Special Proceedings Justice de Leon

7/25/2019 Special Proceedings Justice de Leon

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Pre-Week Bar Review Guide Justice Magdangal M. de Leon

SPECIAL PROCEEDINGS

1. Distinction between civi action and s!ecia !roceedin"s

a. Civil action – action by which a party sues another for enforcement or protection of aright, or prevention or redress of a wrong.

b. Special proceeding – remedy by which a party seeks to establish a status, right or aparticular fact.

2. Nature o# s!ecia !roceedin"s – initially non-adversarial in nature; in the course of proceedings, there may be oppositors.

GENERAL PRO$ISION

Rule 72SUBJECT MATTER AND APPLICABILIT

!" #ENERAL RULES

Sec. $. Su%&ect 'atte( o) s*ecial *(oceedings.

1. ules !"-!# $%. ules !&-'1 $ Settlement of (state of ". ules '%-'& $ )eceased *ersons

+. ules '!- $#. ./. 0o. "-%-#-SC uardianship of /inors&. ules %-! uardianship of 2ncompetents!. ./. 0o. %-&-%-SC doption and Custody of /inors'. ule ' 3rustees. ule 11 4ospitali5ation of 2nsane *ersons1. ule 1% 4abeas Corpus11. ule 1" Change of 0ame1%. ule 1+ 6oluntary )issolution of

Corporations7)eemed repealed by theCorporation Code,

3itle 826, Secs. 11!-1%%$1". ule 1# 9udicial pproval of 6oluntary

ecognition of /inor 0atural Children

1+. ule 1& Constitution of :amily 4ome 7)eemed repealed by the

:amily Code, rts. %#%-%#"$1#. ule 1! bsentees1&. ule 1' Cancellation or Correction of

(ntries1!. ule 1 ppeals in Special *roceedings

• S!ecia Proceedin"s %nder $arious Laws

1. Summary proceedings under the :amily Code %. ctions mentioned in the :amily Courts ct of 1! 7 '"&$

- declaration of absolute nullity of void marriages and annulment of voidablemarriages

- legal separation



- provisional orders on support, custody of minor children and administration of common property

- violence against women and their children and protection orders ". *roceedings under Child < =outh >elfare Code 7*) 1'"$

Child buse ct 7 !&1$Child (mployment ct 7 !&#'$

- declaration of status as abandoned, dependent or neglected children- voluntary or involuntary commitment of children

- suspension, termination or restoration of parental authority

%. )omestic and 2nter-country adoption". *etition for corporate rehabilitation+. *etition for writ of amparo#. *etition for writ of habeas data&. rbitration

• Rues in civi actions a!!icabe to s!ecia !roceedin"s

Sec. 2. A**lica%ilit+ o) (ules o) ci,il actions.In the absence of special rules, the rules provided for in ordinary actions shall be,

as far as practicable, applicable to special proceedings.

1. ule 1! governing dismissal of actions by plaintiff in civil actions7Ventura vs. Ventura, Sept. %+, 1&$

%. ules regarding

- preparation, filing and service of applications, motions, and other papers

- omnibus motions

- subpoena

- computation of time- motion for new trial

- discovery

- trial before commissioners

- procedure of appeal 7Fernandez vs. Maravilla, 1 SC #' ?1&+@$

". ule "" regarding Audgment on demurrer to evidence7Matute vs. CA, %& SC !&' ?1&@$

• Recent &uris!rudence

2n the absence of special provisions, rules in ordinary actions may be applied in special

proceedings as much as possible and where doing so would not pose an obstacle to saidproceedings. 0owhere in the ules of Court does it categorically say that rules in ordinaryactions are inapplicable or merely suppletory to special proceedings. *rovisions of the ules of Court reBuiring a certification of non-forum shopping for complaints and initiatory pleadings, awritten eplanation for non-personal service and filing, and the payment of filing fees for moneyclaims against an estate would not in any way obstruct probate proceedings, thus, they areapplicable to special proceedings such as the settlement of the estate of a deceased person.

7Sheker versus state of Alice Sheker , .. 0o. 1#!1% )ec 1", %!$

SE''LE(EN' O) ES'A'E O) DECEASED PERSONS

• rt. !!!, Civil Code – rights to succession are transmitted from the moment of death of

the decedent.

3his is only from the substantive aspect. :rom the *DC()EF aspect, there arecertain procedures that must be observed before actual transmission of the property, but rightsof the heirs retroact from the moment of death.



• Recent &uris!rudence

3he right of respondentGs predecessors over the subAect property is more than sufficient touphold respondentGs right to possession over the same. espondentGs right to the property wasvested in her along with her siblings from the moment of their fatherGs death. s heir, respondent

had the right to the possession of the property, which is one of the attributes of ownership.Such rights are enforced and protected from encroachments made or attempted before the

Audicial declaration since respondent acBuired hereditary rights even before Audicial declarationin testate or intestate proceedings.7!unyi versus Factor . .. 0o. 1!%#+!, 9une ", %$

• Sette*ent o# estate

3he determination of which court eercises Aurisdiction over matters of probate depends

upon the DSS 6FE( of the estate of the decedent. ule !", Sec. 1 is deemed amended byH* 1%, as amended by !&1 "#i$ vs. CA, .. 0o. 1%+!1#, 9anuary %+, %, "%" SC1%@$,

• +inds o# sette*ent based on t,e )OR( o# sette*ent

1. (traAudicial settlement 7ule !+, Sec. 1$%. Summary settlement of estates of small value 7ule !+, Sec. %$". 9udicial settlement through letters testamentary or letters of administration with or without

the will anneed 7ules !", !#-$

Rule 7-ENUE AND PR!CESS

Sec. $./0e(e estate o) deceased *e(sons settled .

1. 2f residing in *hilippines at time of death, whether citi5en or not, court of *FC( D:(S2)(0C(.

%. 2f residing in a foreign country – court of 0= *FC( >4(( 4( 4) (S33(.

". Court first taking cogni5ance of settlement of estate of a decedent shall eercise Aurisdiction 3D 34( (8CFES2D0 of all other courts.

- subAect to preferential Aurisdiction of court where 3(S33( proceedings are filed.

+. 9urisdiction assumed by a court depending on - place of residence of decedent, or - location of estate shall 0D3 H( CD03(S3() in a suit or proceeding,

• ecept in an appeal from that court, or

• when want of Aurisdiction appears in the record

• NO'ES

1. 3erm IresidesJ refers to Iactual or physicalJ residence, as distinguished from Ilegal

residenceJ or Idomicile.J

3here is a distinction between IresidenceJ for purposes of election laws andIresidenceJ for purposes of fiing the venue of actions. 2n election cases, IresidenceJand IdomicileJ are treated as synonymous terms, that is, the fied permanent residenceto which when absent, one has the intention of returning. 4owever, for purposes of fiing venue under the ules of Court, the IresidenceJ of a person is his personal, actualor physical habitation, or actual residence or place of abode, which may not necessarily



be his legal residence or domicile provided he resides therein with continuity andconsistency. 4ence, it is possible that a person may have his residence in one placeand domicile in another. 7San #uis vs. San #uis, .. 0o. 1""!+", :ebruary &, %!$

%. Sec. 1, ule !" prescribing court where decedentGs estate shall be settled – 7a$ place of

residence or 7b$ where his estate is located, relates to 6(0E( and not Aurisdiction.

". >here two proceedings filed, one intestate, the other testate – illustrative cases onwhich courts should have IAurisdictionJ

%&!%'S VS. #&(I)AS 71% SC "" ?=(@$ – intestate in C:2 /anila Hranch

%, testate 7reprobate$ in C:2 /anila, Hranch "'. uling priority to second branch of same court 7C:2 /anila$. a. *robate of will /0)3D=- anomalous that estate of person who died testate should be settled in intestate proceedings. b. 2ntestate caseshould be CD0SDF2)3() with testate proceeding - 9udge assigned to testateproceeding should continue hearing the two cases.

*%IA%' VS. CFI &F (+%&S &CC. 7"" SC %#% ?=(@$ – intestate in 0egroscourt, testate in /anila court. uling priority to first court. *etitioner in /anila courtshould have submitted will for probate to 0egros court, either in separate specialproceeding or motion. 3estate proceeding takes precedence over intestateproceeding. 2f in the course of intestate proceeding, it is found that decedent left awill, proceeding for probate of will should (*FC( intestate proceeding.

C*(C& VS. CA 7#" SC "& ?1!"@$ – intestate in Cebu court, testate in KC

court. uling priority to second court. :irst court, upon learning that petition for probate has been presented in another court, may )(CF20( 3D 3L(CD02M0C( of and 4DF) 20 H(=0C( petition before it, and instead )(:( tosecond court. 2f the will is admitted to probate, it will definitely )(CF20( to take

cogni5ance.

(plain difference between Eriarte and Cuenco rulings – 2n Eriarte, there was showingthat petitioner in probate proceeding knew before filing of petition in /anila that there wasalready intestate proceeding in 0egros.

Sec. 2./0e(e estate settled u*on dissolution o) 'a((iage

creditor cannot sue surviving spouse of a decedent in an ordinary proceeding for collection of sum of money chargeable against the conAugal property. *roper remedy – file aclaim in the settlement of estate of the decedent. eason upon death of one spouse, powers of administration of surviving spouse ceases and is passed to administrator appointed by probate

court in the settlement proceedings. 7 Alipio vs. CA, "+1 SC ++1 ?%@$

• Probate court is o# i*ited &urisdiction

1. *robate court cannot adAudicate or determine title to properties claimed to be a part of the estate and eBually claimed as belonging to outside parties.

%. 2t can only determine whether or not they should be included in the inventory or list of properties to be administered by the administrator.

". *robate court can only pass upon Buestions of title provisionally for the purpose of determining whether a certain property should or should not be included in the inventory.

+. *arties have to resort to an ordinary action for final determination of conflicting claims of title.

CS(S Vda. de %odriguez vs. CA, 1 SC #+; astor vs. CA, 1%% SC ''#;ereira vs. CA, 1!+ SC 1#+ .



• Separate civil action for Buieting of title - where issue or ownership of properties

ecluded from the inventory is finally determined 7obre vs. +onong , 1+' SC ##"?1'!@$.

(8C(*32D0

>here interested parties are all heirs and rights of third parties are not impaired, probatecourt can decide Buestion of ownership 7Coca vs. angilinan, '1 SC %!' ?1'!@$.

>ith consent of all the parties, without preAudice to third persons 7'rinidad vs. CA, %%SC 1& ?11@$.

• 4owever, probate court has Aurisdiction to 7a$ determine heirs – separate action for

declaration of heirs not proper 7Solivio vs. CA, 1'% SC 11 ?1@$ and 7b$ distributeestate.

RULE 71SUMMAR SETTLEMENT !" ESTATES

)istinction between etraAudicial settlement 7(S$ and summary settlement of estates of small value 7SS$

1. (S-no court interventionSS-Audicial adAudication although summary

%. (S-value of estate immaterialSS-applies only where gross value not more than *1,.

". (S-allowed only in intestate succession

SS-both testate and intestate

+. (S-no outstanding debts of estate at time of settlementSS-even if there are debts

Sec. $. Et(a&udicial settle'ent %+ ag(ee'ent %et3een t0e 0ei(s

• RE/%ISI'ES O) E0'RA1%DICIAL SE''LE(EN'

1. )ecedent dies intestate%. 0o outstanding debts at time of settlementN". 4eirs all of legal age or minors represented by Audicial guardians or legal

representatives+. Settlement made in public instrument duly filed with )#. *ublication in newspaper of general circulation in the province once a week for "

consecutive weeks&. Hond eBuivalent to value of personal property posted with )NN

N *resumed that decedent left no debts if no creditor filed petition for letters of administrationwithin % years after death of decedent.

NN Hond reBuired only when personal property is involved in the etraAudicial settlement. ealestate is subAect to lien in favor of creditors, heirs or other persons for % years from distributionof estate, notwithstanding any transfers of real estate that may have been made 7Sec. +, ule

!+$.

• 32D0F( for Sec. 1, ule !+ – when person dies without having obligations to be

paid, his heirs are not bound to submit property for Audicial administration, which isalways long and costly 7*tulo vs. asion, && *hil. "%$.

• 2: 4(2S )2S(( – ordinary action for partition.



• 2: D0F= D0( 4(2 – affidavit of self-adAudication.

dAudication by an heir of the decedentGs entire estate to himself by means of an affidavitis allowed only if he is the sole heir to the estate 7)elgado vda. de )e la %osa vs. -eirs of Marciana %ustia vda. de )a$ian, +' SC ""+ ?%&@$.

• Su**ar2 sette*ent 3 a##idavit o# se#-ad&udication

espondent, believing rightly or wrongly that she was the sole heir to *ortugalGs estate,

eecuted on :ebruary 1#, 1'' the Buestioned ffidavit of dAudication under the secondsentence of ule !+, Section 1 of the evised ules of Court. Said rule is an eception to thegeneral rule that when a person dies leaving a property, it should be Audicially administered andthe competent court should appoint a Bualified administrator, in the order established in Sec. &,ule !' in case the deceased left no will, or in case he did, he failed to name an eecutor therein. "ortugal vs. ortugal!eltran4 ..0o. 1#####, ugust 1&, %# /

Since 9osefa )elgado had heirs other than uillermo ustia, uillermo could not havevalidly adAudicated 9osefaGs estate all to himself. ule !+, Section 1 of the ules of Court isclear. dAudication by an heir of the decedentGs entire estate to himself by means of an affidavitis allowed only if he is the soe ,eir to the estate. "In the Matter of the Intestate state of )elgado, .. 0o. 1##!"", 9anuary %!, %& /

• :2F20 D: (839E)2C2F S(33F(/(03 >234 (2S3( D: )(()S (KE2()

– whether by public instrument, affidavit, stipulation in pending action for partition.

• )(S*23( 23S *EHF2C32D0, etraAudicial settlement 0D3 H20)20 on any person who

has not participated therein or who had no notice thereof 7Sec. 1, last par., ule !+;Sa$pilo vs. CA, 11 *hil. !1 ?1#'@$.

• E4tra&udicia sette*ent 3 on w,o* bindin"

3he procedure outlined in Section 1 of ule !+ is an e parte proceeding. 3he ruleplainly states, however, that !ersons w,o do not !artici!ate or ,ad no notice o# ane4tra&udicia sette*ent wi not be bound t,ereb2. 3he publication of the settlementdoes not constitute constructive notice to the heirs who had no knowledge or did nottake part in it because the same was notice after the fact of eecution. "Cua vs.Vargas, .. 0o. 1#&#"&, Dctober "1, %&$

',e !ubication o# t,e sette*ent does not constitute constructive notice to t,e,eirs w,o ,ad no knowed"e or did not take !art in it because t,e sa*e was

notice a#ter t,e #act o# e4ecution. 3he reBuirement of publication is geared for theprotection of creditors and was never intended to deprive heirs of their lawfulparticipation in the decedentGs estate. 7Spouses 'iro vs. -eirs of Cuyos, .. 0o.1&1%%, 9uly ", %'5

• ction to annul deed of etraAudicial settlement – Sec. +, ule !+ provides a two year

prescriptive period 71$ to persons who !artici!ated or taken !art or ,ad notice of theetraAudicial partition, and 7%$ when the provisions of Sec. 1 of ule !+ have been strictlycomplied with – that a !ersons or ,eirs of the decedent have taken !art in theetraAudicial settlement or are represented by themselves or through guardians

7edrosa vs. CA, "#" SC &% ?%1@$.

• Prescri!tive !eriod #or non-!artici!ants – 67 2ears, because an action for

reconveyance based on implied or constructive trust, being an obligation created by law,prescribes in 1 years 7rt. 11++, par. %, Civil Code$



3he period starts from issuance of title over the property 7Mar0uez vs. CA, " SC &#"?1'@$. Constructive trusts under rt. 1+#& are established to prevent unAust enrichment. 2nMar0uez , husband eecuted affidavit of self-adAudication without including the children

3he ruling in +erona vs. )e +uz$an, 11 SC 1#" 71&+$, cited in edrosa vs. CA,, thatprescriptive period for non-participants is + years from discovery of fraud, i.e., when deed was

filed with ) and new title issued, is not applicable, because the same was based on the oldCode of Civil *rocedure 7Sec. +", which governed prescription$. 3he +erona doctrine wasabandoned in A$erol vs. !agu$baran, 1#+ SC "& 71'!$ and reiterated in Caro vs. CA,1' SC +1 71'$ and Mar0uez.

• E4ce!tion to !rescri!tion o# actions – when plaintiff, the legal owner, and not the

defendant registered owner, is in possession of the land to be reconveyed. Said action,when based on fraud, is imprescriptible as long as the land has not passed to aninnocent purchaser for value 7-eirs of Saludares vs. CA, +% SC #+$.

• Fack of registration of etraAudicial settlement does not affect its validity when there are

no creditors or rights of creditors are not involved 7Vda. de %eyes vs. CA, 1 SC &+&711$.

RULE 75 PR!DUCTI!N !" /ILL.

ALL!/ANCE !" /ILL NECESSAR

1. llowance of will is conclusive as to its due eecution.

• rt. !'", Civil Code defines a will as an act whereby a person is permitted with the

formalities prescribed by law to control to a certain degree the disposition of hisestate to take effect after his death.

*etitioner should reali5e that the aowance o# ,er ,usband8s wi is concusive on2as to its due e4ecution. 3he authority of the probate court is limited to ascertainingwhether the testator, being of sound mind, freely eecuted the will in accordance with theformalities prescribed by law. 3hus, petitionerGs claim of title to the properties forming partof her husbandGs estate should be settled in an ordinary action before the regular courts.7(ittscher vs. (ittscher , .. 0o. 1&#", 0ovember %, %!$

%. *robate of will 7special proceeding to establish the validity of a will$ is /0)3D=.

a. 3he law enAoins probate of the will and public policy reBuires it. Enless will isprobated and notice given to the whole world, right of a person to dispose of hisproperty by will may be rendered nugatory 7Maninang vs. CA, 11+ SC +!'?1'%@$.

3he )eed of )onation which is one of mortis causa, not having followed the formalitiesof a will, is void and transmitted no right to petitionersG mother. Hut even assuming that theformalities were observed, since it was not probated, no right to Fot 0os. &!+ and &!& wastransmitted to /aria. 7 Aluad vs. Aluad , .. 0o. 1!&+", Dctober 1!, %'

b. 2n intestate succession, no valid partition among heirs until after will has beenprobated 7%alla vs. 1udge *ntalan, 1!% SC '#' ?1'@$.

c. *resentation of will cannot be dispensed with on the ground of (S3D**(F becausepublic policy reBuires that a will should be probated 7Fernandez vs. )i$aguiba, %1SC +%' ?1&!@$.

• PROBA'E CO%R' DOES NO' LOO+ IN'O IN'RINSIC $ALIDI'9



GENERAL R%LE *robate courtGs authority is limited only to etrinsic validity of the will,i.e.

a. due eecution – voluntarinessb. testatorGs testamentary capacity – sound mind

c. compliance with formal reBuisites or solemnities

1. 2ntrinsic validity of the will normally comes after court declares that will has been dulyauthenticated.

2. Court at this stage of the proceedings is not called upon to rule on intrinsic validity or legality of the provisions of the will 7(uguid vs. (uguid , 1! SC ++ ?1&&@; Maninang vs. CA, supra$.

E0CEP'IONS

1. 2n eceptional instances, courts not powerless to pass upon certain provisions of will

which it may declare invalid even as it upholds etrinsic validity of will 7 A2ero vs. Ca, %"&SC +'' ?1+@$.

%. *robate court may only disregard passing on etrinsic validity of will where intrinsicvalidity apparent on face of will 7Maninang vs. CA, supra$

". *robate of will might become idle ceremony if on its face it appears intrinsically void.

+. 2n (uguid , court ruled that will was intrinsically invalid as it completely preterited parentsof the testator.

a. *reterition – annuls institution of heirs

b. )isinheritance – annuls institution of heirs as to portion of estate which disinheritedheirs have been illegally deprived

RULE 76 ALL!/ANCE !R DISALL!/ANCE !" /ILL

Sec. $. /0o 'a+ *etition )o( allo3ance o) 3ill.

• W:O

1. (ecutor

%. Fegatee – need not be a relative of decedent". )evisee – need not be a relative of decedent+. Dther interested person - heir; creditor #. 3estator – during his lifetime

• W:EN – at any time after death of testator – not subAect to bar by statute of

limitations and does not prescribe, since it is reBuired by public policy.

• W:ERE 3 court having Aurisdiction

• W:A' 3 petition to have will allowed whether

a. will in possession of petitioner or notb. will lostc. will destroyed

1%RISDIC'ION :OW AC/%IRED



a. ttaching of mere copy of will sufficient – anneing of original of will to the petition is not Aurisdictional reBuirement.

b. )elivery of will sufficient even if no petition filed – under Sec. ", ule !&, Iwhen a will isdelivered to the court,J court could $otu proprio take steps to fi time and place for provingthe will, issue corresponding notices.

Sec. 2. Contents o) *etition.

34( F> 2S S2F(03 S 3D S*(C2:2C /00( D: H2020 34(9E2S)2C32D0F FF(32D0S H(:D( 34( CDE3 - but they should be made in theform of an application and filed with the original of the will attached thereto.

9urisdictional facts referred to in Sec. %7a$1. )eath of decedent%. 4is residence at time of his death in the place within the Aurisdiction of the court, or if

he is a non-resident, his leaving an estate in such place.

Sec. -. Cou(t to a**oint ti'e )o( *(o,ing t0e 3ill. Notice t0e(eo) to %e *u%lis0ed.

Notice and :earin"; Pubication

1. fter will delivered to, or petition for allowance of will filed in court having Aurisdiction,court –

a. shall fi time and place for proving will – when all concerned may appear to contestallowance thereof.

b. cause notice of such time and place to be *EHF2S4() " weeks successively innewspaper of general circulation in the province.

%. 0D 0(>S**( *EHF2C32D0 – where petition for probate filed by 3(S33Dhimself.

• On2 known ,eirs< e"atees and devisees entited to !ersona notice

0otice is reBuired to be personally given to known heirs, legatees, and devisees of thetestator. ?Sec. ", ule !&, ules of Court@. perusal of the will shows that respondent wasinstituted as the sole heir of the decedent. *etitioners, as nephews and nieces of thedecedent, are neither compulsory nor testate heirs who are entitled to be notified of theprobate proceedings under the ules. espondent had no legal obligation to mentionpetitioners in the petition for probate, or to personally notify them of the same. "Alaban vs.CA, .. 0o. 1#&%1, September %", %#$.

Probate o# Wi is In Re*

• 0otice by publication as prereBuisite to allowance of will is CD0S3EC326(

0D32C( to the whole world.

• >hen probate is granted, the Audgment is binding upon everybody, even against the

state.

Probate 1%RISDIC'IONAL

>ithout publication of petition, proceedings for settlement of estate is 6D2) and should

be 00EFF().

Sec. 1. ei(s4 de,isees4 legatees and eecuto( to %e noti)ied %+ 'ail o( *e(sonall+.

1. 0otice of time and place of hearing should be addressed to

a. designated or known heirs, legatees and devisees b. person named as eecutor 7if he is not petitioner$



c. person named as co-eecutor not petitioning

%. residing in the *hilippines". at their places of residence, if known+. *ersonal service – at least 1 days before hearing#. /ailed service – at least % days before hearing

&. 2: 3(S33D asks for allowance of his own will – notice shall be sent only to hisCD/*EFSD= 4(2S.

• Notice to Desi"nated :eirs< Le"atees and Devisees 1urisdictiona – when they are

known 0) their places of residence are known 7)e Arranz vs. +aling , 1&1 SC &%'$.

SEC. 5. P(oo) o) 0ea(ing. /0at su))icient in a%sence o) contest.

• E$IDENCE IN'ROD%CED A' PROBA'E O) WILL

1. *ublication

%. 0otice of hearing served on known heirs, legatees, devisees, etc. if places of residenceknown

". 3estimony of subscribing witnessesa. Encontested -- one witness sufficientb. Contested -- all subscribing witnesses and

notary 7wills eecuted under Civil Code$other witnesses 7under certain conditions$

+. 4olographic willa. Encontested – at least one witness who knows handwriting and signature of testator;

epert testimony 7in the absence of competent witness$b. Contested – at least " witnesses who know handwriting of testator; epert testimony

7in the absence of competent witness$

#. 4olographic will – testator himself as petitioner a. Contested – contestant has burden of disproving genuineness and due eecutionb. Encontested – testator must affirm that will and signature are in his own handwriting

• Substantia Co*!iance Rue

2f will eecuted in substantial compliance with formalities of law, and possibility of bad

faith obviated – it should be admitted to probate 7)e 1esus vs. )e 1esus, 1"+ SC %+#$.

Sec. 8. #(ounds )o( disallo3ing 3ill.

1. Fegal formalitiesa. not eecuted and attested as reBuired by law

%. 3estamentary capacityb. testator insane or otherwise mentally incapable to make will at time of eecution

". )ue eecutionc. eecuted under duress, or the influence of fear, or threatsd. procured by undue and improper pressure and influence on the part of the

beneficiary, or some other person, for his benefit.e. signature of testator procured by fraud or trick and he did not intend that the

instrument be his will at time of fiing his signaturef. testator acted by $istake or did not intend that instru$ent be signed or should be his

3ill at the ti$e of affi4ing his signature 7rt. "', Civil Code$

• Grounds #or Disaowance o# Wi E4cusive



Fists in Sec. , ule !& and rt. "' are (8CFES26( – 0D D34( DE0) can serve todisallow a will.

(ample 2f testator fails to sign and date some dispositions in holographic will, it affects onlythe validity of the dispositions, but not the whole will. (c. 2f unauthenticated alterations,cancellations or insertions are made on the )3( of will of on testatorGs S203E( 7 A2ero vs.

CA, supra$.

• Se!arate wis *a2 be !robated &oint2 7Vda. de erez vs. 'olete, %"% SC !%%

?1+@$.

RULE 77 ALL!/ANCE !" /ILL PR!ED !UTSIDE !" PILIPPINES

AND ADMINISTRATI!N !" ESTATE TEREUNDER

Sec. $. /ill *(o,ed outside o) t0e P0ili**ines 'a+ %e allo3ed 0e(e.

• (62)(0C( 0(C(SS= :D (*DH3( D: >2FF or will probated outside the*hilippines

1. due eecution of will in accordance with foreign laws%. testator has domicile in foreign country and not *hilippines". will has been admitted to probate in such country+. fact that foreign court is a probate court#. law of the foreign country on procedure and allowance of wills

7Vda. de erez vs. 'olete, supra$

• Re!robate o# wi

>hile foreign laws do not prove themselves in our Aurisdiction and our courts are notauthori5ed to take Audicial notice of them; however, petitioner, as ancillary administrator of

udreyGs estate, was duty-bound to introduce in evidence the pertinent law of the State of /aryland. 7 Ancheta vs. +uersey)alaygon, .. 0o. 1"'&', 9une ', %&$

P%BLICA'ION AND NO'ICE RE/%IRED

Compliance with Secs. " and + of ule !&, re publication and notice by mail or personallyto known heirs, legatees and devisees of testator resident in the *hilippines and to eecutor, if he is not the petitioner, reBuired also in wills for reprobate 7Vda. de erez vs. 'olete$.

RULE 79 LETTERS TESTAMENTAR AND !" ADMINISTRATI!N4 /EN AND T! /!M ISSUED

Sec. $. /0o a(e inco'*etent to se(,e as eecuto(s o( ad'inist(ato(s

• (8(CE3D – person named in the will to administer decedentGs estate to carry out

provisions thereof

• )/202S33D – person appointed by the court to administer the estate

• dministrator need not be an heir – can be a stranger to the deceased, such as a

creditor.

GRO%NDS )OR INCO(PE'ENCE

1. /inority%. 0on-residence". Enfitness

a. drunkennessb. incompetencec. want of understanding



d. want of integritye. conviction of offense involving moral turpitude 7anything done contrary to Austice,

honesty, good morals$

• Courts may refuse to appoint a person as eecutor or administrator on ground of

E0SE23HF(0(SS – adverse interest or hostile to those immediately interested

in the estate 7#i$ vs. )iazMaillares, 1' SC "!1 ?1&&@$.

I:ailure to file an income ta returnJ is not a crime involving moral turpitude because themere omission is already a violation regardless of the fraudulent intent or willfulness of theindividual. 7%epublic vs. Marcos, .. 0o. 1""!1, ugust +, %$

Sec. 6. /0en and to 30o' lette(s o) ad'inist(ation g(anted

• W,en ad*inistration "ranted

1. 0o eecutor named in will $ letters of ad$inistration%. (ecutorOs 7isOare$ $ 3ith 3ill anne4ed

a. 2ncompetent

- /inor

- 0on-resident

- Enfitb. efuse the trustc. :ail to give bond

". *erson dies intestate $ letters of ad$inistration+. >ill void and not allowed $

• Order o# !re#erence in a!!oint*ent o# ad*inistrator

1. surviving spouse – partner in conAugal partnership and heir of deceased

%. net of kin

• (eanin" o# ne4t o# kin

Dn the matter of appointment osf administrator of the estate of the deceased, the

surviving spouse is preferred over the net of kin of the decedent. >hen the law speaks of Inet of kinJ, the reference is to those who are entitled, under the statute of distribution, to the

decedentGs property; one whose relationship is such that he is entitled to share in the estate asdistributed, or, in short, an heir. 2n resolving, therefore, the issue of whether an applicant for letters of administration is a net of kin or an heir of the decedent, the probate court perforcehas to determine and pass upon the issue of filiation. separate action will only result in amultiplicity of suits. "Angeles vs. Maglaya, .. 0o. 1#"!', September %, %# /

". person reBuested by spouse or net of kin

+. principal creditorsa. if spouse or net of kin is incompetent or unwillingb. neglects for " days after death of decedent to apply for administration, or to

reBuest that administration be granted to some other person

#. other person selected by court – if no creditor competent or willing

3he order of preference in the appointment of a regular administrator as provided in theafore-Buoted provision does not apply to the selection of a special administrator. 3he preferenceunder Section &, ule !' of the ules of Court for the net of kin refers to the appointment of aregular administrator, and not of a special administrator, as the appointment of the latter lies



entirely in the discretion of the court, and is not appealable . 0ot being appealable, the onlyremedy against the appointment of a special administrator is Certiorari under ule &# of theules of Court. 7'an vs. +edorio, 1r ., .. 0o. 1&&#%, /arch 1+, %'$

• Court *a2 re&ect order o# !re#erence

>hile surviving spouse is entitled to preference in the appointment, circumstances mightwarrant his reAection and appointment of someone else, at the discretion of the court .

• Interest in estate as !rinci!a consideration

2n the appointment of an administrator, the principal consideration is the interest in theestate of the one to be appointed.

3hose who will reap benefit of a wise, speedy and economical administration or willsuffer conseBuences of waste, improvidence or mismanagement – have the 424(S3203((S3 and /DS3 20:FE(032F /D326( to administer estate correctly 7+onzales vs.

Aguinaldo, 1 SC 11% ?1@$.

3he order of preference does not rule out the appointment of co-administrators,especially in cases where Austice and eBuity demand that opposing parties or factions berepresented in the management of the estate.

RULE 78!PP!SIN# ISSUANCE !" LETTERS TESTAMENTAR4 PETITI!N AND C!NTEST

"!R LETTERS !" ADMINISTRATI!N

• LE''ERS 'ES'A(EN'AR9 – issued to eecutor

• LE''ERS O) AD(INIS'RA'ION WI': WILL ANNE0ED 3 issued to administrator

when there is no eecutor named in will, or eecutor is incompetent, refuses trust or failsto give bond.

• LE''ERS O) AD(INIS'RA'ION – issued to administrator in intestate proceedings.

Sec. $. !**osition to issuance o) lette(s testa'enta(+. Si'ultaneous *etition )o( ad'inist(ation

ny person interested in a will may oppose in writing the issuance of letters

testamentary to persons named as eecutors, and at the same time file petition for letters of administration with will anneed.

(eanin" o# =interested !erson> – one who would be bene#ited by the estate 7heir$, or one who has a cai* against the estate 7creditor$. 2nterest must be /3(2F and )2(C3, notmerely indirect or contingent 7Sagunsin vs. #indayag , & SC '!+ ?=(@$.

n Iinterested personJ has been defined as one w,o woud be bene#ited by the estate,such as an heir, or one w,o ,as a cai* against the estate, such as a creditor. 3he interestmust be material and direct, and not merely indirect or contingent 7San #uis vs. San #uis, ..0o. 1""!+", :ebruary &, %!$

>here the right of the person filing a petition for the issuance of letters of administrationis dependent on a fact which has not been established or worse, can no longer be established,such contingent interest does not make her an interested party. 7'ayag ve. 'ayag+allor , ..0o. 1!+&', /arch %+, %'$

P%BLICA'ION AND NO'ICE RE/%IRED 7Sec. ", ule !$



*ublication and notice of hearing 7per Sec. ", ule !&$ Aurisdictional.

lso, notice to Iknown heirs and creditors of the decedent, and to any other person believedto have an interest in the estateJ 7per Sec. +, ule !&$ if names and addresses are known 7)e

Arranz vs. +aling $.

RULE 9: SPECIAL ADMINISTRAT!R

• W:EN IS SPECIAL AD(INIS'RA'OR APPOIN'ED

1. >hen there is dea2 in granting letters testamentary or of administration by any cause - including appeal from allowance or disallowance of will

%. court may appoint special administrator to take possession and charge of the estate of the deceased

". untila. Buestions causing delay decided or

b. eecutors or administrators appointed

3he appointment of a special administrator is Austified only when there is delay in grantingletters, testamentary 7in case the decedent leaves behind a will$ or administrative 7in the eventthat the decedent leaves behind no will, as in the *etition at bar$ occasioned by any cause. 3heprincipal obAect of the appointment of a temporary administrator is to preserve the estate until itcan pass into the hands of a person fully authori5ed to administer it for the benefit of creditorsand heirs. 7'an vs. +edorio, 1r ., .. 0o. 1&&#%, /arch 1+, %'$

• P%BLICA'ION AND NO'ICE RE/%IRED

(ven in the appointment of a special administrator, same Aurisdictional reBuirementsunder Sec. ", ule !.

• ORDER APPOIN'ING SPECIAL AD(INIS'RA'OR NO' APPEALABLE

Drder appointing special administrator interlocutory in nature and mere incident in the Audicial proceedings, hence not appealable 7Sa$son vs. Sa$son, 1% *hil. !"#$.

RULE 9$

B!NDS !" E;ECUT!RS AND ADMINISTRAT!RS

Sec. $. Bonds to %e gi,en %e)o(e issuance o) lette(s. A'ounts. Conditions.

• Conditions o# bond

1. make and return inventory within " months%. administer estate". pay and discharge all debts, legacies, and charges+. render accounting within one year #. perform all orders of court

RULE 92 RE!CATI!N !" ADMINISTRATI!N4 DEAT4

RESI#NATI!N AND REM!AL !" E;ECUT!RS AND ADMINISTRAT!RS

Sec. $. Ad'inist(ation (e,o<ed i) 3ill disco,e(ed. P(oceedings t0e(eon.



1. 2f after letters of administration have been granted as if decedent died intestate, his willis *D6() 0) FFD>() by the court,

%. letters of administration shall be (6DL() and all powers thereunder cease.". dministrator shall forthwith

a. Surrender letters to the court andb. ender his account within such time as the court directs

+. proceedings for issuance of letters testamentary or of administration will follow.

Sec. 2. Cou(t 'a+ (e'o,e o( acce*t (esignation o) eecuto( o( ad'inist(ato(. P(oceedings u*on deat04 (esignation4 o( (e'o,al.

Concerning complaints against the general competence of the administrator, the proper remedy is to seek the removal of the administrator in accordance with Section %, ule '%. >hilethe provision is silent as to who may seek with the court the removal of the administrator, acreditor, even a contingent one, would have the personality to seek such relief. fter all, theinterest of the creditor in the estate relates to the preservation of sufficient assets to answer for the debt, and the general competence or good faith of the administrator is necessary to fulfill

such purpose. 7-ilado vs. Court of Appeals, .. 0o. 1&+1', /ay ', %$

Sec. -. Acts %e)o(e (e,ocation4 (esignation4 o( (e'o,al to %e ,alid. E##ect o# revocation< resi"nation or re*ova o# e4ecutor or ad*inistrator on ,is

!revious acts – lawful acts shall have same validity as if no revocation, resignation or removal.

• Rue on Precedence o# Probate o# Wi

Sec. 1, ule '% was followed in *riarte vs. CFI of (egros &ccidental

1. 2f in the course of intestate proceedings, it is found out that decedent left a lastwill,

%. probate proceedings should (*FC( intestate proceedings". even if at that stage an administrator had already been appointed.+. dministrator is reBuired to –

a. render final accountb. turn over estate in his possession to eecutor subseBuently appointed

#. >ithout preAudice that proceeding shall continue as intestacy should alleged willbe reAected or disapproved.

*robate of the will is mandatory 7Sec. 1, ule !#$ and therefore takes precedence over intestate proceedings.

• W:A' 'O DO WI': PROCEEDINGS 3 DISCRE'IONAR9 WI': CO%R'

>hether intestate proceedings already commenced should be discontinued and a newproceeding under a separate number and title should be constituted – entirely a /33( D::D/ and lies within SDE0) )2SC(32D0 of court. )oes not preAudice substantial rights of heirs and creditors 7Intestate state of 5olfson, +# SC "'1$.

RULE 91#ENERAL P!/ERS AND DUTIES !" E;ECUT!RS

AND ADMINISTRAT!RS

• Pur!ose o# ad*inistration 3 liBuidation of the estate and distribution of the residue

among the heirs, legatees and devisees.

• Li?uidation 3 7a$ deter*ination of all the assets of the estate and 7b$ !a2*ent of all

debts and epenses 7#uzon Surety vs. 6uebrar , 1%! SC "1$



• Powers and duties o# e4ecutor and ad*inistrator

1. administration%. liBuidation". distribution

3he administrator may only deliver properties of the estate to the heirs upon order of the Court.7Silverio, 1r. vs. Court of Appeals, .. 0o. 1!'"", September 1&, %$

RULE 95 ACC!UNTABILIT AND C!MPENSATI!N !" E;ECUT!RS AND ADMINISTRAT!RS

RULE 96 CLAIMS A#AINST ESTATE

• Notice to creditors 3 immediately after granting letters testamentary or of

administration, court shall issue

- 0D32C( reBuiring all persons having /D0(= CF2/S against the estate

- to :2F( them in the office of the clerk of court 7Sec. 1$.

• 'i*e #or #iin" cai*s 3 not more than 1% months nor less than & months after date

of :2S3 *EHF2C32D0 of the notice 7Sec. %$.

• New !eriod aowed 7Sec. %, second sentence$

t any time before order of distribution is entered, creditor who failed to file his claimwithin the time set may move to be allowed to file such claim.

Court may for good cause shown and on such terms as are Aust allow such claim to befiled within a period 0D3 (8C(()20 D0( /D034.

Dne month does not commence from epiration of the original period for filing claims. 2tbegins from the date of the order of the court allowing said filing 7Harredo vs. C, & SC &%?=(@$.

• Statute o# Non-Cai*s @SNC5 3 the period fied for the filing of claims against the

estate.

1. *eriod fied by probate court must not be less than & months nor more than 1% monthsfrom the date of first publication of the notice.

%. Such period once fied by the court is /0)3D= – it cannot be shortened.e. *eriod fied within & months

". S0C supersedes statute of limitations – even if claim has not yet prescribed, it may bebarred by S0C.

• Ruin" s!irit o# our !robate aw 3 S*(()= S(33F(/(03 of the estate of deceased

persons for the benefit of C()23DS and those entitled to the (S2)E( by way of 204(230C( or F(C= after the debts and epenses of administration have been

*2) 7Sikat vs. Villanueva, #! *hil. +'& ?=(@$.

• Pubication o# notice to creditors 7Sec. "$

2mmediately after notice to creditors is issued, eecutor or administrator shall cause -

1. publication of said notice " weeks successively in newspaper of general circulation inthe province, and



%. posting for the same period ina. + public places in the province andb. % public places in the municipality where decedent last resided

P%BLICA'ION O) NO'ICE 'O CREDI'ORS CONS'R%C'I$E NO'ICE 'O ':E W:OLE

WORLD

4ence, creditor cannot be permitted to file his claim beyond the period fied in the noticeon the ground that he had no knowledge of the administration proceedings 7Villanueva vs. (!, SC 1+#$.

• Cai*s t,at *ust be #ied 7Sec. #$

1. Claims for money against the decedent arising from contract< epress or implied,whether due, not due or contingent

%. Claims for funeral epenses and epenses for last sickness of decedent". 9udgment for money against decedent

a. 3he Audgment must be presented as a claim against the estate where the Audgmentdebtor dies before levy on eecution of his properties 7vangelista vs. #a rovedra,"' SC "! ?=($.

b. >hen the action is for recovery of money arising from contract, and defendant diesbefore entry of final Audgment, it shall not be dismissed but shall be allowed tocontinue until entry of final Audgment. favorable Audgment obtained by plaintiff shallbe enforced under ule '& 7ule ", Sec. %$.

• (one2 cai*s a"ainst a deceased debtor

1. Section # of ule '& of the ules of Court epressly allows the prosecution of money

claims arising from a contract against the estate of a deceased debtor. 3hose claims are not

actually etinguished. >hat is etinguished is only the obligeeGs action or suit filed before thecourt, which is not then acting as a probate court. 2n the present case, whatever monetaryliabilities or obligations Santos had under his contracts with respondent were not intransmissibleby their nature, by stipulation, or by provision of law. 4ence, his death did not result in theetinguishment of those obligations or liabilities, which merely passed on to his estate. )eath isnot a defense that he or his estate can set up to wipe out the obligations under the performancebond. "Stronghold Insurance Co$pany, Inc. vs. %epublicAsahi +lass Corporation, +.%. (o.789:;7, 1une, <==;/

%. espondentsG monetary claim shall be governed by Section % 7then Section %1$, ule "2n relation to Section #, ule '& of the ules of Court. 3hus, said money claims must be filedagainst the estate of petitioner /elencio abriel. "+abriel vs. !ilon, +.%. (o. 78;>?>, February

9, <==9/

• /ust be filed within the time limited in the notice, otherwise they are H()

:D(6(.

(ception – may be set forth as CDE03(CF2/S in any action eecutor or administrator may bring against the claimants.

• ationale 1$ to protect the estate of the deceased by informing the eecutor or

administrator of the claims against it, thus enabling him to eamine each claim and todetermine whether it is a proper one which should be allowed; %$ speedy settlement of affairs of deceased; and "$ early delivery of property to distributes, legatees, or heirs7*nion !ank of the hilippines vs. Santiba@ez , .. 0o. 1+%&, :ebruary %", %#$.

money claim against an estate is more akin to a motion for creditorsP claims to berecogni5ed and taken into consideration in the proper disposition of the properties of the estate.

money claim is only an incidental matter in the main action for the settlement of thedecedentPs estate; more so if the claim is contingent since the claimant cannot even institute a



separate action for a mere contingent claim. 4ence, herein petitionerPs contingent money claim,not being an initiatory pleading, does not reBuire a certification against non-forum shopping.7Sheker vs. state of Alice Shek er, .. 0o. 1#!1%, )ecember 1", %!$

• Dnly /D0(= CF2/S may be presented in the testate or intestate proceedings.

• 0D3 FF /D0(= CF2/S but only those arising upon a liability contracted by decedent

before his death.

• Claims arising after his death cannot be presented (8C(*3

- funeral epenses- epenses for last sickness

0.H. Claims arising after decedentGs death may be allowed as epenses of

administration.

• Enu*eration e4cusive 3 re#ers on2 to contractua *one2 cai*s

Dnly claims for money, debt or interest thereon, arising from contract can be presentedin the testate or intestate proceedings.

• Cai*s w,ic, survive deat, o# accused

Claim for civil liability survives notwithstanding death of accused if the same may also bebased on a source of obligation other than delict 7contract, law, Buasi-contract, Buasi-delict$

Separate civil action may be enforced either against

a. (state of accused 7contract$b. (ecutorO administrator 7law, Buasi-contract, Buasi-delict$ 7eople vs. !ayotas, %"& SC %" ?1+@$.

Civil actions for tort or Buasi-delict do not fall within the class of claims to be filed under thenotice to creditors reBuired under ule '&. 3hese actions, being civil, survive the death of thedecedent and may be commenced against the administrator pursuant to Section 1, ule '!..@-ilado vs. Court of Appeals, .. 0o. 1&+1', /ay ', %$

• E4ecution o# #ina &ud"*ent not !ro!er re*ed2 but #iin" o# cai*

>hen Audgment in a civil case has become final and eecutory, eecution not proper remedy to enforce payment; claimant should *(S(03 CF2/ before probate court 7)o$ingovs. +arlitos, 9une %, 1&"$.

• (anda*us not avaiabe 3 immediate payment of claim by the administrator is 0D3

/33( D: 243 7chaus vs. !lanco, 1! SC !+ ?1'#@$.

• Ordinar2 action #or coection not aowed 7(acar vs. (istal , 11 SC % ?=(@$

• 1ud"*ent a!!eaabe @Sec. 65 3 Audgment of the court approving or disapproving aclaim is **(FHF( as in ordinary actions

:rom an estate proceeding perspective, the Special dministratorGs commission is no less aclaim against the estate than a claim that third parties may make. 3he ruling on the etentof the Special dministratorGs commission – effectively, a claim by the special administrator



against the estate – is the lower courtGs last word on the matter and one that is appealable.7!riones vs. -ensonCruz , .. 0o. 1#1", ugust %%, %'$

RULE 97

ACTI!NS B AND A#AINST E;ECUT!RS AND ADMINISTRAT!RS

Sec. $. Actions 30ic0 'a+ and 30ic0 'a+ not %e %(oug0t against eecuto( o( ad'inist(ato(.

Sec. 2. Eecuto( o( ad'inist(ato( 'a+ %(ing o( de)end actions 30ic0su(,i,e.

1. 0D3 FFD>() 20S3 (8(CE3D D )/202S33D – action upon claim for

recovery of money or debt or interest thereon.- (%S' BE AGAINS' ES'A'E 7Secs. 1, % < #, ule '&$

%. FFD>() – actions which survivea. ctions to recover real or personal property or interest thereon, or to enforce a lien

thereon

Civil Case 0o. %#! is an action for Buieting of title with damages which is an action involvingreal property. 2t is an action that survives pursuant to Section 1, ule '! as the claim is notetinguished by the death of a party. 7Saligu$ba vs. alanog , .. 0o. 1+""&#, )ecember +,

%'$

Civil Case 0o. "+'', which is an action for the recovery of a personal property, a motor vehicle, is an action that survives pursuant to Section 1, ule '! of the ules of Court. ssuch, it is not etinguished by the death of a party. 7Sarsaba vs. Vda. de 'e, .. 0o. 1!#1,9uly ", %$

b. ctions to recover damages for an inAury to person or property, real or personal

• (ecutor or administrator may sue upon any cause of action which accrued to the

decedent during his lifetime 7!ayot vs. Sorbito, " *hil. &#$.

• ny action affecting the property rights of a deceased which may be brought by or

against him if he were alive, may be instituted and prosecuted by or against theadministrator, unless by its very nature, it cannot survive, because death etinguishessuch right.

Sec. -. ei( =and de,isee> 'a+ not sue =eecuto( o( ad'inist(ato( to (eco,e( titleo( *ossession o( )o( da'ages to *(o*e(t+> until s0a(e assigned.

Hefore distribution is made or before any residue known – heirs and devisees have 0DCES( D: C32D0 against the administrator for recovery of property left by the deceased7#ao vs. )ee, *hil. '&' ?=(@$.

• W,en ,eirs *a2 #ie action in court

eneral rule heirs have no legal standing to sue for recovery or protection of property

rights of the deceased.



(ceptions

1. *ending the filing of administration proceedings – under rt, !!!, rights to

succession are transmitted from the moment of death of the decedent.%. dministration proceedings have already been commenced but administrator has

not yet been appointed.". (ecutor or administrator is unwilling or refuses to bring suit.+. dministrator is alleged to have participated in the act complained of and he is

made a party defendant.

Sec. 9. E'%e??le'ent %e)o(e lette(s issued.

• Doube vaue rue

2f before grant of letters testamentary or of administration, a person embe55les or alienates money or property of the deceased – liable to an action in favor of eecutorOadministrator for )DEHF( 34( 6FE( of the property sold, embe55led or alienated.

RULE 99 PAMENT !" DEBTS !" TE ESTATE

Sec. $. De%ts *aid in )ull i) estate su))icient

Sec. 2. Pa(t o) estate )(o' 30ic0 de%t *aid 30en *(o,ision 'ade %+ 3ill.

Sec. 7. !(de( o) *a+'ent i) estate insol,ent -- follow preference of credits under rts. 1#, %%"-%%#1 of Civil Code

• 'I(E )OR PA9ING DEB'S 7Secs. 1# < 1&$

1. (ecutorOadministrator allowed to pay debts 7and legacies$ for a period not morethan 1 year.

%. (tendible 7on application of eecutorO administrator and after notice and hearing$ –not eceeding & months for a single etension.

". >hole period allowed to original eecutorOadministrator shall not eceed % years.+. Successor of dead eecutorOadministrator may have time etended on notice not

eceeding & months at a time and not eceeding & months beyond the time allowedto original eecutorOadministrator.

Sec. 6. Cou(t to )i cont(i%uti,e s0a(es 30e(e de,isees4 legatees o( 0ei(s 0a,e%een in *ossession.

1. >here devisees, e"atees or heirs have entered into possession or the estate beforedebts and epenses settled and paid, and

%. have become liable to contribute for payment of such debts and epenses,". Court may, after hearing, order settlement of their several liabilities and order how much

and in what manner each person shall contribute and may issue eecution ascircumstances reBuire. 0D3( 3his provision clearly authori5es eecution to enforce payment of the debts of

the estate. Le"ac2 is not a debt o# t,e estate – legatees are among those against whom

eecution is authori5ed to be issued 7astor vs. CA, 1%% SC ''# ?1'"@$.

Compare to ule '', Secs. 1# < 1&ule ', Secs. 1-#, ! 7a$

referring to payment of debts andOor e"acies



s ruled in astor, ordered payment of legacy violative of rule reBuiring prior liBuidationof estate 7determination of assets of estate and payment of debts and epenses$ beforeapportionment and distributed of residue among heirs; legatees and devisees.

Correct rule Sec. 1 of ule does not incude e"acies as among those that shouldbe paid before order of distribution – only debts, funeral charges, epenses of administration,

allowance to widow and inheritance ta.

fter debts and epenses of administration paid, residue given to heirs and those entitledby way of inheritance or e"ac2 7Magbanua vs. Akol , !% *hil. #&!$. *urpose of administration –distribution of residue among heirs and e"atees after payment of debts and epenses 7#uzonSurety vs. 6uebrar , 1%! SC "1$.

RULE 98SALES4 M!RT#A#ES AND !TER ENCUMBRANCES

!" PR!PERT !" DECEDENT

Sec. $. !(de( o) sale o) *e(sonalit+

-- when necessar2 for paying debts, epenses of administration, or legacies, or for preservation of property

Sec. 2. Sale4 'o(tgage4 o( ot0e( encu'%(ance o) (ealt+ to *a+ de%ts and legaciest0oug0 *e(sonalit+ not e0austed

-- when necessar2 and bene#icia to persons interested 7heirs, devisees and legatees$

Sec. 1. Sale o) (eal o( *e(sonal estate as %ene)icial to inte(ested *e(sons

-- when bene#icia 7to heirs, devisees and legatees, and other interested persons$ butnot necessar2 to pay debts, legacies, or epenses of administration

• Written notice *andator2

>ritten notice of the application 7for authority to sell, mortgage or encumber property of the estate$ as well as the time and place of hearing to be served on heirs, devisees andlegatees residing in the *hilippines is mandatory. >ithout such notice, the sale, mortgage or encumbrance is 6D2).

• Saes e4ecuted b2 ,eirs

4owever, heirs can dispose of their own pro indiviso shares in the co-heirship or co-ownership. 3hey can sell their rights, interests or participation in the property under administration. stipulation reBuiring court approval does not affect the validity and effectivity of the sale as regards the selling heirs.

• Writ o# e4ecution not !ro!er !rocedure #or !a2*ent o# debts and e4!enses o#

ad*inistration

Epon motion of the administrator with notice to all heirs, legatees and devisees residingin the *hilippines, court shall order sale of personal property or sale or mortgage of real propertyof the deceased to pay debts and epenses of administration out of the proceeds of the sale or mortgage.

E4ce!tion where devisees, legatees or heirs have entered into possession of their respective portions in the estate prior to settlement and payment of debts and epenses 7SeeSec. &, ule '' above$.

RULE 8: DISTRIBUTI!N AND PARTITI!N !" ESTATE



Sec. $. /0en o(de( )o( dist(i%ution o) (esidue 'ade

• eneral rule distribution of the residue to persons entitled thereto after notice and

hearing and after payment of –

a. debtsb. funeral chargesc. epenses of administrationd. allowance to widowe. inheritance ta

(ception distribution before payment of obligations provided distributees giveHD0) conditioned for payment thereof within such time as court directs.

• Re?uisites be#ore distribution o# estate

1. *ayment of obligations 7liBuidation of estate$%. )eclaration of heirs – to determine to whom residue of the estate should be

distributed. Separate action for declaration of heirs not proper.

3he egional 3rial Court in the instant case, acting in its general Aurisdiction, is devoid of authority to render an adAudication and resolve the issue of advancement of the real property infavor of herein petitioner 0atcher, inasmuch as Civil Case 0o. !1!# for reconveyance andannulment of title with damages is not, to our mind, the proper vehicle to thresh out saidBuestion.

3he net estate of the decedent must be ascertained, by deducting all payable obligationsand charges from the value of the property owned by the deceased at the time of his death;then, all donations subAect to collation would be added to it. >ith the partible estate thus

determined, the legitime of the compulsory heir or heirs can be established; and only then can itbe ascertained whether or not a donation had preAudiced the legitimes. 7-eirs of )oronio versus-eirs of )oronio. .. 0o. 1&+#+, )ecember %!, %!$

W:EN PROBA'E CO%R' LOSES 1%RISDIC'ION

*robate court loses Aurisdiction of an estate under administration only :3( paymentof all debts and remaining estate )(F26(() to heirs entitled to receive the same 7+uilas vs.1udge of CFI of a$panga, +" SC 111 $.

:inality of approval of proAect of partition by itself does 0D3 3(/203( probate

proceeding 7'i$bol vs. Cano, 1 SC 1%!1 $.

Audicial partition is not final and conclusive and does not prevent the heir from bringingan action to obtain his share, provided the prescriptive period has not closed 7Mari vs. !onilla,'" SC 11"! $.

3he 3C of /akati, acting as a special commercial court, has no Aurisdiction to settle,partition, and distribute the estate of a deceased.

probate court has the power to enforce an accounting as a necessary means to itsauthority to determine the properties included in the inventory of the estate to be administered,divided up, and distributed. Heyond this, the determination of title or ownership over the subAectshares 7whether belonging to nastacia or Dscar$ may be conclusively settled by the probate

court as a Buestion of collation or advancement. 7%eyes vs. %'C Makati , Hranch 1+%, .. 0o.1&#!++, ugust 11, %'$

*artial distribution of the estate should not have been allowed. 3here was nodetermination on sufficiency of assets or absence of any outstanding obligations of the estate of the late aymond 3riviere made by the 3C in this case. 2n fact, there is a pending claim byFC0 against the estate, and the amount thereof eceeds the value of the entire estate.



76uasha Ancheta ena and (olasco #a3 &ffice vs. #C( Construction Corp., .. 0o. 1!+'!", ugust %&, %'$

lthough the right of an heir over the property of the decedent is inchoate as long as theestate has not been fully settled and partitioned, the law allows a co-owner to eercise rights of ownership over such inchoate right.

Dnce an action for the settlement of an estate is filed with the court, the properties includedtherein are under the control of the intestate court. nd not even the administrator may takepossession of any property that is part of the estate without the prior authority of the Court.7Silverio, 1r. vs. Court of Appeals, .. 0o. 1!'"", September 1&, %$

RE(ED9 O) :EIR W:O :AS NO' RECEI$ED :IS S:ARE

3o demand his share through -

a. a proper motion in the same probate or administration proceedings, Db. motion to reopen if it had already been closed, and not through an independent

action which would be tried by another court or Audge which might reverse adecision or order of the probate court already final and eecuted and reshuffleproperties long ago distributed and disposed of 7+uilas, supra$.

• :our cases illustrate the proper remedy Vda de #opez vs. #opez, )ivinagracia vs.

%ovira, +uillas vs. 1udge of CFI of a$panga and -eirs of 1esus Fran vs. Salas.

• Lo*e? 7"# SC '1 $ compared to Di,inag(acia 7!% SC "! $

Hoth involved the issue of the reglementary period within which 0D0-*32(S to thepartition, heir, devisee or any person interested in the estate, can reopen the case.

Conclusion – if proceeding already closed, motion to reopen may be filed by a non-partydeprived of his lawful participation, as long as it is within " days 7now 1# days$ or before order closing the proceedings becomes final.

• #uilas 7+" SC 111 $ compared to "(an 7%1 SC "" $

Hoth involved *32(S who have not received their shares.

Conclusion – parties to partition agreement who have not received their shares can file amotion for eecution within # =(S. Hut if other grounds such as forgery of will are raised,final Audgment cannot be attacked ecept through a separate action. 3he validity of a final

Audgment can be assailed through a petition for relief under ule "', annulment of Audgmentunder ule +!, and petition for certiorari under ule &#, assuming the Audgment is void for wantof Aurisdiction.

RE(ED9 O) PRE'ERI'ED :EIR

3he intestate proceedings, although closed and terminated, can still be opened within theprescriptive period upon petition by the preterited heir 7Solivio vs. CA, 1'% SC 11 $.

*rescriptive period – 1 years. ction upon an obligation created by law must be broughtwithin 1 years from the time the right of action accrues 7rt. 11++, Civil Code$.

• W,ere &ud"*ent ,as beco*e #ina< w,at is t,e re*ed2 #or incusion o# a !art2-

,eir

fter the decision became final and eecutory, the trial Audge lost Aurisdiction over the case. ny modification that he would make, i.e., the inclusion of /ary Fyon /artin would be in ecessof his authority. 3he remedy of /ary is to file an 20)(*(0)(03 SE23 against the parties and



all other heirs for her share in the subAect property, in order that all the parties in interest canprove their respective claims 7(unal vs. CA, %%1 SC %& ?11@$.

SE$EN S'AGES IN SE''LE(EN' O) ES'A'E

1. *etition%. 4earing". Court Drder +. Claims gainst (state#. *ayment of )ebts of (state&. )istribution and *artition of (state!. Closing

SE''LE(EN' O) ES'A'E S'AGES

I PE'I'ION

'estate Intestate

)iin" o# !etition )iin" o# !etition#or aowance #or issuance o# o# wi 3 b2 e4ecutor< etters o# devisee< e"atee< ad*inistration -

ot,er interested !erson !erson@Rue < Secs. 6 F5 @Rue < Sec. F5

Order settin" !etition #or ,earin"

Notice o# ,earin"

6. Pubication o# notice #or t,ree consecutive weeks

@Rue < Sec. 5

F. Notice b2 *ai or !ersona2to desi"nated or known ,eirs<e"atees< devisees< e4ecutor @Rue < Sec. H5;

known ,eirs< creditors<ot,er interested !ersons@Rue < Sec. 5

II

:EARING

Proo# o# notice o# ,earin"



@Rue < Sec. 5@Rue < Sec. 5

Evidence #or !etitioner

6. Deat, o# decedentF. Residence at ti*e o# deat,

'esti*on2Jies o# Decedent e#t no wi or subscribin" t,ere is no co*!etentwitnessJes and wiin" e4ecutor @Rue Secs. 665 @Rue < Sec. 5

Petitioner is ?uai#ied #or a!!oint*ent@Rue K< Secs. 6 5

Proo# w,entestator is !etitioner @Rue < Sec. 6F5

Evidence #or O!!ositor

)ie "rounds #or contest@Rue < Sec. 675

III

CO%R' ORDER

Order or decision aowin"wi or ad*ittin" it to !robate

Certi#icate o# aowanceattac,ed to !rove wi@Rue < Sec. 65

Order #or issuanceo# etters testa*entar2@Rue K< Sec. H5

Order #or issuance o# etters o# ad*inistration@Rue < Sec. 5

Issuance o# etters b2 cerk o# court

Oat, o# e4ecutor or ad*inistrator

)iin" o# e4ecutor or ad*inistrator8s bond@Rue K6< Sec. 65



)iin" o# inventor2 wit,in *os.@Rue K6< Sec. 6aM5

Accountin" wit,in 6 2ear @Rue K6< Sec. 6 cM;Rue K< Sec. K5

Actions b2 or a"ainst e4ecutor or ad*inistrator @Rue K5

I$

CLAI(S AGAINS' ES'A'E

Notice o# #iin" o# cai*s 3ti*e #or #iin" not *ore t,an

6F *os. nor ess t,an *os. #ro* #irst !ubication

@Rue K< Secs. 6 F5

Pubication o# notice#or consecutive weeks

and !ostin"

@Rue K< Secs. H5

)iin" o# cai* and answer t,ereto@Rue K< Secs. 675

'ria o# contested cai*@Rue K< Sec. 6F5

1ud"*ent a!!rovin" or disa!!rovin" cai*

@Rue K< Sec. 65

$

PA9(EN' O) DEB'S O) ES'A'E

Debts !aid in #u i# estate su##icient@Rue KK< Sec. 65

Order o# !a2*ent i# estate insovent@Rue KK< Sec. 5

Order #or !a2*ent o# debts@Rue KK< Sec. 665

'i*e #or !a2*ent not to e4ceed6 2ear< e4tendibe #or 6 *ore 2ear @Rue KK< Sec. 65



Saes< *ort"a"es and ot,er encu*branceso# !ro!ert2 o# decedent #or !a2in"debts. etc.@Rue K5

$I

DIS'RIB%'ION AND PAR'I'ION O) ES'A'E

Rue 7

A!!rova o# #ina accountin"and !ro&ect o# !artition

Actua distribution or deiver2 to

,eirs o# t,eir res!ective s,ares

$II

CLOSING

Order decarin" !roceedin"s cosedand ter*inated

RULE 8$ESCEAT

• Esc,eat de#ined

(scheat is a proceeding whereby the real and personal property of a deceased personin the *hilippines, who died without leaving any will or legal heirs, become the property of thestate upon his death.

• Nature o# Esc,eat Proceedin"s

- rests on the principle of ultimate ownership by the state of all property within its Aurisdiction.

• Parties in Esc,eat Proceedin"s

n escheat proceeding is initiated by the government through the Solicitor eneral. llinterested parties, especially the

- actual occupants and- adAacent lot owners

shall be personally notified of the proceeding and given opportunity to present their valid claims;otherwise, it will be reverted to the state.

• Re?uisites #or #iin" !etition #or esc,eat

1. person died intestate%. he left properties



". he left no heirs or persons entitled to the same.

• Notice and Pubication 7Sec. %, ule 1$

1. )ate of hearing not more than & months after entry of order.%. *ublication of order at least once a week for & consecutive weeks in newspaper of

general circulation in the province.

• Pubication &urisdictiona

*ublication of the notice of hearing is a Aurisdictional reBuisite, non-compliance withwhich affects the validity of the proceedings 7)ivino v. -ilario, &% *hil. %&$.

)iin" o# cai* to estate 7Sec. +, ule 1$

1. )evisee, legatee, widow, widower or other person entitled to such estate who%. appears and files claim thereto within 2ears from date of Audgment

70ote #-year period is prescribed to encourage would-be claimants to be punctilious inasserting their claims, otherwise they may lose them forever in a final Audgment.$

". shall have possession and title thereto or if sold, municipality or city accountable to himfor proceeds, after deducting reasonable charges of care of estate.

+. Claim not made within said time barred forever.

G%ARDIANS:IP

• Guardians,i! – a trust relation in which one person acts for another whom the law

regards as incapable of managing his own affairs. 3he person who acts is called theguardian and the incompetent is called the ward.

• Basis o# Guardians,i! 7*arens *atriae$

>here minors are involved, the State acts as parens patriae. 2t is the duty of protectingthe rights of persons or individuals who because of age or incapability are in an unfavorableposition vis-Q-vis other parties.

• Pur!ose o# Guardians,i!

Safeguard the rights and interests of minors and incompetent persons Courts should bevigilant to see that the rights of such persons are properly protected.

•

Guardian – a person in whom the law has entrusted the custody and control of theperson or estate or both of an infant, insane, or other person incapable of managing hisown affairs.

3he rules do not necessitate that creditors of the minor or incompetent be likewiseidentified and notified. 3he reason is simple because their presence is not essential to theproceedings for appointment of a guardian. 3hey will only insist that the supposed minor or incompetent is actually capacitated to enter into contracts, so as to preserve the validity of saidcontracts and keep the supposed minor or incompetent obligated to comply therewith. 7 Ala$ayri vs. abale, .. 0o. 1#1%+", pril ", %'$

• Governin" rue on "uardians,i! o# *inors

uardianship of minors as distinguished from IincompetentsJ other than minority is nowgoverned by the EF( D0 E)20S42* D: /20DS 7./. 0o. "-"-#-SC$.

Sections 1 and %! of the / make it clear that it shall apply only to petitions for guardianship over the person, property or both, of a minor. *etitions for guardianship of



incompetents who are not minors shall continue to be governed by ules %-! and heard andtried by regular egional 3rial Courts.

ules %-! may therefore be deemed modified by the /.

• W,o *a2 !etition #or a!!oint*ent o# "uardian o# inco*!etent @Sec. 6< Rue F5

elative, friend, or other person on behalf of incompetent who has no parent or lawfulguardian, for the appointment of a general guardian for the person or estate or both of suchincompetent.

• W,o *a2 !etition #or a!!oint*ent o# "uardian o# *inor @Sec. F< RG(5

1. elative or other person on behalf of the minor %. /inor himself if 1+ years of age or over

for the appointment of a general guardian over the person or property, or both, of suchminor.

3he petition may also be filed by the Secretary of Social >elfare and )evelopment and

Secretary of 4ealth in the case of an insane minor person who needs to be hospitali5ed.

• 1urisdictiona #acts @Sec. F< Rue 5

1. incompetency of person for whom guardianship is sought%. domicile

• Notice o# a!!ication and ,earin" @Sec. 5 3 NO P%BLICA'ION RE/%IRED

0otice of hearing of the petition shall be served on1. persons mentioned in the petition residing in the *hilippines%. incompetent himself

N minor if 1+ years of age or over 7Sec. ', /$

NO'ICE IS 1%RISDIC'IONAL

Service of notice upon the minor if 1+ years of age or over or upon the incompetent is Aurisdictional. >ithout such notice, the court acBuired no Aurisdiction to appoint a guardian 7(ery vs. #orenzo, ++ SC +"1 ?1!%@$.

Sec. < Rue . arents as guardians B >hen the property of the child under parentalauthority is worth two thousand pesos or less, the father or the mother, without the necessity of court appointment, shall be his legal guardian. >hen the property of the child is worth morethan two thousand pesos, the father or the mother shall be considered guardian of the childGsproperty, with the duties and obligations of guardians under these ules, and shall file thepetition reBuired by Section % hereof. :or good reasons, the court may, however, appointanother suitable person.

Sec. 6< RG(. !ond of parents as guardians of property of $inor . - 2f the market value of theproperty or the annual income of the child eceeds *#,., the parent concerned shallfurnish a bond in such amount as the court may determine, but in no case less than ten per centum of the value of such property or annual income, to guarantee the performance of theobligations prescribed for general guardians.

Rule 89 TRUSTEES

Sec. $. /0en t(ustee a**ointed

1. trustee necessary to carry into effect the provisions of aa. >illb. >ritten instrument



%. shall be appointed by the 3C in which the will is allowed, or ". 3C of the province in which the property or some portion thereof affected by the

trust is situated

• E4ercise o# sound &ud"*ent b2 t,e court in t,e a!!oint*ent o# a trustee

lthough the will does not name a trustee, the probate court eercises sound Audgment

in appointing a trustee to carry into effect the provisions of the will – where a trust is actuallycreated by the will by the provision that certain of the property shall be kept together undisposedduring a fied period and for a stated purpose 7#orenzo v. osadas, &+ *hil. "#"$.

• Ac?uirin" t,e trust b2 !rescri!tion

trustee may acBuire the trust estate by prescription provided there is a repudiation of the trust, such repudiation being open, clear and uneBuivocal, known to the cestui 0ui trust 7Salinas vs. 'uazon, ## *hil. !%$.

AD!PTI!N

• Rue on Ado!tion @A.(. No. 7F--7F-SC5< Au"ust FF< F77F< w,ic, re!eaed Rues

-677< now "overns ado!tion.

• 3here is also the Inter-Countr2 Ado!tion Act o# 6 @RA K7H5 – procedure allowing

aliens, not presently allowed by law to adopt :ilipino children if such children cannot beadopted by Bualified :ilipino citi5ens or aliens, when beneficial to the child best interests,and shall serve and protected hisOher fundamental rights.

•

Nature and conce!t o# ado!tion

doption is a Auridical act, a proceeding in rem which creates between two persons arelationship similar to that which results from legitimate paternity and filiation.

• Pur!ose o# Ado!tion

doption used to be for the benefit of the adoptor. 2t was intended to afford persons who

have no child of their own the consolation of having one by creating thru legal fiction the relationof paternity and filiation where none eists by blood relationship.

*resent tendency – more toward the promotion of

- the welfare of the child, and - enhancement of his opportunities for a useful and happy life.

(very intendment is sustained to promote that obAective.

Ender the law now in force, having legitimate, legitimated, acknowledged naturalchildren or children by legal fiction is no longer a ground for disBualification to adopt.

• Ob&ectives o# Rue on Ado!tion

a. Hest interests of child – paramount consideration in all matters relating to his care,custody and adoption.

b. 3he state shall provide alternative protection and assistance thru foster care or adoption for every child who is foundling, neglected, orphaned, or abandoned.

• W,o *a2 ado!t

1. ny :2F2*20D

- of legal age- in possession of full civil capacity and legal rights



- of good moral character - has not been convicted of any crime involving moral turpitude- emotionally and psychologically capable of caring for children- at least 1& yrs. older than the adopteeN may be waived when adopter is biological parent of adoptee or is spouse of adopteeGs parent

- in a position to support and care for his children in keeping with means of thefamily.

%. ny F2(0 possessing same Bualifications, subAect to certain conditions.

• :%SBAND AND WI)E (%S' 1OIN'L9 ADOP'

(8C(*32D0Sa$ if one spouse seeks to adopt legitimate child of the other;b$ if one spouse seeks to adopt his own illegitimate child 7provided the other spouses

signified his consent thereto$

c$ if the spouses are legally separated from each other.

2n case husband and wife Aointly adopt or one spouse adopts the illegitimate child of the other, Aoint parental authority shall be eercised by the spouses.

• W,ose consent necessar2

1. biological parents of adoptee, if known

N4owever, consent of biological parents, even if they are known, is not necessary if they have H0)D0() the child 7#ang vs. CA, %' SC 1%' ?1'@$.

%. adoptee, if 1 years of age or older ". legitimate or adopted children of adopter or adoptee, if 1 years of age or older +. illegitimate children of adopter, if living with him, if 1 years of age or older #. spouse of adopter or adoptee

• C,an"e o# na*e

2n case petition also prays for change of name, title or caption must contain

1. registered name of child %. aliases of other names by which child has been known

". full name by which child is to be known

• P%BLICA'ION 1%RISDIC'IONAL

doption is action in rem – involves the status of persons.

• Decree o# Ado!tion

2f supervised trial custody S32S:C3D= and

- court CD0620C() from trial custody report and evidence adduced that

- adoption shall redound to H(S3 203((S3S of adoptee- )(C(( D: )D*32D0 issued which shall take effect as of date original petition filedeven if petitioners DIE before issuance

• Ado!tion strict2 between ado!ter and ado!ted



2f adopting parent should die before adopted child, latter cannot represent the adopter inthe inheritance from the parents and ascendants of the adopter

dopted child is not related to the deceased in that case because filiation created by

fiction of law is eclusive between adopted and adopter.

Hy adoption, the adopters can make for themselves an heir but they cannot make onefor their relatives.

• RESCISSION O) ADOP'ION B9 ADOP'EE

*etition 6(2:2()

:iled by adoptee

- over 1' years of age

- with assistance of )S>), if minor

- by guardian or counsel, if over 1' but incapacitated

rounds committed by )D*3( 1. repeated physical and verbal maltreatment by adopter despite having undergone

counseling %. attempt on life of adoptee ". seual assault or violence +. abandonment or failure to comply with parental obligations

• doption, being for best interests of child, not subAect to rescission by )D*3(

• 'i*e wit,in w,ic, to #ie !etition

2f /20D – within # yrs. after reaching age of maAority 2f 20CD/*(3(03 – within # yrs. after recovery from incompetency.

• )inancia ?uai#ication in ado!tion

Since the primary consideration in adoption is the best interest of the child, it follows thatthe financial capacity of prospective parents should also be carefully evaluated and considered.Certainly, the adopter should be in a position to support the would-be adopted child or children,in keeping with the means of the family..7#andingin vs. %epublic , .. 0o. 1&++', 9une %!,%&$

• An ie"iti*ate c,id< u!on ado!tion b2 ,er natura #at,er< *a2 use t,e surna*e o#

,er natura *ot,er as ,er *idde na*e. 7In the Matter of the Adoption of Stephanie(athy Astorga +arcia, .. 0o. 1+'"11, /arch "1, %#.$

RULE $:2 ABEAS C!RPUS

• 'o w,at ,abeas cor!us e4tends @Sec. 65

1. ll cases of illegal confinement of detention

%. by which any person is deprived of his liberty, or ". by which the rightful custody of any person is withheld from the person entitledthereto

• Pur!ose o# ,abeas cor!us – relieve a person from unlawful restraint.

Specifically 1. to obtain immediate relief from illegal confinement



%. to liberate those who may be imprisoned without sufficient cause ". to deliver them from unlawful custody

(ssentially a writ of inBuiry and is granted to test the right under which a person is

detained 7Velasco v. CA, %+# SC &!! ?=(@$.

2t is a remedy intended to determine whether the person under detention is held under lawful authority 7So$bong v. CA, %1, 1&&$.

2t is a summary remedy. 7Caballes vs. CA, .. 0o. 1&"1', :ebruary %", %#$

• W,en constitutiona ri",ts disre"arded 3 writ *a2 issue (ceptional remedy to

release a person whose liberty is illegally restrained such as when the constitutionalrights of the accused are disregarded.

Such defect results in the absence or loss of Aurisdiction and therefore invalidates thetrial and conseBuent conviction of the accused. 3hat void Audgment may be challenged bycoatera attack which precisely is the function of habeas corpus.

3his writ may issue even if another remedy which is less effective may be availed of –

failure by accused to perfect his appeal before the C does not preclude recourse to the writ.

3he writ may be granted upon a Audgment already final 7Chavez v. CA, %+ SC &&"?1&'@$.

• Distinction between writ and citation

Prei*inar2 citation – reBuiring the respondent to appear and show cause why the

peremptory writ should not be granted

Pere*!tor2 writ o# ,abeas cor!us – unconditionally commanding the respondent tohave the body of the detained person before the court at a time and place therein specified.

• Grant o# writ

>hen court is satisfied that prisoner does not desire to appeal, the prisoner shall be

forthwith released 7Sec. 1#, ule 1%$

• *eriod to appeal – within +' hours from notice of Audgment or final order appealed from

7./.0. 1-1-"-SC, 9uly 1, %1$.

• Writ as a conse?uence o# &udicia !roceedin"s

1. where there has been deprivation of constitutional rights resulting in restraint of

person%. where court had no Aurisdiction to impose the sentence". ecessive penalty has been imposed, thus sentence is void as to ecess

7 Andal v. eople, "! SC &# ?1@$

• :abeas cor!us as a !ost-conviction re*ed2

3he writ of habeas corpus applies to all cases of illegal confinement or detention inwhich individuals are deprived of liberty.

3he writ may not be availed of when the person in custody is under a Audicial process or

by virtue of a valid Audgment. 4owever, as a post-conviction remedy, it may be allowed when, asa conseBuence of a Audicial proceeding, any of the following eceptional circumstances isattendant 71$ there has been a deprivation of a constitutional right resulting in the restraint of aperson; 7%$ the court had no Aurisdiction to impose the sentence; or 7"$ the imposed penalty hasbeen ecessive, thus voiding the sentence as to such ecess. "+o vs. )i$agiba, .. 0o.1#1'!&, 9une %1, %# /



• No ri",t to bai w,ere a!!icant is servin" sentence b2 reason o# #ina &ud"*ent

espondent Audge contends that under Section 1+, ule 1% of the ules of Court, he

has the discretion to allow 3e to be released on bail. 4owever, the Court reiterates itspronouncement in its esolution of :ebruary 1, %1 in .. 0os. 1+#!1#-1' that Section 1+,

ule 1% of the ules of Court applies only to cases where the applicant for the writ of habeascorpus is restrained by virtue of a criminal charge against him and not in an instance, as in thecase involved in the present controversy, where the applicant is serving sentence by reason of afinal Audgment. 7Vicente vs. Ma2aducon, ./. 0o. 39-%-1&' 7:ormerly DC 2*2 0o. -1%+-39$, 9une %", %#$

• Court o# A!!eas ,as &urisdiction to issue writs o# ,abeas cor!us in cases

invovin" custod2 o# *inors

3here is nothing in '"& which revoked the Court of ppealsG Aurisdiction to issuewrits of habeas corpus involving the custody of minors. 7In the Matter of Application for theIssuance of a 5rit of -abeas Corpus 'hornton vs. 'hornton , .. 0o. 1#+#', ugust 1&,%+$ 2n fact, the Court of ppeals and Supreme Court have concurrent Aurisdiction with familycourts in habeas corpus cases where the custody of minors is involved. 7Madri@an vs.Madri@an, .. 0o. 1#"!+, 9uly 1%, %!$

• (arita ri",ts incudin" co-venture and ivin" in con&u"a dwein" *a2 not be

en#orced b2 t,e e4traordinar2 writ o# ,abeas cor!us. 7Ilusorio vs. !ildner, et.al.,.. 0o. 1"'', /ay 1%, %$

• Order to !roduce bod2 not a "rant o# t,e re*ed2 o# ,abeas cor!us

2n a habeas corpus petition, the order to present an individual before the court is a

preliminary step in the hearing of the petition. 3he respondent must produce the person andeplain the cause of his detention. 4owever, this order is not a ruling on the propriety of theremedy or on the substantive matters covered by the remedy. 3hus, the CourtGs order to theCourt of ppeals to conduct a factual hearing was not an affirmation of the propriety of theremedy of habeas corpus. 7In the Matter of the etition for -abeas Corpus of Ale2ano vs.Cabuay, .. 0o. 1&!%, ugust %#, %#$

• Writ o# ,abeas cor!us cannot be issued once !erson is c,ar"ed wit, a cri*ina

o##ense

Ender Section 1, ule 1% of the ules of Court, the writ of habeas corpus etends toIall case of illegal confinement or detention by which any person is deprived of his liberty, or by

which the rightful custody of any person is withheld from the person entitled thereto.J 3heremedy of habeas corpus has one obAective to inBuire into the cause of detention of a person,and if found illegal, the court orders the release of the detainee. 2f, however, the detention isproven lawful, then the habeas corpus proceedings terminate. 7 In the Matter of the etition for -abeas Corpus of unting, .. 0o. 1&!1", pril 1, %&$

• :abeas cor!us in custod2 cases

4abeas corpus may be resorted to in cases where rightful custody is withheld from aperson entitled thereto. Ender rticle %11 of the :amily Code, respondent Foran and petitioner /arie ntonette have Aoint parental authority over their son and conseBuently Aoint custody.:urther, although the couple is separated de facto, the issue of custody has yet to be

adAudicated by the court. 2n the absence of a Audicial grant of custody to one parent, bothparents are still entitled to the custody of their child. 2n the present case, private respondentGscause of action is the deprivation of his right to see his child as alleged in his petition. 4ence,the remedy of habeas corpus is available to him. 2n a petition for habeas corpus, the childGs welfare is the supreme consideration. 3he Childand =outh >elfare Code uneBuivocally provides that in all Buestions regarding the care andcustody, among others, of the child, his welfare shall be the paramount consideration.7Salientes vs. Abanilla, .. 0o. 1&%!"+, ugust %, %&$



• Retroactive e##ect o# #avorabe aw - eople vs. Caco, %& SC %!1 71!$

1. Caco sentenced to life imprisonment for violation of )angerous )rugs ct 7 &+%#$

%. :iled motion for modification of sentence pursuant to !&# and *eople v. Simonthat where mariAuana less than % grams penalty is prision correccional

". *etition granted – provisions of !&# favorable to accused should be givenretroactive effect.

+. >here decision already final, appropriate remedy of accused to secure release fromprison is petition for habeas corpus

• !ernarte vs. CA, %&" SC "%" 71&$

1. Dnce person detained is duly charged in court, he may no longer

Buestion his detention by petition for habeas corpus %. emedy motion to Buash the information andOor warrant of arrest ". :iling of bond for temporary release is waiver of illegality of detention

• aredes vs. S!, 1" SC +&+ absence of preliminary investigation not a ground for

habeas corpus. emedy motion to Buash warrant of arrest andOor information, or ask for investigationOreinvestigation

0ote ule 11+, Sec. %& of % evised ules of Criminal *rocedure Hail not a bar to

obAections on illegal arrest, lack of or irregular preliminary investigation, provided he raises themH(:D( entering his plea

• #arraDaga vs. CA, %'! SC #'1 71'$ – Lidnapping < serious illegal detention

1. :iling of charges and issuance of warrant of arrest cures defect of invalid detention

%. bsence of preliminary investigation – will not nullify information and warrant of arrest

• +alvez vs. CA, %"! SC &'#

1. 4abeas corpus and certiorari may be ancillary where necessary to give effect tosupervisory power of higher courts %. 4abeas corpus – reaches body and Aurisdictional matters but not the records ". Certiorari – reaches record but not the body +. 0ot appropriate for asserting right to bail – file petition to be admitted to bail

• Velasco vs. CA, %+# SC &&! 71#$

(ven if arrest illegal, supervening events may bar his release or discharge from custody,such as filing of complaint and issuance of order denying petition to bail.

• Latest 1uris!rudence

Section 1, ule 1% of the ules of Court provides that a petition for the issuance of a writof habeas corpus may be availed of in cases of illegal confinement by which any person isdeprived of his liberty, or by which the rightful custody of any person is withheld from the personentitled thereto. 2n :eria v. Court of ppeals, the Court held that the writ may also be issuedwhere, as a conseBuence of a Audicial proceeding, 7a$ there has been a deprivation of aconstitutional right resulting in the restraint of a person; 7b$ the court had no Aurisdiction to

impose the sentence; or 7c$ an ecessive penalty has been imposed, as such sentence is voidas to such ecess. 7In the Matter of the Application for the 5rit of -abeas Corpus %eclassifying Sentence to %.A. (&. ?E:E in !ehalf of %ogelio &r$illa, et al. vs, 'he )irector, !ureau of Corrections, .. 0o. 1!+!, 9anuary %%, %!$

*etitioner was detained pursuant to a final Audgment of the Kue5on City 3C convicting himfor the crimes of carnapping and illegal possession of firearms. 4e is therefore not entitled to thewrit of habeas corpus. 3he rule is that if a person alleged to be restrained of his liberty is in



custody of an officer under process issued by a court or Audge or by virtue of a Audgment or order of a court of record the writ of habeas corpus will not be allowed. 7 !arredo vs. Vinarao,... 0o. 1&'!%', ugust %, %!$

Dnce a person detained is duly charged in court, he may no longer Buestion his detentionthrough a petition for issuance of a writ of habeas corpus. 4is remedy would be to Buash the

information andOor the warrant of arrest duly issued. 3he writ of habeas corpus should not beallowed after the party sought to be released had been charged before any court. 3he termIcourtJ includes Buasi-Audicial bodies or governmental agencies authori5ed to order the personGsconfinement, like the )eportation Hoard of the Hureau of 2mmigration.

3he provisional or temporary release of ao =uan also effectively granted the petition for habeas corpus insofar as the discharge of the detainee is concerned, since the main prayer in apetition for habeas corpus relates to the release or discharge of the detainee. 3he general ruleis that the release, whether permanent or temporary, of a detained person renders the petitionfor habeas corpus moot and academic. Such release must be one which is free frominvoluntary restraints. ao =uanGs release, while still subAect to certain conditions, did notunduly restrain her movements or deprive her of her constitutional freedoms. 7 &ffice of theSolicitor +eneral vs. 1udge de Castro, ./. 0o. 39-&-%1' 7:ormerly dm. /atter DC-2*2

0o. #-%"&-39$, ugust ", %!$

2n general, the purpose of the writ of habeas corpus is to determine whether or not aparticular person is legally held. prime specification of an application for a writ of habeascorpus, in fact, is an actual and effective, and not merely nominal or moral, illegal restraint of liberty. 7In the Matter of the etition of -abeas Corpus of ufe$ia %odriguez vs. #uisaVillanueva, .. 0o. 1&+'%, 9anuary %, %'$

3he record shows that 9udge *erello granted the writs of habeas corpus even without thepertinent copies of detention and Audgment of conviction. 3his is contrary to the provisions of Section "7d$ of ule 1% of the ules of Court. 3he ules clearly reBuire that a copy of thecommitment or cause of detention must accompany the application for the writ of habeas

corpus. 7&ffice of the Court Ad$inistrator vs. 1udge erello , ./. 0o. 39-#-1#%, )ecember %+, %'$

Strict compliance with the technical reBuirements for a habeas corpus petition as provided in

the ules of Court may be dispensed with where the allegations in the application are sufficientto make out a case for habeas corpus. 0onetheless, we agree with the DS that petitioner isnot entitled to the issuance of the writ. convict may be released on parole after serving theminimum period of his sentence. 4owever, the pendency of another criminal case is a groundfor the disBualification of such convict from being released on parole. 7Fletcher vs. 'he )irector of !ureau of Corrections, E)L-1+!1, 9uly 1!, %$

3he writ of habeas corpus should not be allowed after the party sought to be released had

been charged before any court. 3he term IcourtJ in this contet includes Buasi-Audicial bodies of governmental agencies authori5ed to order the personGs confinement, like the )eportationHoard of the Hureau of 2mmigration. Fikewise, the cancellation of his bail cannot be assailed viaa petition for habeas corpus. >hen an alien is detained by the Hureau of 2mmigration for deportation pursuant to an order of deportation by the )eportation Hoard, the egional 3rialCourts have no power to release such alien on bail even in habeas corpus proceedingsbecause there is no law authori5ing it.7+o, Sr. vs. %a$os, .. 0o. 1&!#&, September +,%$

writ of habeas corpus etends to all cases of illegal confinement or detention or by whichthe rightful custody of person is withheld from the one entitled thereto. espondent, as the

Audicial guardian of Fulu, was duty-bound to care for and protect her ward. :or her to perform

her obligation, respondent must have custody of Fulu. 3hus, she was entitled to a writ of habeascorpus after she was unduly deprived of the custody of her ward. 7-ernandez vs. San 1uanSantos, .. 0o. 1&&+!, ugust !, %$

/RIT !" AMPAR!



Back"round

• promulgated on Dctober %+, %!, Iin light of the prevalence of etralegal killing and

enforced disappearancesJ

• provides rapid Audicial relief as it partakes of a summary proceeding that reBuires only

substantial evidence to make the appropriate reliefs available to the petitioner; not anaction to determine criminal guilt reBuiring proof beyond reasonable doubt, or liability for damages reBuiring preponderance of evidence, or administrative responsibility reBuiringsubstantial evidence that will reBuire full and ehaustive proceedings

• Bot, !reventive and curative

2t is preventive in that it breaks the epectation of impunity in the commission of theseoffenses; it is curative in that it facilitates the subseBuent punishment of perpetrators as it willinevitably yield leads to subseBuent investigation and action.

• %ti*ate "oa

- to deter the further commission of etralegal killings and enforced disappearances

• IE4trae"a kiin"sJ – killings committed without due process of law, i.e., without legal

safeguards or Audicial proceedings.

• IEn#orced disa!!earancesJ – attended by the following characteristics an arrest,

detention or abduction of a person by a government official or organi5ed groups or private individuals acting with the direct or indirect acBuiescence of the government; therefusal of the State to disclose the fate or whereabouts of the person concerned or a

refusal to acknowledge the deprivation of liberty which places such persons outside theprotection of law.

• Petitioner – aggrieved party, or any Bualified person or entity 7Sec. %, ./. 0o. !--1%-

SC$

• $enue – Supreme Court, Court of ppeals, and Sandiganbayan 7/anila$ or 3C of

place where threat, act, or omission was committed or any of its elements occurred7Sec. ", ./. 0o. !--1%-SC$

R /ay be filed on any day and at any time and is eempt from docket and other lawfulfees 7Secs. " and +, ./. 0o. !--1%-SC$

• E4tent o# En#orceabiit2 – anywhere in the *hilippines

• :ow served 3 personally; but if it cannot be served personally, rules on substituted

service shall apply 7Sec. ', ./. 0o. !--1%$

• Interi* Reie#s 7Sec. 1+, ./. 0o. !--1%$

a. 3emporary *rotection Drder b. 2nspection Drder c. *roduction Drder d. >itness *rotection Drder

• E##ect o# #iin" cri*ina action 7Sec. %1, ./. !--1%$

R>hen a criminal action has been commenced, no separate petition for the writ shallbe filed. 3he reliefs under the writ shall be available by motion in the criminal case.



• 1uris!rudence

3he threatened demolition of a dwelling by virtue of a final Audgment of the court is notincluded among the enumeration of rights for which the remedy of a writ of amparo is madeavailable. 3heir claim to their dwelling, assuming they still have any despite the final andeecutory Audgment adverse to them, does not constitute right to life, liberty and security. 3here

is, therefore, no legal basis for the issuance of the writ of amparo. 7Canlas vs. (apico-o$eo3ners Association I B III, Inc.,. .. 0o. 1'%!#, 9une #, %'$

>e are far from satisfied with the prima facie eistence of the ultimate facts that would Austifythe issuance of a writ of amparo. ather than acts of terrorism that pose a continuing threat tothe persons of the petitioners, the violent incidents alleged appear to us to be purely property-related and focused on the disputed land. 2f the petitioners wish to seek redress and hold thealleged perpetrators criminally accountable, the remedy may lie more in the realm of ordinarycriminal prosecution rather than on the use of the etraordinary remedy of the writ of amparo.7'apuz vs. 1udge del %osario, .. 0o.1'%+'+, 9une 1!, %'$

>hile the right to life under rticle 222, Section 1 guarantees essentially the right to be alive -

upon which the enAoyment of all other rights is preconditioned - the right to security of person isa guarantee of the secure Buality of this life. :irst, the right to security of person is Ifreedom from fear.J 7Eniversal )eclaration of 4umanights ?E)4@ and 2nternational Covenant on Civil and *olitical ights ?2CC*@$ 3he*hilippines is a signatory to both the E)4 and the 2CC*. Second, the right to security of person is a guarantee of bodily and psychological integrity or security. 7rticle 222, Section 1% of the 1'! Constitution$ 3hird, the right to security of person is a guarantee of protection of oneGs rights by thegovernment. *rotection includes conducting effective investigations, organi5ation of thegovernment apparatus to etend protection to victims of etralegal killings or enforceddisappearances 7or threats thereof$ andOor their families, and bringing offenders to the bar of

Austice. 7'he Secretary of (ational )efense vs. Manalo, .. 0o. 1'&, Dctober !, %'$

/RIT !" ABEAS DATA

• Conce!t

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

• Pur!ose

- designed to safeguard individual freedom from abuse in the information age bymeans of an individual complaint presented in a constitutional court

- specifically, protects the image, privacy, honor, information, self-determination, andfreedom of information of a person

• E##ectivit2 :ebruary %, %'

• Petitioner 7Sec. %, ./. 0o. '-1&-SC$

(0(F EF( aggrieved party

(8C(*3 in cases of etralegal killings and enforced disappearances1$ immediate family;

2) in default of no. 1, ascendant, descendant, or collateral relative within the + th

civil degree of consanguinity or affinity

• $enue 7Sec. ", ./. 0o. '-1-1&-SC$



1. Supreme Court%. Court of ppeals". Sandiganbayan 7/anila$+. egional 3rial Court

a.$ where petitioner residesb.$ where respondent resides

c.$ which has Aurisdiction over place where dataO information is gathered 3 34( D*32D0 D: *(3232D0(.

• E4tent o# en#orceabiit2 – anywhere in the *hilippines

• Service – personal; if cannot be served personally on respondent, rules on substituted

service shall apply 7Sec. , ./. 0o. '-1-1&-SC$

• E##ect o# #iin" cri*ina action

>hen a criminal action has been commenced, no separate petition for the writshall be filed. 3he relief under the writ shall be available to an aggrieved party by motionin the criminal case.

• 1uris!rudence

Section & of the ule on the >rit of 4abeas )ata reBuires the following materialallegations of ultimate facts in a petition for the issuance of a writ of habeas data

I7a$ 3he personal circumstances of the petitioner and the respondent;7b$ 3he manner the right to privacy is violated or threatened and how it

affects the right to life, liberty or security of the aggrieved party;7c$ 3he actions and recourses taken by the petitioner to secure the data

or information;7d$ 3he location of the files, registers or databases, the government office,

and the person in charge, in possession or in control of the data or information, if known;

7e$ 3he reliefs prayed for, which may include the updating, rectification,suppression or destruction of the database or information or files kept by therespondent. 2n case of threats, the relief may include a prayer for an order enAoining the act complained of; and

7f$ Such other relevant reliefs as are Aust and eBuitable.J

>e see no concrete allegations of unAustified or unlawful violation of the right to privacyrelated to the right to life, liberty or security. 3he petition likewise has not alleged, much lessdemonstrated, any need for information under the control of police authorities other than those ithas already set forth as integral annees. 3he necessity or Austification for the issuance of thewrit, based on the insufficiency of previous efforts made to secure information, has not alsobeen shown. 2n sum, the prayer for the issuance of a writ of habeas data is nothing more thanthe Ifishing epedition> that this Court - in the course of drafting the ule on habeas data - hadin mind in defining what the purpose of a writ of habeas data is not. 2n these lights, the outrightdenial of the petition for the issuance of the writ of habeas data is fully in order. 7'apuz vs.1udge %osario, .. 0o.1'%+'+, 9une 1!, %'$

RULE $:-CAN#E !" NAME

• Pur!ose o# Rue

Ender rt. "!&, Civil Code – no person can change his name or surname without Auridical authority



2nvolving substantial changes, obAective is the prevention of fraud.

• Nature o# !roceedin"

3o establish the status of a person involving his relation with others, that is, his legal

position in, or, with regard to the rest of the community

• W,o *a2 #ie !etition

I*ersonJ – all natural persons regardless of status 1. dopted child 7ep. v. >ong, % SC 1'$ %. lien - - domiciled in the *hilippines, not one temporarily staying

• 1urisdictiona re?uire*ents

1. *ublication of petition for " consecutive weeks in newspaper, etc.%. Hoth title or caption and body shall recite

a. name or names or alias of applicant b. cause for which change of name is sought c. new name asked for

eason change of name a matter of public interest

- petitioner might be in rogues gallery or hiding to avoid service of sentence or escaped from prison

- if alien might have given case for deportation, or subAect of deportation order

• (ust s,ow !re&udice b2 o##icia na*e

1. ridiculous, dishonorable or etremely difficult to write or pronounce

%. change will avoid confusion having continuously used and been known since childhood by such name". sincere desire to adopt :ilipino name to erase signs of foreign alienage, all in good

faith, and no showing that desired name for fraudulent purpose

• Latest &uris!rudence

3he State has an interest in the names borne by individuals and entities for purposes of identification. change of name is a privilege and not a right, so that before a person can beauthori5ed to change his name, he must show proper or reasonable cause, or any compellingreason which may Austify such change.

rounds for change of name which have been held valid1$ 0ame is ridiculous, dishonorable, or etremely difficult to write or pronounce;%$ Change results as a legal conseBuence, as in legitimation;"$ Change will avoid confusion;+$ >hen one has continuously used and been known since childhood by a :ilipino

name, and was unaware of alien parentage;#$ Sincere desire to adopt :ilipino name to erase signs of former alienage, all in good

faith and without preAudicing anybody;&$ Surname causes embarrassment and there is no showing that the desired change of

name was for a fraudulent purpose or that the change of name would preAudicepublic interest.

/iddle names serve to identify the maternal lineage or filiation of a person as well as further distinguish him from others who may have the same given name and surname as he has. 2nthe case at bar, the only reason advanced by petitioner for dropping his middle name isconvenience 7In %e etition for Change of (a$e andGor CorrectionGCancellation of ntry of Civil %egistry of 1ulian #in Carulasan 5ang , .. 0o. 1#&&, /arch ", %#$



Ender rt. 1!& of the Civil Code, iovanni is entitled to change his name as he was never recogni5ed by his father while his mother has always recogni5ed him as her child. change of name will erase the impression that he was ever recogni5ed by his father. 2t is also his bestinterest as it will facilitate his motherGs intended petition to have him Aoin her in the EnitedStates. 3he Court will not stand in the way of the reunification of moter and son. 7%epublic of the hilippines vs. Capote, .. 0o. 1#!+", :ebruary %, %!$

3he court shall grant the petition under ule 1" only when satisfactory proof has beenpresented in open court that the order had been published as directed, the allegations in thepetition are true, and proper and reasonable causes appear for changing the name of thepetitioner. 7%e Final %eport on the 1udicial Audit Conducted at the %'C, !r. ;9, ani0ui, 'arlac ,

./. 0o. &-!-+1+-3C, Dctober 1, %!$

s for respondentGs change of name under ule 1", this Court has held that a change of name is not a matter of right but of Audicial discretion, to be eercised in the light of the reasonsadduced and the conseBuences that will follow. 3he trial courtGs grant of respondentGs change of name from 9ennifer to 9eff implies a change of a feminine name to a masculine name.Considering the conseBuence that respondentGs change of name merely recogni5es his

preferred gender, we find merit in respondentGs change of name. Such a change will conformwith the change of the entry in his birth certificate from female to male. 7%epublic vs.Cagandahan, .. 0o. 1&&&!&, September 1%, %'$

RULE $:7 ABSENTEES

• Re?uisites

1. person disappears from domicile

2. whereabouts unknown3. no agent to administer property or power conferred on agent has epired

• W,o *a2 !etition

1. interested party - preferred 7Sec. !$

7a$ spouse present 7b$ competent person%. relative". friend

• Pur!ose

3o represent him provisionally in all that may be necessary

• +eneral rule

0o independent action for declaration of presumption of death – presumption may arise

and be invoked in an action or special proceeding

4ception

Ender rt. +1 of :amily Code, for purpose of present spouse contracting a secondmarriage, must file summary proceeding for declaration of presumptive death of the absentee,without preAudice to the latterGs reappearance.

3his is intended to protect present spouse from criminal prosecution for bigamy under rt. "+ of *C.



>ith Audicial declaration that missing spouse is presumptively dead, good faith of presentspouse in contracting marriage is established.

• Period o# absence o# s!ouse be#ore subse?uent *arria"e

- + consecutive years – well founded belief that absent spouse already dead

- % years – danger of death

RULE $:9 CANCELLATI!N !R C!RRECTI!N !" ENTRIES

IN TE CIIL RE#ISTR

• W,o *a2 #ie !etition

1. ny person interested in any - act- event

- decree %. concerning the civil status of persons ". which has been recorded in the civil registry

• Correction o# entr2 under Rue 67K !roceedin" in re* 3 !ubication binds t,e

w,oe word

Substantial corrections or cancellations of entries in civil registry records affecting the statusor legitimacy of a person may be effected through the institution of a petition under ule 1' of the evised ules of Court, with the proper egional 3rial Court. Heing a proceeding in rem,acBuisition of Aurisdiction over the person of petitioner is therefore not reBuired in the presentcase. 2t is enough that the trial court is vested with Aurisdiction over the subAect matter. 3he service of the order at 0o. +1' rBui5a St., (rmita, /anila and the publication thereof ina newspaper of general circulation in /anila, sufficiently complied with the reBuirement of dueprocess, the essence of which is an opportunity to be heard. 3he publication of the order is anotice to all indispensable parties, including rmi and petitioner minor, which binds the wholeworld to the Audgment that may be rendered in the petition. 7 Alba vs. CA, .. 0o. 1&++1, 9uly%, %# /

• Indis!ensabe !arties *ust be noti#ied

Ender Sec. ", ule 1' not only the civil registrar but also all persons who have or claimany interest which would be affected by a proceeding concerning the cancellation or correctionof an entry in the civil register must be made parties thereto.

0o party could be more interested in the cancellation of osilynGs birth certificate thanosilyn herself. 4er filiation, legitimacy, and date of birth are at stake.3he lack of summons on osilyn was not cured by the publication of the order of the trial

court setting the case for hearing for three consecutive weeks in a newspaper of generalcirculation. Summons must still be served, not for the purpose of vesting the courts with

Aurisdiction, but to comply with the reBuirements of fair play and due process. 3his is but proper,to afford the person concerned the opportunity to protect her interest if she so chooses. 7 Ceruilavs. )elantar 4 .. 0o. 1+"#, )ecember , %#$

• Ad*inistrative correction o# cerica or t2!o"ra!,ica errors

3he obvious effect of epublic ct +' is merely to make possible the administrative

correction of clerical or typographical errors or change of first name or nickname in entries in thecivil register, leaving to ule 1' the correction of substantial changes in the civil registry inappropriate adversarial proceedings. 7%epublic v. !ene$erito .. 0o. 1+&&", /arch 1#,%+$.

• C,an"e o# na*e under Rue 67K



3he enactment in /arch %1 of epublic ct 0o. +' has been considered to lendlegislative affirmation to the Audicial precedence that substantial corrections to the civil status of persons recorded in the civil registry may be effected through the filing of a petition under ule1'. >hen all the procedural reBuirements under ule 1' are followed, the appropriateadversary proceeding necessary to effect substantial corrections to the entries of the civilregister is satisfied.

>ith respect to the correction in CarlitoGs birth certificate of his name from ICarlito 9ohnJ toICarlito,J the same was properly granted under ule 1' of the ules of Court. s correctlypointed out by the C, the cancellation or correction of entries involving changes of name fallsunder letter IoJ of the following provision of Section % of ule 1' I(ntries subAect tocancellation or correction. Epon good and valid grounds, the following entries in the civilregister may be cancelled or corrected 7o$ changes of name.J 4ence, while the

Aurisdictional reBuirements of ule 1" 7which governs petitions for change of name$ were notcomplied with, observance of the provisions of ule 1' suffices to effect the correction soughtfor.

/ore importantly, CarlitoGs official transcript of record from the Erious College in HutuanCity,certificate of eligibility from the Civil Service Commission, and voter registration recordsatisfactorily show that he has been known by his first name only. 0o preAudice is thus likely to

arise from the dropping of the second name. 7%epublic vs. ho, .. 0o. 1!"+, 9une %',%!$

• No intent on t,e !art o# t,e aw*akers to re*ove t,e aut,orit2 o# t,e tria courts to

*ake &udicia corrections o# entries in t,e civi re"istr2

2t can be concluded that the local civil registrar has primary, not eclusive, Aurisdiction over such petitions for correction of clerical errors and change of first name or nickname, with ..0o. +' prescribing the procedure that the petitioner and local civil registrar should follow.Since .. 0o. +' refers specifically to the administrative summary proceeding before thelocal civil registrar it would be inappropriate to apply the same procedure to petitions for thecorrection of entries in the civil registry before the courts. 7 %e Final %eport on the 1udicial Audit

Conducted at the %egional 'rial Court, !r. ;9, ani0ui, 'arlac, ./. 0o. &-!-+1+-3C, Dctober 1, %!$.

• C,an"e o# #irst na*e is wit,in t,e !ri*ar2 &urisdiction o# t,e oca civi re"istrar

+' now governs the change of first name. 2t vests the power and authority to entertain

petitions for change of first name to the city or municipal civil registrar or consul generalconcerned. Ender the law, therefore, Aurisdiction over applications for change of first name isnow primarily lodged with the aforementioned administrative officers. 3he intent and effect of thelaw is to eclude the change of first name from the coverage of ules 1" 7Change of 0ame$and 1' 7Cancellation or Correction of (ntries in the Civil egistry$ of the ules of Court, untiland unless an administrative petition for change of name is first filed and subseBuently denied.

2t likewise lays down the corresponding venue, form and procedure. 2n sum, the remedy and theproceedings regulating change of first name are primarily administrative in nature, not Audicial7Silverio vs %epublic , .. 0o. 1!+&', Dctober %%, %!$

• C,an"e o# se4 or "ender aowed w,ere !erson ,as bot, *ae and #e*ae se4ua

c,aracteristics

3he trial court ordered the correction of entries in the birth certificate of respondent tochange her se or gender, from female to male, on the ground of her medical condition knownas Congenital drenal 4yerplasia 7C4$, and her name from I9enniferJ to I9eff,J under ules1" and 1' of the ules of Court. C4 is one of many conditions that involve interseanatomy. 3he term IinterseualityJ applies to human beings who cannot be classified as either

male or female. >e respect respondentGs congenital condition and his mature decision to be amale.

s for respondentGs change of name under ule 1", this Court has held that a change of name is not a matter of right but of Audicial discretion, to be eercised in the light of the reasonsadduced and the conseBuences that will follow. 3he trial courtGs grant of respondentGs changeof name from 9ennifer to 9eff implies a change of a feminine name to a masculine name.Considering the conseBuence that respondentGs change of name merely recogni5es hispreferred gender, we find merit in respondentGs change of name. Such a change will conform



with the change of the entry in his birth certificate from female to male 7 %epublic vs. 1ennifer Cagandahan, .. 0o. 1&&&!&, September 1%, %'$.

• A !erson8s #irst na*e cannot be c,an"ed on t,e "round o# se4 reassi"n*ent

*etitioner sought to have his name in his birth certificate changed from Iommel 9acintoJ toI/ely,J and his se from ImaleJ to Ifemale.J *etitionerGs basis in praying for the change of his

first name was his se reassignment. 4e intended to make his first name compatible with these he thought he transformed himself into through surgery. 4owever, a change of name doesnot alter oneGs legal capacity or civil status. +' does not sanction a change of first nameon the ground of se reassignment. 3o correct simply means Ito make or set aright; to removethe faults or error fromJ while to change means Ito replace something with something else of thesame kind or with something that serves as a substitute.J 3he birth certificate of petitioner contained no error. ll entries therein, including those corresponding to his first name and se,were all correct. 0o correction is necessary. ather than avoiding confusion, changingpetitionerGs first name for his declared purpose may only create grave complications in the civilregistry and the public interest. Hefore a person can legally change his given name, he mustpresent proper or reasonable cause or any compelling reason Austifying such change. 2naddition, he must show that he will be preAudiced by the use of his true and official name. 2n this

case, he failed to show, or even allege, any preAudice that he might suffer as a result of using histrue and official name. 7Silverio vs %epublic , .. 0o. 1!+&', Dctober %%, %!$

• Re"istered na*e o# ie"iti*ate c,id

n illegitimate child whose filiation is not recogni5ed by the father bears only a given

name and his motherGs surname, and does not have a middle name. 3he name of theunrecogni5ed illegitimate child therefore identifies him as such. 2t is only when the illegitimatechild is legitimated by the subseBuent marriage of his parents or acknowledged by the father ina public document or private handwritten instrument that he bears both his motherGs surname ashis middle name and his fatherGs surname as his surname, reflecting his status as a legitimated

child or an acknowledged illegitimate child. ccordingly, the registration in the civil registry of thebirth of such individuals reBuires that the middle name be indicated in the certificate. 3heregistered name of a legitimate, legitimated and recogni5ed illegitimate child thus contains agiven or proper name, a middle name, and a surname. 7In %e etition for Change of (a$eandGor CorrectionGCancellation of ntry in Civil %egistry of 1ulian #in Carulasan 5ang , .. 0o.1#&&, /arch ", %#$.

• Earier 1uris!rudence

'y ong 'in 71#+$ followed by Chua >ee vs. ep., >ong vs. ep., ep. vs. /edina –

ule 1' should be limited solely to implementation of rt. +1%, the substantive law on thematter of correcting errors in the civil register.

rt. +1% contemplates a summary procedure, involving correction of clerical errors, or a

harmless, innocuous nature, not changes involving civil status, nationality or citi5enship, which aresubstantial andOor controversial

%ep. vs. Macliing 7 SC $– proceedings, although filed under ule 1', not summarybecause published for " consecutive weeks; Solen notified and filed opposition, etc.

%ep. vs. Valencia 71+1 SC +&% ?1'&@$ – turning point, paradigm shift

ule 1' embodies two kinds of proceedings1. procedure summary in nature for correcting clerical or unsubstantial matters to make

it less tedious and epensive

%. procedure adversary in nature to govern proceedings involving substantial changes

2f all procedural reBuirements have been followed, petition for correctionOor cancellation even if filed under ule 1' no longer summary.

(ven substantial errors may be corrected and true facts established prov. partiesaggrieved by the error avail of the appropriate adversary proceeding.



• ppropriate proceeding

a. where all relevant facts have been fully weighed and consideredb. where opposing counsel have been given opportunity to demolish the opposing

partyGs casec. where evidence has been thoroughly weighed and considered

• *rocedure becomes )6(S= proceedings when opposition to petition is filed by

FC or any person having or claiming interest in entries sought to be cancelled andO or corrected and opposition is actively prosecuted.

• Substantial corrections allowed citi5enship from Chinese to :ilipino; status from

legitimate to illegitimateG status of mother from married to single

• Valencia ruling 7en banc$ reiterated in Chia !en #i$ vs. Hosa 7en banc$, %ep. vs.

!autista and Hapanta vs. #C% of )avao

• ttempts to revert to 'y ong 'in B #abayo %o3e vs. %ep., #eonor vs. CA and %ep. vs.

#abrador

4owever, all doubts resolved in #ee vs. CA 7"&! SC 11 ?%1@$1. Substantial corrections – ule 1'%. Clerical or typographical errors 7including change of first name$ – +'

7administrative correction$

• Recent 1uris!rudence

Ippropriate adversary proceedingJ is Ione having opposing parties; contested, asdistinguished from an e parte application, one of which the party seeking relief has given legalwarning to the other party, and afforded the latter an opportunity to contest it.J

>hen all the procedural reBuirements under ule 1' are thus followed, the appropriateadversary proceeding necessary to effect substantial corrections to the entries of the civilregister is satisfied.

0o substantial change or correction in an entry in a civil register can be made without a Audicial order, and, under the law, a change in citi5enship status is a substantial change.7%epublic vs. ho, .. 0o. 1!"+, 9une %, %!$

epublic ct 0o. +' provides in Section % 7"$ that a summary administrative proceedingto correct clerical or typographical errors in a birth certificate cannot apply to a change innationality. Substantial corrections to the nationality or citi5enship of persons recorded in thecivil registry should, therefore, be effected through a petition filed in court under ule 1' of theules of Court. 7ilosbayan Foundation vs. r$ita, .. 0o. 1!!!%1, 9uly ", %!$

3he local civil registrar has primary, not eclusive, Aurisdiction over such petitions for correction of clerical errors and change of first name or nickname, with .. 0o. +'prescribing the procedure that the petitioner and local civil registrar should follow. 7%e Final %eport on the 1udicial Audit Conducted at the %'C, !%. ;9, ani0ui, 'arlac, ./. 0o. &-!-+1+-3C, Dctober 1, %!$

>here the person is biologically or naturally interse the determining factor in hisgender classification would be what the individual, like respondent, having reached the age of maAority, with good reason thinks of hisOher se. espondent here thinks of himself as a maleand considering that his body produces high levels of male hormones 7androgen$ there ispreponderant biological support for considering him as being male. Seual development in

cases of interse persons makes the gender classification at birth inconclusive. 2t is at maturitythat the gender of such persons, like respondent, is fied. 7%epublic vs. Cagandahan, .. 0o.1&&&!&, September 1%, %'$

Rule $:8 APPEALS IN SPECIAL PR!CEEDIN#



Sec. $. ny 203((S3() *(SD0 may appeal from an order or Audgment rendered by3C, where such order or Audgment

1. llows or disallows a >2FF%. )etermines who are the lawful heirs of a deceased or the )2S32HE326( S4( of the

estate to which he is entitled". llows or disallows, in whole and any part, any CF2/ against the estate, or any CF2/

presented in behalf of the estate 20 D::S(3 to any claim against it+. Settles the CCDE03 of an eecutor, administrator, trustee or guardian#. Constitutes, in proceedings relating to the S(33F(/(03 of the estate of the deceased,

or the )/202S332D0 of a trustee or guardian, a :20F )(3(/2032D0 in thelower court of the rights of the party appealing. (ception no appeal from appointmentof special administrator.

&. 2s the :20F D)( or 9E)/(03 rendered in the case, and affects theSEHS3032F 243S of the person appealing. Enless it be an order granting or denying a motion for new trial or reconsideration – Sec. 1 7a$, ule +1 no appeal maybe taken from an order denying a motion for new trial or reconsideration.

• 2n certain kinds of special proceedings, such as settlement of estate, appeal may

be taken at various stages of the proceedings.

3he rationale behind allowing more than one appeal in the same case is to enable the restof the case to proceed in the event that a separate and distinct issue is resolved by the courtand held to be final. 2n this multi-appeal mode, the probate court loses Aurisdiction only over thesubAect matter of the appeal but retains Aurisdiction over the special proceeding from which theappeal was taken for purposes of further remedies the parties may avail of. >here multi-appeals are allowed, we see no reason why a separate petition for certioraricannot be allowed on an interlocutory aspect of the case that is separate and distinct as anissue from the aspect of the case that has been adAudged with finality by the lower court.

7!riones vs. -ensonCruz , .. 0o. 1#1", ugust %%, %'$

$EN%E O) SPECIAL PROCEEDINGS

1. Sette*ent o# estate 7ule !"$ 3C 7or /3C$ of province where deceased last residedOproperty situated.

%. Esc,eat 7ule 1$ 3C of province where deceased last residedOproperty situated.

". Guardians,i!

7ule on uardianship of /inors ?./. 0o. "-%-#-SC@$:amily Court of province or city where minor residesOproperty situated.

ule %3C of province or city where incompetent residesOproperty situated.

+. Ado!tion 7ule on doption ?./. 0o. %-&-%-SC@$:amily Court of province or city where prospective adoptive parents reside.

escission – where adoptee resides.

#. :abeas Cor!us 7ule 1%$ 0o rule on venue. SC, C and 3C have concurrent Aurisdiction. 4owever, the writ of

habeas corpus issued by the 3C shall be enforceable only within its Audicial region7Sec. %1, H* 1%$.

4abeas Corpus for custody of minors :amily courts have eclusive Aurisdiction 7:amily Courts ct of 1! ? '"@.

4owever, under the ule on Custody of /inors and >rit of 4abeas Corpus in relation toCustody of /inors 7./. 0o. "-+-+-SC$, the petition may be filed with SC, C or any of its members, and the writ shall be enforceable anywhere in the *hilippines.



&. C,an"e o# na*e 7ule 1"$ 3C of province of residence of petitioner. !. Absentees 7ule 1!$

3C of place where absentee resided before his disappearance.

'. Canceation or correction o# entries 7ule 1'$3C of place where civil registry is located.

Correction of clerical or typographical errors 7 +'$ Focal Civil egistrar of place where record is located. (c. – if impractical in terms of transportation epenses, time and effort as where

petitioner has transferred to another place – Focal Civil egistrar of petitionerGsresidence.

Special Proceedings Justice de Leon

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