venue (Sec. 1)
RTC of the province in which he resides.
Contents of Petition (Sec.2)
It shall set forth:
1. that petitioner is a bonafide resident of the
province where petition is filed for at least
three years prior to the date of filing;
2. all names by which petitioner is known;
3. cause for change of name;
4. name asked for.
Petition shall be signed and verified by person desiring
his name changed or some other person in his behalf.
Requirement
of verification
is formal,
NOT
jurisdictional requisite.
It is not a ground for
dismissing petition.
Jurisdictional Requirements
1. the verified petition should be published for
three successive weeks in some newspaper of
general circulation in the province;
2. that both the title and caption of the petition
and its body shall recite:
a) name /names or aliases of the applicant;
b) cause for which the change of name is
sought;
c) new name asked for.
(Secan Kok vs.
Republic, 52 SCRA 322).
Hearing - shall not be within 30 days prior to an
election nor within 4 MONTHS after the LAST
PUBLICATION of notice of hearing.
Temporary Visitation Rights (Sec.15)

The court shall provide in its order awarding provisional
custody appropriate visitation rights to the noncustodial parent or parents, unless the court finds said
parent or parents unfit or disqualified.
Effects of Discrepancy in the Petition and Published

Order
The defect in the petition and the order, as to the
spelling of the name of the petitioner, is substantial,
because it did not correctly identify the party to said
proceedings.
Petition for Writ of Habeas Corpus (Sec. 20)

shall be filed with the Family court.
shall be enforceable within its judicial region
to which the Family Court belongs.
the petition may however be filed with the
regular court in the absence of the presiding
judge of three Family Court, provided however
Grounds for change of name

1. name is ridiculous, tainted with dishonor and
extremely difficult to write or pronounce;
2. consequence of a change of status; e.g.
legitimated child;
3. necessity to avoid confusion;

4. having continuously used and been known since

childhood by a Filipino name, unaware of her
alien parentage;
5. a sincere desire to adopt a Filipino name to
erase signs of former alienage, all in good faith
and without prejudicing anybody.
TITLE OF PETITION MUST CONTAINED THE FOLLOWNG
1. Official name (birth certificate) be very
particular with the spelling because it may
avoid or annul the proceedings; it is
jurisdictional;
2. all aliases; and
3. name asked for.
All the names or aliases must appear in the title or
caption of the petition, because the reader usually
merely glances at the title of the petition and may only
proceed to read the entire petition if the title is of
interest to him. (Secan Kok vs. Republic,supra).
A decree of adoption grants the adoptee the right to
use the adopters surname but not to change the
formers first name which relief must be sought in a
discrete petition under Rule 103. (Republic vs.
Hernandez, GR NO. 117209, February 9, 1996).
For administrative procedure for Change of Name,
refer to Administrative Order 1, Series of 2004. It only
applies to:
1. clerical errors; and
2. innocuous errors.
RULE 107
ABSENTEES
ABSENTEE
CONSEQUENCE
0-2 years
--------
2 years to 7 years
Petition for
declaration of
absence may be filed
Considered dead for
all intents and
purposes except for
purposes of
succession
For purposes of
marriage: 4 years
continuous absence
shall be sufficient for
present spouse to
remarry, 2 years only
under extraordinary
circumstance
Beyond 7 years
(absence of 4 years
under extraordinary
circumstance)
PURPOSE OF PETITION - to appoint an administrator

over the properties of the absentee. Hence, if
absentee left no properties, such petition is
unnecessary.
GROUNDS FOR TERMINATION OF THE ADMINISTRATION
1. absentee personally appears through an agent
122

2. absentee death is proven and heirs appear
3. third person appears showing that he acquired
title over the property of the absentee
4. Actual or presumptive death cannot be the
subject if it is the onlt question or matter
involved in a case or upon which a competent
court has to pass. (Lukban vs. Republic, GR No.
8492, February 29, 1956)
No
independent
action for
Declaration of
Presumption of Death
Exception: the need for declaration of presumptive
death for purposes of marriage (Article 41 of the Family
Code).
RULE 108
CANCELLATION OR CORRECTION OF ENTRIES IN THE
CIVIL REGISTRY
Republic Act No. 9048 which was passed by Congress on
February 8, 2001 substantially amended Article 412 of
the New Civil Code, to wit:
SECTION 1. Authority to Correct Clerical or
Typographical Error and Change of First Name or
Nickname.No entry in a civil register shall be changed
or corrected without a judicial order, except for
clerical or typographical errors and change of first
name or nickname which can be corrected or changed
by the concerned city or municipal civil registrar or
consul general in accordance with the provisions of this
Act and its implementing rules and regulations.
The above law speaks clearly. Clerical or typographical
errors in entries of the civil register are now to be
corrected and changed without need of a judicial order
and by the city or municipal civil registrar or consul
general. The obvious effect is to remove from the
ambit of Rule 108 the correction or changing of such
errors in entries of the civil register. Hence, what is
left for the scope of operation of Rule 108 are
substantial changes and corrections in entries of the
civil register. (Lee vs. CA, G.R. No. 118387, October
11, 2001).
Requisites of Adversarial proceedings
1. Proper petition is filed where the Civil Registrar
and all parties interested are impleaded.
2. The order of the hearing must be published once a
week for three consecutive weeks.
3. Notice thereof must be given to the Civil Registrar
and all parties affected thereby.
4. The civil registrar and any person having or
claiming any interest under the entry whose
cancellation or correction is sought may, within 15
days from notice of the petition or from the last
date of publication of such notice, file his
opposition thereto.
5. Full blown trial.
Proceedings for the correction of entries should not
be considered as establishing ones status in a manner
conclusively beyond dispute. The status corrected
would not have a superior quality for evidentiary

purposes. There is no increase or diminution of

substantive right. (Chiao Ben Lim vs. Zosa, L- 40252,
December 29, 1986)
PETITIONS FOR
CHANGE OF
NAME
PETITIONS FOR
THE CORRECTION,
CANCELLATION OF
ENTRIES
Petition to be filed
in the RTC where
the petitioner
resides
Solicitor General
must be notified by
service of a copy of
the petition.
Verified petition filed

in the RTC where the
corresponding Civil
registry is located
Civil registrar
concerned is made a
party to the
proceeding as a
respondent. The
Solicitor General
must also be notified
by service of a copy
of the petition.
Petition is filed by
Petition is filed by
person desiring to
any person interested
change his name
in any ACT, EVENT,
ORDER or DECREE
Order for hearing
Order shall also be
shall be published
published once for
once a week for
three consecutive
three consecutive
weeks and court shall
weeks
cause reasonable
notice to persons
named in petition
Service of judgment shall be upon the civil
register concerned
Petition for change of name (Rule 103) and petition for

cancellation or correction of entries are DISTINCT
PROCEEDINGS.
123

or the administration of a trustee or guardian,
a final determination in the lower court of the
rights of the party appealing
appealing, except that no appeal shall be
allowed from the appointment of a special
administrator; and
6. Is the final order or judgment rendered in the
case, and affects the substantial rights of the
person appealing, unless it be an order granting
or denying a motion for a new trial or for
reconsideration.
ORDERS THAT ARE NOT APPEALABLE
1. Order directing administrator to take action to
recover amount due to the estate;
2. Order made in administration proceedings
relating to inclusion or exclusion of items of
property in the inventory of executor or
administrator;
3. Order appointing special administrator;
4. Order granting or denying a motion for new
trial or for reconsideration.
APPEAL IN
ORDINARY CIVIL
ACTION
APPEAL IN SPECIAL
PROCEEDINGS
PERIOD:
15 days
30 days
REQUIREMENTS
Notice of Appeal and
Docket Fees
Record on Appeal and

Docket Fees
No extension
May be extended on
meritorious grounds
Hence, a party cannot change name and correct an

entry in a single petition without satisfying the
jurisdictional requirements. (Republic v. Balmore)
RULE 109
APPEALS IN SPECIAL PROCEEDINGS
Orders or judgments from which appeals may be
taken (Sec.1)
An interested person may appeal in special proceedings
from such order or judgment rendered which:
1. Allows or disallows a will;
2. Determines who are the lawful heirs of a
deceased person, or the distributive share of
the estate to which such person is entitled;
3. Allows or disallows, in whole or in part, any
claim against the estate of a deceased person,
or any claim presented on behalf of the estate
in offset to a claim against it;
4. Settles the account of an executor,
administrator, trustee or guardian;
5. Constitutes, in the proceedings relating to the
settlement of the estate of a deceased person,

124
MEMORY AID
IN
REMEDIAL LAW
VENUE AND JURISDICTION OF SPECIAL PROCEEDINGS
SPECIAL PROCEEDING
1.
Settlement of the Estate
VENUE
JURISDICTION
Resident of the Decedent or

if the decedent is a nonresident, place where he
had an estate
MTC if the gross value of the

estate does not exceed P200,000,
or P400,000 in Metro Manila
RTC if the gross value of the
estate exceeds the above amounts
2. Escheat
a. Person dies intestate

leaving no heir Resident of
the decedent or if nonresident, in the place where
he had an estate.
RTC
b. Reversion Where the

land lies in whole or in part
RTC
c. Unclaimed Balance
Where the dormant deposits
are located
RTC
Where the minor or

incompetent resides
Family Court (in case of Minors)

RTC (Regular courtsin cases
other than minors)
5.
Appointment of
Guardians
6.
Appointment of Trustees
7.
Adoption
Where the adopter resides
Family Court
8.
Rescission of Adoption
Where the adoptee resides
Family Court
9.
Habeas Corpus
Where the detainee is

detained (if the petition is
filed with the RTC)
SC, CA, RTC, MTC in the province

or city in case there is no RTC
judge
10. Change of Name
Where petitioner resides
RTC
11. Appointment of
Representative of
Absentee/Declaration of
Absence
Where the absentee resided

before his disappearance
RTC
12. Cancellation/Correction
of Entries in the Civil
Registries
Where the corresponding

Civil Registry is located
Where the will was allowed

or where the property or
portion thereof affected by
the trust is situated
RTC
RTC
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special

125
MEMORY AID
IN
REMEDIAL LAW
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special

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