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Special Proceedings

UP LAW BAR OPERATIONS COMMISSION

BAR REVIEWER UP LAW 2012

REMEDIAL LAW TEAM 2012 Subject Head | Eden Mopia SpecPro Subject Head | Margeline Carrasco Contributors | Cyril Arnesto • Kristine Camille Umali LAYOUT TEAM 2012 Layout Artists | Alyanna Apacible • Noel Luciano • RM Meneses • Jenin Velasquez • Mara Villegas • Naomi Quimpo • Leslie Octaviano • Yas Refran • Cris Bernardino Layout Head| Graciello Timothy Reyes


228 Special Proceedings REMEDIAL LAW

Criminal Procedure Civil Procedure

Evidence Special Proceedings

Preliminary Matters I. Settlement of estate of deceased

persons, venue and process II. Summary settlement of estates III. Production and probate of will IV. Allowance or disallowance of

will V. Letters testamentary and of

administration VI. Claims against the estate VII. Actions by and against executors

and administrators VIII. Distribution and partition IX. Trustees X. Escheat XI. Guardianship XII. Adoption XIII. Writ of habeas corpus XIV. Writ of Amparo (A.M. No. 07-9-

12-SC) XV. Change of name XVI. Absentees XVII. Cancellation or correction of

entries in the civil registry XVIII. Appeals in special proceeding

PRELIMINARY MATTERS Special proceedings: A remedy by which a party seeks to establish a status, right or a particular fact (Rule 1, Sec. 3(c)). Applicable rules If special rules are provided, they shall apply.

But in the absence of such special provisions, the rules applicable in special proceedings shall be applied (Rule 72, Sec. 2).

There are special proceedings which are not part of the ROC (e.g. Writs of amparo and habeas data).

The State has an overriding interest in each special proceeding, and the matter is not a controversy between private parties purely (Bautista).

The distinction between final and interlocutory orders in civil actions for purposes of determining the issue of applicability is not

strictly applicable to orders in special proceedings. Rule 109 specifies the orders from which appeals may be taken (Regalado).

Rule 33 regarding judgment on demurrer to evidence is applicable to special proceedings [Matute v. CA (1969)].

Subject Matter and Applicability of General Rules Rules of special proceedings are provided for in the following cases: (1) Settlement of estate of deceased persons (2) Escheat (3) Guardianship and custody of children (4) Trustees (5) Adoption (6) Rescission and revocation of adoption (7) Hospitalization of insane persons (8) Habeas corpus (9) Change of name (10) Voluntary dissolution of corporations (11) Judicial approval of voluntary recognition of

minor natural children (12) Constitution of family home (13) Declaration of absence and death (14) Cancellation of correction of entries in the civil

registry. In the absence of special provisions, the rules provided for in ordinary actions shall be, as far as practicable, applicable in special proceedings. Difference Between Action and Special Proceeding Ordinary Action Special Proceeding To protect/enforce a right or prevent/ redress a wrong

To establish a right/status/fact

Involves 2 or more parties

May involve only 1 party

Governed by ordinary rules supplemented by special rules

Governed by special rules, supplemented by ordinary rules

Initiated by pleading, and parties respond through an answer

Initiated by petition, parties respond through an opposition

Action - formal demand of one’s right in a court of justice in the manner prescribed by the court or by the law (Herrera). Special proceeding - application or proceeding to establish the status or right of a party, or particular fact. No formal pleadings are required, unless the statute expressly so provides (Herrera).


229

Venues and Jurisdictions for Special Proceedings

Special Proceeding Venue Jurisdiction Settlement of the Estate of a Deceased Person

Residence of the decedent If non-resident, place where he had an estate

MTC if gross value of the estate does not exceed P300,000, or does not exceed P400,000 in Metro Manila otherwise, RTC

Escheat Person dies intestate leaving no heir – Residence of the decedent or if non-resident, place where he had estate

RTC

Reversion – where land lies in whole or in part RTC Unclaimed Balances Act – where deposits are located RTC

Appointment of Guardians

Where minor resides Family Court Where incompetent resides RTC

Appointment of Trustees Where will was allowed or Where the property or portion thereof affected by the trust is situated

RTC

Adoption Domestic – where adopter resides Family Court Inter-country Adoption – ICAB or, where adoptee resides if filed with the Family Court

ICAB or Family Court

Rescission of Adoption Where adoptee resides Family Court Habeas Corpus If filed with RTC, where detainee is detained SC, CA, RTC, MTC in the

province or city in case there is no RTC judge Sandiganbayan, only in aid of its appellate jurisdiction

For the custody of minors, where petitioner resides or where minor may be found

Family Court, CA, SC

Habeas Data Where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected, or stored, at the option of the petitioner

RTC generally If concerning public data files or government offices, SC, CA or Sandigabayan

Amparo Where the threat, act or omission was committed or any of its elements occurred

RTC, Sandiganbayan, CA, SC or any justice thereof

Change of Name

Judicial - where petitioner resides RTC Administrative: Local civil registry where the record sought to be

changed is kept Local civil registry of the place of residence of the

interested party (only if petitioner migrated to another place in the Philippines and it is impractical to file where records sought to be changed are kept)

Philippine consulates only for non-resident citizen

Local Civil Registry/ Philippine consulate

Appointment of Representative of Absentee/ Declaration of Absence

Where Absentee resides before his disappearance RTC

Cancellation / Correction of Entries in Civil Registries

Judicial - Where corresponding civil registry is located RTC Administrative - Same as change of name Local Civil Registry/

Philippine consulate Petition for declaration of nullity, annulment, legal separation

Where petitioner or respondent has been residing for at least 6 months prior to the date of filing If non-resident petitioner, where he may be found at the election of the petitioner

Family Court


230 I. SETTLEMENT OF ESTATE OF DECEASED PERSONS, VENUE AND PROCESS A. Which court has jurisdiction B. Venue in judicial settlement of estate C. Extent of jurisdiction of Probate Court D. Powers and Duties of Probate Court

A. Which court has jurisdiction

Decedent Venue Inhabitant of the Philippines at time of death (citizen/alien)

RTC of the province in which he resides

Inhabitant of foreign country

RTC of any province in which he had estate

Jurisdiction: court first taking cognizance shall exercise jurisdiction to the exclusion of all other courts. [Sec. 1, Rule 73] General Rule: The jurisdiction assumed by a court, so far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, Exceptions: (1) In an appeal from that court, in the original

case, OR (2) When the want of jurisdiction appears on the

record.

Jurisdiction of RTCs When the value of the estate exceeds P300,000 or P400,000 in Metro Manila. Jurisdiction of MTCs When the value of the estate does not exceed P300,000 or P400,000 in Metro Manila.

B. Venue in judicial settlement of estate

Rule 73 relates to venue and not to jurisdiction The place of residence of the deceased in settlement of estates, probate of will, and issuance of letters of administration does not constitute an element of jurisdiction over the subject matter. It is only constitutive of venue.

Meaning of term “resides” Resides - in the section is viewed in its popular sense, meaning, the personal, actual or physical habitation of a person, actual residence of place of abode. [Garcia Fule v. CA (1976)]

C. Extent of jurisdiction of Probate Court

Probate court is of limited jurisdiction General rule: When questions arise as to ownership of property alleged to be part of the estate of the deceased but claimed by some other person to be his

property, not by virtue of any right of inheritance from the deceased but by title adverse to that of the deceased and his estate, such questions cannot be determined in the courts of administration proceedings. It must be settled in a separate action. Exceptions: (1) Probate court may pass judgment upon the title

but such determination is provisional, not conclusive, and is subject to final decision; or

(2) With consent of all the parties, without prejudice to third persons [Trinidad v. CA (1991)]

D. Powers and Duties of Probate

Court Dariano vs. Fernandez Fidalgo (1909): It is the duty of courts of probate jurisdiction to guard jealously the estates of the deceased person by intervening in the administration thereof in order to remedy or repair any injury that may be done thereto In Re: Baldomero Cosme (1937: There seems, however, to be a general tendency, in the absence of express and specific restrictions to the contrary, to uphold the exercise by the probate court of such incidental powers as are, within the purview of their grant of authority, reasonably necessary to enable them to accomplish the objects for which they were invested with jurisdiction and to perfect the same.

II. SUMMARY SETTLEMENT OF ESTATES A. Extrajudicial settlement by agreement

between heirs, when allowed B. Two-year prescriptive period C. Affidavit of Self-adjudication by sole heir D. Summary settlement of estates of small

value, when allowed E. Remedies of aggrieved parties after extra-

judicial settlement of estate

Extrajudicial Settlement

Summary Settlement

No will (intestate) Will may or may not exist (intestate/testate)

No debts Debts may or may not exist

Gross value of estate may exceed P10,000

Gross value of estate may not exceed P10,000

A. Extrajudicial settlement

by agreement between heirs, when allowed

Requisites (1) No will (2) No debts OR the heirs have already paid such at

the time of partition


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(3) Heirs are all of age or the minors are represented by their judicial or legal representatives

Procedure

Death of the decedent

Division of estate in public instrument or affidavit of adjudication

Filing of the public instrument or affidavit of

adjudication with the proper Registry of Deeds

Publication of notice of the fact of extrajudicial settlement once a week for 3 consecutive weeks in a

newspaper of general circulation

Filing of bond equivalent to the value of personal property

If there is no disagreement between the heirs

The parties may divide the estate among themselves by means of a public instrument filed in the office of register of deeds.

If there is disagreement

They may divide the estate in an ordinary action of partition.

If only one heir

He may adjudicate to himself the entire estate by means of an affidavit filed in the Registrar of Deeds.

Bond Requirement File a bond equal to the value of the personal property involved as certified to under oath by the parties, conditioned upon the payment of any just claim that may be filed of deprived heirs and creditors. [Sec. 1, Rule 74] Publication Fact of the extrajudicial settlement shall be published in a newspaper of general circulation 3 times a week, once each week. [Sec. 1, Rule 74] Not binding on any person who: (1) Has not participated in the extrajudicial

settlement; or (2) Had no notice thereof. [Sec. 1, Rule 74] Validity of oral partition Such is VALID, because there is no law that requires partition among heirs to be in writing to be valid. [Pada Kilario v. CA (2000)] Requirement under Rule 74.1 is merely for the protection of creditors and the heirs themselves against tardy claims. Where there are no creditors, the requirements no longer apply. Validity of compromise agreement Such is VALID, binding upon the parties as individuals, upon the perfection of the contract, even without previous authority of the court to enter into such agreement. No preclusion from instituting administration proceedings

Sec. 1, Rule 74 does not preclude the heirs from instituting administration proceedings, even if the estate has no debts or obligations, if they do not desire to resort for good reasons to an ordinary action for partition. While Sec. 1 allows the heirs to divide the estate among themselves as they may see fit, or to resort to an ordinary action for partition, the said provision does not compel them to do as if they have good reasons to take a different course of action. [Pereira v CA (1989)]

B. Two-year prescriptive period

Claim by creditors and deprived heirs must be filed within 2 years from the time of distribution/ publication. Presumption of no debts It shall be presumed that the decedent left no debts if no creditor files a petition for letters of administration within 2 years after the death of the decedent. [Sec. 4, Rule 74]

C. Affidavit of Self-adjudication by sole heir

If there is only one heir, he may adjudicate to himself the entire estate by means of an affidavit filed in the office of register of deeds. Bond Requirement File a bond equal to the value of the personal property involved as certified to under oath by the parties, conditioned upon the payment of any just claim that may be filed

D. Summary settlement of estates of small value, when allowed

This shall be applicable to testate or intestate proceedings. When Allowed (1) Gross value of estate: x < P300,000 outside

Metro Manila and x < 400,000 in Metro Manila (2) Fact is made to appear to the RTC (3) Through petition of an interested person (4) Upon hearing

Held not less than 1 month nor more than 3 months

Counted from the date of the last publication of a notice

(5) Notice Which shall be published once a week for 3

consecutive weeks In a newspaper of general circulation in the

province It is not required that publication be for a

complete 21 days. What is required is that it be published for once a week for 3 consecutive weeks.


232 (6) Notice to interested persons as the court may

direct.

Upon fulfillment of the requisites, the court may proceed summarily without the appointment of an executor/administrator and without delay, (7) to grant, if proper, allowance of the will, if any

there be (8) to determine who are persons legally entitled to

participate in the estate (9) to apportion and divide among them after the

payment of such debts of the estate (10) persons in own right if of lawful age, or their

guardians, will be entitled to receive and enter into possession of the portions of the estate so awarded to them respectively Procedure

Death of the decedent

Application for summary settlement with an

allegation that the gross value of the estate does not exceed P10K

Publication of notice of the fact of extrajudicial

settlement once a week for 3 consecutive weeks in a newspaper of general circulation (the court may also

order notice to be given to other persons as such court may direct)

Hearing to be held not less than 1 month nor more than 3 months from the date of the last publication

of notice

Court to proceed summarily, without appointing an executor/administrator (executor/administrator),

and to make orders as may be necessary

Grant allowance of the will, if any

Determine persons entitled to estate

Pay debts of estate which are due

Filing of bond fixed by the court

Partition of estate Notes: There is no requirement regarding the lack of debts (unlike extrajudicial partition) in summary settlement of estates of small value since the court will make provisions for such in its resolution of the proceedings.

E. Remedies of aggrieved

parties after extra-judicial settlement of estate

Two-Year Period for Liability of Distributees and Estate for Claims of Deprived Heirs or Unpaid Creditors

If it shall appear within 2 years after the summary settlement and distribution that there is an heir or other person who (1) has been unduly deprived of his lawful

participation in the estate: He shall have a right to compel the

settlement of the estate in the courts for the purpose of satisfying such lawful participation

(2) has been unduly deprived of his lawful participation payable in money: The court having jurisdiction of the estate may, by order for that purpose, after hearing, settle the amount of such debts or lawful

participation, and order how much and in what manner each

distributee shall contribute in the payment thereof, and

may issue execution, if circumstances require, against the bond provided in the preceding section or against the real estate belonging to the deceased, or both.

Such bond and real estate shall remain charged with a liability to creditor, heirs or other persons for the full period of 2 years after such distribution, notwithstanding any transfers of real estate that may have been made. Heir/person deprived of lawful participation in

estate

Heir/person deprived of lawful participation in

PAYABLE IN MONEY REMEDY within 2 yr. period: May compel the settlement of the estate in the courts in the manner hereinafter provided for the purpose of satisfying such lawful participation.

REMEDY within 2 yr. period: court may order after hearing, the settlement of the debt or lawful participation and order how much and in what manner each distribute shall contribute in the payment thereof and may issue execution, (1) against bond, or (2) against the real

estate belonging to the deceased, or

(3) both. [Sec. 4, Rule 74].

Period for Claim of Minor or Incapacitated Person If on the date of the expiration of the period of 2 years prescribed in the preceding section the person authorized to file a claim is: (1) a minor or mentally incapacitated, or is in

prison or (2) outside the Philippines, he may present his claim within 1 year after such disability is removed.

Duty of the court (1) Hear the case (2) Settle the amount (3) Order how much and in what manner each

distribute shall contribute in the payment thereof


233

(4) If circumstances require, issue execution against the bond, or the real estate belonging to the deceased, or both

Bond and real estate remain charged Bond charged with a liability to creditors, heirs, or other persons for the full period of 2 years after such distribution, notwithstanding any transfers of real estate that may have been made Rule not applicable: (1) To persons who have participated or taken part

or had notice of the extrajudicial partition (2) When the provisions of Sec. 1 of Rule 74 have

been strictly complied with (all persons or heirs of the decedent have taken part in the extrajudicial settlement or are represented by themselves or through guardians) This is only a Bar against the parties who had taken part in the extrajudicial proceedings, but not against third persons not parties thereto

Action to Annul a Deed of Extrajudicial Partition Prescriptive period Action to annul a deed of extrajudicial settlement upon the ground of fraud may be filed within 4 years from the discovery of the fraud (deemed to have taken place when said instrument was filed with the Register of Deeds and new certificates of title were issued in the name of respondents respectively). HOWEVER in Amerol v. Bagumbaran (1987), the Court applied the New Civil Code. Under Article 1144 (NCC), the following actions must be brought within 10 years from the time the right of action accrues: (1) upon a written contract (2) upon an obligation created by law (3) upon a judgment. Since implied or constructive trusts are obligations created by law, then the prescriptive period to enforce the same prescribes in 10 years. Thus, an action for reconveyance based on an implied or constructive trust must perforce prescribe in 10 years and not otherwise. Exception Prescriptive period for the filling of the action for reconveyance based on implied trust should be reckoned from the actual discovery of the fraud where the registration where there was bad faith in securing the certificates of titles and, is therefore a holder of the said certificate in bad faith. The Torrens title does not furnish a shield for fraud.

III. PRODUCTION AND PROBATE OF WILL A. Nature of probate proceeding B. Who may petition for probate; persons

entitled to notice

A. Nature of probate proceeding

General Rule: A probate proceeding only looks at extrinsic validity and not intrinsic validity. Probate is merely the determination of whether or not the testator, being of sound mind, freely executed the will in accordance with the formalities prescribed by law Exception: Under exceptional circumstances, the probate court is not powerless to do what the situation constrains it to do and pass upon certain provisions of the will. It may pass upon the intrinsic validity of the will because there is apparent defect in its face – this is also known as the principle of practical consideration [Nepomuceno v CA (1985)]. (Ex. When on the face of the will the petitioner appears to be preterited) But the remedy of certiorari is available, where the grounds for dismissal are indubitable (e.g. grave abuse of discretion of the judge when there is clearly preterition and the said judge still continues the probate proceedings) Decree of probate is conclusive as to its due execution, subject to the right of appeal Suit for forgery of a will, which has been duly probated and such order becoming final, Bars such suit because the will is conclusively deemed as duly executed.

Rodelas v Aranza (1982): General Rule: If a holographic will has been lost or destroyed and no other copy is available, the will cannot be probated because the best and only evidence is the handwriting of the testator in said will. Exception: A photostatic copy or Xerox of the holographic will may be allowed because comparison can be made with the standard writings of the testator.

B. Who may petition for

probate; persons entitled to notice

Petitioner for the allowance of the will (1) Executor (2) Devisee (3) legatee (4) other person interested in the estate (5) testator himself, during his lifetime

Meaning of interest in estate In order that a person may be allowed to intervene in a probate proceeding he must have an interest in the estate, or in the will, or in the property to be affected by it either as executor or as a claimant of the estate and an interested party is one who would be benefited by the estate such as an heir or one who has claim against the estate like a creditor.


234

Jurisdiction, how acquired (1) Attaching a mere copy of will or (2) Delivery of will, even if no petition is filed or (3) Filing of the original petition and compliance

with Sec 3-4 Rule 76.

IV. ALLOWANCE OR DISALLOWANCE OF WILL A. Contents of petition for allowance of will B. Grounds for disallowing a will C. Reprobate; Requisites before will proved

outside allowed in the Philippines; effects of probate

A. Contents of petition for

allowance of will (1) Jurisdictional facts

(a) Death of the decedent (b) Residence at the time of death in the

province where the probate court is sitting (c) Or if he is an inhabitant of a foreign

country, his leaving his estate in such province

(2) Names, ages, and residences of the heirs, legatees, and devisees of the testator or decedent

(3) Probable value and character of the property of the estate

(4) Name of the person for whom letters are prayed (5) If the will has not been delivered to the court,

the name of the person having custody of it.

Defect in petition Defect in petition will not void the allowance of the will, or the issuance of letters testamentary or of administration with the will annexed.

B. Grounds for disallowing a will (1) If not executed and attested as required by law (2) If the testator was insane, or otherwise mentally

incapable to make a will, at the time of its execution

(3) If executed under duress, or the influence of fear, or threats

(4) If procured by undue and improper pressure and influence, on the part of the beneficiary, or of some other person for his benefit

(5) If the signature of the testator was procured by fraud or trick, and he did not intend that the instrument should be his will at the time of fixing his signature thereto

Note: The grounds for disallowance of will are exclusive.

C. Reprobate; Requisites before will proved outside allowed in the Philippines; effects of probate

Reprobate Wills proved and allowed in a foreign country, according to the laws of such country, may be allowed, filed, and recorded by the proper Court of First Instance in the Philippines. Requisites for Allowance (1) Copy of the will (2) Order or decree of the allowance in foreign

country (3) Filed with a petition for allowance in the

Philippines by executor or other person interested

(4) Court shall fix a time and place for the hearing (5) Cause notice thereof to be given as in case of an

original will presented for allowance. Effect The will shall have the same effect as originally proven and allowed by such court

V. ALLOWANCE OR DISALLOWANCE OF WILL A. When and To whom letters of

administration granted B. Order of preference C. Opposition to issuance of letters

testamentary; simultaneous filing of petition for administration

D. Powers and duties of Executors and Administrators; restrictions on the powers

E. Appointment of Special Administrator F. Grounds for removal of administrator

A. When and To whom letters of administration granted

When Granted (1) No executor named or (2) Executor or executors are incompetent, refuse

the trust, or fail to give bond or (3) Or person dies intestate.

To Whom Granted Discretionary upon the probate court

B. Order of preference Order of preference in the grant of administration (1) Surviving spouse or next of kin, or both, or to

such person as the surviving spouse, or next of kin requests to have appointed, if competent and willing to serve.

(2) If those in (a) be incompetent or unwilling, or if the husband or widow, or next of kin, neglects for 30 days after the death of the person to apply for administration or to request that administration be granted to some other person, it may be granted to one or more of the principal creditors, if competent and willing to serve.


235

(3) If there is no (b), it may be granted to such other person as the court may select.

Reason for order of preference Those who would reap the benefit of a wise, speedy and economical administration of the estate, or, on the other hand, suffer the consequences of waste, improvidence or mismanagement, have the highest interest and most influential motive to administer the estate correctly. Mere failure to apply for letters of administration does not remove preference. Order of Preference NOT Absolute A probate court cannot arbitrarily disregard the preferential rights of the surviving spouse to the administration of the estate of a deceased person but if the person enjoying such preferential rights is unsuitable the court may appoint another person. [Silverio v. CA (2007)] The order of preference is not absolute for it depends on the attendant facts and circumstances of each case. The selection of an administrator lies in the sound discretion of the trial court. [In Re Suntay (2007)]

30-day period may be waived Just as the order of preference is not absolute and may be disregarded for valid cause, so may the 30-day period be likewise waived under the permissive tone in paragraph (b) of said rule which merely provides that said letters as an alternative, “may be granted to one or more of the principal creditors.” Co-administrators may be appointed. Court may reject order of preference when circumstances warrant.

C. Opposition to issuance of letters testamentary; simultaneous filing of petition for administration

Opposition to issuance of letters testamentary Who may oppose: Any person interested in will Form required: State in writing the grounds why letter should not issue; the court shall then hear and pass upon sufficiency of such grounds. Simultaneous filing of Opposition and Petition: A petition may, at the same time, be filed for letters of administration with the will annexed. Lack of interest in the proceedings is equal to lack of legal capacity to institute proceedings.

Opposition to petition for letters of administration Grounds

(1) Incompetency of the person for whom letters are prayed, or

(2) Contestant’s own right to the administration

Simultaneous Filing of Letters He may pray that letters issue to himself, or to any competent person or person named in the opposition.

D. Powers and duties of Executors and Administrators; restrictions on the powers

General Powers and Duties of Executors and Administrators

1. Executor or Administrator to Have

Access to Partnership Books and Property at All Times

(a) Have access to, and may examine and take

copies of, books and papers relating to the partnership business,

(b) Examine and make invoices of the property belonging to such partnership

(c) The surviving partner or partners, on request, shall exhibit to him all such books, papers, and property in their hands or control.

Court’s duty: order any such surviving partner or partners to freely permit the exercise of the rights, and to exhibit the books, papers, and property, as in this section provided, and may punish any partner failing to do so for contempt.

2. Keep Buildings in Tenantable Repair

(a) Houses and other structures and fences

belonging to the estate, and (b) Deliver the same in such repair to the heirs or

devisees when directed so to do by the court. 3. Right to Possession and

Management of the Real and Personal Properties

(a) So long as it is necessary for the payment of the

debts and the expenses of administration (b) Administrator cannot exercise the right of legal

redemption over a portion of the property owned in common sold by one of the other co-owners since this is not within the powers of administrator.

Note: When the estate of a deceased is already subject of a testate or intestate proceeding, the administrator cannot enter into any transaction involving it without any prior approval of the Court.


236 The right of an executor/administrator to the possession and management of the real and personal properties of the deceased is not absolute and can only be exercised so long as it is necessary for the payment of the debts and expenses of administration

Restrictions on Powers of Executors and Administrators

1. Executor or Administrator

Chargeable with all Estate and Income

Chargeable in his account with the whole of the estate which has come into his possession, at the value of the appraisement contained in the inventory: (a) With all the interest, (b) Profit (c) Income of such estate and (d) With the proceeds of as much of the estate as is

sold by him, at the price at which it was sold. 2. Prohibited from Profiting by

Increase or Losing by Decrease in Value

(a) No executor/administrator shall profit by the

increase, or suffer loss by the decrease or destruction, without his fault, of any part of the estate

(b) Account for the excess (when sold for more) (c) If sold for less, not responsible for loss, if in

good faith (d) If settled claim for less - He is entitled to

charge in his account only the amount he actually paid on the settlement

(e) Not accountable For debts due the deceased which remain uncollected without his fault

3. Accountable for Income from

Realty Used by Him If the executor/administrator uses or occupies any part of the real estate himself, he shall account for it as may be agreed upon between him and the parties interested, or adjusted by the court with their assent and if the parties do not agree upon the sum to be allowed, the same may be ascertained by the court, whose determination in this respect shall be final

4. Accountable if He Neglects or Delays to Raise or Pay Money

(a) Neglects or unreasonably delays to raise money,

by collecting the debts or selling the real or personal estate of the deceased, or

(b) Neglects to pay over the money he has in his hands, and the value of the estate is thereby lessened or unnecessary cost or interest accrues, or the persons interested suffer loss.

(c) Executor’s/administrator’s responsibility for damages incurred cannot be shifted to the intestate estate.

5. Only Necessary Expenses shall be allowed

(a) The amount paid by an executor/administrator

for costs awarded against him shall be allowed in his administration account

(b) Unless it appears that the action or proceeding in which the costs are taxed was prosecuted or resisted without just cause, and not in good faith.

(c) Administrator may not recover attorney’s fees from estate

Necessary expenses: Such expenses as are entailed for the preservation and productivity of the estate and for its management for purpose of liquidation, payment of debts, and distribution of the residue among persons entitled thereto

6. Executor or Administrator to Render Account

Accounting - Within 1 year from the time of receiving letters

testamentary or of administration - Unless the court otherwise directs because of

extensions of time for presenting claims against, or paying the debts of, the estate, or for disposing of the estate

Further accounts - If court requires - The rendering of an accounting by an

administrator of his administration within 1 year from his appointment is mandatory. The only exception is when the court otherwise directs because of extensions of time for presenting claims against the estate or for paying the debts or disposing the assets of the estate

- The fact that the heirs of the estate have entered into an extrajudicial settlement and partition in order to put an end to their differences cannot in any way be interpreted as a waiver of the objections of the heirs to the accounts submitted by the administrator not only because to so hold would be a derogation of the pertinent rules but also because there is nothing provided in said partition that the aforesaid accounts shall be deemed waived or condoned.

Examination on Oath by Court - As to the correctness of his account before the

same is allowed, except when no objection is made to the allowance of the account and its correctness is satisfactorily established by competent proof

- The heirs, legatees, distributees, and creditors of the estate shall have the same privilege as the executor/administrator of being examined on oath on any matter relating to an administration account.


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E. Appointment of Special Administrator

When appointed (1) When there is delay in granting letters

testamentary or administration, or (2) By any cause, including an appeal from

allowance or disallowance of a will. Duties Will take possession and charge of the estate until: (1) the questions causing the delay are decided and (2) executor/administrator appointed

Procedure for appointment There must first be notice and publication. Notice through publication of the petition is a jurisdictional requirement even in the appointment of a special administrator. Appointment of special administrator lies entirely in the sound discretion of the court. Powers and Duties of Special Administrator (1) Take possession and charge of the goods,

chattels, rights, credits, and estate of the deceased and

(2) Preserve the same for the executor/administrator afterwards appointed,

(3) and for that purpose may commence and maintain suits as administrator.

(4) May sell only such perishable and other property as the court orders sold.

(5) Not liable - to pay any debts of the deceased unless so ordered by the court.

When Special Administrator Ceases Duties When letters testamentary/administration are granted on the estate of the deceased (1) He shall deliver to the executor/administrator

the goods, chattels, money, and estate of the deceased in his hands.

(2) The executor/administrator may prosecute to final judgment suits commenced by such SA.

F. Grounds for removal of

administrator Grounds for removal of executor or administrator (1) Neglects to:

(a) Render his account (b) Settle the estate according to law (c) Perform an order or judgment of the court,

or a duty expressly provided by these rules (2) Absconds (3) Becomes insane or (4) Becomes incapable or unsuitable to discharge

the trust.

Effect of Removal (1) The remaining executor/administrator may

administer the trust alone, unless the court grants letters to someone to act with him.

(2) If there is no remaining executor/administrator, administration may be to any suitable person.

VI. CLAIMS AGAINST THE ESTATE A. Time within which claims shall be filed;

exceptions B. Statute of Non-claims C. Claim of Executor or administrator against

the Estate D. Payment of Debts Estate burdened with lien of creditors Upon the death of the person, all his property is burdened with all his debts, his debts creating an equitable lien thereon for the benefit of the creditors. And such lien continues until the debts are extinguished either by the payment, prescription, or satisfaction in one of the modes recognized by law

Purpose of presentation of claims against estate (1) To protect the estate of the deceased. (2) That way, the executor/administrator will be

able to examine each claim, determine whether it is a proper one which should be allowed.

(3) The primary object of the provisions requiring presentation is to appraise the administrator and the probate court of the existence of the claim so that a proper and timely arrangement may be made for its payment in full or by pro-rata portion in the due course of the administration, inasmuch as upon the death of a person, his entire estate is burdened with the payment of his debts and no creditor shall enjoy any preference or priority all of them shall share pro-rata in the liquidation of the estate of the deceased

A. Time within which

claims shall be filed; exceptions

Claims must be filed within the time specified by the court in its notice which shall not be less than 6 months nor more than 12 months from the date of the first publication of the notice

B. Statute of Non-claims Claims Covered (1) Claims for money against the decedent arising

from contract - Express or implied - Due or not - Contingent or not

(2) Claims for funeral expenses (3) Expenses for the last sickness (4) Judgment for money against the decedent.

The period, once fixed by the courts, is mandatory


238 Effect of non-claim – forever barred Failure to make the claim within the time fixed by the Courts will result in barring any recovery.

Purpose: to settle the estate with dispatch, so that the residue may be delivered to the persons entitled thereto without their being afterwards called upon to respond in actions for claims, which, under the ordinary statute of limitations have not yet prescribed.

De Bautista v De Guzman (1983): Rule 86.5 is mandatory so that the estate of the deceased can be protected against fraudulent complaint. Thus, upon the dismissal of the first complaint, the plaintiffs should have presented their claims before the intestate proceedings then pending in the same court. The failure to present their claims before the intestate proceedings of the estate of decedent within the prescribed period constituted a bar to a subsequent claim against the estate or a similar action of the same import. EXCEPTION: (1) When set forth as counterclaims in any action

that the executor/administrator may bring against the claimants

(2) If the decedent is a creditor and the executor or administrator commences an action or continues the action - the debtor may set forth by answer the claims he has against the decedent, instead of presenting them independently to the court.

Mutual claims may be set off against each other in such action. Effect if a debtor obtains a favorable judgment against the estate: the amount shall be considered the true balance against the estate, as though the claim had been presented directly before the court in the administration proceedings

Rule on belated claims The Court has the discretion to allow contingent claims The law gives the probate court discretion to allow claims presented beyond the period previously fixed provided they are filed within 1 month from the expiration of such period but in no case beyond the date of entry of the order of distribution. The presentation of money claim may be waived.

C. Claim of Executor or administrator against the Estate

Procedure to follow if the executor or administrator has a claim against the estate he represents (1) Executor/Administrator shall give notice

thereof, in writing, to the court (2) The court shall appoint a special administrator

who shall have the same powers and liabilities

as the general executor/administrator in the adjustment of such claim.

(3) The court may order the executor or administrator to pay to the special administrator necessary funds to defend such claim.

D. Payment of Debts

Debts Paid in Full if Estate Sufficient (1) After all money claims heard and ascertained;

and (2) It appears that there are sufficient assets to pay

the debts Executor/administrator shall pay the same within the time limited for that purpose.

The probate court may hold in abeyance intestate proceedings pending determination of a civil case against the administratrix. The heirs of the estate may not demand the closing of an intestate proceeding at anytime where there is a pending case against the administrator of the estate. The court can rightfully hold in abeyance until the civil case is settled. Part of Estate from Which Debt Paid When Provision Made by Will (1) Testator provided for payment of debt

Expenses of administration, or family expenses shall be paid according to such provisions

(2) If not sufficient

The part of the estate not disposed of by will shall be appropriated for the purpose

Personally First Chargeable for Debts, Then Realty General Rule: Personal estate not disposed of by will shall be FIRST chargeable Exception (1) Not sufficient for the purpose; or (2) Its sale will redound to the detriment of the

participants for the estate In which case— - The whole of the real estate not dispose of by

will, or so much thereof as is necessary, may be sold, mortgaged, or otherwise encumbered for that purpose by the executor/administrator,

- Court approval must be obtained first - Any deficiency shall be met by contributions

in accordance with the provisions of S6 of this rule.

Estate to Be Retained to Meet Contingent Claims If court is satisfied that such claim is valid: (1) It may order the executor/administrator to

retain in his hands sufficient estate (2) For the purpose of paying the contingent claim

when such becomes absolute.

If estate insolvent - Retain a portion equal to the dividend of the other creditors.


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Contingent Claim When Allowed (1) When it becomes absolute; (2) Presented to the court or

executor/administrator within 2 years from the time limited for other creditors to present their claims; and

(3) Not disputed by executor/administrator

If disputed It may be proved and allowed or disallowed by the court as the facts may warrant

Court ruling: Allowance of contingent claim or Disallowance If allowed - Creditor shall receive payment to the same extent as the other creditors if the estate retained by the executor/administrator is sufficient.

Claim not presented after becoming absolute and allowed within 2 year period

The assets retained in the hands of the executor/administrator, not exhausted in the payment of claims, shall be distributed by the order of the court to the persons entitled But the assets so distributed may still be applied to the payment of the claim when established, and the creditor may maintain an action against the distributees to recover the debt, and such distributees and their estates shall be liable for the debt in proportion to the estate they have respectively received. Court to Fix Contributive Shares Where Devisees, Legates, or Heirs Have Been in Possession (1) Possession before debts and expenses paid

Court shall - Hear and settle the amount of their several

liabilities - Order how much and in what manner each

shall contribute - May issue execution as circumstances require.

(2) Liability of heirs and distributes

Heirs are not required to respond with their own property for the debts of their deceased ancestors. But after partition of an estate, the heirs and distributees are liable individually for the payment of all lawful outstanding claims against the estate in proportion to the amount or value of the property they have respectively received from the estate

Order of Payment if Estate Is Insolvent Executor/administrator pays the debts against the estate, observing the provisions of Articles 1059 and 2239 to 2251 of the Civil Code. (Preference of credits) Dividends to Be Paid in Proportion to Claims Each creditor within such class shall be paid dividend in proportion to his claim. No creditor of any one class shall receive any payment until those of the preceding class are paid.

Insolvent Non-Resident His estate found in the Philippines shall be so disposed of that his creditors here and elsewhere may receive each an equal share, in proportion to their respective credits. Insolvent Resident with Foreign Creditors and Foreign claims proven in another country (1) Executor/administrator in the Philippines had

knowledge of the presentation of such claims in such country; and

(2) Executor/administrator had opportunity to contest such allowance

The court shall: (1) Receive a certified list of such claims, when

perfected in such country, (2) And add the same to the list of claims proved

against the deceased person in the Philippines (3) So that a just distribution of the whole estate

may be made equally among all its creditors

But the benefit of this and the preceding sections shall not be extended to the creditors in another country if the property of such deceased person there found is not equally apportioned to the creditors residing in the Philippines and the other creditor, according to their respective claims Order of Payment of Debts Before the expiration of the time limited for the payment of the debts (1) The court shall order the payment thereof, and

the distribution of the assets received by the executor/administrator for that purpose among the creditors,

(2) As the circumstances of the estate require and in accordance with the provisions of this rule

Appeal Taken From a Decision of the Court Concerning the Claim The court may: (1) Suspend the order for payment or order the

distribution among creditors whose claims are definitely allowed

(2) Leave in the hands of executor/administrator sufficient assets to pay the claim disputed and appealed.

When a disputed claim is finally settled court shall order the claim to be paid out of the assets retained to the same extent and in the same proportion with the claims of other creditors. Time to Time Further Orders of Distribution (1) Whole of the debts not paid on first distribution;

and (2) If the whole assets not distributed or other

assets afterwards come to the hands of executor/administrator.

Creditors to Be Paid in Accordance With Terms of Order When an order is made for the distribution of assets among creditors, the executor or administrator shall, as soon as the time of payment arrives, pay the creditors the amounts of their claims, or the


240 dividend thereon, in accordance with the terms of such order. Court Shall Allow Executor or Administrator a Time for Disposing the Estate and Paying Debts and Legacies Period: x < 1 year

- Court may extend the time to x < 6 months per extension

- Whole period to the original executor/ administrator MUST be only x < 2 years

Requisites

(1) Executor/administrator must apply. (2) Notice must be given as to time and place

of hearing. (3) Court must hear the application.

Ground for Extension (1) Original executor/administrator dies (2) New administrator appointed Consequence: The court may extend the time allowed for the payment of the debts or legacies beyond the time allowed to the original executor/administrator - x < 6 months - Not exceeding 6 months at a time and not

exceeding 6 months beyond the time which the court might have allowed to such original executor/administrator

- Notice shall be given of the time and place for hearing such application, as required in the last preceding section.

VII. ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS A. Actions that may be brought against executors

and administrators B. Requisites before creditor may bring an action

for recovery of property fraudulently conveyed by the deceased

A. Actions that may be

brought against executors and administrators

Actions Which May and Which May Not Be Brought AGAINST the Executor or Administrator Actions to be brought against Administrators (1) Recover real or personal property or interest

therein (2) Or to enforce a lien thereon and (3) Actions to recover damages for an injury to a

person or property Claims against the administrator may be presented in the administration proceedings but not against third persons.

An administrator may not pull a third person against his will into the administration proceedings by mere motion for a demand of rentals, but must do so in a separate action Actions which may NOT brought against Administrators Claim for the recovery of money or debt or interest cannot be brought against executors/administrators. Executor or Administrator may Bring or Defend Actions Which Survive For the recovery or protection of the property or rights of the deceased Covers injury to property i.e. not only limited to

injuries to specific property, but extends to other wrongs by which personal estate is injured or diminished.

When Recovery of Property Fraudulently Conveyed by Deceased May be Recovered (1) There is deficiency of assets and the deceased,

in his lifetime, had conveyed real or personal property, right or interest therein, or debt or credit with intent to defraud his creditors or avoid any right, debt or duty; or

(2) Had so conveyed such property, right, interest, debt or credit that by law the conveyance would be void as against the creditors; and

(3) The subject of the attempted conveyance would be liable to attachment by any of them in his lifetime.

Duty of executor/administrator (1) Commence and prosecute to final judgment an

action for the recovery of such property, right, interest, debt or credit for benefit of the creditors

(2) Provided, creditors making the application pay such part of the costs and expenses or give security therefor.

If a person before granting letters testamentary or administration (1) Embezzles or alienates (2) Any of the money, goods, chattels, or effects of

such deceased Consequence: Such person shall be liable to an action in favor of the executor/administrator of the estate for double the value of the property sold, embezzled, or alienated, to be recovered for the benefit of such estate.

B. Requisites before creditor may bring an action for recovery of property fraudulently conveyed by the deceased

Any creditor may commence and prosecute to final judgment a like action for the recovery of the


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subject of the conveyance or attempted conveyance if the following requisites are satisfied: Allowed in Two Instances (1) If executor/administrator failed to commence

such action (a) With court permission (b) In the name of the executor/administrator (c) He files a bond, conditioned to indemnify

the executor/administrator against the cost and expenses incurred by such action

(2) If conveyance or attempt is made in favor of

executor/administrator - No need for court permission - No need for Bond. - Action shall be brought in the name of all the

creditors Effect Such creditor shall have a lien upon any judgment recovered by him in the action for such costs and other expenses incurred therein as the court deems equitable.

VIII. DISTRIBUTION AND PARTITION A. Liquidation B. Project of Partition C. Remedy of an heir entitled to residue but

not given his share D. Instances when probate court may issue

writ of execution Before there could be a distribution of estate, the following stages must be followed: (1) Liquidation of the estate i.e. payment of

obligations of the deceased. (2) Declaration of heirs to determine to whom

the residue of the estate should be distributed. Afterwards, the residue may be distributed and delivered to the heirs. - Determination the right of a natural child - Determination of proportionate shares of

distributes.

A. Liquidation Before an order of distribution or assignment of the estate of the decedent among or to those entitled thereto by will or by law shall be made to close the proceedings for the settlement, it must be shown that the “debts, funeral expenses and expenses of administration, allowances, taxes, etc., chargeable to the estate” have been paid.

General Rule: The following must be paid before distribution: (1) Debts (2) Funeral charges (3) Expenses of administration (4) Allowance to the widow (5) Inheritance tax.

Exception: The distributees give a bond conditioned on the payment of above obligations

B. Project of Partition A project of partition is merely a proposal for the distribution of the hereditary estate which the court may accept or reject. The executor/administrator has no duty to prepare and present the same under the Rules. The court may, however, require him to present such project to better inform itself of the condition of the estate. It is the court that makes that distribution of the estate and determines the persons entitled thereto (1) On application of executor/administrator or

person interested in the estate (2) Notice (3) Hearing

Court shall assign the residue of the estate to the persons entitled to the same, naming them and the proportions, or parts, to which each is entitled. Such persons may demand and recover their respective shares from the executor/administrator, or any other person having the same in his possession. If there is a controversy as to who are heirs or shares heard and decided as in ordinary cases

Effect of Final Decree of Distribution (1) In rem and binding against the whole world. (2) All persons having interest in the subject matter

involved, whether they are notified or not, are equally bound.

(3) The court acquires jurisdiction over all persons interested, through the publication of the notice prescribed and any order that may be entered therein is binding against all of them.

(4) The only instance where a party interested in a probate proceeding may have a final liquidation set aside is when he is left out by reason of circumstances beyond his control or through mistake or inadvertence not imputable to negligence.

Uriarte vs. CFI (1970): A special proceeding intended to effect the distribution of the estate of a deceased person is a "probate matter" or a proceeding for the settlement of his estate. It is equally true, however, that testate proceedings, for the settlement of the estate of a deceased person take precedence over intestate proceedings for the same purpose. Thus, if in the course of intestate proceedings pending before a court of first instance, it is found that the decedent had left a last will, proceedings for the probate of the latter should replace the

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242 intestate proceedings even if at that stage an administrator had already been appointed, the latter being required to render final account and turn over the estate in his possession to the executor subsequently appointed. This, however, is understood to be without prejudice; that should the alleged last will be rejected or is disapproved, the proceeding shall continue as an intestacy.

C. Remedy of an heir

entitled to residue but not given his share

The better practice for the heir who has not received his share is to demand his share through a proper motion in the same probate or administrative proceedings, or for reopening of the probate or administrative proceedings if it had already been closed, and not through an independent action. [Guilas v. Judge of the CFI of Pampanga, (1972)]

D. Instances when probate court may issue writ of execution

(1) To satisfy the contributive shares of devisees,

legatees and heirs in possession of the decedent’s assets

(2) To enforce payment of expenses of partition (3) To satisfy the costs when a person is cited for

examination in probate proceedings

IX. TRUSTEES A. Distinguished from executor/

administrator B. Conditions of the Bond C. Requisites for the removal and resignation

of a trustee D. Grounds for removal and resignation of a

trustee E. Extent of authority of trustee

A. Distinguished from executor or administrator

Araneta v. Perez (1962)]: A trustee, like an executor/administrator, holds an office of trust, particularly when the trustee acts as such under judicial authority. The duties of executor/administrator are however, fixed and/or limited by law whereas those of the trustee of an express trust are, usually governed by the intention of the trustor or the parties, if established by contract. Besides, the duties of trustees may cover a wider range than those of executor/administrator of the estate of deceased persons.

B. Conditions of the Bond

Trustee must file bond before performing Duties (1) Filed with the clerk of court (2) Amount fixed by the judge (3) Payable to the government of Philippines (4) Sufficient and available for the protection of

any party in interest

If the trustee fails to furnish a bond as required by the court, he fails to qualify as such. Nonetheless, the trust is not defeated by such a failure to give bond, he is considered to have declined or resigned the trust.

When Exempt (1) When testator has directed such exemption; or (2) All persons beneficially interested in the trust,

request such exemption Exemption may be cancelled at any time Conditions (1) Inventory

That the trustee will make and return to the court, at such time as it may order, a true inventory of all the real and personal estate belonging to him as trustee, which at the time of the making of such inventory shall have come to his possession or knowledge. Exemption from inventory: (a) When trustee is not the original trustee

appointed (b) Court’s discretion (c) If an inventory has already been filed

(2) Faithful management

That he will manage and dispose of all such estate, and faithfully discharge his trust in relation thereto, according to law and the will of the testator or the provisions of the instrument or order under which he is appointed

(3) Accounting

That he will render upon oath at least once a year until his trust is fulfilled, unless he is excused in any year by the court, a true account of the property in his hands and the management and disposition thereof, and will render such other accounts as the court may order

(4) Settlement of account and deliver estate.

That at the expiration of his trust he will settle his account in court and pay over and deliver all the estate remaining in his hands, or due from him on such settlement, to the person or persons entitled to thereto.

C. Requisites for the

removal and resignation of a trustee

(1) Petition by parties beneficially interested (2) Due notice to the trustee (3) Hearing

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D. Grounds for removal and resignation of a trustee

Grounds for removal (ESIINU) (1) Removal appears ESsential in the interest of

petitioner. (2) Trustee is Insane or (3) Otherwise INcapable of discharging his trust or (4) Evidently Unsuitable

Resignation He may resign but the court will determine if resignation is proper

E. Extent of authority of trustee

Nature of Possession The possession of the property by the trustee is not an adverse possession, but only a possession in the name and in behalf of the owner of the same. A trustee may acquire the trust estate by prescription provided there is a repudiation of the trust, such repudiation being open, clear and unequivocal, known to the cestui que trust [Salinas v. Tuazon (1931)].

Territoriality of authority of trustee The powers of a trustee appointed by a Philippine court cannot extend beyond the confines of the territory of the Republic. This is based on the principle that his authority cannot extend beyond the jurisdiction of the Republic, under whose courts he was appointed.

X. ESCHEAT A. When to file B. Requisites for filing of petition C. Remedy of respondent against petition;

period for filing a claim Escheat It is an incident or attribute of sovereignty and rests on the principle of ultimate ownership by the state of all property within its jurisdiction. It is a substantial right of the state and is not a claim based on charity, gratuity or unearned benefit.

A. When to file (1) Person dies intestate; (2) Seized of real property in the Philippines; and (3) Leaves no heir or person by law entitled to the

same

B. Requisites for filing of petition

(1) A person died intestate (2) He left no heirs or persons by law entitled to the

same (3) Deceased left properties Note: Must be initiated by the Government through the Solicitor General. Fix a date and place for hearing, which shall not be more than 6 months after the entry of the order Direct a copy of the order to be published before the hearing at least once a week for 6 successive weeks in a newspaper of general circulation in the province Court shall adjudge. Procedure

Solicitor General or his representative in behalf of the Republic of the Philippines to file the petition: Deceased was a resident of the Philippines—in

the RTC of the province where he last resided Deceased was a non-resident—in the RTC of the

province in which he had an estate Actions for reversion or escheat of properties

alienated in violation of the Constitution or of any statute—in the province where the land lies in whole or in part

If the petition is sufficient in form and substance, the court shall fix a date and place for the hearing

The court shall direct a copy of the order to be published before the hearing at least once a week for 6 consecutive weeks in some newspaper of general circulation published in the province, as the court shall deem best

The court shall hear the case and judge whether or

not the estate shall be escheated

If the court rules in favor of the Republic, It shall assign the personal estate to the

municipality or city where the deceased last resided, and the real estate to the municipalities or cities, respectively, in which the same is situated.

If the deceased never resided in the Philippines, the whole estate may be assigned to the respective municipalities or cities where the same is located.

Such estate shall be for the benefit of public schools, and public charitable institutions and centers in said municipalities or cities. Effect if Escheat is Granted Personal estate goes to the municipality or city of last residence Real estate goes to the municipality or city where same is situated


244 C. Remedy of respondent

against petition; period for filing a claim

Period to appeal and claim the estate Appeal must be made within 5 years from date of judgment; otherwise, barred forever Filed by whom Devisee, legatee, heir, widow, widower, or other

person entitled to such estate appears Such person shall have possession of and title to

the same, or if sold, the municipality or city shall be accountable to him for the proceeds after deducting reasonable charges for the care of the estate

Period for filing claim 5 years from date the property was delivered to the state

XI. GUARDIANSHIP A. General powers and duties of guardians B. Conditions of the bond of the guardian C. Rule on Guardianship over minor Guardianship The power of protective authority given by law and imposed on an individual who is free and in the enjoyment of his rights, over one whose weakness on account of his age or other infirmity renders him unable to protect himself [Herrera]. Guardian A person lawfully invested with power and charged with the duty of taking care of a person who for some peculiarity or status or defect of age, understanding or self-control is considered incapable of administering his own affairs [Herrera]. Basis: Parens Patriae It is the State’s duty to protect the rights of persons/individuals who because of age/incapacity are in an unfavorable position vis-à-vis other parties [Nery v. Lorenzo (1972)]. Kinds of Guardians (Regalado) 1. Legal Guardian – deemed as guardian by

provision of law, without need of court appointment (Art. 320, CC; Art. 225, FC)

2. Guardian ad Litem – appointed by the court to prosecute or defend a minor, insane or person declared to be incompetent, in a court action.

3. Judicial Guardian – appointed by the court in pursuance to law, as guardians for insane persons, prodigals, minor heirs of deceased war veterans and other incompetent persons.

a. Guardian over the person. b. Guardian of the property. c. General Guardian – has custody and care of

the ward’s person and property.

A. General powers and duties of guardians

Care and custody of the person of his ward and

management of his property. Management of his property only. Management of property within the Philippines

(in case of non-resident ward).

B. Conditions of the bond of the guardian

(Applicable for both Guardianship of Minors and incompetents) (1) To make and return to the court, within three

months after the issuance of his letters of guardianship, a TRUE AND COMPLETE INVENTORY of all the real and personal property of his ward which shall come to his possession or knowledge or to the possession or knowledge of any other person in his behalf

(2) To FAITHFULLY EXECUTE THE DUTIES OF HIS TRUST, to manage and dispose the property according to this rule for the best interests of the ward, and to provide for his proper care, custody and education

(3) To render a TRUE AND JUST ACCOUNT of all the property of the ward in his hands, and of all proceeds or interest derived from them, and of the management and disposition of the same, at the time designated by this rule and such other times as the court directs and at the expiration of his trust, to settle his accounts with the court and deliver and pay over all the property, effects, and monies remaining in his hands, or due from him on such settlement, to the person lawfully entitled thereto

(4) To perform all orders of the court and such other duties as may be required by law.

C. Rule on Guardianship

over minors Parents as Legal Guardians (Art. 225, FC) The father and the mother shall jointly exercise legal guardianship over the property of their unemancipated common child without the necessity of a court appointment. Where the market value of the property or the annual income of the child exceeds P50,000: (1) The parent concerned shall be required to

furnish a bond in such amount as the court may determine, but not less than 10% of the value of the property or annual income.

(2) A verified petition for approval of the bond shall be filed in the Family Court of the place where the child resides, or if the child resides in a foreign country, in the proper court of the place where the property or any part thereof is situated.

In case of disagreement, the father’s decision shall prevail, unless there is a judicial order to the contrary.


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Bautista vs. Bautista (1952): A father or mother, as the natural guardian of the minor under parental authority, does not have the power to dispose or encumber the property of the latter. Such power is granted by law only to a judicial guardian of the ward’s property and only with court’s approval. Valencia vs. Lagdameo (): The remedy of vendees prejudiced by the illegal transactions of a natural guardian involving the property of the minor child lies only against the natural guardian, not however to recover ownership and possession of the properties sold but only to recover damages. Rule on Guardianship of Minors (A.M. No. 03-02-05-SC) Scope and Applicability The father and the mother shall jointly exercise legal guardianship over the person and property of their unemancipated common child without the necessity of a court appointment [Sec. 1]. However, if the market value of the property or the annual Income of the child exceeds P50,000.00, the parent concerned shall furnish a bond [Sec. 16]. The Rule on Guardianship of Minors applies to petitions for guardianship over the person or property, or both, of a minor. The Rules on Guardianship (Rules 92-98, RoC) apply only to guardianship of incompetents other than a minor. Petition for Appointment of Guardian Who may file (1) Resident minor

(a) Any relative or other person on behalf of a minor

(b) The minor himself, if 14 years of age or over

(c) The Secretary of DSWD or the Secretary of DOH, in the case of an insane minor who needs to be hospitalized.

(2) Non-resident minor

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

expectancy or otherwise. Where to file Resident minor - Family Court of the province or

city where the minor actually resides Non-resident minor - Family Court of the province

or city where his property or any part thereof is situated

Grounds for filing (1) Death, continued absence, or incapacity of his

parents (2) Suspension, deprivation or termination of

parental authority

(3) Remarriage of his surviving parent, if the latter is found unsuitable to exercise parental authority

(4) When the best interests of the minor so require. Contents of petition (1) Jurisdictional facts (2) Name, age and residence of the prospective

ward (3) Ground rendering the appointment necessary or

convenient (4) Death of the parents of the minor or the

termination, deprivation or suspension of their parental authority

(5) Remarriage of the minor’s surviving parent (6) Names, ages, and residences of relatives within

the 4th civil degree of the minor, and of persons having him in their care and custody

(7) Probable value, character and location of the property of the minor

(8) Name, age and residence of the person for whom letters of guardianship are prayed.

The petition shall be verified and accompanied by a certification against forum shopping. No defect in the petition or verification shall render void the issuance of letters of guardianship. Who may file Opposition (1) Any interested person (2) The social worker ordered to make the case

study report, if he finds that the petition for guardianship should be denied (Sec. 9).

How: By filing a written opposition.

Grounds for filing (1) Majority of the minor (2) Unsuitability of the person for whom letters are

prayed.


246 Procedure Filing of petition.

Court shall fix a time and place for hearing.

Notice requirement Court shall cause reasonable notice to be given to: The persons mentioned in the petition The minor, if he is 14 years of age or over

- For non-resident minors, notice shall be given to the minor by publication or any other means as the court may deem proper.

The court may also direct other general or special notice to be given.

Case Study Report Court shall order a social worker to conduct a case study of the minor and all the prospective guardians and submit his report and recommendation to the court for its guidance before the scheduled hearing.

Hearing Compliance with notice requirement must be

shown. The prospective ward shall be presented to the

court. If the minor is non-resident, the court may dispense with his presence.

At the discretion of the court, the hearing on guardianship may be closed to the public.

The records of the case shall not be released without court approval.

Issuance or denial of letters of guardianship.

Service of final and executory judgment or order upon the Local Civil Registrar of the municipality or city where the minor resides and the Register of Deeds of the place where his property or part thereof is situated, who shall annotate the same in the corresponding title, and report to the court their compliance within fifteen days from receipt of the order. The Guardian Order of Preference of Appointment (in default of parents or a court-approved guardian) (1) The surviving grandparent. In case several

grandparents survive, the court shall select any of them taking into account all relevant considerations.

(2) The oldest brother or sister of the minor over 21 years of age, unless unfit or disqualified.

(3) The actual custodian of the minor over 21 years of age, unless unfit or disqualified.

(4) Any other person, who in the sound discretion of the court, would serve the best interests of the minor

Qualifications The court shall consider the guardian’s: (1) Moral character

(2) Physical, mental and psychological condition (3) Financial status (4) Relationship of trust with the minor (5) Availability to exercise the powers and duties of

a guardian for the full period of the guardianship

(6) Lack of conflict of interest with the minor (7) Ability to manage the property of the minor.

Powers and Duties In general

(1) Guardian of resident minor: Care and custody of the person of his ward and the management of his property, or only the management of his property.

(2) Guardian of non-resident minor: Management of all his property within the Philippines

Specific duties

(1) To pay the just debts of the ward out of: (a) Personal property and the income of

the real property of the ward, if the same is sufficient

(b) Real property of the ward upon obtaining an order for its sale or encumbrance.

(2) To settle all accounts of his ward (3) To demand, sue for, receive all debts due

him, or, with the approval of the court, compound for the same and give discharges to the debtor on receiving a fair and just dividend of the property and effects

(4) To appear for and represent the ward in all actions and special proceedings, unless another person is appointed for that purpose

(5) To manage the property of the ward frugally and without waste, and apply the income and profits thereon, insofar as may be necessary, to the comfortable and suitable maintenance of the ward. If such income and profits be insufficient for that purpose, to sell or encumber the real or personal property, upon being authorized by the court to do so

(6) To consent to a partition of real or personal property owned by the ward jointly or in common with others, upon: (a) Authority granted by the court after

hearing (b) Notice to relatives of the ward, and (c) A careful investigation as to the

necessity and propriety of the proposed action.

(7) To submit to the court a verified inventory of the property of the ward: (a) Within three months after his

appointment (b) Annually, and (c) Whenever required upon the

application of an interested person. (8) To report to the court any property of the

ward not included in the inventory which is discovered, or succeeded to, or acquired by the ward within 3 months after such discovery, succession, or acquisition


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(9) To render to the court for its approval an accounting of the property: (a) One year from his appointment (b) Every year thereafter, and (c) As often as may be required.

Bonds of Guardians When filed: Before a guardian enters upon the execution of his trust, or letters of guardianship issue. Amount: As determined by the Court. Conditions: The guardian is: (1) To make and return to the court, within three

months after the issuance of his letters of guardianship, a true and complete inventory of all the real and personal property of his ward which shall come to his possession or knowledge or to the possession or knowledge of any other person in his behalf

(2) To faithfully execute the duties of his trust, to manage and dispose the property according to this rule for the best interests of the ward, and to provide for his proper care, custody and education

(3) To render a true and just account of all the property of the ward in his hands, and of all proceeds or interest derived from them, and of the management and disposition of the same, at the time designated by this rule and such other times as the court directs and at the expiration of his trust, to settle his accounts with the court and deliver and pay over all the property, effects, and monies remaining in his hands, or due from him on such settlement, to the person lawfully entitled thereto

(4) To perform all orders of the court and such other duties as may be required by law.

Posting of new bond Whenever necessary, the court may require the guardian to post a new bond and may discharge from further liability the sureties on the old bond.

Requirements (1) Due notice to interested persons (2) No injury must result to those interested in the

property.

Liability: In case of breach of any of its conditions, the guardian may be prosecuted in the same proceeding for the benefit of the ward or of any other person legally interested in the property. Reimbursement of Reasonable Expenses and Payment of Compensation The court may authorize reimbursement to the guardian, other than a parent, of reasonable expenses incurred in the execution of his trust. The court may allow payment of compensation for his services as the court may deem just, not exceeding 10% of the net income of the ward, if any otherwise, in such amount the court determines to be a reasonable compensation for his services.

Embezzlement, Concealment, or Conveyance of Ward’s Properties The court may require any person suspected of having embezzled, concealed, or disposed of any money, goods or interest, or a written instrument belonging to the ward or his property to appear for examination concerning any thereof and issue such orders as would secure the property against such embezzlement, concealment or conveyance, upon complaint of: (1) The guardian or ward, or (2) Any person having actual or prospective interest

in the property of the ward. Selling and Encumbering the Property of the Ward Grounds (1) When the income of a property under

guardianship is insufficient to maintain and educate the ward

(2) When it is for the benefit of the ward that his personal or real property or any part thereof be sold, mortgaged or otherwise encumbered, and the proceeds invested in safe and productive security, or in the improvement or security of other real property.

How: Verified petition filed by the guardian. Order to Show Cause The court shall order the ward’s next of kin and all persons interested in the property to appear at a reasonable time and place and show cause why the petition should not be granted. At the time and place designated in the order to show cause, the court shall hear the allegations and evidence of the petitioner and next of kin, and other persons interested, together with their witnesses, and grant or deny the petition as the best interests of the ward may require. Order for Sale or Encumbrance Contents: (1) Grounds for the sale or encumbrance. (2) Manner of sale (public or private) (3) Time and manner of payment (4) Security, if payment deferred (5) Additional bond from guardian, if required.

Duration: Not more than 1 year, unless renewed.

Investment of Proceeds and Management of Property The court may authorize and require the guardian to invest the proceeds of sales or encumbrances, and any other money of his ward in his hands, in real or personal property, for the best interests of the ward. The court may make such other orders for the management, investment, and disposition of the property and effects, as circumstances may warrant.


248

Removal, Resignation, and Termination of Guardianship Removal How: Upon reasonable notice to the guardian. Grounds: The guardian:

(1) Becomes insane or otherwise incapable of discharging his trust

(2) Is found to be unsuitable (3) Wasted or mismanaged the property of the

ward (4) Failed to render an account or make a

return for thirty days after it is due.

Resignation Ground: Any justifiable cause.

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

Termination Grounds

(1) The ward has come of age. (2) The ward has died.

How

(1) Court motu proprio terminates guardianship (2) Upon verified motion of any person allowed

to file a petition for guardianship.

The guardian shall notify the court of the fact of coming of age or death of the ward within 10 days of its occurrence. The final and executory judgment or order removing a guardian or terminating the guardianship shall be served upon the Local Civil Registrar of the municipality or city where the minor resides and the Register of Deeds of the province or city where his property or any part thereof is situated, who shall enter the final and executory judgment or order in the appropriate books in their offices.

XII. ADOPTION A. Distinguish domestic adoption from inter-

country adoption B. Domestic Adoption Act C. Inter-country Adoption Adoption A juridical act which creates between two persons a relation similar to that which results from filiation. Lahum vs. Sibulo (2003): Adoption is a privilege governed by the state’s determination of what is for the best welfare of the child.

A. Distinguish domestic adoption from inter-country adoption

See Annex A.

B. Domestic Adoption Act RA 8552 (Domestic Adoption Act) and the Rule on Adoption govern the domestic adoption of Filipino children. Effects of adoption Parental Authority (Sec.16) All legal ties bet. biological parents and adoptee are severed, and the same shall be vested on the adopter, except if the biological parent is the spouse of the adopter Legitimacy (Sec.17) The adoptee shall be considered legitimate son/daughter of the adopter for all intents and purposes, and entitled to all rights and obligations provided by law to legitimate children born to them without discrimination of any kind. Adoptee is entitled to love, guidance, and support. Succession (Sec.18) Adopter and adoptee shall have reciprocal rights of succession without distinction from legitimate filiation, in legal and intestate succession. If adoptee and his/her biological parents had left a will, the law on testamentary succession shall govern. Book of Adoptions The Clerk of Court shall keep a book of adoptions showing the date of issuance of the decree in each case, compliance by the Civil Registrar with the court’s order, and all incidents arising after the issuance of the decree.

Confidentiality of Adoption Proceedings All hearings in adoption cases, after compliance with the jurisdictional requirements shall be confidential and shall not be open to the public. If the court finds that the disclosure of the information to a third person is necessary for security reasons or for purposes connected with or arising out of the adoption and will be for the best interests of the adoptee, the court may, upon proper motion, order the necessary information to be released, restricting the purposes for which it may be used. Instances when adoption may be rescinded Rescission of Adoption of the Adoptee Who may file

(1) Adoptee who is over 18 years of age (2) If the adoptee is a minor, with the

assistance of the DSWD (3) If the adoptee is over 18 years of age but

incapacitated, by his guardian or counsel.


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Grounds: Committed by the adopter

(1) Repeated physical and verbal maltreatment despite having undergone counseling

(2) Attempt on the life of the adoptee (3) Sexual assault or violence (4) Abandonment or failure to comply with

parental obligations.

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

Where to file: Family Court of the city or

province where the adoptee resides. When to file:

(1) Within 5 years after reaching age of majority

(2) If he was incompetent at the time of the adoption, within 5 years after recovery from such incompetency.

Effects of rescission of adoption (1) RESTORATION OF PARENTAL AUTHORITY to

original parent if adoptee is a minor. (2) RECIPROCAL RIGHTS AND OBLIGATIONS of

adopter and adoptee are EXTINGUISHED . (3) CANCELLATION of amended birth certificate and

RESTORE ORIGINAL. (4) SUCCESSIONAL RIGHTS SHALL REVERT to its

status PRIOR TO ADOPTION, as of the date of final judgment of rescission.

(5) VESTED RIGHTS shall be RESPECTED.

C. Inter-country Adoption

RA 8043 (Inter-country Adoption Act) governs the adoption of Filipino children by: (1) Foreign nationals, and (2) Filipino citizens permanently residing abroad. When allowed Inter-country Adoption as the Last Resort The Inter-country Adoption Board (ICAB) shall ensure that all possibilities for adoption of the child under the Family Code (domestic adoption) have been exhausted and that inter-country adoption is in the best interest of the child (Sec. 7, RA 8043). Functions of the RTC (1) Filing of petition may be made with the Family

Court having jurisdiction over the place where the child resides or may be found.

(2) Court shall determine whether or not petition is sufficient in form and substance and a proper case for inter-country adoption.

(3) Transmit the petition to the ICAB for appropriate action.

“Best interest of the minor” standard The Inter Country Adoption Board shall ensure that all possibilities for adoption of the child under the Family Code have been exhausted and that inter-country adoption is in the best interest of the child.

XIII. WRIT OF HABEAS CORPUS A. Contents of the petition B. Contents of the Return C. Distinguish peremptory writ from

preliminary citation D. When not proper/applicable E. When writ disallowed/discharged F. Distinguish from writ of Amparo and

Habeas Data G. Rules on Custody of Minors and Writ of

Habeas Corpus in Relation to Custody of Minors (AM No. 03-04-04-SC)

WRIT OF HABEAS CORPUS Essentially a writ of inquiry, granted to test the right under which a person is detained, and to relieve a person if such restrain is illegal Can only be suspended in cases if in cases or rebellion or invasion and when public interest requires it (Art. III Sec. 15)

Vital purposes: In General (1) To obtain relief from illegal confinement (2) To liberate those who may be imprisoned

without sufficient cause (3) To deliver them from unlawful custody

In the case of minors (1) To enable parents to regain custody of a minor

daughter, even though the latter be in the custody of a third person of her own free will

(2) To resolve questions of custody of a minor The underlying rationale is not the illegality if the restraint but the right of custody Who may issue the writ (1) The SC,CA, and RTC have concurrent jurisdiction

to issue WHC (2) Family courts have jurisdiction to hear petitions

for custody of minors and the issuance of the WHC in relation to custody of minors

Moncupa v. Enrile (1986) (a) Where a person continued to be unlawfully

denied one or more of his constitutional rights (b) Where there is present denial of due process (c) Where the restraint is not merely involuntary

but appear to be unnecessary (d) Where a deprivation of freedom originally valid

has in light of subsequent developments become arbitrary

The person concerned or those applying in his behalf may still avail themselves of the privilege of the


250 writ.

Extends to all cases of illegal confinement or detention by which any person any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto. Prime specification of the application for a writ of habeas corpus is restraint of liberty. Not an inquisition between private parties, but an inquisition by the government proceedings in habeas corpus are separate and distinct from the main case from which the proceedings spring Ex parte Bollman: the question whether one

shall be imprisoned is always distinct from the question of whether the individual shall be convicted or acquitted of the charge on which he is tried, and therefore these questions are separate, and may be decided in different courts

In the case if People v. Valte (1922), it was stated that the writ of habeas corpus is not designed to interrupt the orderly administration of the laws by a competent court acting within the limits of its jurisdiction, but is available only for the purpose relieving from illegal restraint

Proceedings on habeas corpus to obtain release from custody under final judgment being in the nature of collateral attack, the writ deals only with such radical defects as render the proceeding or judgment absolutely void, and cannot have the effect of appeal, writ of error or certiorari, for the purpose of reviewing mere error and irregularities in the proceedings. A release that renders a petition for a writ of habeas corpus moot and academic must be one which is free from involuntary restraint. WHC may be used with writ of certiorari for purposes of review: The two writs may be ancillary to each other

where necessary to give effect to the supervisory powers of higher courts

WHC reaches the body of the jurisdictional matters, but not the record. Writ of certiorari reaches the record but not the body

While generally, the WHC will not be granted when there is and adequate remedy like writ of error, appeal, or certiorari, it may still be available in exceptional cases

Generally, WHC is not the proper remedy for the correction of errors of fact or law Exception: Error affects court’s jurisdiction (making the judgment void)

WHC does not lie where the petitioner has the remedy of appeal or certiorari

WHC is not proper: - To assert or vindicate denial of right to bail - For correcting errors in appreciation of fact

or law HC and not prohibition is the proper remedy for reviewing proceedings for deportation of aliens

A. Contents of the

Petition Application for the writ shall be by petition signed and verified by the party for whose relief it is intended, or by some person on his behalf Some person – any person who has a legally

justified interest in the freedom of the person whose liberty is restrained or who shoes some authorization to make the application

Shall set forth: (1) That the person in whose behalf the application

is made is imprisoned or restrained of his liberty (2) The officer or name of the person by whom he is

so imprisoned or retrained or if both are unknown or uncertain, such officer or person may be described by an assumed appellation, and the person who is served with the writ shall be deemed the person intended

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

(4) A copy of the commitment or cause of detention of such person, if it can be procured without any legal authority, such fact shall appear.

Procedure: (1) Application for the writ by petition (2) Grant by court or judge (3) Clerk of Court issues the writ under the seal of

court (in case of emergency, by the judge himself)

(4) Service: - By whom: sheriff or other proper officer - How: leaving the original with the person to

whom it is directed and preserving a copy on which to make return

- To whom: officer in custody or any officer (when in custody of person other than an officer)

(5) Execution – officer bring the person before the judge

B. Contents of the

Return

Made by the person or officer in whose custody the prisoner is found: (1) Whether he has or has not the party in his

custody or power, or under restraint (2) If he has the party in his custody or power, or

under restraint, the authority and the true and whole cause thereof, set forth at large, with a copy of the writ, order execution, or other process, if any, upon which the party is held

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

(4) If he has had the party in his custody or power, or under restraint, and has transferred such custody or restraint to another, particularly to


251

whom, at what time, for what cause, and by what authority such transfer was made.

The return or statement shall be signed by the person who makes it; and shall also be sworn by him if the prisoner is not produced, and in all other cases, unless the return is made and signed by a sworn public officer in his official capacity. If it appears that the prisoner is in custody under a warrant of commitment in pursuance of law, the return shall be considered prima facie evidence of the cause of restraint, but if he is restrained of his liberty by any alleged private authority, the return shall be considered only as a plea of the facts therein set forth, and the party claiming the custody must prove such facts.

C. Distinguish Peremptory Writ from Preliminary Citation

Preliminary citation – requires the respondent to appear and show cause why the peremptory writ should not be granted Peremptory writ – unconditionally commands the respondent to have the body of the detained person before the court at a time and place therein specified

D. When Writ Not Proper or Applicable

WHC will not issue where: (1) The person alleged to be restrained of his

liberty is in custody of an officer (2) Under process issued by the court or judge (3) By virtue of a judgment or order of a court of

record (4) The Court or judge had which has jurisdiction to

issue the process, render the judgment or make the order.

The operative act is detention or restraint (whether or not physical). If there is none, no WHC will issue despite the possibility of respondent being liable to civil, criminal, or administrative action Judicial discretion is exercised in issuance of the writ, and will not issue as a matter of course General Rule: the release, whether permanent or temporary, of a detained person renders the petition for habeas corpus moot and academic Exception: Unless there are restraints attached to his release which precludes freedom of action in which case the Court can still inquire into the nature of his involuntary restraint General Rule: WHC will not issue where the person alleged to be restrained of his liberty is in custody of an officer under a process issued by the court which has jurisdiction to do so

Even if the arrest of a person is illegal, supervening events may Bar his release or discharge form custody The legality of the detention is inquired into at

the earliest, the application for a WHC Among the supervening events is the issuance of

a judicial process (defined as a writ, warrant, subpoena, or other formal writing issued by authority of law)

Another supervening event is the filing before a trial court a complaint which issued a hold departure order and denied motion to dismiss and to grant bail (Velasco v. CA,1995)

Filing of an information for the offense for which the accused is detained Bars the availability of WHC

Improper arrest or lack of preliminary investigation is not a valid ground for the issuance of WHC. The proper remedy is a motion to quash warrant of arrest and/or information before the trial court Posting of a bail is not a waiver of the right to challenge the validity of the arrest, and therefore the right to resort to WHC (Revised Rules of Crim Pro Sec. 26) A person discharged on bail is not entitled to WHC, because such person is not imprisoned or restrained of his liberty in such a way as to entitle him to the WHC

E. When Discharge Not Authorized

Discharge from custody will not be allowed if: (1) Jurisdiction appears after the writ is allowed,

despite any informality or defect in the process, judgment, or order.

(2) Person is charged with or convicted of an offense in the Philippines

(3) Person is suffering imprisonment under lawful judgment

(4) If it appears that the prisoner was lawfully committed, and is plainly and specifically charged in the warrant of commitment with an offense punishable by death

(5) Even if the arrest of a person is illegal, due to supervening events (a) Issuance of a judicial process (defined as a

writ, warrant, subpoena, or other formal writing issued by authority of law)

(b) Another supervening event is the filing before a trial court a complaint which issued a hold departure order and denied motion to dismiss and to grant bail (Velasco v. CA,1995)

(c) Filing of an information for the offense for which the accused is detained bars the availability of WHC

Improper arrest or lack of preliminary investigation is not a valid ground for the issuance of WHC Proper remedy is a motion to quash warrant of arrest


252 and/or information before the trial court A person discharged on bail is not entitled to WHC, because such person is not imprisoned or restrained of his liberty in such a way as to entitle him to the WHC

F. Distinguished from Writ of Amparo and Habeas Data

See Annex B.

G. Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors (A.M. No. 03-04-04-SC)

Applicability Applies to petitions for custody of minors and

writs of habeas corpus in relation thereto. Rules of Court shall apply suppletorily.

Petition for Rightful Custody Verified petition for the rightful custody of a

minor may be filed by any person claiming such right.

Party against whom it may be filed shall be designated as the respondent.

Filed with the Family Court of the province or city where the petitioner resides or where the minor may be found.

Contents: (1) The personal circumstances of the petitioner

and of the respondent (2) The name, age and present whereabouts of the

minor and his or her relationship to the petitioner and the respondent

(3) The material operative facts constituting deprivation of custody

(4) Such other matters which are relevant to the custody of the minor

Verified and accompanied with a certificate against forum shopping signed by the petitioner personally. If court is satisfied that the petition is sufficient in form and substance, it shall direct the clerk of court to issue summons, which shall be served together with a copy of the petition personally on the respondent.

Answer to the Petition General rule: Motion to dismiss the petition is not allowed. Any other ground that might warrant the dismissal of the petition may be raised as an affirmative defense in the answer. Exception: On the ground of lack of jurisdiction over the subject matter or over the parties.

Personally verified and filed within 5 days after service of summons.

Upon the filing of the verified answer or the expiration of the period to file it, the court may order a social worker to make a case study of the minor and the parties and to submit to the court at least 3 days before pre-trial.

Mandatory pre-trial Notice - 15 days after the filing of the answer or

the expiration of the period to file answer, the court shall issue an order: (1) Fixing a date for the pre-trial conference (2) Directing the parties to file and serve their

respective pre-trial briefs (3) Requiring the respondent to present the

minor before the court. The notice of its order shall be served separately on both the parties and their respective counsels.

Pre-trial brief contains the following: (1) A statement of the willingness of the

parties to enter indicating its terms (2) A concise statement of their respective

claims (3) Admitted facts and proposed stipulations of

facts (4) The disputed factual and legal issues (5) All the evidence to be presented (6) The number and names of the witnesses and

their respective affidavits (7) Such other matters as the court may require

to be included. Failure to file the pre-trial brief or to comply with its required contents has same effect as failure to appear at the pre-trial. If the petitioner fails to appear personally at the pre-trial, the case shall be dismissed. Unless his counsel or a duly authorized representative appears in court and proves a valid excuse for the non-appearance of the petitioner. If the respondent has filed his answer but fails to appear at the pre-trial, the petitioner shall be allowed to present his evidence ex parte. The Court shall then render judgment on the basis of the pleadings and the evidence thus presented. At the pre-trial, the parties may agree on the custody of the minor. If the parties fail to agree, the court may refer the matter to a mediator who shall have 5 days to effect an agreement between the parties. If the issue is not settled through mediation, the court shall proceed with the pre-trial.

After an answer has been filed or after

expiration of the period to file it, the court may issue a provisional order awarding custody of the minor to: (1) Both parents jointly


253

(2) Either parent (3) The grandparent, or if there are several

grandparents, the grandparent chosen by the minor over 7 years of age and of sufficient discernment

(4) The eldest brother or sister over 21 years of age

(5) The actual custodian of the minor over 21 years of age

(6) Any other person or institution the court may deem suitable.

Interim Reliefs Temporary visitation rights - court shall provide

in its order awarding provisional custody appropriate visitation rights to the non-custodial parent or parents.

Unless the court finds said parent or parents unfit or disqualified. The temporary custodian shall give the court and non custodial parent or parents at least 5 days' notice of any plan to change the residence of the minor or take him out of his residence for more than 3 days

Hold Departure Order – the minor child shall

not be brought out of the country without prior order from the court while the petition is pending. - The Court, motu proprio or upon application

under oath, may issue ex parte a hold departure order, addressed to the Bureau of Immigration and Deportation (BID), directing it not to allow the departure of the minor from the Philippines without court permission.

- The Family Court issuing the hold departure order shall furnish the DFA and the BID of the DOJ a copy of the hold departure order within 24 hours from its issuance.

- The court may recall the hold departure order motu proprio or upon verified motion of any of the parties after summary hearing.

Protection Order (PO)- court may issue a PO

requiring any person: (1) To stay away from the home, school,

business, or place of employment of the minor, other parent or any other party, or from any other specific place

(2) To cease and desist from harassing, intimidating, or threatening such minor or the other parent or any person to whom custody of the minor is awarded

(3) To refrain from acts or omission that create an unreasonable risk to minor

(4) To permit a parent, or a party entitled to visitation by a court order or a separation agreement, to visit the minor at stated periods

(5) To permit a designated party to enter the residence during a specified period of time in order to take personal belongings not contested in a proceeding pending with the Family Court

(6) To comply with such other orders as are necessary for the protection of the minor.

Judgment Court shall render judgment awarding the custody of the minor to the proper party considering the best interests of the minor. If both parties are unfit to have the care and custody of the minor, the court may designate either the paternal or maternal grandparent of the minor, or his oldest brother or sister, or any reputable person to take charge of such minor, or commit him to any suitable home. Court may order either or both parents to give an amount necessary for the support, maintenance and education of the minor, irrespective of custodianship. The court may also issue any order that is just and reasonable permitting the parent who is deprived of the care and custody of the minor to visit or have temporary custody. Appeal Appeal from the decision shall be allowed, unless the appellant has filed a motion for reconsideration or new trial within 15 days from notice of judgment. An aggrieved party may appeal from the decision by filing a Notice of Appeal within 15 days from notice of the denial of the motion for reconsideration or new trial and serving a copy on the adverse parties.

Writ of Habeas Corpus in Relation to Custody of Minors A verified petition for a writ of habeas corpus involving custody of minors filed with the Family Court. The writ shall be enforceable within the judicial region the Family Court belongs. However, the petition may be filed with a regular court in the absence of the presiding judge of the Family Court provided that the regular court shall refer the case to the Family Court as soon as its presiding judge returns to duty. Petition may also be filed with the appropriate regular courts in places where there are no Family Courts. The petition may be filed with the SC, CA, or with any of its members and shall be enforceable anywhere in the Philippines. The writ may be made returnable to a Family Court or to any regular court within the region where the petitioner resides or where the minor may be found for hearing and decision on the merits. Upon return of the writ, the court shall decide the issue on custody of minors.


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XIV. WRIT OF AMPARO A. Coverage B. Distinguish from habeas corpus and

habeas data C. Differences between Amparo and search

warrant D. Who may file E. Contents of return F. Effects of failure to file return G. Omnibus waiver rule H. Procedure for hearing I. Institution of separate action J. Effect of filing of a criminal action K. Consolidation L. Interim reliefs available to petitioner and

respondent M. Quantum of proof in application for

issuance of writ of Amparo WRIT OF AMPARO Literally means to protect Came originally from Mexico and evolved into

many forms (1) Amparo libertad – for protection of personal

freedom (2) Amparo contra leyes – for judicial review of

the constitutionality of statutes (3) Amaparo casacion – judicial review of

constitutionality and legality of judicial decisions

(4) Amparo agrario – for protection of peasants’ rights

AM No 7-9-12-SC (Rules on the Writ of Amparo)

was promulgated by the Supreme Court by virtue of the 1987 Constitution stating that the SC has the power to “[p]romulgate rules concerning the protection and enforcement of constitutional rights…” (Art VIII Sec. 5). - Interpreted as the additional power to

promulgate rules to protect and enforce rights guaranteed by the fundamental law of the land.

Yano v. Sanchez (2010): The failure to establish that the public official observed extraordinary diligence in the performance of duty does not result in the automatic grant of the privilege of the amparo writ. It does not relieve the petitioner from establishing his or her claim by substantial evidence. The omission or inaction on the part of the public official provides, however, some basis for the petitioner to move and for the court to grant certain interim reliefs.

A. Coverage

Remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public

official or employee, or of a private individual or entity (1) Extralegal killings (killings committed without

due process of law) and (2) Enforced disappearances (Sec. of National

Defense v. Manalo 2008), the elements of which are: (a) An arrest, detention or abduction of a

person by a government official or organized groups or private individuals acting with the direct or indirect acquiescence of the government

(b) The refusal of the State to disclose the fate or whereabouts of the person concerned or a refusal to acknowledge the deprivation of liberty which places such persons outside the protection of law

Enumerates the constitutional rights protected by the writ, which is only the right to life, liberty and security of persons. Limits the coverage because other constitutional rights are already protected through different remedies.

However, the coverage is still broader compared to other jurisdictions: (1) Philippine writ covers both actual and

threatened violations of constitutional rights (2) Covers not only the public but also private

individual and entities

“Right to security” as a guarantee of protection by the government, is violated by the apparent threat to the life, liberty and security of their person. Secretary of Justice v. Manalo (supra): Even if the respondents have escaped from captivity and are physically free, there is a continuing violation of their right to security because there is a violation of freedom from threat by the apparent threat to life, liberty and security of their person from the following facts:

(1) Threat of killing their families if they tried to escape

(2) Failure of the military to protect them from abduction

(3) Failure of the military to conduct effective investigation

B. Distinguish from Writ of Habeas

Corpus and Habeas Data See Annex C

C. Distinguish Writ of Amparo From Search Warrant

Secretary of Defense v. Manalo (2008): The production order under the Amparo Rule should not be confused with a search warrant for law enforcement under Article III, Section 2 of the 1987 Constitution.


255

The Constitutional provision is a protection of the people from the unreasonable intrusion of the government, not a protection of the government from the demand of the people such as respondents. Instead, the Amparo production order may be likened to the production of documents or things under Section 1, Rule 27 of the Rules of Civil Procedure i.e. “Upon motion of any party showing good cause therefor, the court in which an action is pending may (a) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books of accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody or control...”

D. Who may file (1) Aggrieved party (2) Any member of the immediate family namely:

the spouse, children and parents of the aggrieved party

(3) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph or

(4) Any concerned citizen, organization, association or institution if there is no known member of the immediate family or relative of the aggrieved party.

Petition may be filed by the aggrieved party or by any qualified person or entity The filing of a petition by the aggrieved party suspends the right of all other authorized parties to file similar petitions Order which must be followed by those who can sue for the writ i.e. filing of the petition by an authorized party on behalf of the aggrieved party suspends the right of all others. This provides for the order which must be followed by those who can sue for the writ (1) Necessary for the prevention of indiscriminate

and groundless filing of petitions for amparo which may even prejudice the right to life, liberty or security of the aggrieved party

(2) Untimely resort to the writ by a non-member of the family may endanger the life of the aggrieved party

If authorized by (1) or (2), (3) may file Canlas v. NAPICO (2008): The claim to dwelling, assuming there is still a right despite the adverse final and executory judgment, does not constitute right to life, liberty and security. There is, therefore, no legal basis for the issuance of the writ of amparo. Where:

(1) RTC where the threat, act or omission was committed or any of its element occurred

(2) Sandiganbayan—unlike the writ of habeas corpus, because public officials and employees will be respondents in amparo petitions

(3) Court of Appeals (4) Supreme Court (5) Any justice of such courts

May be filed or any day, including Saturdays, Sundays, and holidays; from morning until evening Contents: (1) The personal circumstances of the petitioner; (2) The name and personal circumstances of the

respondent responsible for the threat, actor omission or if the name is unknown or uncertain, the respondent may be described by an assumed appellation;

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

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

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

(6) The relief prayed for. May include a general prayer Signed and verified

E. Contents of Return The respondent shall file a verified written return together with supporting affidavits within 72 hours after service of the writ. Contents: (1) The lawful defenses to show that the

respondent did not violate or threaten with violation the right to life, liberty and security of the aggrieved party, through any act or omission

(2) The steps or actions taken by the respondent to determine the fate or whereabouts of the aggrieved party and the person responsible for the threat, act or omission

(3) All relevant information in the possession of the respondent pertaining to the threat, act or omission against the aggrieved party and

(4) If the respondent is a public official or employee the return shall further state the actions that have been or will still be taken[...].

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


256

F. Omnibus Waiver Rule Defenses not pleaded deemed waived. All defenses shall be raised in the return, otherwise, they shall be deemed waived.

G. Effect of Failure to File a Return

In case the respondent fails to file a return, the court, justice or judge shall proceed to hear the petition ex parte.

H. Procedure for Hearing on the Writ

Summary Hearing Hearing on the petition shall be summary. BUT: The court, justice, or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties. Prohibited Pleadings and Motions (1) Motion to dismiss (2) Motion for extension of time to file return,

opposition, affidavit, position paper and other pleadings

(3) Dilatory motion for postponement (4) Motion for a bill of particulars (5) Counterclaim or cross-claim (6) Third-party complaint (7) Reply (8) Motion to declare respondent in default (9) Intervention (10) Memorandum’ (11) Motion for reconsideration of interlocutory

orders or interim relief orders and (12) Petition for certiorari, mandamus or prohibition

against any interlocutory order. Allows motion for new trial and petition for relief from judgment

I. Institution of Separate Actions

The Rule shall not preclude the filing of separate criminal, civil or administrative actions. Neither does the writ of amparo suspend the filing of criminal, civil or administrative actions But a claim for damages should instead be filed in a proper civil action. If the evidence so warrants, the amparo court may refer the case to the Department of Justice for criminal prosecution, because the amparo proceeding is not criminal in nature and will not determine the criminal guilt of the respondent.

J. Effect of Filing of a Criminal Action

When a criminal action has been commenced, NO SEPARATE PETITION for the writ shall be filed. Reliefs under the writ shall be available by motion in a criminal case. Procedure under this Rule shall govern the disposition of the reliefs available under the writ of amparo. K. Consolidation

When a criminal action is filed subsequent to the filing of a petition for the writ, the latter shall be consolidated with the criminal action. After consolidation, the procedure under this Rule shall continue to apply to the disposition of the reliefs on the petition. L. Interim Reliefs Available to Petitioner and Respondent Upon filing of the petition or at any time before

final judgment Interim Reliefs available to the Petitioner (1) Temporary Protection Order. – The court,

justice or judge, upon motion or motu proprio, may order that the petitioner or the aggrieved party and any member of the immediate family be protected in a government agency or by an accredited person or private institution capable of keeping and securing their safety. If the petitioner is an organization, association or institution referred to in Section 3(c) of this Rule, the protection may be extended to the officers concerned.

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

order in that the temporary protection order and the witness protection order do not need a verification and may be issued motu proprio or ex parte

(2) Inspection Order. – The court, justice or judge

upon verified motion and after due hearing may order any person in possession or control of a designated land or other property, to permit entry for the purpose of inspecting, measuring,


257

surveying, or photographing the property or any relevant object or operation thereon. The motion shall state in detail the place or places to be inspected. It shall be supported by affidavits or testimonies of witnesses having personal knowledge of the enforced disappearances or whereabouts of the aggrieved party.

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

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

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

- Requires hearing, may be availed of both the

petitioner and the respondent - If the court, justice or judge gravely abuses

his or her discretion in issuing the inspection order, the aggrieved party is not precluded from filing a petition for certiorari with the Supreme Court

(3) Production Order. – The court, justice or judge,

upon verified motion and after due hearing may order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant.

The motion may be opposed on the ground of national security or of the privileged nature of the information, in which case the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition. The court, justice or judge shall prescribe other conditions to protect the constitutional rights of all the parties.

- Only granted upon motion and hearing - Not the same as search warrant for law

enforcement under Art. III, Sec. 2 of the Constitution since the latter is a protection of the people from unreasonable intrusion of the government, not a protection of the government from the demand of the people such as respondents

- More similar to production of documents or things under Sec. 1 Rule 27 of Rules of Civil Procedure

(4) Witness Protection Order. – The court, justice

or judge, upon motion or motu proprio, may refer the witnesses to the Department of Justice for admission to the Witness Protection, Security and Benefit Program, pursuant to Republic Act No. 6981.

The court, justice or judge may also refer the witnesses to other government agencies, or to accredited persons or private institutions capable of keeping and securing their safety.

Interim Reliefs available to the Respondent Inspection Order Production Order

Requisites: (1) Verified motion of the respondent (2) Due hearing (3) Affidavits or testimonies of witnesses having

personal knowledge of the defenses of the respondent.

M. Quantum of Proof in Application for Issuance of Writ: Substantial Evidence The parties shall establish their claims by substantial evidence. Respondent public official or employee cannot invoke the presumption that official duty has been regularly performed to evade responsibility or liability Respondent who is a private individual or entity must prove that ordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. Respondent who is a public official or employee must prove that extraordinary diligence as required as required by the applicable laws, rules and regulations was observed in the performance of duty.

Sec. of Justice v. Manalo (supra): With the secret nature of an enforced disappearance and the torture perpetrated on the victim during detention, it logically holds that much of the information and evidence of the ordeal will come from the victims themselves Their statements can be corroborated by other evidence such as physical evidence left by the torture or landmarks where detained.


258 XV. CHANGE OF NAME AND CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY A. Differences under Rule 103, RA 9048 and

Rule 108 B. Grounds for change of name

A. Differences under the Applicable Rules (Rule 103, Rule 108, RA 9048)

See Annex D

B. Grounds for change of name See Annex D Jurisprudence Laperal vs. Republic (1962): Legal separation is not a ground for the female spouse to apply for a change of name under Rule 103. No Yao Siong v. Republic (1966): The name that can be changed is the name that appears in the civil register, and not in the baptismal certificate or that which the person is known in the community. Ong Huan Tin v. Republic (1967): An alien may petition for change of name but he must be domiciled in the Philippines. Oshito vs. Republic (1967): Verification is a formal, not a jurisdictional, requirement. The lack of verification is not a ground for dismissing the petition. However, before setting the petition for hearing, the court should have required the petitioner to have the petition verified. Go Chiung Beng vs. Republic (1972): All aliases of the applicant must be set forth in the petition’s title. Such defect is fatal, even if said aliases are contained in the body of the petition. Secan Kok vs. Republic (1973): A change of name granted by the court affects only a petitioner. A separate petition for change of name must be filed for his/her spouse and children. Silverio vs. Republic (2007): A person’s first name cannot be changed on the ground of sex reassignment. RA 9048 does not sanction a change of first name on the ground of sex reassignment. Before a person can legally change his given name, he must present proper or reasonable cause or any compelling reason justifying such change. In addition, he must show that he will be prejudiced by the use of his true and official name. Silverio failed to show, or even allege, any prejudice that he might suffer as a result of using his true and official name. Rather than avoiding confusion, changing

petitioner’s first name may only create grave complications in the civil registry and the public interest. No law allows the change of entry in the birth certificate as to sex on the ground of sex reassignment. RA 9048 only allows correction of clerical or typographical errors. A correction in the civil registry involving the change of sex is not a mere clerical or typographical error. The birth certificate of petitioner contained no error. All entries therein, including those corresponding to his first name and sex, were all correct. No correction is necessary.

People vs. Cagandahan (2008): Intersexuality is a valid ground for change of name and change of entry of sex in the civil registry. Where the person is biologically or naturally intersex the determining factor in his gender classification would be what the individual, having reached the age of majority, with good reason, thinks of his sex. Sexual development in cases of intersex persons makes the gender classification at birth inconclusive. It is at maturity that the gender of such persons is fixed.

Failure to implead the local civil registrar as well as all persons who have or claim any interest did not render the petition fatally defective. Cagandahan furnished the local civil registrar a copy of the petition, the order to publish, and all pleadings, orders or processes in the course of the proceedings. There was therefore substantial compliance of the provisions of Rules 103 and 108 of the Rules of Court.

XVI. ABSENTEES A. Purpose of the Rule B. Who may file; when to file

A. Purpose of the Rule IN RE: PETITION FOR DECLARATION OF ABSENCE OF ROBERTO L. REYES (1986): The declaration of absence made in accordance with the provisions of the Civil Code has for its SOLE PURPOSE to enable the taking of the necessary precautions for the administration of the estate of the absentee. There is a need to have a person judicially declared an absentee when: (1) he has properties which have to be taken cared

of or administered by a representative appointed by the Court (Article 384, Civil Code);

(2) the spouse of the absentee is asking for separation of property (Article 191, Civil Code); or

(3) his wife is asking the Court that the administration of an classes of property in the marriage be transferred to her (Article 196, Civil Code).


259

B. Who may file; when to file

Who may file Petition for Appointment of a Representative

(1) Any interested party (2) Relative (3) Friend

Petition for Declaration of Absence and

Appointment of Trustee or Administrator (1) The spouse present (2) The heirs instituted in a will, who may

present an authentic copy of the same (3) The relatives who would succeed by the law

of intestacy (4) Those who have over the property of the

absentee some right subordinated to the condition of his death.

When to file Petition for Appointment of a Representative -

When a person: (1) Disappears from his domicile, his

whereabouts being unknown (2) Has not left an agent to administer his

property or the power conferred upon the agent has expired.

Petition for Declaration of Absence and Appointment of Trustee or Administrator - After 2 years:

(1) From the disappearance of and without any news from the absentee OR

(2) Since the receipt of the last news about him.

- After 5 years, if the absentee left an administrator of his property.

XVII. CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY A. Entries subject to cancellation or

correction under Rule 108, in relation to RA 9048

A. Entries subject to cancellation

or correction under Rule 108, in relation to RA 9048

Under RULE 108: SUBSTANTIAL CHANGES in entries in the civil registry, excluding name which is governed by Rule 103. Substantial Change – change that affects the civil status, citizenship, or nationality of a party. (1) Births (2) Marriage (3) Deaths (4) Legal separations (5) Judgments of annulments of marriage

(6) Judgments declaring marriages void from the beginning

(7) Legitimations (8) Adoptions (9) Acknowledgments of natural children (10) Naturalization (11) Election, loss or recovery of citizenship (12) Civil interdiction (13) Judicial determination of filiation (14) Voluntary emancipation of a minor (15) Changes of name Under RA 9048: CLERICAL or TYPOGRAPHICAL ERRORS Clerical Error: A mistake committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register that: (1) Is harmless and innocuous. (2) Is visible to the eyes or obvious to the

understanding (Patent) (3) Can be corrected or changed only by reference

to other existing record or records (4) Does not involve the change of nationality, age,

status or sex of the petitioner.

Such changes have public interest implications and must only be made upon approval of the Court. Silverio vs. Republic (2007): RA 9048 now governs the change of first name. It vests the power and authority to entertain petitions for change of first name to the city or municipal civil registrar or consul general concerned. Under the law, jurisdiction over applications for change of first name is now primarily lodged with the aforementioned administrative officers. The intent and effect of the law is to exclude the change of first name from the coverage of Rules 103 and 108, until and unless an administrative petition for change of name is first filed and subsequently denied. It likewise lays down the corresponding venue, form and procedure. In sum, the remedy and the proceedings regulating change of first name are primarily administrative in nature, not judicial. NOTE: The procedure recited in Rule 103 regarding change of name and in Rule 108 concerning the cancellation or correction of entries in civil registry are separate and distinct. They may not be substituted one for the other. If both reliefs are to be sought in the same proceedings all the requirements of Rule 103 and 108 must be complied with. [Republic v. Valencia (1986)]

XVIII. APPEALS IN SPECIAL PROCEEDING A. Judgments and orders for which appeal

may be taken B. When to appeal C. Modes of appeal D. Rule on Advance Distribution


260

A. Judgments and orders for which appeal may be taken

(1) If it allows or disallows a will (2) If it wholly determines who are the lawful heirs

or the distributive shares (3) If it wholly or partially allows or disallows a

claim against a decedent’s estate, or any claim presented on the decedent’s estate, or any claim presented on the estate’s behalf on offset to claim against it

(4) If it settles the account of an executor/administrator/trustee/guardian

(5) If it constitutes a final determination in the lower court of the rights of the party appealing in proceedings relating to estate settlement or administration of a trustee/guardian Exception: Appointment of a special administrator is not appealable - Remedy: Petition for certiorari under Rule 65,

if there is grave abuse of discretion.

(6) If it is the final order/judgment rendered in the case, and affects the substantial rights of the person appealing

Exception: Orders granting/denying a MFR/MNT

While some of the items in Rule 109. Sec. 1 may be considered as interlocutory under ordinary special actions, the nature of special proceedings declares them as appealable as exceptions to Rule 41, Sec. 2.

B. When to appeal In a special proceeding, the period of appeal is 30 days. The appeal period may be interrupted by the filing of an MFR/MNT. Once the appeal period expires without an appeal/MF/MNT, the order becomes final.

C. Modes of appeal NOTICE and RECORD ON APPEAL REQUIRED. Rule 109 contemplates multiple appeals during the pendency of special proceedings. A record on appeal – in addition to the notice of appeal – is thus required to be filed as the original records of the case should remain with the trial court to enable the rest of the case to proceed in the event that a separate and distinct issue is resolved by said court and held to be final. However, a record on appeal is not necessary where no other matter remained to be heard and determined by the trial court after it issued the appealed order granting the petition for cancellation of birth record and change of surname in the civil registry. [Republic v. Nishina (2010)]

D. Rule on Advance Distribution Notwithstanding a pending controversy/appeal in estate settlement proceedings, the court may permit that the estate’s parts which are not affected by the controversy/appeal be distributed, upon compliance with Rule 90.


261 Annex A Domestic Adoption (RA 8552) Intercountry Adoption (RA 8043) Governing Body DSWD Inter-country Adoption Board (ICAB)

When may adoption be resorted to

Adoption need not be the last resort Adoption only as last resort: No child shall be matched to a foreign adoptive family unless it is satisfactorily shown that the child cannot be adopted locally (Sec.11)

Who may adopt

(1) Any FILIPINO CITIZEN (regardless of where residing) (a) of legal age,

(b) at least sixteen (16) years older

than the adoptee, (may be waived when the adopter is the biological parent of the adoptee, or is the spouse of the adoptee's parent)

(c) in possession of full civil capacity and legal rights,

(d) of good moral character, has not been convicted of any crime involving moral turpitude, emotionally and psychologically capable of caring for children,

(e) who is in a position to support and care for his/her children in keeping with the means of the family.

(2) Any ALIEN possessing the same qualifications as above stated for Filipino nationals: Provided, (a) that he/she has been living in the

Philippines for at least three (3) continuous years prior to the filing of the application for adoption and maintains such residence until the adoption decree is entered,

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

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

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

(e) that the requirements on residency and certification of the alien's qualification to adopt in his/her country may be waived for the following: (i) a former Filipino citizen who

seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity; or

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

(1) FILIPINO CITIZEN permanently residing abroad may file an application for inter-country adoption of a Filipino child if he/she: (a) is at least twenty-seven (27)

years of age

(b) at least sixteen (16) years older than the child to be adopted, at the time of application unless the adopter is the parent by nature of the child to be adopted or the spouse of such parent:

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

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

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

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

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

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

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


262 (iii) one who is married to a

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

(3) The GUARDIAN with respect to the

ward after the termination of the guardianship and clearance of his/her financial accountabilities. ( Sec. 7)

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

(2) ALIEN with above qualifications

Who may be adopted

(a) Any person below eighteen (18) years of age who has been administratively or judicially declared available for adoption; (b) The legitimate son/daughter of one spouse by the other spouse; (c) An illegitimate son/daughter by a qualified adopter to improve his/her status to that of legitimacy; (d) A person of legal age if, prior to the adoption, said person has been consistently considered and treated by the adopter(s) as his/her own child since minority; (e) A child whose adoption has been previously rescinded; or (f) A child whose biological or adoptive parent(s) has died: Provided, That no proceedings shall be initiated within six (6) months from the time of death of said parent(s). (Sec. 8)

a) Filipino children (Sec. 3(a)) b) Below 15 years of age (Sec. 3(b)) c) Who are legally free, meaning children who have been voluntarily or involuntarily committed to the DSWD (Sec. 3(f) and Sec. 8) IRR of 2004 adds that: Any child who has been voluntarily or involuntarily committed to the Department as dependent, abandoned or neglected pursuant to the provisions of the Child and Youth Welfare Code may be the subject of Inter-Country Adoption xxx (Sec. 26)

Venue

Petition for adoption shall be filed with Family Court of the province or city where the prospective adoptive parents reside (Rule on Adoption, Sec. 6)

Either with the Philippine RTC having jurisdiction over the child, or with the Inter-country Board through an intermediate agency, in the country of the adoptive parents (Sec. 10) IRR of 2004 provides that: Application shall be filed with the Board or the Central Authority or the Foreign Adoption Agency in the country where the applicant resides. In case of foreign nationals who file petition for adoption under RA 8552 or Domestic Adoption Law, the Court after finding petition to be sufficient in form and substance and proper case for inter-country adoption shall immediately transmit the petition to the board for appropriate action. (Sec. 30)

Trial Custody Takes place in Philippines Where adoptive parents reside

Rescission

Only upon petition of adoptee, never by adopters (Sec.19)

No provision limiting act of rescission only to adoptee. In IRR, the procedure is provided for when adoption process is terminated: SECTION 47. DISRUPTION AND TERMINATION OF PLACEMENT. - In the event of serious damage in the relationship between the child and the applicant/s where the continued placement of the child is not in his/her best interests, the Central Authority and/or the


263

FAA shall take the necessary measures to protect the child, in particular, to cause the child to be withdrawn from the applicant/s and to arrange for his/her temporary care. The Central Authority and/or FAA shall exhaust all means to remove the cause of the unsatisfactory relationship which impedes or prevents the creation of a mutually satisfactory adoptive relationship. A complete report should be immediately forwarded to the Board with actions taken as well as recommendations and appropriate plans. Based on the report, the Board may terminate the pre-adoptive relationship. SEC. 48. NEW PLACEMENT FOR CHILD. In the event of termination of the pre-adoptive relationship, the Board shall identify from the Roster of Approved Applicants a suitable family with whom to place the child. The Central Authority and/or the FAA may also propose a replacement family whose application shall be filed for the approval of the Board. No adoption shall take place until after the Board has approved the application of such replacement family.


264 Annex B

COMPARATIVE TABLE ON HABEAS CORPUS and RULE ON CUSTODY OF MINORS HABEAS CORPUS (RULE 102) RULE ON CUSTODY AND HABEAS CORPUS FOR

MINORS (A.M. 03-04-04) Rights involved

Right to liberty Rightful custody of the aggrieved party

Petition for the rightful custody of a minor

Situations applicable

Actual violation of the aggrieved party’s right Deprivation of rightful custody

Party authorized to file

Party for whose relief it is intended or by some person in his behalf

Respondents May or may not be an officer Before which court or judicial authority filed

(1) RTC or any judge thereof (2) CA or any member thereof in instances

authorized by law (3) SC or any member thereof (4) Special jurisdiction given to first level

courts in the absence of RTC judges in a province or city (SECTION 35, BP 129)

(5) In aid of appellate jurisdiction of the Sandiganbayan ( RA 8249 further expanding its jurisdiction)

A verified petition for a writ of habeas corpus involving custody of minors shall be filed with the Family Court. The writ shall be enforceable within its judicial region to which the Family Court belongs. However, the petition may be filed with the regular court in the absence of the presiding judge of the Family Court, provided, however, that the regular court shall refer the case to the Family Court as soon as its presiding judge returns to duty. The petition may also be filed with the appropriate regular courts in places where there are no Family Courts.

Contents of the petition

Signed, verified either by the party for whose relief it is intended, or by some person in his behalf and shall set forth: (PDIC) (1) That the person in whose behalf the

application is made is imprisoned or restrained on his liberty;

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

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

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

The verified petition shall allege the following: (PRMO) (1) The personal circumstances of the

petitioner and of the respondent (2) The name, age and present whereabouts

of the minor and his or her relationship to the petitioner and the respondent

(3) The material operative facts constituting deprivation of custody and

(4) Such other matters which are relevant to the custody of the minor.

The verified petition shall be accompanied by a certificate against forum shopping, which the petitioner must sign personally.


265

Annex C

Habeas Corpus Amparo Habeas Data Nature, scope, function

All cases of illegal confinement and detention which any person is deprived of his liberty or rightful custody of any person is withheld from the person entitled (102.1) Actual violation before writ issues. Note Villavicencio v. Lukban on applicability of the writ in case of constructive restraint

Involves right to life, liberty and security violated or threatened with violation by an unlawful act or omission of a public official or employee or a private individual or entity It covers extralegal killings and enforced disappearances or threats thereof.

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

Limitations May be suspended in cases of invasion or rebellion when public safety requires it (Consti. Art. III Sec. 15)

Shall not diminish, increase or modify substantive rights (RWA Sec. 23)

Shall not diminish, increase or modify substantive rights (RWD Sec. 23)

Who may file By a petition signed and verified by the party for whose relief it is intended, or by some person on his behalf (102.3)

Petition filed by the aggrieved party or by any qualified person or entity in the following order: (1) Any member of the

immediate family (2) Any ascendant,

descendant or collateral relative of the aggrieved within the 4th civil degree of consanguinity or affinity

(3) Any concerned citizen, organization, association or institution

Filing by the aggrieved suspends the right of all others (RWA Sec. 2 )

Any aggrieved party may file a petition for the WHD However, in cases of extralegal killings and enforced disappearances, the petition may be filed by (also successive):

(1) Any member of the immediate family of the aggrieved

(2) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, (RWD Sec. 2)

Where filed Granted by: (1) SC or any member

thereof, on any day and at any time

(2) CA or any member thereof in instances authorized by law

(3) RTC or a judge thereof, on any day and at any time, enforceable only within his judicial district (102.2)

(4) MTC OR FIRST LEVEL COURTS in the absence of RTC judges in a judicial region (section 35 BP 129)

Filed on any day and at any time: (1) SB, CA, SC, or any justice

of such courts (2) RTC of place where the

threat, act, or omission was committed or any element occurred (RWA Sec. 4)

Petition may be filed with RTC where the petitioner or respondent resides or that which has jurisdiction over the place where the data or information is gathered, collected or stored, at the option of petitioner If public data files of government offices, petition shall be filed with the SC, CA, or SB (RWD Sec. 3)

Where enforceable

If SC or CA issued, anywhere in the Philippines

Writ shall be enforceable anywhere in the Philippines

Writ shall be enforceable anywhere in the Philippines

Writ Matrix (Comparison of the Writs) WHC – Writ of Habeas Corpus WA – Writ of Amparo WD – Writ of Habeas Data RWA - Rules on the Writ of Amparo RWD – Rules on Habeas Data SC – Supreme Court CA - Court of Appeals SB – Sandiganbayan RTC – Regional Trial Court CoC – Clerk of Court


266 Habeas Corpus Amparo Habeas Data

If granted by the RTC or judge thereof, it is enforceable in any part of the judicial region (Section 21, BP 129 which modified the term judicial district in Section 2, Rule 102 into judicial region) where the judge sits

(RWA Sec. 4) (RWD Sec. 3)

Where returnable

If the one that granted the writ: (1) Is the SC or CA, or a

member thereof, returnable before such court or any member thereof or an RTC

(2) An RTC, or a judge thereof, returnable before himself (102.2)

If the one that granted the writ: (1) Is the SC or any of its

justices, before such court or any justice thereof, or before the SB or CA or any of their justices, or to any RTC of the place where the threat, act or omission was committed or any of its elements occurred

(2) The SB or CA or any of their justices, before such court or any justice thereof, or to any RTC of the place where the threat, act, or omission was committed or any of its elements occurred (RWA Sec. 3)

If issued by: (1) The SC or any of its

justices, before such Court or any justice thereof, or CA or SB or any of its justices, or the RTC of the place where the petitioner or respondent resides / has jurisdiction over the place where the data or information is gathered, stored or collected

(2) The CA or SB or any of its justices, before such court or any justice thereof, or the RTC (same with scenario: SC issued and then returned in RTC)

(3) RTC, returnable before such court or judge (RWD Sec. 4)

Docket Fees upon the final disposition of such proceedings the court or judge shall make such order as to costs as the case requires (102.19)

Petitioner shall be exempted from the payment of the docket and other lawful fees - Court, justice or judge

shall docket the petition and act upon it immediately (RWA Sec 4)

None for indigent petitioner Petition shall be docketed and acted upon immediately, w/o prejudice to subsequent submission of proof of indigency not later than 15 days from filing (RWD Sec. 5)

Essential allegations/ Contents of petition

Signed and verified either by the party for whose relief it is intended or by some person on his behalf, setting forth: (1) The person in whose

behalf whose the application is made is imprisoned or restrained of his liberty

(2) Name of the person detaining another or assumed appellation

(3) Place where he is imprisoned or restrained of his liberty

(4) Cause of detention (102.3)

Signed and verified and shall allege: (1) The personal

circumstances of the petitioner

(2) Name or appellation and circumstances of the respondent

(3) The right to life, liberty, and security violated or threatened with violation,

(4) The investigation conducted, if any, plus circumstances of each

(5) The actions and recourses taken by the petitioner

(6) Relief prayed for May include a general prayer for other just and equitable reliefs (RWA Sec. 5)

Verified and written petition shall contain:

(1) Personal circumstances of petitioner and respondent

(2) Manner the right to privacy is violated or threatened and its effects

(3) Actions and recourses taken by the petitioner to secure the data or information

(4) The location of the files, registers, or databases, the government office, and the person in charge or control

(5) The reliefs prayed for Such other relevant reliefs as are just and equitable (RWD Sec. 6)

When proper Court or judge must, when a petition is presented and it appears that it ought to issue, grant the same and then:

Upon the filing of the petition, the court, justice, or judge shall immediately order the issuance of the writ

Upon filing of the petition, the court, justice, or judge shall immediately order the issuance of the writ if on its


267

Habeas Corpus Amparo Habeas Data the clerk of court (CoC)

shall issue the writ under the seal of the court or

in case of emergency, the judge may issue the writ under his own hand, and may depute any officer or person to serve it (102.5)

Also proper to be issued when the court or judge has examined into the cause of restraint of the prisoner, and is satisfied that he is unlawfully imprisoned (102.5)

if on its face it ought to issue CoC shall issue the writ

under the seal of the court or

In case of urgent necessity, the justice or the judge may issue the writ under his or her own hand, and may deputize any officer or person to serve it

face it ought to issue. CIC shall issue the writ

under the seal of the court and cause it to be served within 3 days from issuance or

In case of urgent necessity, the justice or judge may issue the writ under his or her own hand, and may deputize any officer or person to serve it (RWD Sec. 7)

How and who serves

Writ may be served in any province by the (a) sheriff, (b) other proper officer, or (c) or person deputed by the court or judge Service is made by leaving the original with the person to whom it is directed and preserving a copy on which to make return of service If that person cannot be

found, or has not the prisoner in his custody, service shall be made on any other person having or exercising such custody (102.7)

The writ shall be served upon the respondent by a judicial officer or by a person deputized by the court, justice or judge who shall retain a copy on which to make a return of service In case the writ cannot

be served personally on the respondent, the rules on substituted service shall apply (RWA Sec. 8)

The writ shall be served upon the respondent by a judicial officer or by a person deputized by the court, justice or judge who shall retain a copy on which to make a return of service In case the writ cannot be served personally on the respondent, the rules on substituted service shall apply (RWD Sec. 9)

Respondent May or may not be an officer Respondent is a public official or employee or private individual or entity

A public official or employee or a private individual or entity engaged in gathering, collecting or storing data

How executed and returned

The officer to whom the writ is directed shall convey the person so imprisoned or restrained before: - the judge allowing the writ, - or, in his absence or

disability, before some other judge of the same court

on the day specified in the writ, unless person directed to

be produced is sick or infirm, and cannot, without danger, be brought therein

officer shall then make due return of the writ, with the day and cause of the caption and restraint according to the command thereof (102.8)

Respondent files the return Respondent files the return

When to file return

On the day specified on the writ

Within 5 working days after service of the writ

Same with WA

Contents of return

When the person to be produced is imprisoned or restrained by an officer the person who makes the return shall state, and in other cases

Within 5 working days after service of the writ, the respondent shall file a verified written return together with supporting

(1) Lawful defenses such as national security, state secrets, privileged communications, confidentiality of the


268 Habeas Corpus Amparo Habeas Data

the person in whose custody the prisoner is found shall state in writing to the court or judge before whom the writ is returnable: (1) Truth of custody/power

over the aggrieved (2) If has custody or power,

or under restraint, the authority and the cause thereof, with a copy of the writ, order, execution or other process, if any upon which the party is held

(3) If the party is in his custody or power, and is not produced, particularly the nature and gravity of the sickness or infirmity

(4) If he has had the party in his custody or power, and has transferred such custody or restraint to another, particularly to whom, at what time, for what cause, and by what authority such transfer was made. (102.10)

affidavits which shall, , contain: (1) Lawful defenses (2) The steps or actions

taken to determine the fate or whereabouts of the aggrieved party

(3) All relevant information in the possession of the respondent pertaining to the threat, act or omission against the aggrieved party

(4) If the respondent is a public official or employee, the return shall further state acts: (a) To verify identity of

aggrieved party (b) To recover and

preserve evidence (c) To identify and

collect witness statements

(d) To determine cause, manner, location, and time of death or disappearance

(e) To identify and apprehend persons involved

(f) Bring suspected offenders before a competent court (RWA Sec.9)

source of information of media etc.

(2) In case of respondent in charge, in possession or in control of the data or information subject of the petition: (a) A disclosure of the

data or information about the petitioner, the nature of such data or information, and the purpose for its collection

(b) The steps or actions taken by the respondent to ensure the security and confidentiality of the data or information

(c) The currency and accuracy of the data or information held

Other allegations relevant to the resolution of the proceeding (RWD Sec.10)

Formalities of return

Return or statement shall be signed and sworn to by the person who makes it if the prisoner is not produced, Unless the return is made

and signed by a sworn public officer in his official capacity (102.11)

… the respondent shall file a verified written return together with supporting affidavits… (RWA Sec. 9)

Respondent shall file a verified written return together with supporting … (RWD Sec. 10)

Penalties For refusing to issue or serve For faulty return

CoC who refuses to issue the writ after allowance and demand,

Or a person to whom a writ is directed, who: (1) neglects/refuses to obey

or make return of the same according to the command thereof,

(2) or makes false return, (3) or upon demand made by

or on behalf of the prisoner, refuses to deliver to the person demanding, within 6 hours a true copy of the warrant or order of commitment,

shall forfeit to the party aggrieved the sum of P1000, recoverable in a proper action, and may also be

CoC who refuses to issue the writ after its allowance, or

a deputized person who refuses to serve the same,

shall be punished by the court, justice or judge for contempt without prejudice to other disciplinary actions (RWA Sec. 7)

The court, justice, or judge

may order the respondent who refuses to make a return, or who makes a false return, or any person who otherwise disobeys or resist a lawful process or order of the court to be punished for contempt Contemnor may be

imprisoned or imposed a

COC who refuses to issue the writ after its allowance, or

a deputized person who refuses to serve the same,

shall be punished by the court, justice, or judge for contempt without prejudice to other disciplinary actions (RWD Sec. 8) The court, justice, or judge may punish with imprisonment or fine a respondent who commits contempt by:

(1) Making a false return or (2) Refusing to make a

return or (3) Any person who

otherwise disobeys or resists a lawful process


269

Habeas Corpus Amparo Habeas Data punished for contempt (102.16)

fine (RWA Sec. 16) or order of the court (RWD Sec. 11)

Is period of return extendable?

No, not even on highly meritorious grounds.

Yes, by the court, for justifiable reasons (RWD Sec. 10)

Is a general denial allowed?

Yes. No prohibition in Rule. No, by virtue if A.M. No. 07-9-12-SC

No, by virtue of RWD Sec. 10, last sentence.

Defenses not pleaded

If not raised in return deemed waived (RWA Sec 10)

Effect of failure to file return

Court or justice shall proceed to hear the petition ex parte (RWA Sec. 12)

Court, judge, or justice shall hear the motion ex parte, granting the petitioner such reliefs as the petition may warrant Unless the court in its discretion requires the petitioner to submit evidence (RWD Sec. 14)

Nature of Hearing

Summary. However, the court, justice, or judge may call for a preliminary conference to simplify the issues and look at possibility of obtaining stipulations and admissions from the parties. Hearing shall be from day

to day until completed same priority as petitions for WHC

Summary. With possibility of preliminary conference similar to the writ of amparo (RWD Sec. 14) Hearing on chambers may be conducted where respondent invokes the defense of national security or state secrets, or the data is of public or privileged character (RWD Sec. 12)

Date and time of hearing

As specified in the writ Not later than 7 days from the issuance of the writ

Not later than 10 working days from the date of issuance writ

Prohibited pleadings

In custody of minors: a motion to dismiss, except on the ground of lack of jurisdiction

Motion to dismiss, Motion for extension of time to file opposition, affidavit, position paper and other pleadings, Dilatory motion for postponement, Motion for bill of particulars, Counterclaims or cross-claims, Third-party complaint, Reply, Motion to declare respondent in default, Intervention, Memorandum, Motion for reconsideration of interlocutory orders or interim relief orders, petition for certiorari, mandamus, or prohibition (RWA Sec.11)

Same as writ of amparo (RWD Sec. 13)

Burden of Proof

Preponderance of evidence Establish claims by substantial evidence if respondent is a private

individual or entity, ordinary diligence

if public official or employee, extraordinary diligence

Substantial evidence required to prove the allegations in the petition (RWD Sec. 16)

Presumption of Official duty

Yes. Consonant wit 102.13, stating that if warrant of commitment is in pursuance with law, serves as prima facie cause of restraint

Public official or employee cannot invoke the presumption that official duty has been regularly performed (RWA Sec. 17)


270 Habeas Corpus Amparo Habeas Data Judgment The court shall render

judgment within 10 days from the time the petition is submitted for decision (RWA Sec. 18)

Within 10 days from the time the petition is submitted for decision (RWD Sec. 16)

Appeals Within 48 hours from notice of the judgment of final order appealed

5 working days from the date of notice of adverse judgment Rule 45 filed with the SC

5 working days from the date of notice of adverse judgment Rule 45 filed with the SC

Consolidation of actions

May be consolidated with a criminal action filed subsequent to the petition (RWA Sec. 23)

May be consolidated with a criminal action filed subsequent to the petition (RWD Sec. 21)

Effect of filing criminal action

No more separate petition shall be filed. Reliefs available by motion in the criminal case (RWA Sec. 22)

Same as WA


271

Annex D Rule 103 Rule 108 RA 9048 Applicability Substantial Changes Substantial changes in

entries in the civil registry (other than name)

Change of First Names or Nicknames Change brought about by clerical or typographical errors

Nature Judicial Judicial Administrative Who May File 1. The person desiring to

change his name 2. Some other person on

his behalf

Natural person having direct and personal interest in the correction of error in an entry in the civil register

A natural person having direct and personal interest in the change of first name or nickname in the civil register.

Where Filed RTC of the province in which the person desiring to change his name resides.

RTC of the province where the civil registry is located

The local civil registry office of the city or municipality where the record being sought to be corrected/changed is kept. EXCEPTIONS: If the petitioner has already

migrated to another place in the country, the petition shall be filed with local civil registrar of the place where the interested party is presently residing or domiciled

If the petitioner is a Filipino citizen presently residing or domiciled in a foreign country, the petition shall be filed in the nearest Philippine Consulate.

Rationale: It would not be practical for him, in terms of transportation expenses, time and effort, to appear in person before the local civil registrar keeping the documents to be corrected or changed

Standing of the LCR

Not a party to the proceeding

Made a party to the proceeding as a respondent

Notice requirement

No mention of notice to be sent

The court shall cause reasonable notice to be given to persons named in the petition

Contents of Petition

Title: In Re: Petition for Change of Name of X, also known as Y and Z, to ABC. X, Petitioner. Names or Aliases of the Applicant (must appear in the caption of the petition) Omission is fatal to the

petition To allow a reader of

the published petition to notice the said aliases

Petitioner has been a bona fide resident of the province where the petition is filed for at least 3 years prior to the

1. Facts necessary to establish the merits of the petition.

2. A showing that the petitioner is

competent to testify to the matters stated.

3. Particular erroneous entry or

entries which are sought to be corrected and/or the change sought to be made.


272 Rule 103 Rule 108 RA 9048

date of such filing.

Cause for which the change of the petitioner's name is sought Petitioner must show a

proper or compelling reason for the change of name + the fact that he will be prejudiced by the use of his official name.

Name asked for Form of Petition

The petition shall be signed and verified.

Verified petition 1. In the form of an affidavit 2. Verified 3. Subscribed and sworn to before

any person authorized by law to administer oaths.

Procedure for Changing of Name

1. Filing of petition for change of name.

2. Court shall promulgate

an order fixing a date and place for hearing the petition. The date set for the hearing shall not be: Within 30 days prior

to an election AND Within 4 months

after the last publication of the notice.

3. Court shall direct a copy

of the order to be published before the hearing At least once a

week for 3 successive weeks

In some newspaper of general circulation published in the province.

4. Hearing shall be

conducted. The SolGen or the

proper provincial or city fiscal shall appear on behalf of the Government of the Republic.

5. Judgment granting or

denying the change of name.

6. Copy of judgments shall

be furnished the civil registrar of the municipality or city where the court issuing

1. Filing of petition 2. Court shall promulgate an

order fixing the time and place for hearing the petition and cause reasonable notice to be given to the persons named in the petition. Civil registrar and all

persons who have or claim any interest which would be affected thereby shall be made parties to the proceeding

3. Court shall direct a copy

of the order to be published before the hearing At least once a week

for 3 successive weeks

In some newspaper of general circulation published in the province.

4. File opposition

Within 15 days from notice of the petition or from the last date of publication

5. Hearing shall be

conducted. Court may expedite

the proceedings and also grant preliminary injunction for preservation of rights of the parties

6. Judgment granting or

denying the change of name.

1. Filing of petition and its supporting papers in 3 copies to be distributed to: The concerned city or

municipal civil registrar or the consul general

The Office of the Civil Registrar General

The petitioner

2. The City or Municipal Registrar or the Consul General shall post the petition in a conspicuous place for ten 10 consecutive days after he finds the petition and its supporting documents sufficient in form and substance.

3. The petition shall be published at

least once a week for 2 consecutive weeks in a newspaper of general circulation.

4. The City or Municipal Registrar or

the Consul General shall render a decision not later than 5 working days after the completion of the posting and/ or publication requirement. He shall transmit a copy of his decision together with the records of the proceedings to the Office of the Civil Registrar General within 5 working days from the date of the decision. Where the petition is denied

by the city or municipal civil registrar or the consul general, the petitioner may either appeal the decision to the civil registrar general or file the appropriate petition with the proper court.

5. The Civil Registrar General shall,

within 10 working days from receipt of the decision granting a


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Rule 103 Rule 108 RA 9048 the same is situated, who shall forthwith enter the same in the civil register.

7. Copy of judgments shall

be furnished the civil registrar concerned who shall annotate the same in the records

petition, exercise the power to impugn such decision by way of an objection.

Grounds for objection

(a) The error is not clerical or typographical

(b) The correction of an entry or entries in the civil register is substantial or controversial as it affects the civil status of a person

(c) The basis used in changing the first name or nickname of a person does not fall under one of the valid grounds.

If the civil registrar general fails to exercise his power to impugn the decision of the city or municipal registrar or of the consul general within the period, such decision shall become final and executory. 6. The civil registrar general shall

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

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

8. Appeal. The petitioner may seek reconsideration with the civil registrar general or file the appropriate petition with the proper court.

Opposition Any interested person Civil registrar and any person having or claiming interest under the entry whose cancellation or correction is sought

N/A NOTE: The Civil Registrar General is given the power to object to the decision of the Local Civil Registrar.

Grounds for Change of Name

Republic v. Hernandez: Valid Grounds for Change of Name (1) The name is

ridiculous, tainted with dishonor or extremely difficult to write or pronounce.

(2) Change results as a legal consequence of legitimation

(3) The change will avoid confusion.

(4) A sincere desire to adopt a Filipino name to erase signs of

Entries subject to cancellation or correction:

(1) Birth (2) Marriage (3) Death (4) Legal separation (5) Judgment of annulment (6) Judgment declaring

marriage null and void (7) Legitimation (8) Adoption (9) Acknowledgment of

natural children (10) Naturalization (11) Election, loss or

recovery of citizenship

Sec. 4: Grounds for Change of First Name or Nickname (1) The first name or nickname is

ridiculous, tainted with dishonor or extremely difficult to write or pronounce.

(2) The new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by the first name or nickname in the community.


274 Rule 103 Rule 108 RA 9048

former alienage (Ang Chay vs. Republic, 1970)

(5) Having continuously used and been known since childhood by a Filipino name, having been unaware of alien parentage (Uy vs. Republic, 1965)

(12) Civil interdiction (13) Judicial determination

of filiation (14) Voluntary

emancipation of minor (15) Changes of name

(3) The change will avoid confusion.

SpecPro UP

Documents

Transcript of SpecPro UP