Special Proceedings Bar Review Guide 2018 by Justice Magdangal M. de Leon. 1

JURISTS BAR REVIEW CENTER™

SPECIAL PROCEEDINGS Bar Review Guide 2018 Justice Magdangal M. de Leon 1.

Distinction between civil action and special proceedings a.

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

b.

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



Under Section 3, Rule 1 of the 1997 Revised Rules of Court, a civil action is defined def ined as one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong while a special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact. It is then decisively clear that the declaration of heirship can be made only in a special proceeding inasmuch as the petitioners here are seeking the establishment of a status or right. (Heirs of Ypon vs. Ricafrente, G.R. No. 198680, July 8, 2013 )

2.

Nature of special proceedings – – initially non-adversarial in nature; in the course of proceedings, there may be oppositors.

3.

Generally, in special proceedings, formal pleadings and a hearing may be dispensed with, and the remedy [is] granted upon mere application or motion. However, a special proceeding is not always summary. The procedure laid down in Rule 108 is not a summary proceeding per se . (Republic (Republic vs. Olaybar, G.R. No. 189538, February 10, 2014)

4.

A petition for recognition of foreign judgment seeks to establish a status, sta tus, right or particular fact. (Fujki vs. Marinay , G.R. No. 196049, June 26, 2013) - Petition was filed by Fujiki to recognize the Japanese Family Court judgment nullifying the marriage between Marinay and Maekara on the ground of bigamy bigamy because the judgment judgment concerns his his civil status as married to Marinay. He has the personality to file a petition under Rule 108 to cancel the entry of marriage between Marinay and Maekara in the civil registry on the basis of the decree of the Japanese Family Court .

GENERAL PROVISION

R ule 72 S ubject ubj ect mat matter ter and and A pplicability pplic ability of Genera G enerall R ules ules



Rules in civil actions applicable to special proceedings

S ec. 2. A pplicability pplic ability of rules of civi ci vill actions action s . In the absence of special rules, the rules provided for in ordinary actions shall be, as far as practicable, applicable to special special proceedings. proceedings.

Special Proceedings Proceedings Bar Review Guide 2018 2018 by Justice Magdangal Magdangal M. de Leon. © 2018 by Jurists Review Review Center Inc. Copying, dissemination, storage, use, modification, uploading, and downloading without the express written consent of Jurists Review Center Inc. is strictly prohibited and shall be subjected to criminal prosecution and administrative charges, including the appropriate complaint with the Bar Confi dant’s Office and IBP. Page 1 of 68



Art. 777, Civil Code – – rights to succession are transmitted from the moment of death of the decedent.

This is only from the substantive aspect. From the PROCEDURAL aspect, there are certain procedures that must be observed before actual transmission of the property, but rights of the heirs retroact from the moment of death.

 Settlement Settlement of estate

The determination of which court exercises jurisdiction over matters of probate depends upon the GROSS VALUE of the estate of the decedent. Rule 73, Sec. 1 is deemed amended by BP 129, as amended by RA 7691 (Lim 7691 (Lim vs. CA, G.R. No. 124715, January 24, 2000]), Hence, the court may be the MTC or RTC. If more than P300,00.00/P400,00.00 – RTC. – RTC. Kinds of settlement based on the FORM of settlement: 1. Extrajudicial Extrajudicia l settlement settlem ent (Rule 74, Sec. 1) 2. Summary settlement of estates of small value (Rule (Rule 74, Sec. 2) 3. Judicial settlement through letters testamentary or letters of administration with or without the will annexed (Rules 73, 75-90)

R ule 73 VENUE VENUE AND PROCESS S ec. 1. Where Wh ere es tate tate of deceas ed pers ons s ettled ettled . 1.

If residing in Philippines at time of death, whether citizen or not, court of PLACE OF RESIDENCE.

2.

If residing in a foreign country – court – court of ANY PLACE WHERE HE HAD ESTATE.

3.

Venue may be assailed only when the estate proceedings are brought up on appeal or if a plain reading of the records of the case will immediately show that venue was improperly laid. However, the fact that the estate proceedings are initiated neither in the decedent’s residence nor where the decedent’s e state is located is not jurisdictional and may be waived if not raised Uriarte v. Court of F irst Instance, Instance , G.R. Nos. L-21938-39, May 29, 197 0).

4.

Court first taking cognizance of settlement of estate estate of a decedent shall exercise jurisdiction jurisdict ion TO THE EXCLUSION of all other courts. - subject to preferential preferential jurisdiction of court where TESTATE proceedings are filed.

5. Jurisdiction Jurisdict ion assumed by a court depending on - place of residence of decedent, or - location of estate shall NOT BE CONTESTED in a suit or proceeding,  except in an appeal from that court, or  when want of jurisdiction jurisdict ion appears in the record 

NOTES:

 Term ―resides‖ refers to ―actual or physical‖ residence, as distinguished from ―legal residence‖ or ―domicile.‖ Special Proceedings Proceedings Bar Review Guide 2018 2018 by Justice Magdangal Magdangal M. de Leon. © 2018 by Jurists Review Review Center Inc. Copying, dissemination, storage, use, modification, uploading, and downloading without the express written consent of Jurists Review Center Inc. is strictly prohibited and shall be subjected to criminal prosecution and administrative charges, including the appropriate complaint with the Bar Confi dant’s Office and IBP. Page 2 of 68

There is a distinction between ―residence‖ for purposes of election laws and ―residence‖ for purposes of fixing the venue of actions. In election cases, ―residence‖ and ―domicile‖ are treated as synonymous terms, that is, the fixed permanent residence to which when absent, one has the intention of returning. However, for purposes of fixing venue under under the Rules of Court, the ―residence‖ of a person is his personal, actual or physical habitation, or actual residence or place of abode, which may not necessarily be his legal residence or domicile provided he resides therein with continuity and consistency. Hence, it is possible that a person may have his residence in one place and domicile in another. (San Luis vs. San Luis, Luis , G.R. No. 133743, February 6, 2007)  Sec. 1, Rule 73 prescribing court where decedent’s estate shall be settled – (a) place of residence or (b) where his estate is located, relates relates to VENUE and not jurisdiction.

3.

Where two two proceedings filed, one intestate, the other testate – – illustrative cases on which courts should have ―jurisdiction‖: ROBERTS VS. LEONIDAS LEONIDAS (G.R.No. (G.R.No. L-55509, April 27, 1984) – – intestate in CFI Manila Branch 20, testate (reprobate) in CFI Manila, Branch 38. Ruling: priority to second branch of same court (CFI Manila). a. Probate of will MANDATORY- anomalous that estate of person who died testate should be settled in intestate proceedings. b. Intestate case should be CONSOLIDATED with testate proceeding - Judge assigned to testate proceeding should continue hearing the two cases.



URIARTE VS. CFI OF NEGROS OCC. (G.R. OCC. (G.R. Nos. L-21938-39, May 29, 1970) – intestate – intestate in Negros court, testate in Manila court. Ruling: priority to first court. Petitioner in Manila court should have submitted will for probate to Negros court, either in separate special proceeding or motion. Testate proceeding takes precedence over intestate proceeding. If in the course of intestate proceeding, it is found that decedent left a will, proceeding for probate of will should REPLACE intestate proceeding.



CUENCO VS. CA (G.R. CA (G.R. No.L-24742, October 26, 1973) – intestate – intestate in Cebu court, testate in QC court. Ruling: priority to second court. First court, upon learning that petition for probate has been presented in another court, may DECLINE TO TAKE COGNIZANCE of and HOLD IN ABEYANCE ABEYANCE petition petition before it, and instead DEFER to second court. If the will is admitted admitted to probate, it will definitely DECLINE to take cognizance. 

Explain difference between Uriarte and Cuenco rulings – – In Uriarte, there was showing that petitioner in probate proceeding knew before filing of petition in Manila that there was already intestate proceeding in Negros. PRESUMPTION OF DEATH

S ec. 4 . For purposes of settlement of his estate, a person s hall be presumed dead if absent and unheard of for the periods fixed in the Civil Code. If the absentee turns out to be alive, he shall be entitled to the balance of his estate after payment payment of all his debts. The balance may be recovered recovered by motion in the same proceeding. Under the Civil Code, absence of seven years, it being unknown whether or not the absentee lives, is sufficient for the presumption of death to arise for all purposes except for succession . ( Article Article 390, Civil Code) General Rule - A person is dead for the purpose of settling his estate if he has been missing for ten (10) years. (Article 390, Civil Code ) Exception Exception - However, if the absentee disappeared after the age of 75 years, an absence of five (5) years is sufficient for the opening of succession. The Following Persons Would be Considered Absent Even For the Purpose of Opening Succession After Just Four (4) Years: (Article Years: (Article 391, Civil Code) Special Proceedings Proceedings Bar Review Guide 2018 2018 by Justice Magdangal Magdangal M. de Leon. © 2018 by Jurists Review Review Center Inc. Copying, dissemination, storage, use, modification, uploading, and downloading without the express written consent of Jurists Review Center Inc. is strictly prohibited and shall be subjected to criminal prosecution and administrative charges, including the appropriate complaint with the Bar Confi dant’s Office and IBP. Page 3 of 68

1. A person on board a vessel lost during a sea voyage, or an airplane which is missing. 2. A person in the armed forces who has taken part in war. 3. A person who has been in danger of death under other circumstances. General Rule - No Independent action for a declaration of presumptive death is allowed. Exception - The need for a declaration of presumptive death for purposes of remarriage (Article 41 of the Family Code)



Probate court is of limited jurisdiction 1. Probate court cannot adjudicate or determine title to properties claimed to be a part of the estate and equally claimed as belonging to outside parties. 2. It can only determine whether or not they should be included in the inventory or list of properties to be administered by the administrator. 3. Probate court can only pass upon questions of title provisionally for the purpose of determining whether a certain property should or should not be included in the inventory. 4. Parties have to resort to an ordinary action for final determination of conflicting claims of title.



Separate civil action for quieting of title - where issue of ownership of properties excluded from the inventory is finally determined ( Pobre vs. Gonong , 148 SCRA 553 [1987]).

 However, the probate court has jurisdiction to (a) determine heirs – separate action for declaration of heirs not proper (Solivio vs. CA, G.R. No. 83484 February 12, 1990) and (b) distribute estate.  It is within the jurisdiction of the probate court to approve the sale of properties of a deceased person by his prospective heirs before final adjudication; to determine who are the heirs of the decedent; the recognition of a natural child; the status of a woman claiming to be the legal wife of the decedent; the legality of disinheritance of an heir by the testator; and to pass upon the validity of a waiver of hereditary rights (Romero vs. Court of Appeals, G.R. No. 188921, April 18, 2012 )  Petitioners alleged that they are the lawful heirs of Magdaleno and based on the same, prayed that the Affidavit of Self-Adjudication executed by Gaudioso be declared null and void and that the transfer certificates of title issued in the latter’s favor be cancelled. While the foregoing allegations, if admitted to be true, would consequently warrant the reliefs sought for in the said complaint, the rule that the determination of a decedent’s lawful heirs should be made in the corresponding special proceeding precludes the RTC, in an ordinary action for cancellation of title and reconveyance, from granting the same. By way of exception, the need to institute a separate special proceeding for the determination of heirship may be dispensed with for the sake of practicality, as when the parties in the civil case had voluntarily submitted the issue to the trial court and already presented their evidence regarding the issue of heirship, and the RTC had consequently rendered judgment thereon, or when a special proceeding had been instituted but had been finally closed and terminated, and hence, cannot be re-opened . (Heirs of Ypon vs. Ricafrente, G.R. No. 198680, July 8, 2013 ) 

Matters relating to the rights of filiation and heirship must be ventilated in the proper probate court in a special proceeding instituted precisely for the purpose of determining such rights. ( Joaquino vs. Reyes, G.R. No. 154645, July 13, 2004, 434 SCRA 260).

Special Proceedings Bar Review Guide 2018 by Justice Magdangal M. de Leon. © 2018 by Jurists Review Center Inc. Copying, dissemination, storage, use, modification, uploading, and downloading without the express written consent of Jurists Review Center Inc. is strictly prohibited and shall be subjected to criminal prosecution and administrative charges, including the appropriate complaint with the Bar Confi dant’s Office and IBP. Page 4 of 68



Questions as to who are the heirs of the decedent, proof of filiation of illegitimate children and the determination of the estate of the latter and claims thereto should be ventilated in the proper probate court or in a special proceeding instituted for the purpose and cannot be adjudicated in the instant ordinary civil action which is for recovery of ownership and possession. ( Agapay vs. Palang , G.R. No. 116668, July 28, 1997 )



There appears to be only one parcel of land being claimed by the contending parties as their inheritance from Juan Gabatan. It would be more practical to dispense with a separate special proceeding for the determination of the status of respondent as the sole heir of Juan Gabatan, specially in light of the fact that the parties to Civil Case No. 89-092, had voluntarily submitted the issue to the RTC and already presented their evidence regarding the issue of heirship in these proceeding . (Gabatan vs. Court of Appeals , G.R. No. 150206, March 13, 2009)

 Another case where there was no need for a special proceeding for the determination of heirship – When a sole heir filed a suit to cancel tite in the name of the adverse party over land belongin to her uncle, the Supreme Court held that no separate judicial declaration of heirship is necessary for a sole heir to assert his or her right to the property of the deceased. ( Capablanca vs. Heirs of Pedro , G.R. No. 22414, June 28, 2017)

 The jurisdiction of the probate court extends to matters incidental or collateral to the settlement and distribution of the estate, such as the determination of the status of each heir and whether the property in the inventory is conjugal or exclusive property of the deceased spouse. ( Agtarap vs. Agtarap, G.R. No. 177099, June 8, 2011 )

 In the exercise of probate jurisdiction. the court may issue warrants and process necessary to compel the attendance of witnesses or to carry into effect their orders and judgments, and all other powers granted to them by law (Rule 73, Sec. 3).

R ule 74, Sec. 1. E xtrajudicial s ettlement by ag reement between the heirs 

REQUISITES OF EXTRAJUDICIAL SETTLEMENT 1. Decedent dies intestate 2. No outstanding debts at time of settlement* 3. Heirs all of legal age or minors represented by judicial guardians or legal representatives 4. Settlement made in public instrument duly filed with Register of Deeds 5. Publication in newspaper of general circulation in the province once a week for 3 consecutive weeks 6. Bond equivalent to value of personal property posted with Register of Deeds**

* Presumed that decedent left no debts if no creditor filed petition for letters of administration within 2 years after death of decedent. ** Bond required only when personal property is involved in the extrajudicial settlement. Real estate is subject to lien in favor of creditors, heirs or other persons for 2 years from distribution of estate, notwithstanding any transfers of real estate that may have been made (Sec. 3, Rule 74).  RATIONALE for Sec. 1, Rule 74 – when person dies without having obligations to be paid, his heirs are not bound to submit property for judicial administration, which is always long and costly (Utulo vs. Pasion, 66 Phil. 302). 

IF HEIRS DISAGREE – ordinary action for partition.




IF ONLY ONE HEIR – affidavit of self-adjudication. 

FILING OF EXTRAJUDICIAL SETTLEMENT WITH REGISTER OF DEEDS REQUIRED – whether by public instrument, affidavit, stipulation in pending action for partition.

Lack of registration of extrajudicial settlement does not affect its validity when there are no creditors or rights of creditors are not involved ( Vda. de Reyes vs. CA, 199 SCRA 646 (1991). 



DESPITE ITS PUBLICATION, extrajudicial settlement NOT BINDING on any person who has not participated therein or who had no notice thereof (Sec. 1, last par., Rule 74; Sampilo vs. CA, 101 Phil. 71 [1958]).

The publication of the settlement does not constitute constructive notice to the heirs who had no knowledge or did not take part in it because the same was notice after the fact of execution. The requirement of publication is geared for the protection of creditors and was never intended to deprive heirs of their lawful participation in the decedent’s estate. (Spouses Tiro vs. Heirs of Cuyos, G.R. No. 161220, July 30, 2008 )

 Action to annul deed of extrajudicial settlement – Sec. 4, Rule 74 provides a two year prescriptive period (1) to persons who have participated or taken part or had notice of the extrajudicial partition, and (2) when the provisions of Sec. 1 of Rule 74 have been strictly complied with – that all persons or heirs of the decedent have taken part in the extrajudicial settlement or are represented by themselves or through guardians ( Pedrosa vs. CA, 353 SCRA 620 [2001]).

Adjudication by an heir of the decedent’s entire estate to himself by means of an affidavit is allowed only if he is the sole heir to the estate ( Delgado vda. de De la Rosa vs. Heirs of Marciana Rustia vda. de Damian, 480 SCRA 334 [2006]). Respondent, believing rightly or wrongly that she was the sole heir to Portugal’s estate, executed on February 15, 1988 the questioned Affidavit of Adjudication under the second sentence of Rule 74, Section 1 of the Revised Rules of Court. Said rule is an exception to the general rule that when a person dies leaving a property, it should be judicially administered and the competent court should appoint a qualified administrator, in the order established in Sec. 6, Rule 78 in case the deceased left no will, or in case he did, he failed to name an executor therein. (Portugal vs. Portugal-Beltran , G.R.No. 155555, August 16, 2005 ) Since Josefa Delgado had heirs other than Guillermo Rustia, Guillermo could not have validly adjudicated Josefa’s estate all to himself. Rule 74, Section 1 of the Rules of Court is clear. Adjudication by an heir of the decedent’s entire estate to himself by means of an affidavit is allowed only if he is the sole heir to the estate. (In the Matter of the Intestate Estate of Delgado, G.R. No. 155733, January 27, 2006

The remedy of an heir who did not participate in, or had no knowledge of, the extrajudicial partition is to file an action for reconveyance. Prescriptive period for non-participants Remedy of an heir who did not participate in, or had no knowledge of, the extrajudicial partition -- file an action for reconveyance. Prescriptive period for non-participants – TEN YEARS, because an action for reconveyance based on implied or constructive trust, being an obligation created by law, prescribes in 10 years (Art. 1144, par. 2, Civil Code) Teves vs. Court of Appeals, G.R. No. 109963 October 13, 1999 Special Proceedings Bar Review Guide 2018 by Justice Magdangal M. de Leon. © 2018 by Jurists Review Center Inc. Copying, dissemination, storage, use, modification, uploading, and downloading without the express written consent of Jurists Review Center Inc. is strictly prohibited and shall be subjected to criminal prosecution and administrative charges, including the appropriate complaint with the Bar Confi dant’s Office and IBP. Page 6 of 68

The period starts from issuance of title over the property ( Marquez vs. CA, 300 SCRA 653 [1998]). Constructive trusts under Art. 1456 are established to prevent unjust enrichment. In Marquez , husband executed affidavit of self-adjudication without including the children The ruling in Gerona vs. De Guzman, 11 SCRA 153 (1964), cited in Pedrosa vs. CA,, that prescriptive period for non-participants is 4 years from discovery of fraud, i.e., when deed was filed with Register of Deeds and new title issued, is not applicable, because the same was based on the old Code of Civil Procedure (Sec. 43, which governed prescription). The Gerona doctrine was abandoned in Amerol vs. Bagumbaran, 154 SCRA 396 (1987) and reiterated in Caro vs. CA, 180 SCRA 401 (1989) and Marquez vs. CA. Action to recover property not imprescriptible: However, the action to recover property held in trust prescribes after 10 years from the time the cause of action accrues, which is from the time of actual notice in case of unregistered deed . In this case, Eutropia, Victoria and Douglas claimed to have knowledge of the extrajudicial settlement with sale after the death of their father, Enrique, in 1994 which spouses Uy failed to refute. Hence, the complaint filed in 1997 was well within the prescriptive period of 10 yea (Neri vs. Heirs of Uy, G.R. No. 194366, October 10, 2012) Different ruling - action for reconveyance imprescriptible if conveyance complained of was null in void ab initio: In actions for reconveyance of the property predicated on the fact that the conveyance complained of was null and void ab initio, a claim of prescription of action would be unavailing.The action or defense for the declaration of the inexistence of a contract does not prescribe. (Ingjug-Tiro vs. Casals, G.R. No. 134718, August 20, 2001; Dumaliang vs. Serban, G.R. NO. 155133, February 21, 2007; Macababbad vs. Masirag , G.R. No. 161237, January 14, 2009) What is the effect of the issuance of TCTs in the name of petitioners? In other words, does the issuance of the certificates of titles convert the action to one of reconveyance of titled land which, under settled jurisprudence, prescribes in ten (10) years? Precedents say it does not; the action remains imprescriptible , the issuance of the certificates of titles notwithstanding. (Macababbad vs. Masirag , G.R. No. 161237, January 14, 2009) Additional exception to prescription of actions – when plaintiff, the legal owner, and not the defendant registered owner, is in possession of the land to be reconveyed. Said action, when based on fraud, is imprescriptible as long as the land has not passed to an innocent purchaser for value ( Heirs of Saludares vs. CA, 420 SCRA 54). Remedy of excluded heir when land has passed to an innocent purchaser for value – claim for damages against the heirs responsible for the fraudulent exclusion. (PEZA vs. Fernandez , G.R. No. 138971, June 6, 2001)

R ule 75 P roduction of will, A llowance of will necess ary 1. Allowance of will is conclusive as to its due execution. 2. Probate of will (special proceeding to establish the validity of a will) is MANDATORY. Probate of the will is mandatory (Sec. 1, Rule 75) and therefore takes precedence over intestate proceedings. 1. The law enjoins probate of the will and public policy requires it. Unless will is probated and notice given to the whole world, right of a person to dispose of his property by will may be rendered nugatory (Maninang vs. CA, 114 SCRA 478 [1982]).


. The Deed of Donation which is one of mortis causa, not having followed the formalities of a will, is void and transmitted no right to petitioners’ mother. But even assuming that the formalities were observed, since it was not probated, no right to Lot Nos. 674 and 676 was transmitted to Maria. ( Aluad vs. Aluad , G.R. No. 176943, October 17, 2008

2. In testate succession, no valid partition among heirs until after will has been probated ( Ralla vs. Judge Untalan, 172 SCRA 858 [1989]). 3. Presentation of will cannot be dispensed with on the ground of ESTOPPEL because public policy requires that a will should be probated ( Fernandez vs. Dimaguiba, 21 SCRA 428 [1967]).

PROBATE COURT DOES NOT LOOK INTO INTRINSIC VALIDITY



GENERAL RULE: Probate court’s authority is limited only to extrinsic validity of the will, i.e.: a. due execution – voluntariness b. testator’s testamentary capacity – sound mind c. compliance with formal requisites or solemnities 1. Intrinsic validity of the will normally comes after court declares that will has been duly authenticated. 2. Court at this stage of the proceedings is not called upon to rule on intrinsic validity or legality of the provisions of the will (Nuguid vs. Nuguid , 17 SCRA 449 [1966]; Maninang vs. CA, supra ). EXCEPTIONS: 1. In exceptional instances, courts not powerless to pass upon certain provisions of will which it may declare invalid even as it upholds extrinsic validity of will ( Ajero vs. Ca, 236 SCRA 488 [1994]). 2. Probate court may only disregard passing on extrinsic validity of will where intrinsic validity apparent on face of will (Maninang vs. CA, supra) 3. Probate of will might become idle ceremony if on its face it appears intrinsically void. 4. In Nuguid , court ruled that will was intrinsically invalid as it completely preterited parents of the testator. a. Preterition – annuls institution of heirs b. Disinheritance – annuls institution of heirs as to portion of estate which disinherited heirs have been illegally deprived

R ule 76 A llowance or Dis allowance of Wi ll S ec. 1. Who may petition for allowance of will. 

1. 2. 3. 4. 5.

WHO Executor Legatee – need not be a relative of decedent Devisee – need not be a relative of decedent Other interested person - heir; creditor Testator – during his lifetime


 WHEN – at any time after death of testator – not subject to bar by statute of limitations and does not prescribe, since it is required by public policy. 

WHERE – court having jurisdiction



WHAT – petition to have will allowed whether: a. b. c.

will in possession of petitioner or not will lost will destroyed

JURISDICTION HOW ACQUIRED a. Attaching of mere copy of will sufficient – annexing of original of will to the petition is not jurisdictional requirement. b. Delivery of will sufficient even if no petition filed – under Sec. 3, Rule 76, ―when a will is delivered to the court,‖ court could motu proprio take steps to fix time and place for proving the will, issue corresponding notices. 

Only known heirs, legatees and devisees entitled to personal notice

R ule 76, S ec. 4. Heirs , devis ees , legatees and executor to be notified by mail or pers onally. 1. Notice of time and place of hearing should be addressed to a. designated or known heirs, legatees and devisees b. person named as executor (if he is not petitioner) c. person named as co-executor not petitioning 2. residing in the Philippines 3. at their places of residence, if known 4. Personal service – at least 10 days before hearing 5. Mailed service – at least 20 days before hearing 6. IF TESTATOR asks for allowance of his own will – notice shall be sent only to his COMPULSORY HEIRS. 

Notice to Designated Heirs, Legatees and Devisees Jurisdictional – when they are known AND their places of residence are known ( De Arranz vs. Galing , 161 SCRA 628).

Notice is required to be personally given to known heirs, legatees, and devisees of the testator. [Sec. 4, Rule 76, Rules of Court]. A perusal of the will shows that respondent was instituted as the sole heir of the decedent. Petitioners, as nephews and nieces of the decedent, are neither compulsory nor testate heirs who are entitled to be notified of the probate proceedings under the Rules. Respondent had no legal obligation to mention petitioners in the petition for probate, or to personally notify them of the same. (Alaban vs. CA, G.R. No. 156021, September 23, 2005).

R ule 76, S ec. 2. C ontents of petition. a. Jurisdictional facts: 1. that a person has died leaving a will; and 2. the testator at the time of death is a resident within the territorial jurisdiction of the court; or 3. the testator is a non-resident at the time of death but left property within the territorial jurisdiction of the court b. names, ages and residences of the heirs, legatees and devisees of the testator or decedent Special Proceedings Bar Review Guide 2018 by Justice Magdangal M. de Leon. © 2018 by Jurists Review Center Inc. Copying, dissemination, storage, use, modification, uploading, and downloading without the express written consent of Jurists Review Center Inc. is strictly prohibited and shall be subjected to criminal prosecution and administrative charges, including the appropriate complaint with the Bar Confi dant’s Office and IBP. Page 9 of 68

c. probable value and character of the property of the estate d. name of the person for whom letters are prayed e. if the will has not been delivered to the court, the name of the person having custody thereof

R ule 76, S ec. 3. C ourt to appoint time for proving the will. Notice thereof to be

publis hed.

Notice and Hearing; Publication 1. After will delivered to, or petition for allowance of will filed in court having jurisdiction, court – a. shall fix time and place for proving will – when all concerned may appear to contest allowance thereof. b. cause notice of such time and place to be PUBLISHED 3 weeks successively in newspaper of general circulation in the province. 2. NO NEWSPAPER PUBLICATION – where petition for probate filed by TESTATOR himself. Probate of Will is In Rem  Notice by publication as prerequisite to allowance of will is CONSTRUCTIVE NOTICE to the whole world. 

When probate is granted, the judgment is binding upon everybody, even against the state.

Probate JURISDICTIONAL Without publication of petition, proceedings for settlement of estate is VOID and should be ANNULLED.

R ule 76, Sec. 5. Proof of hearing . What s ufficient in absence of contest. 

EVIDENCE INTRODUCED AT PROBATE OF WILL

1. Publication 2. Notice of hearing served on known heirs, legatees, devisees, etc. if places of residence known 3. Testimony of subscribing witnesses  Uncontested – one witness sufficient  Contested – all subscribing witnesses and notary (wills executed under Civil Code) other witnesses (under certain conditions) 4. Holographic will a. Uncontested – at least one witness who knows handwriting and signature of testator; expert testimony (in the absence of competent witness) b. Contested – at least 3 witnesses who know handwriting of testator; expert testimony (in the absence of competent witness) 5. Holographic will – testator himself as petitioner a. Contested – contestant has burden of disproving genuineness and due execution b. Uncontested – testator must affirm that will and signature are in his own handwriting 

Substantial Compliance Rule

If will executed in substantial compliance with formalities of law, and possibility of bad faith obviated – it should be admitted to probate ( De Jesus vs. De Jesus , 134 SCRA 245).


R ule 76, S ec. 9. G rounds for dis allowing will. 1. Legal formalities a. not executed and attested as required by law 2. Testamentary capacity a. testator insane or otherwise mentally incapable to make will at time of execution 3. Due execution a. executed under duress, or the influence of fear, or threats b. procured by undue and improper pressure and influence on the part of the beneficiary, or some other person, for his benefit. c signature of testator procured by fraud or trick and he did not intend that the instrument be his will at time of fixing his s ignature d .testator acted by mistake or did not intend that instrument be signed or should be his will at the time of affixing his signature (Art. 389, Civil Code) 

Grounds for Disallowance of Will Exclusive

Lists in Sec. 9, Rule 76 and Art. 389 are EXCLUSIVE – NO OTHER GROUND can serve to disallow a will. Example: If testator fails to sign and date some dispositions in holographic will, it affects only the validity of the dispositions, but not the whole will. Exc. If unauthenticated alterations, cancellations or insertions are made on the DATE of will of on testator’s SIGNATURE ( Ajero vs. CA, supra).

R ule 77 A llowance of will proved outs ide of philippines and adminis tration of es tate thereunder S ec. 1. Will proved outs ide of the Philippines may be allowed here. 

EVIDENCE NECESSARY FOR REPROBATE OF WILL or will probated outside the Philippines: 1. due execution of will in accordance with foreign laws 2. testator has domicile in foreign country and not Philippines 3. will has been admitted to probate in such country 4. fact that foreign court is a probate court 5. law of the foreign country on procedure and allowance of wills (Vda. de Perez vs. Tolete, supra )



Reprobate of will While foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to take judicial notice of them; however, petitioner, as ancillary administrator o f Audrey’s estate, was duty bound to introduce in evidence the pertinent law of the State of Maryland. ( Ancheta vs. GuerseyDalaygon, G.R. No. 139868, June 8, 2006)

A person who seeks to reprobate a will executed in a foreign country must prove the laws and procedure of that foreign country on wills. As foreign laws do not prove themselves and our courts do not take judicial notice of them, the petitioner in the probate proceedings has the burden to prove introduce evidence of such foreign law. ( Ancheta vs. Guersey-Dalaygon, G.R. No. 139868, June 8, 2006). Courts will presume that the foreign law is the same as local law following the doctrine of processual presumption in the absence of proof of the applicable foreign law. Where a foreign law is not pleaded or, Special Proceedings Bar Review Guide 2018 by Justice Magdangal M. de Leon. © 2018 by Jurists Review Center Inc. Copying, dissemination, storage, use, modification, uploading, and downloading without the express written consent of Jurists Review Center Inc. is strictly prohibited and shall be subjected to criminal prosecution and administrative charges, including the appropriate complaint with the Bar Confi dant’s Office and IBP. Page 11 of 68

even if pleaded, is not proved, the presumption is that the foreign law is the same as Philippine law.( ATCI Overseas Corporation vs. Etchin , G.R. No. 178551, October 11, 2010)

PUBLICATION AND NOTICE REQUIRED Compliance with Secs. 3 and 4 of Rule 76, re publication and notice by mail or personally to known heirs, legatees and devisees of testator resident in the Philippines and to executor, if he is not the petitioner, required also in wills for reprobate ( Vda. de Perez vs. Tolete ). EFFECT OF REPROBATE When the will is allowed, it shall have the same effect as if originally proved and allowed in such court (Rule 77, Sec. 3). The letters testamentary or of administration granted shall extend to all of the estate of the testator in the Philippines. After payment of just debts and expenses of administration, the estate shall be disposed of according to such will, so far as such will may operate upon it (Rule 77, Sec. 4).

R ule 78 Letters testamentary and of adminis tration, when and to whom is s ued S ec. 1. Who are incompetent to serve as executors or adminis trators  EXECUTOR – person named in the will to administer deceden t’s estate to carry out provisions thereof  ADMINISTRATOR – person appointed by the court to administer the estate  Administrator need not be an heir – can be a stranger to the deceased, such as a creditor.

GROUNDS FOR INCOMPETENCE 1. Minority 2. Non-residence 3. Unfitness a. drunkenness b. incompetence c. want of understanding d. want of integrity e. conviction of offense involving moral turpitude (anything done contrary to justice, honesty, good morals) 

Courts may refuse to appoint a person as executor or administrator on ground of UNSUITABLENESS – adverse interest or hostile to those immediately interested in the estate (Lim vs. Diaz-Maillares, 18 SCRA 371 [1966]).

Failure to file an income tax return‖ is not a crime involving moral turpitude because the mer e omission is already a violation regardless of the fraudulent intent or willfulness of the individual. (Republic vs. Marcos, G.R. No. 130371, August 4, 2009) LETTERS TESTAMENTARY ISSUED WHEN WILL ALLOWED (Rule 78, Sec. 4) When the will is proved and allowed, the court shall issue LETTERS TESTAMENTARY thereon to the person named as EXECUTOR therein, if he is -a. competent b. accepts the trust and c. gives bond

R ule 78, S ec. 6. When and to whom letters of adminis tration g ranted




When administration granted

1 No executor named in will 2 Executor/s (is/are): a. Incompetent - Minor - Non-resident - Unfit b. Refuse the trust c. Fail to give bond 3 Person dies intestate 4 Will void and not allowed

) )

letters of administration with will annexed

) )

letters of administration

Order of preference in appointment of administrator (Rule 78, Sec. 6) 1. 2. 3. 4.

surviving spouse – partner in conjugal partnership and heir of deceased next of kin person requested by spouse or next of kin principal creditors  if spouse or next of kin is incompetent or unwilling or  neglects for 30 days after death of decedent to apply for administration, or to request that administration be granted to some other person

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

The order of preference in the appointment of a regular administrator as provided in the afore-quoted provision does not apply to the selection of a special administrator. The preference under Section 6, Rule 78 of the Rules of Court for the next of kin refers to the appointment of a regular administrator, and not of a special administrator, as the appointment of the latter lies entirely in the discretion of the court, and is not appealable. Not being appealable, the only remedy against the appointment of a special administrator is Certiorari under Rule 65 of the Rules of Court. (Tan vs. Gedorio, Jr ., G.R. No. 166520, March 14, 2008) 

Interest in estate as principal consideration

In the appointment of an administrator, the principal consideration is the interest in the estate of the one to be appointed. Those who will reap benefit of a wise, speedy and economical administration or will suffer consequences of waste, improvidence or mismanagement – have the HIGHEST INTEREST and MOST INFLUENTIAL MOTIVE to administer estate correctly ( Gonzales vs. Aguinaldo , 190 SCRA 112 [1990]). The order of preference does not rule out the appointment of co-administrators, especially in cases where justice and equity demand that opposing parties or factions be represented in the management of the estate.

R ule 79 Oppos ing is s uance of letters tes tamentary, petition and contes t for letters of adminis tration 

LETTERS TESTAMENTARY – issued to executor



LETTERS OF ADMINISTRATION WITH WILL ANNEXED – granted to administrator when there is no executor named in will, or executor is incompetent, refuses trust or fails to give bond.




LETTERS OF ADMINISTRATION – granted to administrator in intestate proceedings.

S ec. 1. Oppos ition to is s uance of letters testamentary . S imultaneous petition for adminis tration Any person interested in a will may oppose in writing the issuance of letters testamentary to persons named as executors, and at the same time file petition for letters of administration with will annexed. Meaning of ―interested person ” – one who would be benefited by the estate (heir), or one who has a claim against the estate (creditor). Interest must be MATERIAL and DIRECT, not merely indirect or contingent (Sagunsin vs. Lindayag , 6 SCRA 874). An ―interested person‖ has been defined as one who would be benefited by the estate, such as an heir, or one who has a claim against the estate, such as a creditor. The interest must be material and direct, and not merely indirect or contingent ( San Luis vs. San Luis , G.R. No. 133743, February 6, 2007) Where the right of the person filing a petition for the issuance of letters of administration is dependent on a fact which has not been established or worse, can no longer be established, such contingent interest does not make her an interested party. ( Tayag ve. Tayag-Gallor , G.R. No. 174680, March 24, 2008)

S ec. 2 C ontents of petition for letters of adminis tration The jurisdictional facts required in a petition for issuance of letters of administration are: (1) the death of the testator; (2) residence at the time of death in the province where the probate court is located; and (3) if the decedent was a non-resident, the fact of being a resident of a foreign country and that the decedent has left an estate in the province where the court is sitting. (Garcia vda. de Chua vs. Court of Appeals , G.R. No. 116835 March 5, 1998) PUBLICATION AND NOTICE REQUIRED (Sec. 3, Rule 79) Publication and notice of hearing (per Sec. 3, Rule 76) jurisdictional. Also, notice to ―known heirs and creditors of the decedent, and to any other person believed to have an interest in the estate‖ (per Sec. 4, Rule 76) if names and addresses are known ( De Arranz vs. Galing ).

The administrator may only deliver properties of the estate to the heirs after payment of the debts, funeral charges and other expenses against the estate, except when authorized by the court ( Silverio, Jr. vs. Court of Appeals, G.R. No. 178933, September 16, 2009)

R ule 80 S peci al adminis trator 

WHEN IS SPECIAL ADMINISTRATOR APPOINTED 1. When there is delay in granting letters testamentary or of administration by any cause - including appeal from allowance or disallowance of will 2. court may appoint special administrator to take possession and charge of the estate of the deceased 3. until a. questions causing delay decided or b. executors or administrators appointed

The appointment of a special administrator is justified only when there is delay in granting letters, testamentary (in case the decedent leaves behind a will) or administrative (in the event that the decedent Special Proceedings Bar Review Guide 2018 by Justice Magdangal M. de Leon. © 2018 by Jurists Review Center Inc. Copying, dissemination, storage, use, modification, uploading, and downloading without the express written consent of Jurists Review Center Inc. is strictly prohibited and shall be subjected to criminal prosecution and administrative charges, including the appropriate complaint with the Bar Confi dant’s Office and IBP. Page 14 of 68

leaves behind no will, as in the Petition at bar) occasioned by any cause. The principal object of the appointment of a temporary administrator is to preserve the estate until it can pass into the hands of a person fully authorized to administer it for the benefit of creditors and heirs. (Tan vs. Gedorio, Jr ., G.R. No. 166520, March 14, 2008) 

ORDER APPOINTING SPECIAL ADMINISTRATOR NOT APPEALABLE

Order appointing special administrator interlocutory in nature and mere incident in the judicial proceedings, hence not appealable. The remedy is a petition for certiorari. ( Manungas vs. Loreto, G.R. No. 193161, August 22, 2011)

R ule 82 R evocation of A dminis tration,Death, R esig nation and R emoval of E xecutors and Administrators S ec. 1. A dmini s tration revok ed if will dis covered. Proc eeding s thereon. 1. If after letters of administration have been granted as if decedent died intestate, his will is PROVED AND ALLOWED by the court, 2. letters of administration shall be REVOKED and all powers thereunder cease. 3. Administrator shall forthwith a. surrender letters to the court and b. render his account within such time as the court directs 4. Proceedings for issuance of letters testamentary or of administration will follow.

S ec. 2. C ourt may remove or accept res ig nation of executor or adminis trator. P roceeding s upon death, res ig nation, or removal. Concerning complaints against the general competence of the administrator, the proper remedy is to seek the removal of the administrator in accordance with Section 2, Rule 82. While the provision is silent as to who may seek with the court the removal of the administrator, a creditor, even a contingent one, would have the personality to seek such relief. After all, the interest of the creditor in the estate relates to the preservation of sufficient assets to answer for the debt, and the general competence or good faith of the administrator is necessary to fulfill such purpose. (Hilado vs. Court of Appeals , G.R. No. 164108, May 8, 2009)

R ule 86 C laims ag ains t E s tate  Notice to creditors – immediately after granting letters testamentary or of administration, court shall issue - NOTICE requiring all persons having MONEY CLAIMS against the estate - to FILE them in the office of the clerk of court (Sec. 1).

 Time for filing claims – not more than 12 months nor less than 6 months after date of FIRST PUBLICATION of the notice (Sec. 2). 

New period allowed (Sec. 2, second sentence)

At any time before order of distribution is entered, creditor who failed to file his claim within the time set may move to be allowed to file such claim. Court may for good cause shown and on such terms as are just allow such claim to be filed within a period NOT EXCEEDING ONE MONTH. Special Proceedings Bar Review Guide 2018 by Justice Magdangal M. de Leon. © 2018 by Jurists Review Center Inc. Copying, dissemination, storage, use, modification, uploading, and downloading without the express written consent of Jurists Review Center Inc. is strictly prohibited and shall be subjected to criminal prosecution and administrative charges, including the appropriate complaint with the Bar Confi dant’s Office and IBP. Page 15 of 68

One month does not commence from expiration of the original period for filing claims. It b egins from the date of the order of the court allowing said filing (Barredo vs. CA, 6 SCRA 620).



Statute of Non-Claims (SNC) – the period fixed for the filing of claims against the estate.

1. Period fixed by probate court must not be less than 6 months nor more than 12 months from the date of first publication of the notice. 2. Such period once fixed by the court is MANDATORY – it cannot be shortened. ex. Period fixed within 6 months 3. SNC supersedes statute of limitations – even if claim has not yet prescribed, it may be barred by SNC.  Ruling spirit of our probate law – SPEEDY SETTLEMENT of the estate of deceased persons for the benefit of CREDITORS and those entitled to the RESIDUE by way of INHERITANCE or LEGACY after the debts and expenses of administration have been PAID ( Sikat vs. Villanueva, 57 Phil. 486).  Publication of notice to creditors (Sec. 3) Immediately after notice to creditors is issued, executor or administrator shall cause -

1. publication of said notice 3 weeks successively in newspaper of general circulation in the province, and 2. posting for the same period in  4 public places in the province and  2 public places in the municipality where decedent last resided PUBLICATION OF NOTICE TO CREDITORS CONSTRUCTIVE NOTICE TO THE WHOLE WORLD Hence, creditor cannot be permitted to file his claim beyond the period fixed in the notice on the ground that he had no knowledge of the administration proceedings ( Villanueva vs. PNB, 9 SCRA 145). 

Claims that must be filed (Sec. 5)  Claims for money against the decedent arising from contract, express or implied, whether due, not due or contingent  Claims for funeral expenses and expenses for last sickness of decedent  Judgment for money against decedent a. The judgment must be presented as a claim against the estate where the judgment debtor dies before levy on execution of his properties ( Evangelista vs. La Provedra , 38 SCRA 379). b. When the action is for recovery of money arising from contract, and defendant dies before entry of final judgment, it shall not be dismissed but shall be allowed to continue until entry of final judgment. A favorable judgment obtained by plaintiff shall be enforced under Rule 86 (Rule 3, Sec. 20).





Implied contract includes quasi contract based on solution indebiti (unjust enrichment) Metrobank’s claim against Chua’s estate is based on a quasi-contract. It should reimburse Metrobank in case Metrobank would be held liable in the third-party complaint filed against it by AMC. (Metropolitan Bank & Trust Company vs. Absolute Management Corporation, G.R. No. 170498, January 9, 2013 Money claims against a deceased debtor

1. Respondents’ monetary claim shall be governed by Section 20 (then Section 21), Rule 3 In relation to Section 5, Rule 86 of the Rules of Court. Thus, said money claims must be filed against the estate of petitioner Melencio Gabriel. (Gabriel vs. Bilon, G.R. No. 146989, February 7, 2007) 

Must be filed within the time limited in the notice, otherwise they are BARRED FOREVER.


Exception – may be set forth as COUNTERCLAIMS in any action executor or administrator may bring against the claimants.(Rule 86, Sec. 5) A money claim is only an incidental matter in the main action for the settlement of the decedent's estate; more so if the claim is contingent since the claimant cannot even institute a separate action for a mere contingent claim. Hence, herein petitioner's contingent money claim, not being an initiatory pleading, does not require a certification against non-forum shopping. (Sheker vs. Estate of Alice Shek er, G.R. No. 157912, December 13, 2007)



Only MONEY CLAIMS may be presented in the testate or intestate proceedings.



NOT ALL MONEY CLAIMS but only those arising upon a liability contracted by decedent before his death.



Claims arising after his death cannot be presented EXCEPT - funeral expenses - expenses for last sickness N.B. Claims arising after decedent’s death may be allowed as expenses of administration.



Execution of final judgment not proper remedy but filing of claim

When judgment in a civil case has become final and executory, execution not proper remedy to enforce payment; claimant should PRESENT CLAIM before probate court ( Domingo vs. Garlitos, June 29, 1963). 

Mandamus not available – immediate payment of claim by the administrator is NOT A MATTER OF RIGHT (Echaus vs. Blanco, 179 SCRA 704 [1985]).



Ordinary action for collection not allowed (Nacar vs. Nistal , 119 SCRA 29)



Judgment appealable (Sec. 13) – judgment of the court approving or disapproving a claim is APPEALABLE as in ordinary actions

Rule 86, Sec. 8 1. If the executor or administrator has a claim against the estate he represents, 2. he shall give notice thereof, in writing, to the court 3. the court shall appoint a special administrator, and 4. the special administrator shall, in the adjustment of such claim, have the same power and be subject to the same liability as the general administrator or executor in the settlement of the estate From an estate proceeding perspective, the Special Administrator’s commission is no less a claim against the estate than a claim that third parties may make. xxx The ruling on the extent of the Special Administrator’s commission – effectively, a claim by the special administrator against the estate – is the lower court’s last word on the matter and one that is appea lable. (Briones vs. Henson-Cruz , G.R. No. 159130, August 22, 2008) SOLIDARY OBLIGATION OF DECEDENT AND MORTGAGE DEBT DUE FROM THE ESTATE Where the obligation of the decedent is solidary with another debtor, the claim shall be filed against the decedent as if he were the only debtor. without prejudice to the right of the estate to recover contribution from the other debtor. In a joint obligation of the decedent, the claim shall be confined to the portion belonging to him. (Sec. 6) Creditor Holding a Claim against the Deceased Secured by Mortgage or Other Collateral Security – He may Special Proceedings Bar Review Guide 2018 by Justice Magdangal M. de Leon. © 2018 by Jurists Review Center Inc. Copying, dissemination, storage, use, modification, uploading, and downloading without the express written consent of Jurists Review Center Inc. is strictly prohibited and shall be subjected to criminal prosecution and administrative charges, including the appropriate complaint with the Bar Confi dant’s Office and IBP. Page 17 of 68

1. Abandon the security and prosecute his claim against the estate and share in the general distribution of the assets of thereof; 2. Foreclose his mortgage or realize upon his security by action in court, making the executor or administrator a party defendant and if there is judgment for deficiency, he may file a contingent claim against the estate within the statute of non-claims; 3. Rely solely on his mortgage and foreclose ( extrajudicial) the same at anytime within the period of the statute of limitations but he cannot be admitted as creditor and shall not receive in the distribution of the other assets of the estate. (Sec. 7) Under the third option, the mortgagee has no right to file a claim for any deficiency (PNB vs. CA, G.R. No. 121597, June 29, 2001) 

These remedies are distinct, independent and mutually exclusive from each other; thus, the election of one effectively bars the exercise of the others.The plain result of adopting the last mode of foreclosure is that the creditor waives his right to recover any deficiency from the estate. Section 7, Rule 86 governs the parameters and the extent to which a claim may be advanced against the estate, whereas Act No. 3135 sets out the specific procedure to be followed when the creditor subsequently chooses the third option – specifically, that of extra-judicially foreclosing real property belonging to the estate. ( Maglasang vs. Manila Banking Corporation , G.R. No. 171206, September 23, 2013)

JUDGMENT APPEALABLE The judgment of the court approving or disapproving a claim shall be appealable.(Sec. 13).

R ule 88 Payment of debts of the estate S ec. 1. Debts paid in full if es tate s uffi cient If a) after hearing all money claims against the estate, and b) after ascertaining the amount of such claims there are sufficient assets to pay the debts, the executor or administrator shall pay the same within the time limited for that purpose

S ec. 2. P art of es tate from which debt paid when provi s ion made by will. S ec. 7. Order of payment if es tate ins olvent If assets which can be appropriated for payment of debts are not sufficient, the executor or administrator shall pay the debts against the estate, observing preference of credits under Arts. 1059, 2239-2251 of Civil Code If Estate is Sufficient General rule: The payment of the debts of the estate must be taken (by order of preference): 1. From the portion or property designated in the will; 2. From the personal property, and 3. From the real property. If there is still a deficiency, it shall be met by contributions by devisees, legatees, or heirs who have been in possession of portions of the estate BEFORE debts and expenses have been settled and paid.(Secs. 13, 6).

The SAME principles apply if the debt of the estate is in another country.




TIME FOR PAYING DEBTS (Secs. 15 & 16) 1. Executor/administrator allowed to pay debts (and legacies) for a period not more than 1 year. 2. Extendible (on application of executor/ administrator and after notice and hearing) – not exceeding 6 months for a single extension. 3. Whole period allowed to original executor/administrator shall not exceed 2 years. 4. Successor of dead executor/administrator may have time extended on notice not exceeding 6 months at a time and not exceeding 6 months beyond the time allowed to original executor/administrator.

S ec. 6. C ourt to fix contributive s hares where devi s ees , leg atees or heirs have been in pos s es s ion.  Where devisees, legatees or heirs have entered into possession or the estate before debts and expenses settled and paid, and  have become liable to contribute for payment of such debts and expenses,  Court may, after hearing, order settlement of their several liabilities and order how much and in what manner each person shall contribute and may issue execution as circumstances require.

NOTE: This provision clearly authorizes execution to enforce payment of the debts of the estate. Legacy is not a debt of the estate – legatees are among those against whom execution is authorized to be issued (Pastor vs. CA, 122 SCRA 885 [1983]). Compare to:

Rule 88, Secs. 15 & 16 Rule 89, Secs. 1-5, 7 (a) referring to payment of debts and/or legacies

As ruled in Pastor, ordered payment of legacy violative of rule requiring prior liquidation of estate (determination of assets of estate and payment of debts and expenses) before apportionment and distributed of residue among heirs; legatees and devisees. Correct rule: Sec. 1 of Rule 90 does not include legacies as among those that should be paid before order of distribution – only debts, funeral charges, expenses of administration, allowance to widow and inheritance tax. After debts and expenses of administration paid, residue given to heirs and those entitled by way of inheritance or legacy (Magbanua vs. Akol , 72 Phil. 567). Purpose of administration – distribution of residue among heirs and legatees after payment of debts and expenses ( Luzon Surety vs. Quebrar , 127 SCRA 301). 

Writ of execution not proper procedure for payment of debts and expenses of administration

Upon motion of the administrator with notice to all heirs, legatees and devisees residing in the Philippines, court shall order sale of personal property or sale or mortgage of real property of the deceased to pay debts and expenses of administration out of the proceeds of the sale or mortgage. Exception: where devisees, legatees or heirs have entered into possession of their respective portions in the estate prior to settlement and payment of debts and expenses (See Sec. 6, Rule 88 above). Payment of Contingent Claims (Secs. 4 & 5)

R ule 87 A ctions by and ag ains t executors and adminis trators


S ec. 1. A ctions which may and which may not be broug ht ag ains t executor or adminis trator. S ec. 2. E xecutor or adminis trator may bri ng or defend actions which s urvive. 1. NOT ALLOWED AGAINST EXECUTOR OR ADMINISTRATOR – action upon claim for recovery of money or debt or interest thereon. - MUST BE AGAINST ESTATE (Secs. 1, 2 & 5, Rule 86) 2. ALLOWED – actions which survive a. Actions to recover real or personal property or interest thereon, or to enforce a lien thereon Civil Case No. 2570 is an action for quieting of title with damages which is an action involving real property. It is an action that survives pursuant to Section 1, Rule 87 as the claim is not extinguished by the death of a party. (Saligumba vs. Palanog , G.R. No. 143365, December 4, 2008) Civil Case No. 3488, which is an action for the recovery of a personal property, a motor vehicle, is an action that survives pursuant to Section 1, Rule 87 of the Rules of Court. As such, it is not extinguished by the death of a party. (Sarsaba vs. Vda. de Te, G.R. No. 175910, July 30, 2009) b. Actions to recover damages for an injury to person or property, real or personal  Executor or administrator may sue upon any cause of action which accrued to the decedent during his lifetime (Bayot vs. Sorbito, 39 Phil. 650).  Any action affecting the property rights of a deceased which may be brought by or against him if he were alive, may be instituted and prosecuted by or against the administrator, unless by its very nature, it cannot survive, because death extinguishes such right.

S ec. 3. Heir (and devis ee) may not sue (ex ecutor or adminis trator to rec over title or pos s ess ion or for damages to property) until s hare ass ig ned. Before distribution is made or before any residue known – heirs and devisees have NO CAUSE OF ACTION against the administrator for recovery of property left by the deceased ( Lao vs. Dee, 90 Phil. 868). 

When heirs may file action in court

General rule: heirs have no legal standing to sue for recovery or protection of property rights of the deceased. Exceptions: 1. Pending the filing of administration proceedings – under Art, 777, rights to succession are transmitted from the moment of death of the decedent. 2. Administration proceedings have already been commenced but administrator has not yet been appointed. 3. Executor or administrator is unwilling or refuses to bring suit. 4. Administrator is alleged to have participated in the act complained of and he is made a party defendant.

S ec. 8. E mbezzlement before letters is s ued. 

Double value rule

If before grant of letters testamentary or of administration, a person embezzles or alienates money or property of the deceased – liable to an action in favor of executor/administrator for DOUBLE THE VALUE of the property sold, embezzled or alienated .


R ule 90 Di s tribution and partition of estate S ec. 1. When order for dis tribution of res idue made 

General rule: distribution of the residue to persons entitled thereto after notice and hearing and after payment of – a. debts b. expenses of administration c. funeral charges d. allowance to widow e. inheritance tax Exception: distribution before payment of obligations provided distributees give BOND conditioned for payment thereof within such time as court directs.

WHEN PROBATE COURT LOSES JURISDICTION Project of partition – Towards the end of the proceedings in a settlement of estate petition, a project of partition is usually prepared and presented to the court. The project of partition is a PROPOSAL for distribution of the hereditary estimates and determines the persons entitled thereto (Moran, Comments on the Rules of Court, 1997 ed., Vol. 3, pp. 688-689) Finality of approval of project of partition by itself does NOT TERMINATE probate proceeding ( Timbol vs. Cano, 1 SCRA 1271). 

Probate court loses jurisdiction of an estate under administration only AFTER payment of all debts and remaining estate DELIVERED to heirs entitled to receive the same ( Guilas vs. Judge of CFI of Pampanga , 43 SCRA 111)

A judicial partition is not final and conclusive and does not prevent the heirs from bringing an action to obtain his share, provided the prescriptive period has not closed ( Mari vs. Bonilla, 83 SCRA 1137). The RTC of Makati, acting as a special commercial court, has no jurisdiction to settle, partition, and distribute the estate of a deceased. A probate court has the power to enforce an accounting as a necessary means to its authority to determine the properties included in the inventory of the estate to be administered, divided up, and distributed. Beyond this, the determination of title or ownership over the subject shares (whether belonging to Anastacia or Oscar) may be conclusively settled by the probate court as a question of collation or advancement. (Reyes vs. RTC Makati , Branch 142, G.R. No. 165744, August 11, 2008) Partial distribution of the estate should not have been allowed. There was no determination on sufficiency of assets or absence of any outstanding obligations of the estate of the late Raymond Triviere made by the RTC in this case. In fact, there is a pending claim by LCN against the estate, and the amount thereof exceeds the value of the entire estate. ( Quasha Ancheta Pena and Nolasco Law Office vs. LCN Construction Corp., G.R. No. 174873, August 26, 2008) Although the right of an heir over the property of the decedent is inchoate as long as the estate has not been fully settled and partitioned, the law allows a co-owner to exercise rights of ownership over such inchoate right. Once an action for the settlement of an estate is filed with the court, the properties included therein are under the control of the intestate court. And not even the administrator may take possession of any property that is part of the estate without the prior authority of the Court. ( Silverio, Jr. vs. Court of Appeals , G.R. No. 178933, September 16, 2009)


To demand his share through a. a proper motion in the same probate or administration proceedings, OR b. motion to reopen if it had already been closed, and not through an independent action which would be tried by another court or judge which might reverse a decision or order of the probate court already final and executed and reshuffle properties long ago distributed and disposed of (Guilas vs. Judge of CFI of Pampanga, infra ).

Four cases illustrate the proper remedy : Vda de Lopez vs. Lopez (G.R. No. L-23915 September 28, 1970 ), Divinagracia vs. Rovira (G.R. No. L-42615 August 10, 1976) , Guillas vs. Judge of CFI of Pampanga (L26695, January 31, 1972 ) and Heirs of Jesus Fran vs. Salas. (G.R. No. L-53546 June 25, 1992)



Lopez compared to Divinagracia :

Both involved the issue of the reglementary period within which NON-PARTIES to the partition, heir, devisee or any person interested in the estate, can reopen the case. Conclusion – if proceeding already closed, motion to reopen may be filed by a non-party deprived of his lawful participation, as long as it is within 30 days (now 15 days) or before order closing the proceedings becomes final. 

Guilas compared to Fran : Both involved PARTIES who have not received their shares.

Conclusion – parties to partition agreement who have not received their shares can file a motion for execution within 5 YEARS. But if other grounds such as forgery of will are raised, final judgment cannot be attacked except through a separate action. The validity of a final judgment can be assailed through a petition for relief under Rule 38, annulment of judgment under Rule 47, and petition for certiorari under Rule 65, assuming the judgment is void for want of jurisdiction. REMEDY OF PRETERITED HEIR The intestate proceedings, although closed and terminated, can still be opened within the prescriptive period upon petition by the preterited heir ( Solivio vs. CA, G.R. No. 83484 February 12, 1990 Prescriptive period – 10 years. Action upon an obligation created by law must be brought within 10 years from the time the right of action accrues (Art. 1144, Civil Code).

As a general rule, a probate court cannot issue a writ of execution. Exceptions: 1. To satisfy the distributive sh ares of devisees, legatees and heirs in possession of the decedent’s assets 2. To enforce payment of the expenses of partition 3, To satisfy the costs when a person is cited for examination in probate proceedings

SEVEN STAGES IN SETTLEMENT OF ESTATE 1. Petition 2. Hearing 3. Court Order 4. Claims Against Estate 5. Payment of Debts of Estate Special Proceedings Bar Review Guide 2018 by Justice Magdangal M. de Leon. © 2018 by Jurists Review Center Inc. Copying, dissemination, storage, use, modification, uploading, and downloading without the express written consent of Jurists Review Center Inc. is strictly prohibited and shall be subjected to criminal prosecution and administrative charges, including the appropriate complaint with the Bar Confi dant’s Office and IBP. Page 22 of 68

6. Distribution and Partition of Estate 7. Closing SETTLEMENT OF ESTATE STAGES I PETITION

Testate

Intestate

Filing of petition for allowance of will – by executor, devisee, legatee, other interested person (Rule 76, Secs. 1 & 2)

Filing of petition for issuance of letters of administration person (Rule 79, Sec. 2)

Order setting petition for hearing Notice of hearing 1. Publication of notice for three consecutive weeks (Rule 76, Sec. 3) 2. Notice by mail or personally to designated or known heirs, legatees, devisees, executor (Rule 76, Sec. 4); known heirs, creditors, other interested persons (Rule 79, Sec. 3)

II HEARING Proof of notice of hearing (Rule 76, Sec. 5) (Rule 79, Sec. 5) Evidence for petitioner 1. 2.

Testimony/ies of subscribing witness/es (Rule 76 Secs. 5 & 11)

Death of decedent Residence at time of death

Decedent left no will or there is no competent and willing executor (Rule 79, Sec. 5) Petitioner is qualified for


appointment (Rule 78, Secs. 1 & 6) Proof when testator is petitioner (Rule 76, Sec. 12) Evidence for Oppositor

File grounds for contest (Rule 76, Sec. 10)

III COURT ORDER Order or decision allowing will or admitting it to probate Certificate of allowance attached to prove will (Rule 76, Sec. 13) Order for issuance of letters testamentary (Rule 78, Sec. 4) Order for issuance of letters of administration (Rule 79, Sec. 5) Issuance of letters by clerk of court Oath of executor or administrator Filing of executor or administrator’s bond (Rule 81, Sec. 1) Filing of inventory within 3 mos. (Rule 81, Sec. 1[a]) Accounting within 1 year (Rule 81, Sec. 1 [c]; Rule 85, Sec. 8) Actions by or against executor or administrator (Rule 87)

IV CLAIMS AGAINST ESTATE Notice of filing of claims – time for filing not more than 12 mos. nor less than 6 mos. from first publication (Rule 86, Secs. 1 & 2) Special Proceedings Bar Review Guide 2018 by Justice Magdangal M. de Leon. © 2018 by Jurists Review Center Inc. Copying, dissemination, storage, use, modification, uploading, and downloading without the express written consent of Jurists Review Center Inc. is strictly prohibited and shall be subjected to criminal prosecution and administrative charges, including the appropriate complaint with the Bar Confi dant’s Office and IBP. Page 24 of 68

Publication of notice for 3 consecutive weeks and posting (Rule 86, Secs. 3 & 4) Filing of claim and answer thereto (Rule 86, Secs. 9 & 10) Trial of contested claim (Rule 86, Sec. 12) Judgment approving or disapproving claim (Rule 86, Sec. 13)

V PAYMENT OF DEBTS OF ESTATE

Debts paid in full if estate sufficient (Rule 88, Sec. 1) Order of payment if estate insolvent (Rule 88, Sec. 7) Order for payment of debts (Rule 88, Sec. 11) Time for payment not to exceed 1 year, extendible for 1 more year (Rule 88, Sec. 15) Sales, mortgages and other encumbrances of property of decedent for paying debts. etc. (Rule 89)

VI DISTRIBUTION AND PARTITION OF ESTATE Rule 90 Approval of final accounting and project of partition Actual distribution or delivery to heirs of their respective shares

VII CLOSING Order declaring proceedings closed Special Proceedings Bar Review Guide 2018 by Justice Magdangal M. de Leon. © 2018 by Jurists Review Center Inc. Copying, dissemination, storage, use, modification, uploading, and downloading without the express written consent of Jurists Review Center Inc. is strictly prohibited and shall be subjected to criminal prosecution and administrative charges, including the appropriate complaint with the Bar Confi dant’s Office and IBP. Page 25 of 68

and terminated -------------------------------------------------

R ule 98 Trustees S ec. 1. When trus tee appointed 1.

2. 3.

A trustee necessary to carry into effect the provisions of a a. Will b. Written instrument shall be appointed by the RTC in which the will is allowed, or RTC of the province in which the property or some portion thereof affected by the trust is situated

 Trust defined A trust is a confidence reposed in one person, called the trustee, for the benefit of another called the cestui que trust, with respect to property held by the former for the benefit of the latter . 

Exercise of sound judgment by the court in the appointment of a trustee

Although the will does not name a trustee, the probate court exercises sound judgment in appointing a trustee to carry into effect the provisions of the will – where a trust is actually created by the will by the provision that certain of the property shall be kept together undisposed during a fixed period and for a stated purpose (Lorenzo v. Posadas, 64 Phil. 353). 

Acquiring the trust by prescription

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 qui trust (Salinas vs. Tuazon, 55 Phil. 729). Rule 98 applies only to express trust, one which is created by will or written instrument, and not to an implied trust, which is deducible from the nature of the transaction as a matter of intent, or which are superinduced on the transaction by operation of law as matters of equity, independent of the particular intention of the parties (O’Lao vs Co Co Chit, 220 SCRA 656).

A trustee, like an executor or administrator, holds an office of trust, particularly when the trustee acts as such under judicial authority. Distinction: (1) duties of executors or administrators are fixed and/or limited by law while those of the trustee of an express trust are usually governed by the intention of the trustor or the parties, if established by contract; (2) duties of trustees may cover a wider range than those of executors or administrators of the estate of deceased persons. ( Araneta vs. Perez , G.R. Nos. L-16185-86, May 31, 1962).

The trustee must file a bond in an amount fixed by the court payable to the Government of the Philippines. Failure to do so shall be cosidered as declining or resigning the trust. Conditions of the bond: 1. Make and return to the court a true inventory of all real and personal estate that at the time of the inventory shall have come to his possession or knowledge 2. Manage and dispose of all such estate according to law and the will of the testator or provisions of the instrument or order under which he was appointed 3. Render a true account of the property in his hands 4. At the expiration of the trust, settle his accounts 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 thereto


The court may remove a trustee on the following grounds: 1. The removal appears essential in the interest of the petitioners 2. The trustee is insane 3. The trustee is otherwise incapable of discharging the trust or is evidently unsuitable to act as one A trustee, whether appointed by the court or under a written instrument, may resign his trust if it appears to the court proper so allow such resignation

a. The powers of a trustee appointed by a Philippine court cannot extend beyond the confines of the territory of the Republic of the Philippines. This is based on the principle that his authority cannot extend beyond the jurisdiction of the country under whose courts he was appointed. b. In the execution of trusts, the trustee is bound to comply with the directions contained in the trust instrument defining the extent and limits of his authority, and the nature of his power and duties.

R ule 91 Escheat 

Escheat defined

Escheat is a proceeding whereby the real and personal property of a deceased person in the Philippines, who died without leaving any will or legal heirs, become the property of the state upon his death. Nature of Escheat Proceedings

-

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

Parties in Escheat Proceedings An escheat proceeding is initiated by the government through the Solicitor General. All interested parties, especially the - actual occupants and - adjacent lot owners shall be personally notified of the proceeding and given opportunity to present their valid claims; otherwise, it will be reverted to the state.

Requisites for filing petition for escheat 1. person died intestate 2. he left properties in the Philippines 3. he left no heirs or persons entitled to the same. 

Where to file Regional Trial Court of the place where the deceased was resident, or in which he had estste, if he was a nonresident.



Parties in a petition for escheat


Escheat proceeding must be initiated by the Solicitor General. All interested parties, especially the actual occupant and the adjacent lot owners shall be personally notified of the proceedings and given the opportunity to present their vaid claims, otherwise the property will be reverted to the State (Tan vs. City of Davao, G.R. No. L-44347, September 26, 1988). 

Notice and Publication (Sec. 2, Rule 91) 1. 2.

Date of hearing not more than 6 months after entry of order. Publication of order at least once a week for 6 consecutive weeks in newspaper of general circulation in the province.

Publication jurisdictional Publication of the notice of hearing is a jurisdictional requisite, non-compliance with which affects the validity of the proceedings ( Divino v. Hilario, 62 Phil. 926). Filing of claim to estate (Sec. 4, Rule 91) 1. Devisee, legatee, widow, widower or other person entitled to such estate who 2. appears and files claim thereto within 5 years from date of judgment (Note: 5-year period is prescribed to encourage would-be claimants to be punctilious in asserting their claims, otherwise they may lose them forever in a final judgment.) 3. shall have possession and title thereto or if sold, municipality or city accountable to him for proceeds, after deducting reasonable charges of care of estate. 4. Claim not made within said time barred forever.

K. Guardianship Guardianship – a trust relation in which one person acts for another whom the law regards as incapable of managing his own affairs. The person who acts is called the guardian and the incompetent is called the ward. 

Basis of Guardianship (Parens Patriae)

Where minors are involved, the State acts as parens patriae. It is the duty of protecting the rights of persons or individuals who because of age or incapability are in an unfavorable position vis-à-vis other parties.  Purpose of Guardianship

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

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

a. Care and custody of person of the ward and b. Management of his estate, or c. Management of his estate only d. The guardian of the estate of a non-resident shall have the management of his estate within the Philippines, and no other court than that in which such guardian was appointed shall have jurisdiction over the guardianship (Sec. 1, Rule 96) KINDS OF GUARDIANS 1) Legal Guardian – such by provision of law without the need for judicial appointment, as in the case of the parents over the persons of their minor children, or in his absence the mother, with respect to the property of the minor children not exceeding P50,000 in value; (2) Guardian ad litem, who is a competent Special Proceedings Bar Review Guide 2018 by Justice Magdangal M. de Leon. © 2018 by Jurists Review Center Inc. Copying, dissemination, storage, use, modification, uploading, and downloading without the express written consent of Jurists Review Center Inc. is strictly prohibited and shall be subjected to criminal prosecution and administrative charges, including the appropriate complaint with the Bar Confi dant’s Office and IBP. Page 28 of 68

person appointed by the court for purposes of a particular action or proceeding involving a minor; (3) the Judicial guardian, or a person appointed by the court for the person and/or property of the ward to represent the latter in all civil acts and litigation . 

Parents as guardians

When the property of the child under parental authority is worth P2,000.00 or less, the father or the mother, without the necessity of court appointment, shall be his legal guardian. When the property of the child is worth more than P2,000.00 , the father or the mother shall be considered guardian of the child’s property, with the duties and obligations of guardians under these Rules, and shall file the petition required by Section 2 hereof. For good reasons, the court may, however, appoint another suitable person.(Sec. 7, Rule 93)  Bond of parents as guardians of property of minor . 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 in such amount as the court may determine, but in no case less than 10% of the value of such property or annual income, to guarantee the performance of the obligations prescribed for general guardians. ( Sec. 16, RGM)

(a) Within 3 months after the issuance of letters of guardianship make inventory of all the property; (b) faithfully execute the duties of the trust; (c) render a true and just account of all the property of the ward; and (d) perform all orders of the court (Sec. 1, Rule 94)

 Governing rule on guardianship of minors

Guardianship of minors as distinguished from ―incompetents‖ other than minority is now governed by the RULE ON GUARDIANSHIP OF MINORS (A.M. No. 003-03-05-SC), effective May 1, 2003. This was promulgated by the Supreme Court pursuant to the Family Courts Act of 1997 ( RA 8369). which vested in the Family Courts exclusive jurisdiction on guardianship of minors.

Sections 1 and 27 of the RGM make it clear that it shall apply only to petitions for guardianship over the person, property or both, of a minor. Petitions for guardianship of incompetents who are not minors shall continue to be governed by Rules 92-97 and heard and tried by regular Regional Trial Courts. Rules 92-97 may therefore be deemed modified by the RGM. Aside from the RGM, the Supreme Court also issued the following rules pursuant to the Family Courts Act: 1. Rule on Examination of a Child Witness (A.M. No. 00-4-07-SC), effective December 15, 2000 2. Rule on Juveniles in Conflict with the Law (A.M.No. 02-1-18-SC), effective April 15, 2002 3. Rule on Commitment of Children (A.M. No. 02-1-19-SC), effective April 15, 2002 4. Rule on Domestic and Inter-Country Adoption (A.M.No. 02-6-02-SC), effective August 22, 2002 5. Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable (A.M. No. 02-11-10-SC), effective March 15, 2003 6. Rule on Legal Separation (A.M. No. 02-11-11-SC), effective March 15, 2003 7. Rule on Provisional Orders (A.M. No. 02 -11-12-SC), effetive March 15, 2003 8. Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Minors (A.M. No. 03-04-04-SC), effective May 15, 2003 9. Rule on Violence Against Women and Their Childen (A.M. No. 04 -10-11-SC), effective November 15, 2004 (following the enactment of RA 9262, An Act Defining Violence against Women and their Children, Providing for Protective Measures for Victims, Prescribing Penalties Therefor, and for Other Purposes, or Anti-VAWCI Law, Special Proceedings Bar Review Guide 2018 by Justice Magdangal M. de Leon. © 2018 by Jurists Review Center Inc. Copying, dissemination, storage, use, modification, uploading, and downloading without the express written consent of Jurists Review Center Inc. is strictly prohibited and shall be subjected to criminal prosecution and administrative charges, including the appropriate complaint with the Bar Confi dant’s Office and IBP. Page 29 of 68

effective March 27, 2004) Minors – those below 18 years old. Incompetents – include a. persons suffering under the penalty of civil interdiction b. hospitalized lepers c. prodigals d. deaf and dumb who are unable to read and write e. those of unsound mind, even though they have lucid intervals f. persons not being of unsound mind, but by reason of age, disease, weak mind, and other similar causes, cannot, without outside aid, take care of themselves and manage their property



Who may petition for appointment of guardian of incompetent ? (Sec. 1, Rule 93)

Relative, friend, or other person on behalf of incompetent who has no parent or lawful guardian, for the appointment of a general guardian for the person or estate or both of such incompetent. 

Who may petition for appointment of guardian of minor? (Sec. 2, RGM)

1. Relative or other person on behalf of the minor 2. Minor himself if 14 years of age or over for the appointment of a general guardian over the person or property, or both, of such minor. The petition may also be filed by the Secretary of Social Welfare and Development and Secretary of Health in the case of an insane minor person who needs to be hospitalized.  Jurisdictional facts (Sec. 2, Rule 93) 1. incompetency of person for whom guardianship is sought; 2. domicile 

Notice of application and hearing (Sec. 3) – NO PUBLICATION REQUIRED

Notice of hearing of the petition shall be served on 1. persons mentioned in the petition residing in the Philippines; 2. incompetent himself * minor if 14 years of age or over (Sec. 8, RGM)

NOTICE IS JURISDICTIONAL Service of notice upon the minor if 14 years of age or over or upon the incompetent is jurisdictional. Without such notice, the court acquired no jurisdiction to appoint a guardian ( Nery vs. Lorenzo, 44 SCRA 431 [1972]). The rules do not necessitate that creditors of the minor or incompetent be likewise identified and notified. The reason is simple: because their presence is not essential to the proceedings for appointment of a guardian. They will only insist that the supposed minor or incompetent is actually capacitated to enter into contracts, so as to preserve the validity of said contracts and keep the supposed minor or incompetent obligated to comply therewith. ( Alamayri vs. Pabale, G.R. No. 151243, April 30, 2008) Grounds of petition (Sec. 4, RGM) 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 Who may be appointed guardian of the ward, or order of preference (Sec. 6. RGM) Special Proceedings Bar Review Guide 2018 by Justice Magdangal M. de Leon. © 2018 by Jurists Review Center Inc. Copying, dissemination, storage, use, modification, uploading, and downloading without the express written consent of Jurists Review Center Inc. is strictly prohibited and shall be subjected to criminal prosecution and administrative charges, including the appropriate complaint with the Bar Confi dant’s Office and IBP. Page 30 of 68

1. surviving grandparent and in case several grandparents survive, the court shall select any of them taking into account all relevant considerations 2. oldest brother or sister of the minor over 21 years of age, unless unfit or disqualitied 3. 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

R ule 102 Habeas C orpus 



To what habeas corpus extends (Sec. 1) 1. All cases of illegal confinement of detention 2. by which any person is deprived of his liberty, or 3. by which the rightful custody of any person is withheld from the

person entitled thereto

Purpose of habeas corpus – relieve a person from unlawful restraint.

Specifically: 1. to obtain immediate relief from illegal confinement 2. to liberate those who may be imprisoned without sufficient cause 3. to deliver them from unlawful custody Essentially a writ of inquiry and is granted to test the right under which a person is detained ( Velasco v. CA, 245 SCRA 677). It is a remedy intended to determine whether the person under detention is held under lawful authority (Sombong vs. CA, G.R. No. 111876, January 31, 1996) Habeas corpus is a summary remedy. It is analogous to a proceeding in rem when instituted for the sole purpose of having the person of restraint presented before the judge in order that the cause of his detention may be inquired into and his statements final.The writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be the unlawful authority.Hence, the only parties before the court are the petitioner (prisoner) and the person holding the petitioner in custody, and the only question to be resolved is whether the custodian has authority to deprive the petitioner of his liberty (Caballes vs. CA, G.R. No. 163108, February 23, 2005)

a. That the person in whose behalf the application is made is imprisoned or restrained of his liberty; b. The officer or name of the person by whom he is so imprisoned or restrained; c. The place where he is so imprisoned or restrained, if known; d. Copy of the commitment or caue of detention of such person. If it can be procured without any legal authority, such fact shall appear. (Sec. 3)

a. Whether he has or has not the party in his custody or power, or under restraint; b. If the party is in his custody or power, or under restraint -- the authority and the true and whole cause thereof, with a copy of the writ, order, execution, or other processes upon which the party is held c. If the party, etc. , and is not produced – nature and gravity of sickness or infirmity d. If the party was in his custody, etc. and has transferred such custody or restraint to another – to whom, at what time, for what cause and by what authority such transfer was made. (Sec. 10)

Peremptory writ of habeas corpus – unconditionally commanding the respondent to have the body of the detained person before the court at a time and place therein specified.


Preliminary citation – requiring the respondent to appear and show cause why the peremptory writ should not be granted. 

Order to produce body not a grant of the remedy of habeas corpus

In a habeas corpus petition, the order to present an individual before the court is a preliminary step in the hearing of the petition. The respondent must produce the person and explain the cause of his detention. However, this order is not a ruling on the propriety of the remedy or on the substantive matters covered by the r emedy. Thus, the Court’s order to the Court of Appeals to conduct a factual hearing was not an affirmation of the propriety of the remedy of habeas corpus. ( In the Matter of the Petition for Habeas Corpus of Alejano vs. Cabuay, G.R. No. 160792, August 25, 2005

a. For asserting or vindicating denial of right to bail (Enrile vs. Salazar, 186 SCRA 217 [1990]) b. For correcting errors in appreciation of facts and/or in the application of law. It is not a writ of error. (Sotto vs. Director of Prisons, May 30, 1962). (Sec. 4) a. When the person alleged to be restrained of his liberty is in the custody of an officer 1. under process issued by a court or judge or 2. by virtue of a judgment or order of a court of record and 3. the court or judge had jurisdiction to issue the process, render the judgment or make the order  the writ shall not be allowed b. When a person is 1. charged with or 2. convicted of an offense or 3. suffering imprisonment under lawful judgment  his discharge shall not be authorized Writ of habeas corpus cannot be issued once person is charged with a criminal offense Under Section 1, Rule 102 of the Rules of Court, the writ of habeas corpus extends to ―all case of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto.‖ The remedy of habeas corpus has one objective: to inquire into the cause of detention of a person, and if found illegal, the court orders the release of the detainee. If, however, the detention is proven lawful, then the habeas corpus proceedings terminate. (In the Matter of the Petition for Habeas Corpus of Kunting, G.R. No. 167193, April 19, 2006) (See Table) WRIT OF DEFINITION

HABEAS CORPUS

AMPARO

HABEAS DATA

“Habeas corpus” is a Latin phrase which literally means ―you have the body.‖ It is a writ directed to the person detaining another, commanding him to produce the body of the prisoner at a designated time and place, with the day and cause of his capture and detention, to do, submit to, and receive whatsoever the court or judge awarding the writ shall consider in that

It is a remedy available to any person whose right to life, liberty, and security has been violated or is threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ covers extralegal killings and enforced disappearances or threats thereof.

It is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing data or information regarding the person, family,


behalf.

AVAILABILITY

Sec. 1

home and correspondence of the aggrieved party. Sec. 1

To all cases of illegal confinement or detention:

To any person whose right to life, liberty and security is violated or threatened with violation 1. By which any person by an unlawful act or is deprived of his liberty; omission of a public or official or employee, or of a private individual or 2. By which the rightful entity. custody of any person is withheld from the person entitled thereto.

Sec. 1 To any person whose right to privacy in 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 engaged in: 1. Gathering 2. Collecting 3. Storing Of data or information regarding the person family, home and correspondence of the aggrieved party.

PETITIONER

Sec. 3

Sec. 2

Sec. 2

By the party for whose relief it is intended, or by some other person in his behalf

By the aggrieved party, General rule: or by any qualified person or entity in the The aggrieved party order provided in Sec. 2 Except: In cases of extralegal killings and enforced disappearances: 1. Immediate family; 2. In default of no. 1, ascendant, descendant or collateral relative within the 4 th civil degree of consanguinity or affinity.

VENUE

If filed with RTC, where detainee is detained

Sec. 3

Sec. 3

SC, CA and SB

SC, CA and SB

RTC of the place where the threat, act or omission was committed or any of its elements occurred.

RTC:

.

1. Where petitioner resides; or 2. Where respondent resides;


or 3. Which has jurisdiction over the place where data or information is gathered, etc. All at the option of petitioner. EXTENT OF ENFORCEABILITY

SC, CA and SB: anywhere in the Philippines

Anywhere in the Philippines

Anywhere in the Philippines

RTC: only within its judicial district WHEN TO FILE/ EXEMPTION FROM DOCKET FEES

SETTING OF HEARING

HOW SERVED

FILING OF RETURN

Sec. 2

Sec. 3

On any day and at any time

On any day and at any time. Petitioner exempt from docket fees

Sec. 12

Sec. 6

Hearing on return

Not later than 7 days Not later than 10 from date of issuance of days from date of writ issuance of writ

Sec. 7

Sec. 8

Sec. 9

Service of the writ shall be 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 custody then the service shall be made on any person having or exercising such custody

If the writ cannot be served personally on respondent, the rules on substituted service shall apply

If the writ cannot be served personally on respondent, the rules on substituted service shall apply

Sec. 10

Sec. 9

Sec. 9

Signed and shall also Verified written return be sworn to if the within 5 work days from prisoner is not produced service of writ

EFFECT OF FAILURE TO FILE RETURN

Indigent petitioner exempt from docket fees Sec. 7

Verified written return within 5 days from service of writ

- cannot be extended except on highly meritorious grounds

-may be reasonably extended by the court for justifiable grounds

Sec. 12

Sec. 14

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

In case respondent fails to return, the court, justice or judge shall proceed


petition ex parte

to hear the petition ex parte, granting petitioner such relief as the petition may warrant unless the court in its discretion requires petitioner to submit evidence.

PROHIBITED PLEADINGS AND MOTIONS

Sec. 11

Sec. 13

(a) Motion to dismiss; (b) Motion for extension of time to file return, opposition, affidavit, position paper and other pleadings; (c) Dilatory motion for postponement; (d) Motion for a bill of particulars; (e) Counterclaim or cross-claim; (f)Third-party complaint; (g)Reply; (h) Motion to declare respondent in default; (i)Intervention; (j)Memorandum; (k)Motion for reconsideration of interlocutory orders or interim relief orders; and (l) Petition for certiorari, mandamus or prohibition against any interlocutory order.

(a) Motion to dismiss; (b) Motion for extension of time to file return, opposition, affidavit, position paper and other pleadings; (c) Dilatory motion for postponement; (d) Motion for a bill of particulars; (e) Counterclaim or cross-claim; (f) Third-party complaint; (g) Reply; (h) Motion to declare respondent in default; (i) Intervention; (j) Memorandum; (k) Motion for reconsideration of interlocutory orders or interim relief orders; and (l) Petition for certiorari, mandamus or prohibition against any interlocutory order.

SUMMARY HEARING

Sec. 13

Sec. 15

The hearing on the petition shall be summary. However, 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.

Same as WOA

The hearing shall be from day to day until Special Proceedings Bar Review Guide 2018 by Justice Magdangal M. de Leon. © 2018 by Jurists Review Center Inc. Copying, dissemination, storage, use, modification, uploading, and downloading without the express written consent of Jurists Review Center Inc. is strictly prohibited and shall be subjected to criminal prosecution and administrative charges, including the appropriate complaint with the Bar Confi dant’s Office and IBP. Page 35 of 68

completed and given the same priority as petitions for habeas corpus. INTERIM RELIEFS

SEC. 12

Sec. 14

1. Unless for good cause shown, the hearing is adjourned, in which event the court shall make an order for the safekeeping of the person imprisoned or restrained as the nature of the case requires;

(a) Temporary Protection Order. (b) Inspection Order. (c) Production Order. (d) Witness Protection Order.

2. The court or judge must be satisfied that the person's illness is so grave that he cannot be produced without any danger. JUDGMENT

APPEAL

Sec. 15

Sec. 18

Sec. 16

When the court or judge has examined into the cause of caption and restraint of the prisoner, and is satisfied that he is unlawfully imprisoned or restrained, he shall forthwith order his discharge from confinement, but such discharge shall not be effective until a copy of the order has been served on the officer or person detaining the prisoner. If the officer or person detaining the prisoner does not desire to appeal, the prisoner shall be forthwith released.

The court shall render judgment within ten (10) days from the time the petition is submitted for decision. If the allegations in the petition are proven by substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the privilege shall be denied.

Same with WOA with an addition that upon finality, the judgment shall be enforced by the sheriff or any lawful officers as may be designated by the court, justice or judge within 5 working days.

Sec. 15 in relation to Sec. 19 Sec. 19 Sec. 3 Rule 41 and Sec. 39 of BP 129: Rule 45 by petition for Same as WOA review on certiorari with 48 hours from notice of peculiar features: judgment appealed from by ordinary appeal 1. Appeal may raise questions of fact or law or both; 2. Period of appeal shall be 5 working days from the date of notice of the adverse judgment;


3. Same priority as habeas corpus cases INSTITUTION OF SEPARATE ACTIONS

EFFECT OF FILING CRIMINAL ACTION

Sec. 21

Sec. 20

This Rule shall not preclude the filing of separate criminal, civil or administrative actions.

Same as WOA

Sec. 2

Sec. 21

When a criminal action Same as WOA has been commenced, no separate petition for the writ shall be filed. The reliefs under the writ shall be available by motion in the criminal case. CONSOLIDATION

Sec. 23

Sec. 22

When a criminal action Same as WOA is filed subsequent to the filing of a petition for the writ, the latter shall be consolidated with the criminal action. When a criminal action and a separate civil action are filed subsequent to a petition for a writ of amparo, the latter shall be consolidated with the criminal action.



Grant of writ

When court is satisfied that prisoner does not desire to appeal, the prisoner shall be forthwith released (Sec. 15, Rule 102)  Period to appeal – within 48 hours from notice of judgment or final order appealed from (A.M.N. 01-1-03-SC, July 19, 2001). 

Habeas corpus as a post-conviction remedy

The writ of habeas corpus applies to all cases of illegal confinement or detention in which individuals are deprived of liberty. The writ may not be availed of when the person in custody is under a judicial process or by virtue of a valid judgment. However, as a post-conviction remedy, it may be allowed when, as a consequence of a judicial proceeding, any of the following exceptional circumstances is attendant: (1) there has been a deprivation of a constitutional right resulting in the restraint of a person; (2) the court had no jurisdiction to impose the sentence; or (3) the imposed penalty has been excessive, thus voiding the sentence as to such excess. (Go vs. Dimagiba, G.R. No. 151876, June 21, 2005 ; Andal v. People, 307 SCRA 605 [1999]) Special Proceedings Bar Review Guide 2018 by Justice Magdangal M. de Leon. © 2018 by Jurists Review Center Inc. Copying, dissemination, storage, use, modification, uploading, and downloading without the express written consent of Jurists Review Center Inc. is strictly prohibited and shall be subjected to criminal prosecution and administrative charges, including the appropriate complaint with the Bar Confi dant’s Office and IBP. Page 37 of 68

In Evangelista vs. Sistoza (G.R. No. 143881, August 9, 2001) , the accused filed a petition for habeas corpus to secure his release from prison, due to the amendment of PD 1866 by RA 8249, reducing the penalty for illegal possession of low powered firearms -- from reclusion temporal in its maximum period to reclusion perpetua, to prision correcccional in its maximum period.The court granted the petition, as he has already served 9 years in prison, more than the maximum term of his imprisonment for robbery. He need not serve anymore his sentence of 18 years of reclusion temporal as minumum to reclusion perpetua as maximum for illegal possession of firearm, in view of said amendment and the ruling in People vs. Ladjaalam. ( G.R. Nos. 136149-51, September 19, 2000).  Retroactive effect of favorable law - People vs. Caco, 269 SCRA 271 (1997)

1. Caco sentenced to life imprisonment for violation of Dangerous Drugs Act (RA 6425) 2. Filed motion for modification of sentence pursuant to RA 7659 and People v. Simon that where marijuana less than 200 grams penalty is prision correccional 3. Petition granted – provisions of RA 7659 favorable to accused should be given retroactive effect. 4. Where decision already final, appropriate remedy of accused to secure release from prison is petition for habeas corpus When constitutional rights disregarded – writ may issue Exceptional remedy to release a person whose liberty is illegally restrained such as when the constitutional rights of the accused are disregarded. Such defect results in the absence or loss of jurisdiction and therefore invalidates the trial and consequent conviction of the accused. That void judgment may be challenged by collateral attack which precisely is the function of habeas corpus.





No right to bail where applicant is serving sentence by reason of final judgment

Respondent judge contends that under Section 14, Rule 102 of the Rules of Court, he has the discretion to allow Te to be released on bail. However, the Court reiterates its pronouncement in its Resolution of February 19, 2001 in G.R. Nos. 145715-18 that Section 14, Rule 102 of the Rules of Court applies only to cases where the applicant for the writ of habeas corpus is restrained by virtue of a criminal charge against him and not in an instance, as in the case involved in the present controversy, where the applicant is serving sentence by reason of a final judgment. (Vicente vs. Majaducon, A.M. No. RTJ-02-1698 (Formerly OCA IPI No. 00-1024-RTJ), June 23, 2005)  Effect of filing of charges in court

Bernarte vs. CA, 263 SCRA 323 (1996) 1. Once person detained is duly charged in court, he may no longer question his detention by petition for habeas corpus 2. Remedy: motion to quash the information and/or warrant of arrest . Office of the Solicitor General vs. Judge de Castro, A.M. No. RTJ-06-2018 (Formerly Adm. Matter OCA-IPI No. 05-2360-RTJ), August 3, 2007 Once a person detained is duly charged in court, he may no longer question his detention through a petition for issuance of a writ of habeas corpus . His remedy would be to quash the information and/or the warrant of arrest duly issued. The writ of habeas corpus should not be allowed after the party sought to be released had been charged before any court. The term “court” includes quasi-judicial bodies or governmental agencies authorized to order the person’s confinement, like the Deportation Board of the Bureau of Immigration. The provisional or temporary release of Gao Yuan also effectively granted the petition for habeas corpus insofar as the discharge of the detainee is concerned, since the main prayer in a petition for habeas corpus relates to the release or discharge of the detainee. The general rule is that the release, whether permanent or temporary, of a detained person renders the petition for habeas corpus moot and academic .Go, Sr. vs. Ramos, G.R. No. 167569, September 4, 2009 The writ of habeas corpus should not be allowed after the party sought to be released had been charged before any court. The term ―court‖ in this context includes qu asi-judicial bodies of governmental Special Proceedings Bar Review Guide 2018 by Justice Magdangal M. de Leon. © 2018 by Jurists Review Center Inc. Copying, dissemination, storage, use, modification, uploading, and downloading without the express written consent of Jurists Review Center Inc. is strictly prohibited and shall be subjected to criminal prosecution and administrative charges, including the appropriate complaint with the Bar Confi dant’s Office and IBP. Page 38 of 68

agencies authorized to order the person’s confinement, like the Deportation Board of the Bureau of Immigration. Likewise, the cancellation of his bail cannot be assailed via a petition for habeas corpus. When an alien is detained by the Bureau of Immigration for deportation pursuant to an order of deportation by the Deportation Board, the Regional Trial Courts have no power to release such alien on bail even in habeas corpus proceedings because there is no law authorizing it. Velasco vs. CA, 245 SCRA 667 (1995) Even if arrest illegal, supervening events may bar his release or discharge from custody, such as filing of complaint and issuance of order denying petition to bail. 

Absence of preliminary investigation not ground for habeas corpus

Paredes vs. SB, 193 SCRA 464: absence of preliminary investigation not a ground for habeas corpus. Remedy: motion to quash warrant of arrest and/or information, or ask for investigation/reinvestigation Note: Rule 114, Sec. 26 of 2000 Revised Rules of Criminal Procedure: Bail not a bar to objections on illegal arrest, lack of or irregular preliminary investigation, provided he raises them BEFORE entering his plea.

Petitioner was detained pursuant to a final judgment of the Quezon City RTC convicting him for the crimes of carnapping and illegal possession of firearms. He is therefore not entitled to the writ of habeas corpus. The rule is that if a person alleged to be restrained of his liberty is in custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a court of record the writ of habeas corpus will not be allowed. (Barredo vs. Vinarao,. G.R. No. 168728, August 2, 2007)

In general, the purpose of the writ of habeas corpus is to determine whether or not a particular person is legally held. A prime specification of an application for a writ of habeas corpus, in fact, is an actual and effective, and not merely nominal or moral, illegal restraint of liberty. (In the Matter of the Petition of Habeas Corpus of Eufemia Rodriguez vs. Luisa Villanueva, G.R. No. 169482, January 29, 2008) Strict compliance with the technical requirements for a habeas corpus petition as provided in the Rules of Court may be dispensed with where the allegations in the application are sufficient to make out a case for habeas corpus. Nonetheless, we agree with the OSG that petitioner is not entitled to the issuance of the writ. A convict may be released on parole after serving the minimum period of his sentence. However, the pendency of another criminal case is a ground for the disqualification of such convict from being released on parole. (Fletcher vs. The Director of Bureau of Corrections , UDK-14071, July 17, 2009) Habeas corpus in custody cases Habeas corpus may be resorted to in cases where rightful custody is withheld from a person entitled thereto. Under Article 211 of the Family Code, respondent Loran and petitioner Marie Antonette have joint parental authority over their son and consequently joint custody. Further, although the couple is separated de facto, the issue of custody has yet to be adjudicated by the court. In the absence of a judicial grant of custody to one parent, both parents are still entitled to the custody of their child. In the present case, private respondent’s cause of action is the deprivation of his right to see his child as alleged in his petition. Hence, the remedy of habeas corpus is available to him. In a petition for habeas corpus, the child’s welfare is the supreme consideration. The Child and Youth Welfare Code unequivocally provides that in all questions regarding the care and custody, among others, of the child, his welfare shall be the paramount consideration. ( Salientes vs. Abanilla, G.R. No. 162734, August 29, 2006) A writ of habeas corpus extends to all cases of illegal confinement or detention or by which the rightful custody of person is withheld from the one entitled thereto. Respondent, as the judicial guardian of Lulu, was duty-bound to care for and protect her ward. For her to perform her obligation, respondent must have


custody of Lulu. Thus, she was entitled to a writ of habeas corpus after she was unduly deprived of the custody of her ward. (Hernandez vs. San Juan-Santos, G.R. No. 166470, August 7, 2009) 

Marital rights including co-venture and living in conjugal dwelling may not be enforced by the extraordinary writ of habeas corpus. (Ilusorio vs. Bildner, et.al., G.R. No. 139808, May 12, 2000) (A.M. No.

03-04-04-SC) – took effect May 15, 2003 a. A verified petition for the rightful custody of a minor may be filed by any person claiming such right. The petition shall be filed with the Family Court of the province or city where the petitioner resides or where the minor may be found. b. After trial, the court shall render judgment awarding custody of the minor to the proper party considering the best interests of the minor. c. However, if it appears that 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 for children. d. The court may 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. 

Court of Appeals has jurisdiction to issue writs of habeas corpus in cases involving custody of minors

There is nothing in RA 8369 which revoked the Court of Appeals’ jurisdiction to issue writs of hab eas corpus involving the custody of minors. ( In the Matter of Application for the Issuance of a Writ of Habeas Corpus: Thornton vs. Thornton , G.R. No. 154598, August 16, 2004) In fact, the Court of Appeals and Supreme Court have concurrent jurisdiction with family courts in habeas corpus cases where the custody of minors is involved. ( Madriňan vs. Madriňan , G.R. No. 159374, July 12, 2007)

- October 24, 2007 Nature of the writ of amparo The remedy of the Writ of Amparo is an equitable and extraordinary remedy to safeguard the right of the people to life, liberty and security as enshrined in the 1987 Constitution.The Rule on the Writ of Amparo was issued as an exercise of the Supreme Court's power to promulgate rules concerning the protection and enforcement of constitutional rights. It aims to address concerns such as, among others, extrajudicial killings and enforced disappearances. (De Lima vs. Gatdula, G.R. No. 204528, February 19, 2013) The privilege of the writ of amparo is a remedy available to victims of extra-judicial killings and enforced disappearances or threats of similar nature, regardless of whether the perpetrator of the unlawful act or omission is a public official or employee or a private individual. ( Rubrico vs. Arroyo, G.R. No. 183871, February 18, 2010) The remedy of the writ of amparo provides rapid judicial relief as it partakes of a summary proceeding that requires only substantial evidence to make the appropriate reliefs available to the petitioner; it is not an action to determine criminal guilt requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of evidence, or administrative responsibility requiring substantial evidence that will require full and exhaustive proceedings. (Secretary of National Defense vs. Manalo , G.R. No. 180906, October 7, 2008) (See Table under Definition) 

―Extralegal killings‖ – killings committed without due process of law, i.e., without legal safeguards or judicial proceedings.



―Enforced disappearances‖ – attended by the following characteristics: 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; 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.

The production order under the Amparo Rule should not be confused with a search warrant or law enforcement under Art. III, Sec. 2 of the Constitution. The Constitutional provision is a protection of the people from the unreasonable intrusion of the government, not a protection of the government from the demand of the people as such respondents. Instead, the amparo production order may be limited to the production of documents or things under Sec. 1, Rule 27 of the Rules of Civil Procedure ( Secretary of National Defense vs. Manalo, G.R. No. 180906, October 7, 2008). (See Table)

(a) Lawful defenses to show that respondent did not violate or thereaten with violation the right to life, liberty or security of the aggrieved party, through any act or omisson . (b) Steps or actions taken by the respondent to determine the facts or whereabouts of the aggrieved party and person /s responsible for the threat, act or omission; (c) All relevant information in the possession of respondent pertaining to the threat, act or omission against the aggrieved party; (d) If respondent is a public official or employee, the return shall further state the actions that have been or will be taken: (i) to verify the identity of the aggrieved party; (ii) to recover and preserve evidence related to the death or disappearance of the person identified in the petition which may aid in the prosecution of the person or persons responsible; (iii) to identify witnesses and obtain statements from them concerning the death or disappearance (iv) to determine the cause, manner, location and time of death or disappearance as well as any pattern or practice that may have brought about the death or disappearance; (v) to identify and apprehend the person or persons involved in the death or disappearance; and (vi) to bring the suspected offenders before a competent court. A general denial of the allegations in the petition shall not be allowed. (See Table)

Defenses Not Pleaded Deemed Waived . --All defenses shall be raised in the return, otherwise, they shall be deemed waived (Sec. 10). (See Table on Summary Hearing) Judgment – Sec. 18 (See Table) 1. The court shall render judgment within ten (10) days from the time the petition is submitted for decision. 2. If the allegations in the petition are proven by substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate; 3. Otherwise, the privilege shall be denied. Appeal – Sec. 19 (See Table) (See Table) (See Table ) (See Table) Special Proceedings Bar Review Guide 2018 by Justice Magdangal M. de Leon. © 2018 by Jurists Review Center Inc. Copying, dissemination, storage, use, modification, uploading, and downloading without the express written consent of Jurists Review Center Inc. is strictly prohibited and shall be subjected to criminal prosecution and administrative charges, including the appropriate complaint with the Bar Confi dant’s Office and IBP. Page 41 of 68

(See Table)

Burden of proof and standard of dilligence required – The parties shall establish their claims by substantial evidence. Respondent private individual or entity – prove that ordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. Respondent public official or employee – prove that extraordinary diligence as required, etc. was observed in the performance of duty. - cannot invoke presumption that official duty has been regularly performed to evade ressponsibility or liability (Sec. 17) 

Both preventive and curative

It is preventive in that it breaks the expectation of impunity in the commission of these offenses; it is curative in that it facilitates the subsequent punishment of perpetrators as it will inevitably yield leads to subsequent investigation and action. 

Jurisprudence

The privilege of the Writ of A mparo should be distinguished from the actual order called the Writ of Amparo. The privilege includes availment of the entire procedure outlined in A.M. No. 07-9-12-SC, the Rule on the Writ of Amparo. After examining the petition and its attached affidavits, the Return and the evidence presented in the summary hearing, the judgment should detail the required acts from the respondents that will mitigate, if not totally eradicate, the violation of or the threat to the petitioner's life, liberty or security. (De Lima vs. Gatdula, G.R. No. 204528, February 19, 2013) The writ of amparo partakes of a summary proceeding that requires only substantial evidence to make the appropriate interim and permanent reliefs available to the petitioner. As explained in the Decision, it is not an action to determine criminal guilt requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of evidence, or even administrative responsibility requiring substantial evidence. The totality of evidence as a standard for the grant of the writ was correctly applied by this Court, as first laid down in Razon v. Tagitis: The fair and proper rule, to our mind, is to consider all the pieces of evidence adduced in their totality, and to consider any evidence otherwise inadmissible under our usual rules to be admissible if it is consistent with the admissible evidence adduced. In other words, we reduce our rules to the most basic test of reason – i.e., to the relevance of the evidence to the issue at hand and its consistency with all other pieces of adduced evidence. Thus, even hearsay evidence can be admitted if it satisfies this basic minimum test. (Rodriguez vs. Arroyo, G.R. No. 191805, April 16, 2013) What is prohibited under Section 11 of A.M. No. 07-9-12-SC are motions for reconsideration directed against interlocutory orders or interim relief orders , not those assailing the final judgment or order. The pleadings and motions enumerated in Section 11 of A.M. No. 07-9-12-SC would unnecessarily cause delays in the proceedings; they are, thus, proscribed since they would run counter to the summary nature of the rule on the writ of amparo. A motion seeking a reconsideration of a final judgment or order in such case, obviously, no longer affects the proceedings. Nevertheless, considering that under Section 19 of A.M. No. 07-9-12-SC a party is only given five working days from the date of notice of the adverse judgment within which to appeal to this Court through a petition for review on certiorari , a motion for reconsideration of a final judgment or order must likewise be filed within the same period . Thereafter, from the order denying or granting the motion for reconsideration, the party concerned may file an appeal to the Court via a Rule 45 petition within five working days from notice of the order pursuant to the fresh period rule A writ of amparo may still issue in the respondent's favor notwithstanding that he has already been released from detention. In such case, the writ of amparo is issued to facilitate the punishment of those behind the illegal detention through subsequent investigation and action.


The writ of amparo likewise covers violations of the right to security . At the core of the guarantee of the right to security, as embodied in Section 2, Article III of the Constitution, is the immunity of one's person, including the extensions of his/her person, i.e., houses, papers and effects, against unwarranted government intrusion. Section 2, Article III of the Constitution not only limits the State's power over a person's home and possession, but more importantly, protects the privacy and sanctity of the person himself. The right to security is separate and distinct from the right to life. The right to life guarantees essentially the right to be alive - upon which the enjoyment of all other rights is preconditioned. On the other hand, the right to security is a guarantee of the secure quality of life, i.e. , the life, to which each person has a right, is not a life lived in fear that his person and property may be unreasonably violated by a powerful ruler .(Mamba vs. Bueno, G.R. No. 191416, February 7, 2017) Proceedings on a writ of amparo may be archived for a valid cause, as when witnesses fail to appear due to threats on their lives or analogous causes, or when the attendant investigation reaches an impasse. (Balao vs. Ermita, G.R. Nos. 186050 &186059, August 1, 2017) The threatened demolition of a dwelling by virtue of a final judgment of the court is not included among the enumeration of rights for which the remedy of a writ of amparo is made available. Their claim to their dwelling, assuming they still have any despite the final and executory judgment adverse to them, does not constitute right to life, liberty and security. There is, therefore, no legal basis for the issuance of the writ of amparo. (Canlas vs. Napico Homeowners Association I – XIII, Inc.,. G.R. No. 182795, June 5, 2008)

Here, the restriction on petitioner’s right to travel as a consequence of the pendency of the criminal case filed against him was not unlawful. Petitioner has also failed to establish that his r ight to travel was impaired in the manner and to the extent that it amounted to a serious violation of his right to life, liberty and security, for which there exists no readily available legal recourse or remedy. (Issuance of Hold Departure Order against Fr. Robert Reyes, who was among those charged with rebellion in connection with the Manila Peninsula siege) Reyes vs. Gonzales, G.R. No. 182161, December 3, 2009 An inspection order is an interim relief designed to give support or strengthen the claim of a petitioner in an amparo petition, in order to aid the court before making a decision. A basic requirement before an amparo court may grant an inspection order is that the place to be inspected is reasonably determinable from the allegations of the party seeking the order. In this case, the issuance of inspection order was properly denied since the petitioners specified several military and police establishments based merely on the allegation that the testimonies of victims and witnesses in previous incidents of similar abductions involving activists disclosed that those premises were used as detention centers. In the same vein, the prayer for issuance of a production order was predicated on petitioners’ bare allegation that it obtained confidential information from an unidentified military source, that the name of James was included in the socalled Order of Battle. Indeed, the trial court could not have sanctioned any "fishing expedition" by precipitate issuance of inspection and production orders on the basis of insufficient claims of one party. Balao vs. Arroyo, G.R. No. 186050, December 13, 2011 – February 2, 2008 The writ of habeas data provides a judicial remedy to protect a person’s right to control information regarding oneself, particularly in instances where such information is being collected through unlawful means in order to achieve unlawful ends. As an independent and summary remedy to protect the right to privacy – especially the right to informational privacy – the proceedings for the issuance of the writ of habeas data does not entail any finding of criminal, civil or administrative culpability . If the allegations in the petition are proven through substantial evidence, then the Court may (a) grant access to the database or information; (b) enjoin the act complained of; or (c) in case the database or information contains erroneous data or information, order its deletion, destruction or rectification. Rodriguez vs. Arroyo, G.R. No. 191805, November 15, 2011 The writ of habeas data is an independent and summary remedy designed to protect the image, privacy, honor, information, and freedom of information of an individual, and to provide a forum to enforce one’s right to the truth and to informational privacy . It seeks to protect a person’s right to control information regarding oneself, particularly in instances in which such information is being collected through Special Proceedings Bar Review Guide 2018 by Justice Magdangal M. de Leon. © 2018 by Jurists Review Center Inc. Copying, dissemination, storage, use, modification, uploading, and downloading without the express written consent of Jurists Review Center Inc. is strictly prohibited and shall be subjected to criminal prosecution and administrative charges, including the appropriate complaint with the Bar Confi dant’s Office and IBP. Page 43 of 68

unlawful means in order to achieve unlawful ends . It must be emphasized that in order for the privilege of the writ to be granted, there must exist a nexus between the right to privacy on the one hand, and the right to life, liberty or security on the other. Gamboa vs. Chan, G.R. No. 193636, July 24, 2012 (See Table under Definition) (See Table under Availability) (See Table) (See Table)

(a) The personal circumstances of the petitioner and the respondent; (b) The manner the right to privacy is violated or threatened and how it affects the right to life, liberty or security of the aggrieved party; (c) The actions and recourses taken by the petitioner to secure the data or information; (d) The location of the files, registers or databases, the government office, and the person in charge, in possession or in control of the data or information, if known; (e) The reliefs prayed for, which may include the updating, rectification, suppression or destruction of the database or information or files kept by the respondent. In case of threats, the relief may include a prayer for an order enjoining the act complained of; and (f) Such other relevant reliefs as are just and equitable (Sec. 6). Issuance of the Writ - Sec. 6 Upon the filing of the petition, 1. the court, justice or judge shall immediately order the issuance of the writ if on its face it ought to issue. 2. The clerk of court shall issue the writ under the seal of the court; or in case of urgent necessity, 3. 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.

(a) Lawful defenses such as national security, state secrets, privileged communication, confidentiality of the source of information of media and others; (b) If respondent in charge, in possession or in control of the data or information subject of the petition -(i) a disclosure of the data or information about petitioner, nature of such data or information, and purpose of its collection; (ii) steps or actions taken by respondent to ensure the security and confidentiality of the data or information; (iii) currency and accuracy of the data and information held; and (c) other allegations relevant to the resolution of the proceeding; A general denial of the allegations in the petition shall not be allowed. Omnibus waiver rule – Sec. 10 Defenses Not Pleaded Deemed Waived . -- All defenses shall be raised in the return, otherwise, they shall be deemed waived 

Hearing in chambers may be conducted where respondent invokes the defense that the release of the data or information shall compromise national security or state secrets, or when the data or information cannot be divulged to the public due its nature or privileged character (Sec.12). Judgment – Sec. 18 (See Table) Special Proceedings Bar Review Guide 2018 by Justice Magdangal M. de Leon. © 2018 by Jurists Review Center Inc. Copying, dissemination, storage, use, modification, uploading, and downloading without the express written consent of Jurists Review Center Inc. is strictly prohibited and shall be subjected to criminal prosecution and administrative charges, including the appropriate complaint with the Bar Confi dant’s Office and IBP. Page 44 of 68

1. The court shall render judgment within ten (10) days from the time the petition is submitted for decision. 2. If the allegations in the petition are proven by substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate; 3. Otherwise, the privilege shall be denied. Appeal – Sec. 19 (See Table) (SeeTable) (See Table) (See Table) 

Jurisprudence This Court rules that Gamboa was unable to prove through substantial evidence that her inclusion in the list of individuals maintaining PAGs (private armed groups) made her and her supporters susceptible to harassment and to increased police surveillance. In this regard, respondents sufficiently explained that the investigations conducted against her were in relation to the criminal cases in which she was implicated. As public officials, they enjoy the presumption of regularity, which she failed to overcome. It is clear from the foregoing discussion that the state interest of dismantling PAGs far outweighs the alleged intrusion on the private life of Gamboa, especially when the collection and forwarding by the PNP of information against her was pursuant to a lawful mandate. Therefore, the privilege of the writ of habeas data must be denied. Gamboa vs. Chan, G.R. No. 193636, July 24, 2012

Castillo v. Cruz underscores the emphasis laid down in Tapuz v. del Rosario that the writs of amparo and habeas data will NOT issue to protect purely property or commercial concerns nor when the grounds invoked in support of the petitions therefor are vague or doubtful. Employment constitutes a property right under the context of the due process clause of the Constitution. It is evident that respondent’s reservations on the real reasons for her transfer - a legitimate concern respecting the terms and conditions of one’s employment - are what prompted her to adopt the extraordinary remedy of habeas data. Jurisdiction over such concerns is inarguably lodged by law with the NLRC and the Labor Arbiters. In another vein, there is no showing from the facts presented that petitioners committed any unjustifiable or unlawful violation of respondent’s right to privacy vis-a-vis the right to life, liberty or security. To argue that petitioners’ refusal to disclose the contents of reports allegedly received on the threats to respondent’s safety amounts to a violat ion of her right to privacy is at best speculative. Respondent in fact trivializes these threats and accusations from unknown individuals in her earlier-quoted portion of her July 10, 2008 letter as "highly suspicious, doubtful or are just mere jokes if they existed at all." And she even suspects that her transfer to another place of work "betray[s] the real intent of management]" and could be a "punitive move." Her posture unwittingly concedes that the issue is labor-related. Manila Electric Company vs. Lim, G.R. No. 184769, October 5, 2010 The writ of habeas data can be availed of as an independent remedy to enforce one’s right to privacy, more specifically the right to informational privacy. The remedies against the violation of such right can include the updating, rectification, suppression or destruction of the database or information or files in possession or in control of respondents. STC did not violate petitioners’ daughters’ right to privacy . There can be no quibbling that the images in question, or to be more precise, the photos of minor students scantily clad, are personal in nature, likely to affect, if indiscriminately circulated, the reputation of the minors enrolled in a conservative institution. However, the records are bereft of any evidence, other than bare assertions that they utilized Facebook’s privacy settings to make the photos visible only to them or to a select few. Without proof that they placed the photographs subject of this case within the ambit of their protected zone of privacy, they cannot now insist that they have an expectation of privacy with respect to the photographs in question. Had it been proved that the access to the pictures posted were limited to the original uploader, through the ―Me Only‖ privacy setting, or that the user’s contact list has been screened to limit access to a select few, through the ―Custom‖ setting, the result may have been different, for in such instances, the intention to limit access to the particular post, instead of being broadca sted to the public at large or all the user’s friends


en masse, becomes more manifest and palpable. ( Vivares vs. St. Theresa’s College , G.R. No. 202666, September 29, 2014 ) As defined in Section 1 of the Habeas Data Rule, the writ of habeas data now stands as ―a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home, and correspondence of the aggrieved party .‖ Thus, in order to support a petition for the issuance of such writ, Section 6 of the Habeas Data Rule essentially requires that the petition sufficiently alleges, among others, “[t]he manner the right to privacy is violated or threatened and how it affects the right to life, liberty or security of the aggrieved party.” In other words, the petition must adequately show that there exists a nexus between the right to privacy on the one hand, and the right to life, liberty or security on the other . Corollarily, the allegations in the petition must be supported by substantial evidence showing an actual or threatened violation of the right to privacy in life, liberty or security of the victim. In this relation, it bears pointing out that the writ of habeas data will not issue to protect purely property or commercial concerns nor when the grounds invoked in support of the petitions therefor are vague and doubtful. In this case, the Court finds that Ilagan was not able to sufficiently allege that his right to privacy in life, liberty or security was or would be violated through the supposed reproduction and threatened dissemination of the subject sex video . While Ilagan purports a privacy interest in the suppression of this video – which he fears would somehow find its way to Quiapo or be uploaded in the internet for public consumption – he failed to explain the connection between such interest and any violation of his right to life, liberty or security. Indeed, courts cannot speculate or contrive versions of possible transgressions. As the rules and existing jurisprudence on the matter evoke, alleging and eventually proving the nexus between one’s privacy right to the cogent rights to life, liberty or security are crucial in habeas data cases, so much so that a failure on either account certainly renders a habeas data petition dismissible, as in this case. (Lee vs. Ilagan, G.R. No. 203254, October 8, 2014)

R ule 103 C hang e of Name 

Purpose of Rule

Under Art. 376, Civil Code – no person can change his name or surname without juridical authority Involving substantial changes, objective is the prevention of fraud. 

Nature of proceeding

To establish the status of a person involving his relation with others, that is, his legal position in, or, with regard to the rest of the community  Who may file petition ―Person‖ – all natural persons regardless of status. Includes 1. Alien - - domiciled in the Philippines, not one temporarily staying (Ong Huan Ting vs. Rep., G.R. No. L-20997, April 27, 1967) 2. Adopted child (Rep. v. Wong, 209 SCRA 189) 

Venue - Sec. 1 Regional Trial Court of place in which petitioner resides.

 Order for hearing – Sec. 3 1. If petition sufficient in form and substance, 2. The court, by an order reciting the purpose of the petition, shall a. fix a date and place for the hearing thereof, b. direct that copy of the order be published at least once a week for 3 successive weeks Special Proceedings Bar Review Guide 2018 by Justice Magdangal M. de Leon. © 2018 by Jurists Review Center Inc. Copying, dissemination, storage, use, modification, uploading, and downloading without the express written consent of Jurists Review Center Inc. is strictly prohibited and shall be subjected to criminal prosecution and administrative charges, including the appropriate complaint with the Bar Confi dant’s Office and IBP. Page 46 of 68

in a newspaper of general circulation 3. The date set for hearing shall not be a. within 30 days prior to an election nor b. within 4 months after the last publication of the notice 

Jurisdictional requirements 1. Publication of petition for 3 consecutive weeks in newspaper, etc . 2. Both title or caption and body shall recite a. name or names or alias of applicant b. cause for which change of name is sought c. new name asked for Reason: change of name a matter of public interest - petitioner might be in rogues gallery or hiding to avoid service of sentence or escaped from prison - if alien might have given case for deportation, or subject of deportation order

Rule 103

Rule 108

R.A. 9048

Rule or Law

Change of Name

Cancellation/ Correction Clerical Error Act of Entries in the Civil Registry

Subject Matter

Change of full name or Cancellation or family name (substantial correction of civil corrections) registry entries (substantial corrections)

Change of first name or nickname and corrrection of civil registry entries (only typographical or clerical errors)

Who may File

A person desiring to change his name. (Section 1)

Any person having direct and personal interest in the correction of a clerical or typographical error in an entry and/or change of first name or nickname. (Section 3)

Venue

RTC of the province in RTC of city or province which petitioner resided where the for 3 years prior to filing. corresponding civil registry is located.

Any person interested in any act, event, order or decree concerning the civil status of persons which has been recorded in the civil register. (Section 1)

1. Local civil registry office of the city or municipality where the record being sought to be corrected or changed is kept; 2. Local civil registrar of the place where the interested party is presently residing or domiciled; 3. Philippine Consulate

Contents of petition

(a) That petitioner has been a bona fide resident of the province where the petition is filed for at least three (3) years prior to the date of such filing;

(a) Facts necessary to establish the merits of petition; (b) Particular erroneous entry or entries, which are sought to be


corrected and/or the change sought to be made.

(b) The cause for which the change of petitioner's name is sought;

Petition shall be supported by the following documents:

(c) The name asked for. (Section 2)

(1) A certified true machine copy of the certificate or of the page of the registry book containing the entry or entries sought to be corrected or changed; (2) At least two (2) public or private documents showing the correct entry or entries upon which the correction or change shall be based; and (3) Other documents which petitioner or the city or municipal civil registrar or the consul general may consider relevant and necessary for the approval of petition. (Section 5) Grounds

1. Name is ridiculous, Upon good and valid tainted with dishonor grounds. and extremely difficult to write of pronounce; 2. Consequence of change of status;

2. The new first name or nickname has been habitually and continuously used by petitioner and he has been publicly known by that first name or nickname in the community; or

3. Necessity to avoid confusion; 4. Having continuously used and been known since childhood by a Filipino name, unaware of her alien parentage; 5. A sincere desire to adopt a Filipino name to erase signs of former alienage all in good faith and without prejudicing anybody. Kind of proceeding

Judicial Proceeding

1. Petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce;

3. The change will avoid confusion. (Section 4)

Judicial Proceeding

Administrative Proceeding

Adversarial in nature because involves Special Proceedings Bar Review Guide 2018 by Justice Magdangal M. de Leon. © 2018 by Jurists Review Center Inc. Copying, dissemination, storage, use, modification, uploading, and downloading without the express written consent of Jurists Review Center Inc. is strictly prohibited and shall be subjected to criminal prosecution and administrative charges, including the appropriate complaint with the Bar Confi dant’s Office and IBP. Page 48 of 68

substantial changes and affects the status of an individual What to file

File a signed and verified petition.

File a verified petition for the cancellation or correction of any entry.

File an affidavit.

. Notice and Publication

At least once a week for three consecutive weeks in a newspaper circulation (notice of hearing)

At least once a week for three consecutive weeks in a newspaper of general circulation (notice of hearing)

At least once a week for two consecutive weeks (publish the whole affidavit) – in change of first name or nickname

Posting

No posting

No posting

Duty of the civil registrar or Consul to post petition in a conspicuous place for 10 consecutive days

Who participates on the The Solicitor General or The Civil Registrar. part of the Government the proper provincial or city fiscal shall appear on behalf of the Government of the Republic.

The CivilRegistrar or Consul.

Where to appeal:

Appeal decision to the Civil Registrar General (head of NCSO).

Appeal decision to the Court of Appeals.

Appeal decision to the Court of Appeals.

The State has an interest in the names borne by individuals and entities for purposes of identification. A change of name is a privilege and not a right, so that before a person can be authorized to change his name, he must show proper or reasonable cause, or any compelling reason which may justify such change. Grounds for change of name which have been held valid: 1) Name is ridiculous, dishonorable, or extremely difficult to write or pronounce; 2) Change results as a legal consequence, as in legitimation; 3) Change will avoid confusion; 4) When one has continuously used and been known since childhood by a Filipino name, and was unaware of alien parentage; 5) Sincere desire to adopt Filipino name to erase signs of former alienage, all in good faith and without prejudicing anybody; 6) Surname causes embarrassment and there is no showing that the desired change of name was for a fraudulent purpose or that the change of name would prejudice public interest. 

Other cases

Under Art. 176 of the Civil Code, Giovanni is entitled to change his name as he was never recognized by his father while his mother has always recognized him as her child. A change of name will erase the impression that he was ever recognized by his father. It is also his best interest as it will facilitate his mother’s intended petition to have him join her in the United States. The Court will not stand in the way of the reunification of moter and son. (Republic of the Philippines vs. Capote, G.R. No. 157043, February 2, 2007) Middle names serve to identify the maternal lineage or filiation of a person as well as further distinguish him from others who may have the same given name and surname as he has. In the case at bar, the only reason advanced by petitioner for dropping his middle name is convenience ( In Re Petition for Change of


Name and/or Correction/Cancellation of Entry of Civil Registry of Julian Lin Carulasan Wang , G.R. No. 159966, March 30, 2005) A person’s first name cannot be changed on the ground of sex reassignment Petitioner sought to have his name in his birth certificate changed from ―Rommel Jacinto‖ to ―Mely,‖ and his sex from ―male‖ to ―female.‖. Petitioner’s basis in praying for the change of his first name was his sex reassignment. He intended to make his first name compatible with the sex he thought he transformed himself into through surgery. However, a change of name does not alter one’s legal capacity or civil status. RA 9048 does not sanction a change of first name on the ground of sex reassignment. Rather than avoiding confusion, changing petitioner’s first name for his declared purpose may only create grave complications in the civil registry and the public interest. 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 . In this case, he failed to show, or even allege, any prejudice that he might suffer as a result of using his true and official name. In sum, the petition in the trial court in so far as it prayed for the change of petitioner’s first name was not within that court’s primary jurisdiction as the petition should have been filed with the local civil registr ar concerned, assuming it could be legally done. It was an improper remedy because the proper remedy was administrative, that is, that provided under RA 9048. It was also filed in the wrong venue as the proper venue was in the Office of the Civil Registrar of Manila where his birth certificate is kept. More importantly, it had no merit since the use of his true and official name does not prejudice him at all ( Silverio vs Republic , G.R. No. 174689, October 22, 2007) Where change of name allowed arising from change of gender As for respondent’s change of name under Rule 103, this Court has held that a change of name is not a matter of right but of judicial discretion, to be exercised in the light of the reasons adduced and the consequences that will follow. The trial court’s grant of respondent’s change of name from Jennifer to Jeff implies a change of a feminine name to a masculine name. Considering the consequence that respondent’s change of name merely recognizes his preferred gender, we find merit in respondent’s change of name. Such a change will conform with the change of the entry in his birth certificate from female to male. (Republic vs. Cagandahan , G.R. No. 166676, September 12, 2008)

R ule 107 A bs entees

 Provisional representative When a person disappears from his domicile, his whereabouts being unknown, and without having left an agent to administer property or the power conferred on the agent has expired, an interested party, relative or friend may file a petition in the RTC of the place where the absentee resided before disappearance to appoint provisionally a representative for him (Sec. 1).

Declaration of absence; Trustee or administrator After 2 years without any news or after 5 years if an agent was left to administer the absentee’s property, a petition for declaration of absence and appointment of a trustee or administrator may be filed.(Sec. 2) 

 Notice and publication required Copies of the notice and hearing shall be served on known heirs and creditors and other interested persons and published once a week for 3 consecutive weeks in a newspaper of general circulation. (Sec. 4) 

Declaration of presumptive death


No independent action for declaration of presumption of death – presumption may arise and be invoked in an action or special proceeding Exception Under Art. 41 of Family Code, for purpose of present spouse contracting a second marriag, he must file summary proceeding for declaration of presumptive death of the absentee, without prejudice to the latter’s reappearance. This is intended to protect present spouse from criminal prosecution for bigamy under Art. 349 of RPC. With judicial declaration that missing spouse is presumptively dead, good faith of present spouse in contracting marriage is established. 

-

Period of absence of spouse before subsequent marriage 4 consecutive years – well founded belief that absent spouse already dead 2 years – danger of death  Mere absence without effort to locate is insufficient Before a judicial declaration of presumptive death can be obtained, it must be shown that the absent spouse had been absent for four (4) consecutive years and the present spouse had a well founded belief that the absent spouse was already dead. The ―well founded belief‖ in the absentee’s death requires the the present spouse to prove that his/her belief was the result of diligent and reasonable efforts to locate the absent spouse and that based on these efforts and inquiries he/she believes that under the circumstances, the absent spouse is already dead. The mere absence of the spouse for such periods under the law, lack of any news that such absentee spouse is still allive, faillure to communicate, or general presumption of absence under the Civil Code would not suffice. ( Republic vs. Tampus, G.R. No. 2142423, March 16, 2016)

Mere allegations without documents to corroborate the allegation and the lack of any attempt to seek the aid of the authorities regarding the spouse’s disappearance will warrant the dismissal of the petition. ( Republic vs. Orcelino-Villanueva, G.R. No. 210929, July 29, 2015) 

Judicial review of declaration of absence A petition for certiorari under Rule 65 is the proper remedy to challenge the decision of a lower court declaring a person presumptively dead. Since the said decision pursuant to Article 41 of the Family Code is immediately final and executory, the Court of Appeals has no jurisdiction to entertain a notice of appeal pertaining to such judgment. Instead the losing party may file a petition for certiorari with the Court of Appeals on the ground that the trial court committed grave abuse of discretion amounting to lack of jurisdiction. ( Republic vs. Saregonon , G.R. No. 199194, February 10, 2016) The proper remedy for a judicial declaration of presumptive death obtained by extrinsic fraud is an action to annul the judgment, not the filing of an affidavit of reappearance. Annulment of judgment is the remedy when the judgment, order, or resolution has become final, and the remedies of new trial, appeal and petition for relief and other appropriate remedies are no longer available through no fault of the petitioner. The filing of an affidavit of reappearance is not the proper remedy when the person declared presumptively dead has never been absent. Such affidavit would not suffice to nullify the effects of the declaration of presumptive death and the subsequent marriage. ( Santos vs. Santos, G.R. No. 187061, October 8, 2014)

R ule 108 C ancellation or correction of entries in the civil reg is try  Who may file petition Special Proceedings Bar Review Guide 2018 by Justice Magdangal M. de Leon. © 2018 by Jurists Review Center Inc. Copying, dissemination, storage, use, modification, uploading, and downloading without the express written consent of Jurists Review Center Inc. is strictly prohibited and shall be subjected to criminal prosecution and administrative charges, including the appropriate complaint with the Bar Confi dant’s Office and IBP. Page 51 of 68

1. Any person interested in any - act - event - decree 2. concerning the civil status of persons 3. which has been recorded in the civil registry  Venue Regional Trial Court of place where corresponding civil registry is located (Sec. 1) 

Correction of entry under Rule 108 proceeding in rem – publication binds the whole world

Substantial corrections or cancellations of entries in civil registry records affecting the status or legitimacy of a person may be effected through the institution of a petition under Rule 108 of the Revised Rules of Court, with the proper Regional Trial Court. Being a proceeding in rem, acquisition of jurisdiction over the person of petitioner is therefore not required in the present case. It is enough that the trial court is vested with jurisdiction over the subject matter. The service of the order at No. 418 Arquiza St., Ermita, Manila and the publication thereof in a newspaper of general circulation in Manila, sufficiently complied with the requirement of due process, the essence of which is an opportunity to be heard. The publication of the order is a notice to all indispensable parties, including Armi and petitioner minor, which binds the whole world to the judgment that may be rendered in the petition. ( Alba vs. CA, G.R. No. 164041, July 29, 2005 )  Indispensable parties must be notified

Under Sec. 3, Rule 108 not only the civil registrar but also all persons who have or claim any interest which would be affected by a proceeding concerning the cancellation or correction of an entry in the civil register must be made parties thereto. No party could be more interested in the cancellation of Rosilyn’s birth certificate than Rosilyn herself. Her filiation, legitimacy, and date of birth are at stake. The lack of summons on Rosilyn was not cured by the publication of the order of the trial court setting the case for hearing for three consecutive weeks in a newspaper of general circulation. Summons must still be served, not for the purpose of vesting the courts with jurisdiction, but to comply with the requirements of fair play and due process. This is but proper, to afford the person concerned the opportunity to protect her , G.R. No. 140305, December 9, 2005) interest if she so chooses. ( Ceruila vs. Delantar



Administrative correction of clerical or typographical errors

The obvious effect of Republic Act 9048 is merely to make possible the administrative correction of clerical or typographical errors or change of first name or nickname in entries in the civil register, leaving to Rule 108 the correction of substantial changes in the civil registry in appropriate adversarial proceedings. (Republic v. Benemerito G.R. No. 146963, March 15, 2004). Republic Act 9048 

Who may file petition 1. 2. 3. 4.

Any person of legal age having direct and personal interest in the correction of a clerical or typographical error in an entry and/or change of first name or nickname in the civil register

A person is considered to have direct and personal interest when he is the owner of the record, or the owner's spouse, children, parents, brothers, sisters, grandparents, guardian, or any other person duly authorized by law or by the owner of the document sought to be corrected:




Venue Local Civil Registrar of place where record is located. Exc. (a) If impractical in terms of transportation expenses, time and effort as where petitioner has transferred to another place – LCR of petitioner’s residence. (b) If person presently residing or domiciled in a foreign country -- nearest Philippine Consulate, or LCR of place where record is located



Change of name under Rule 108

The enactment in March 2001 of Republic Act No. 9048 has been considered to lend legislative affirmation to the judicial precedence that substantial corrections to the civil status of persons recorded in the civil registry may be effected through the filing of a petition under Rule 108. When all the procedural requirements under Rule 108 are thus followed, the appropriate adversary proceeding necessary to effect substantial corrections to the entries of the civil register is satisfied. With respect to the correction in Carlito’s birth certificate of his name from ―Carlito John‖ to ―Carlito,‖ the same was properly granted under Rule 108 of the Rules of Court. As correctly pointed out by the CA, the cancellation or correction of entries involving chang es of name falls under letter ―o‖ of the following provision of Section 2 of Rule 108: ―Entries subject to cancellation or correction. — Upon good and valid grounds, the following entries in the civil register may be cancelled or corrected: x x x (o) chan ges of name.‖ Hence, while the jurisdictional requirements of Rule 103 (which governs petitions for change of name) were not complied with, observance of the provisions of Rule 108 suffices to effect the correction sought for. (Republic vs. Kho, G.R. No. 170340, June 28, 2007) Registered name of illegitimate child



An illegitimate child whose filiation is not recognized by the father bears only a given name and his mother’s surname, and does not have a middle name. The name of the unrecognized illegitimate child therefore identifies him as such. It is only when the illegitimate child is legitimated by the subsequent marriage of his parents or acknowledged by the father in a public document or private handwritten instrument that he bears both his m other’s surname as his middle name and his father’s surname as his surname, reflecting his status as a legitimated child or an acknowledged illegitimate child. Accordingly, the registration in the civil registry of the birth of such individuals requires that the middle name be indicated in the certificate. The registered name of a legitimate, legitimated and recognized illegitimate child thus contains a given or proper name, a middle name, and a surname. ( In Re: Petition for Change of Name and/or Correction/Cancellation of Entry in Civil Registry of Julian Lin Carulasan Wang , G.R. No. 159966, March 30, 2005). 

No intent on the part of the lawmakers to remove the authority of the trial courts to make judicial corrections of entries in the civil registry

It can thus be concluded that the local civil registrar has primary, not exclusive, jurisdiction over such petitions for correction of clerical errors and change of first name or nickname, with R.A. No. 9048 prescribing the procedure that the petitioner and local civil registrar should follow. Since R.A. No. 9048 refers specifically to the administrative summary proceeding before the local civil registrar it would be inappropriate to apply the same procedure to petitions for the correction of entries in th e civil registry before the courts. ( Re: Final Report on the Judicial Audit Conducted at the Regional Trial Court, Br. 67, Paniqui, Tarlac, A.M. No. 06-7-414-RTC, October 19, 2007).  Change of first name is within the primary jurisdiction of the local civil registrar

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, therefore, 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 (Change of Name) and 108 (Cancellation or Correction of Entries in the Civil Registry) of the Rules of Court, 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 (Silverio vs Republic , G.R. No. 174689, October 22, 2007)


 Change of sex or gender allowed where person has both male and female sexual characteristics

The trial court ordered the correction of entries in the birth certificate of respondent to change her sex or gender, from female to male, on the ground of her medical condition known as Congenital Adrenal Hyerplasia (CAH), and her name from ―Jennifer‖ to ―Jeff,‖ under Rules 103 and 108 of the Rules of Court. xxx CAH is one of many conditions that involve intersex anatomy. The term ―intersexuality‖ applies to human beings who cannot be classified as either male or female. We respect resp ondent’s congenital condition and his mature decision to be a male. Where the person is biologically or naturally intersex the determining factor in his gender classification would be what the individual, like respondent, having reached the age of majority, with good reason thinks of his/her sex. Respondent here thinks of himself as a male and considering that his body produces high levels of male hormones (androgen) there is preponderant biological support for considering him as being male. Sexual development developmen t in in cases of intersex persons makes the gender classification classifica tion at birth inconclusive. It is at maturity that the gender of such persons, like respondent, is fixed ((Republic Republic vs. Jennifer Cagandahan , G.R. No. 166676, September 12, 2008). 

No law allows the change of entry in the birth certificate as to sex on the ground of sex reassignment.

The acts, events or factual errors contemplated under Article 407 of the Civil Code include even those that occur after birth. However, no reasonable interpretation of the provision can justify the conclusion that it covers the correction on the ground of sex reassignment. To correct simply means ―to make or set aright; to remove the faults or error from‖ while to change means ―to replace something with someth ing else of the same kind or with something that serves as a substitute.‖ 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. While petitioner may have succeeded in altering his body and appearance through the intervention of modern surgery, no law authorizes the change of entry as to sex in the civil registry for that reason. Thus, there is no legal basis for his petition for the correction or change of the entries in his birth certificate. (Silverio vs Republic , G.R. No. 174689, October 22, 2007) 



Administrative correction of (a) day and month in the date of birth and (b) sex of a person now allowed - provided it is patently clear that there was a clerical or typographical error or mistake in the entry (RA ( RA 10172, 10172, which amended RA 9048, effective August 15, 2012)

Other Jurisprudence

Ty Kong Tin Tin (1954): followed by Chua Wee vs. Rep., Wong vs. Rep., Rep. Rep. vs. Medina – – Rule 108 should be limited solely to implementation of Art. 412, the substantive law on the matter of correcting errors in the civil register. Art. 412 contemplates contemplates a summary procedure, involving correction correction of clerical errors, or a harmless, innocuous nature, not changes involving civil status, nationality or citizenship, which are substantial and/or controversial Rep. vs. Macli-ing – Macli-ing – proceedings, although filed under Rule 108, not summary because published for 3 consecutive weeks; SolGen notified and filed opposition, etc. Rep. vs. Valencia (141 Valencia (141 SCRA 462 [1986]) – turning – turning point, paradigm shift: Rule 108 embodies two kinds of proceedings: 1. procedure summary in nature for correcting clerical or unsubstantial matters to make it less less tedious and expensive 2. procedure adversary in in nature to govern proceedings involving substantial changes If all procedural procedur al requirements have been followed, petition for filed under Rule 108 no longer summary.

correction/or correction/ or cancellation even if

Even substantial errors may be corrected and true facts established prov. parties aggrieved by the error avail of the appropriate adversary proceeding. proceeding. 

Appropriate proceeding:


a. where all relevant facts have been been fully weighed and considered b. where opposing counsel have been given opportunity to demolish the opposing party’s case c. where evidence has been thoroughly weighed and considered 

Procedure becomes ADVERSARY proceedings when opposition to petition is filed fil ed by LCR or any person having or claiming interest in entries sought to be cancelled and/ or corrected and opposition is actively prosecuted.



Substantial corrections allowed: citizenship from Chinese to Filipino; status from legitimate to illegitimate’ illegitimate’ status of mother from married to single



Valencia ruling Valencia ruling (en banc) reiterated in Chia Ben Lim vs. Zosa (en banc), Rep. vs. Bautista and Zapanta and Zapanta vs. LCR of Davao



Attempts to revert to Ty Kong Tin – Labayo Rowe vs. Rep., Rep. , Leonor vs. CA and CA and Rep. vs. Labrador

However, all doubts resolved in Lee vs . CA (367 SCRA 110 [2001]): 1. Substantial corrections correct ions – – Rule Rule 108 2. Clerical or typographical errors (including change of first name) – – RA 9048 (administrative correction) Substantial corrections corrections ―Appropriate adversary proceeding‖ is ―one having opposing parties; contested, as distinguished from an ex parte application, one of which the party seeking relief has given legal warning to the other party, and afforded the latter an opportunity to contest i t.‖ When all the procedural requirements under Rule 108 are thus followed, the appropriate adversary proceeding necessary to effect substantial corrections to the entries of the civil register is satisfied. No substantial change or correction in an entry in a civil register can be made without a judicial order, and, under the law, a change in citizenship status is a substantial change. ( Republic vs. Kho, Kho , G.R. No. 170340, June 29, 2007) N.B. N.B. A correction is SUBSTANTIAL OR CONTROVERSIAL if it involves the change of the age, age, sex, sex, nationality or nationality or civil status of status of a person. (Rule 11.1.2, Implementing Rules and Regulations, RA 9048)

Republic Act No. 9048 provides in Section 2 (3) that a summary administrative proceeding to correct clerical or typographical errors in a birth certificate cannot apply to a change in nationality. Substantial corrections to the nationality or citizenship citizenship of persons recorded in the civil registry should, therefore, be effected through a petition filed in court under Rule 108 of the Rules of Court. (Kilosbayan Foundation vs. Ermita, Ermita, G.R. No. 177721, July 3, 2007) The local civil registrar has primary, not exclusive, jurisdiction over such petitions for correction of clerical errors and change of first name or nickname, with R.A. No. 9048 prescribing the procedure that the petitioner and local civil registrar should follow. ( Re: Final Report on the Judicial Audit Conducted at the RTC, BR. 67, Paniqui, Tarlac, A.M. No. 06-7-414-RTC, October 19, 2007) A petition for declaratory declaratory relief may be instituted instituted by an alien for the recognition recognition of foreign divorce because a foreign divorce decree is a presumptive evidence of a right that clothes an alien with legal interest to file a petition for its recognition before local courts. However, the recognition of the decree in the declaratory relief case does not authorize the cancellation of the marriage entry in the civil registry as what is required is a proceeding under Rule 108 of the Rules of Court. ( Corpuz vs. Tirol Sto. Tomas, Tomas, G.R. No. 186571, August 11, 2010)

R ule 109 A ppeals ppeals in s pecial peci al proceedi pro ceeding ng


S ec. 1. Any INTERESTED INTERESTED PERSON may appeal from an order or judgment rendered rendered by the RTC, where such order or judgment     



Allows or disallows a WILL Determines who are the lawful heirs of a deceased or the DISTRIBUTIVE SHARE of the estate to which he is entitled Allows or disallows, in whole and any part, any CLAIM against the estate, or any CLAIM presented in behalf of the estate IN OFFSET to any claim against it Settles the ACCOUNT of an executor, administrator, trustee or guardian Constitutes, in proceedings relating to the SETTLEMENT of the estate of the deceased, or the ADMINISTRATION ADMINISTRATION of a trustee or guardian, guardian, a FINAL DETERMINATION DETERMINATION in the lower court of the rights of the party appealing. Exception: no appeal from appointment of special administrator. Is the FINAL ORDER or JUDGMENT rendered in the case, and affects the SUBSTANTIAL RIGHTS of the person appealing. Unless it be an order granting or denying a motion for new trial or reconsideration – Sec. 1 (a), Rule 41: no appeal may be taken from an order denying a motion for new trial or reconsideration. reconsideration. 

In certain kinds of special proceedings, proceeding s, such as settlement of estate, estate, appeal may be taken at various stages of the proceedings.

Rules 40, 41, 42 and 45 apply in conformity with Rule 72, Sec. 2 (applicability of rules of civil actions) . If it is an ordinary appeal under Rules 40 or 41, and the special proceedings are subject to multiple appeals, like settlement of estates, the appeal period is 30 days, a notice of appeal and record on appeal being required. Rationale for multiple appeals The rationale behind allowing more than one appeal in the same case is to enable the rest of the case to proceed in the event that that a separate and distinct issue is resolved by the court and held to be final. In this multi-appeal mode, the probate court loses jurisdiction only over the subject matter of the appeal but retains jurisdiction over the special proceeding from which the appeal was taken for purposes of further remedies the parties may avail of. Where multi-appeals are allowed, we see no reason why a separate petition for certiorari cannot be allowed on an interlocutory aspect of the case that is separate and distinct as an issue from the aspect of the case that that has been adjudged with finality by the lower court. ( Briones vs. Henson-Cruz , G.R. No. 159130, August 22, 2008) Record of appeal is required only in cases where multiple appeals may arise Rule 109 contemplates multiple appeals during the pendency of special proceedings. A record on appeal – in – in addition to the notice of appeal – is – 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. In the present case, the filing of a record on appeal was not necessary since no other matter remained to be heard and determined by the trial court after it issued the appealed order granting respondent’s petition for cancellation of birth record and change of surname in the civil registry. (Republic vs. Nishina, Nishina , G.R. No. 186053, November 15, 2010)

Notwithstanding a pending controversy or appeal in prccedings to settle the estate of a decedent, the court may, in its discretion and upon such terms as it may deem proper and just, permit that such part of the estate as may be affected by the controversy or appeal be distributed among the heirs or legatees, upon compliance with the conditions conditions set forth in Rule 90. Rule 90, Sec. 1 - Distribution before payment of obligations is allowed provided distributees give BOND conditioned for payment thereof within such time as court directs. VENUE OF SPECIAL PROCEEDINGS


1. Settlement of estate (Rule 73): RTC (or MTC) of province where deceased last resided/property situated. 2. Escheat (Rule 91): RTC of province where deceased last resided/property situated. 3. Guardianship: (Rule on Guardianship of Minors [A.M. No. 03-02-05-SC]) Family Court of province or city where minor resides/property situated. Rule 92 RTC of province or city where incompetent resides/property situated. 4.

Adoption (Rule on Adoption [A.M. No. 02-6-02-SC]): Family Court of province or city where prospective adoptive parents reside. Rescission – where adoptee resides.

5.

Habeas Corpus (Rule 102): If filed with RTC, where detainee is detained. SC, CA and RTC have concurrent jurisdiction. However, the writ of habeas corpus issued by the RTC shall be enforceable only within its judicial region (Sec. 21, BP 129). Habeas Corpus for custody of minors: Family courts have exclusive jurisdiction (Family Courts Act of 1997 [RA 8309]. However, under the Rule on Custody of Minors and Writ of Habeas Corpus in relation to Custody of Minors (A.M. No. 03-04-04-SC), the petition may be filed with SC, CA or any of its members, and the writ shall be enforceable anywhere in the Philippines.

6.

Amparo (A.M. No. 07-9-12-SC) SC, CA and SB RTC of the place where the threat, act or omission was committed or any of its elements occurred

7.

8.

Habeas Data ( A.M. No. 08-1-16-SC) SC, CA and SB RTC: 1. Where petitioner resides; or 2. Where respondent resides; or 3. Which has jurisdiction over the place where data or information is gathered, etc. All at the option of petitioner. Kalikasan (A.M. No. 09-6-8 – SC) SC and CA

9. . Change of name (Rule 103): RTC of province of residence of petitioner. Absentees (Rule 107): RTC of place where absentee resided before his disappearance. 10.

Cancellation or correction of entries (Rule 108): RTC of place where civil registry is located. Correction of clerical or typographical errors (RA 9048): Local Civil Registrar of place where record is located. Exc. – if impractical in terms of transportation expenses, time and effort as where petitioner has transferred to another place – Local Civil Registrar of petitioner’s residence.

SPECIAL PROCEEDINGS THAT REQUIRE NO PUBLICATION


1. Guardianship 2. Trustees 3. Custody of minors 4. Hospitalization of insane persons 5. Rescission of adoption 6. Administrative cancellation or correction of entries 7. Habeas corpus 8. Writ of amparo 9. Writ of habeas data 10. Writ of kalikasan 11. Petitions for foster care and temporary custody 12. Cases of domestic violence against women and children 13. Summary proceedings

These Rules shall govern the procedure in civil, criminal, and special civil actions before the Regional Trial Courts, Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts and Municipal Circuit Trial Courts involving enforcement or violations of environmental and other related laws, rules and regulations such as but not limited to the following: Act No. 3572, Prohibition Against Cutting of Tindalo, Akli, and Molave Trees P.D. No. 705, Revised Forestry Code P.D. No. 856, Sanitation Code P.D. No. 979, Marine Pollution Decree P.D. No. 1067, Water Code P.D. No. 1151, Philippine Environmental Policy of 1977 P.D. No. 1433, Plant Quarantine Law of 1978 P.D. No. 1586, Establishing an Environmental Impact Statement System Including Other Environmental Management Related Measures and for Other Purposes 9. R.A. No. 3571, Prohibition Against the Cutting, Destroying or Injuring of Planted or Growing Trees,Flowering Plants and Shrubs or Plants of Scenic Value along Public Roads, in Plazas, Parks, School Premises or in any Other Public Ground 10. R.A. No. 4850, Laguna Lake Development Authority Act 11. R.A. No. 6969, Toxic Substances and Hazardous Waste Act 12. R.A. No. 7076, People’s Small -Scale Mining Act 13. R.A. No. 7586, National Integrated Protected Areas System Act including all laws, decrees, orders, proclamations and issuances establishing protected areas 14. R.A. No. 7611, Strategic Environmental Plan for Palawan Act 15. R.A. No. 7942, Philippine Mining Act; 16. R.A. No. 8371, Indigenous Peoples Rights Act 17. R.A. No. 8550, Philippine Fisheries Code 18. R.A. No. 8749, Clean Air Act 19. R.A. No. 9003, Ecological Solid Waste Management Act 20. R.A. No. 9072, National Caves and Cave Resource Management Act 21. R.A. No. 9147, Wildlife Conservation and Protection Act 22. R.A. No. 9175, Chainsaw Act 23. R.A. No. 9275, Clean Water Act 24. R.A. No. 9483, Oil Spill Compensation Act of 2007 25. Provisions in C.A. No. 141, The Public Land Act; R.A.No. 6657, Comprehensive Agrarian Reform Law of 1988; R.A. No. 7160, Local Government Code of 1991; R.A. No. 7161, Tax Laws Incorporated in the Revised Forestry Code and Other Environmental Laws (Amending the NIRC); R.A. No. 7308, Seed Industry Development Act of 1992; R.A. No. 7900, High-Value Crops Development Act; R.A. No. 8048, Coconut Preservation Act; R.A. No. 8435, Agriculture and Fisheries Modernization Act of 1997; R.A. No. 9522, The Philippine Archipelagic Baselines Law; R.A. No. 9593, Renewable Energy Act of 2008; R.A. No. 9637, Philippine Biofuels Act; and other existing laws that relate to the conservation, development, preservation, protection and utilization of the environment and natural resources. 1. 2. 3. 4. 5. 6. 7. 8.


Except the Supreme Court, no court can issue a TRO or writ of preliminary injunction against lawful actions of government agencies that enforce environmental laws or prevent violations thereof.

The parties and their counsels shall remain under oath in all pre-trial conferences. Judge to persuade the parties to arrive at a settlement of the dispute; former may issue a consent decree approving the agreement between the parties in accordance with law, morals, public order and public policy to protect the right of the people to a balanced and healthful ecology. Evidence not presented during the pre-trial, except newly discovered evidence, shall be deemed waived.

1. 2. 3. 4. 5. 6. 7. 8.

Motion to dismiss Motion for extension of time to file return Motion for postponement Motion for a bill of particulars; Counterclaim or cross-claim Third-party complaint Reply Motion to declare respondent in default

a) Issuance If it appears from the verified complaint with a prayer for the issuance of an Environmental Protection Order (EPO) that the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury, the executive judge of the multiplesala court before raffle or the presiding judge of a single-sala court as the case may be, may issue ex parte a TEPO effective for only seventy-two (72) hours from date of the receipt of the TEPO by the party or person enjoined. Within said period, the court where the case is assigned, shall conduct a summary hearing to determine whether the TEPO may be extended until the termination of the case. The court where the case is assigned, shall periodically monitor the existence of acts that are the subject matter of the TEPO even if issued by the executive judge, and may lift the same at any time as circumstances may warrant. The applicant shall be exempted from the posting of a bond for the issuance of a TEPO. b) Dissolution The grounds for motion to dissolve a TEPO shall be supported by affidavits of the party or person enjoined which the applicant may oppose, also by affidavits. The TEPO may be dissolved if it appears after hearing that its issuance or continuance would cause irreparable damage to the party or person enjoined while the applicant may be fully compensated for such damages as he may suffer and subject to the posting of a sufficient bond by the party or person enjoined.


a) Reliefs in a Citizen Suit If warranted, the court may grant to the plaintiff proper reliefs which shall include the protection, preservation or rehabilitation of the environment and the payment of attorney’s fees, costs of suit and other litigation expenses. It may also require the violator to submit a program of rehabilitation or restoration of the environment, the costs of which shall be borne by the violator, or to contribute to a special trust fund for that purpose subject to the control of the court. b) Judgment Not Stayed by Appeal Any judgment directing the performance of acts for the protection, preservation or rehabilitation of the environment shall be executory pending appeal unless restrained by the appellate court.

In the judgment, the court may convert the TEPO to a permanent EPO or issue a writ of continuing mandamus directing the performance of acts which shall be effective until the judgment is fully satisfied. The court may, by itself or through the appropriate government agency, monitor the execution of the judgment and require the party concerned to submit written reports on a quarterly basis or sooner as may be necessary, detailing the progress of the execution a satisfaction of the judgment. The other party may, at its option, submit its comments or observations on the execution of the judgment.

A legal action filed to harass, vex, exert undue pressure or stifle any legal recourse that any person, institution or the government has taken or may take in the enforcement of environmental laws, protection of the environment or assertion of environmental rights shall be treated as a SLAPP and shall be governed by these Rules.

a) Nature of the Writ The writ is a remedy available to a natural or juridical person, entity authorized by law, people’s organization, non-governmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces. b) Contents of the Verified Petition 1. The personal circumstances of the petitioner 2. The name and personal circumstances of the respondent or if the name and personal circumstances are unknown and uncertain, the respondent may be described by an assumed appellation 3. The environmental law, rule or regulation violated or threatened to be violated, the act or omission complained of, and the environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces


4. All relevant and material evidence consisting of the affidavits of witnesses, documentary evidence, scientific or other expert studies, and if possible, object evidence 5. The certification of petitioner under oath that: a) Petitioner has not commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency, and no such other action or claim is pending therein b) If there is such other pending action or claim, a complete statement of its present status; (3) if petitioner should learn that the same or similar action or claim has been filed or is pending, petitioner shall report to the court that fact within five (5) days therefrom; and 6. The reliefs prayed for which may include a prayer for the issuance of a TEPO.

c) Where to File The petition shall be filed with the Supreme Court or with any of the stations of the Court of Appeals. d) No Docket Fees The petitioner shall be exempt from the payment of docket fees. e) Issuance of the Writ Within three (3) days from the date of filing of the petition, if the petition is sufficient in form and substance, the court shall give an order issuing the writ And requiring the respondent to file a verified return as provided in Section 8 of this Rule. The clerk of court shall forthwith issue the writ under the seal of the court including the issuance of a cease and desist order and other temporary reliefs effective until further order. f) How the Writ is Served The writ shall be served upon the respondent by a court officer or any person deputized by the court, who shall retain a copy on which to make a return of service. In case the writ cannot be served personally, the rule on substituted service shall apply.

1. 2. 3. 4. 5. 6. 7. 8.

Motion to dismiss Motion for extension of time to file return Motion for postponement Motion for a bill of particulars Counterclaim or cross-claim Third-party complaint Reply Motion to declare respondent in default

A Party May File A Verified Motion For the Following Reliefs : 1. Ocular Inspection; order — The motion must show that an ocular inspection order is necessary to establish the magnitude of the violation or the threat as to prejudice the life, health or property of inhabitants in two or more cities or provinces. It shall state in detail the place or places to be inspected. It shall be supported by affidavits of witnesses having personal knowledge of the violation or threatened violation of environmental law. After hearing, the court may order any person in possession or control of a designated land or other property to permit entry for the purpose of inspecting or photographing the property or any relevant object or operation thereon. The 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. 2. Production or inspection of documents or things; order – The motion must show that a production order is necessary to establish the magnitude of the violation or the threat as to prejudice the life, health Special Proceedings Bar Review Guide 2018 by Justice Magdangal M. de Leon. © 2018 by Jurists Review Center Inc. Copying, dissemination, storage, use, modification, uploading, and downloading without the express written consent of Jurists Review Center Inc. is strictly prohibited and shall be subjected to criminal prosecution and administrative charges, including the appropriate complaint with the Bar Confi dant’s Office and IBP. Page 61 of 68

or property of inhabitants in two or more cities or provinces. After hearing, the court 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 production order shall specify the person or persons authorized to make the production and the date, time, place and manner of making the inspection or production and may prescribe other conditions to protect the constitutional rights of all parties. *** WRIT OF KALIKASAN

What is the Writ of Kalikasan? It is a special remedy available to a natural or juridical person, entity authorized by law, people’s organization, non-governmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces (Sec. 1, Rule 7, A.M. No. 09-6-8SC). Who may avail of the writ? The petition can be filed by the following: a. A natural or juridical person; b. Entity authorized by law; or c. POs, NGOs or any public interest group accredited by or registered with any government agency on behalf of persons whose constitutional right to a balanced and healthful ecology is violated (Sec. 1, Rule 7, A.M. No. 09-6-8-SC 7). Where should the petition be filed? Supreme Court or Court of Appeals (Sec. 3, Rule 7 , A.M. No. 09-6-8-SC 7). What is the magnitude of environmental damage in a writ of kalikasan? It must be of environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces (Sec. 1, Rule 7, A.M..No. 09-6-8-SC). Is the petitioner required to pay docket fees? No, the petitioner is exempt from payment of docket fees ( Sec. 4, Rule , A.M. No. 09-6-8-SC 7 ). The exemption encourages the public to avail of the remedy. Within what time should the issuance of the writ be made? Within three (3) days from the date of filing of the petition, if the petition is sufficient in form and substance, the court shall give an order: (a) issuing the writ; and (b) requiring the respondent to file a verified return as provided in Section 8 of Rule 8 ( Sec. 5, Rule 7, A.M. No. 09-6-8-SC What shall the return contain? Within a non-extendible period of ten (10) days after service of the writ, the respondent shall file a verified return which shall contain all defenses to show that respondent did not a. violate or b. threaten to violate, or c. allow the violation of any environmental law, rule or regulation or d. commit any act resulting to environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces. Special Proceedings Bar Review Guide 2018 by Justice Magdangal M. de Leon. © 2018 by Jurists Review Center Inc. Copying, dissemination, storage, use, modification, uploading, and downloading without the express written consent of Jurists Review Center Inc. is strictly prohibited and shall be subjected to criminal prosecution and administrative charges, including the appropriate complaint with the Bar Confi dant’s Office and IBP. Page 62 of 68

All defenses not raised in the return shall be deemed waived. The return shall include affidavits of witnesses, documentary evidence, scientific or other expert studies, and if possible, object evidence, in support of the defense of the respondent. A general denial of allegations in the petition shall be considered as an admission thereof.( Sec. 8 , Rule 7, A.M .No. 09-6-8-SC ). What are the prohibited pleadings and motions? 1. 2. 3. 4. 5. 6. 7. 8.

Motion to dismiss; Motion for extension of time to file return; Motion for postponement; Motion for a bill of particulars; Counterclaim or cross-claim; Third-party complaint; Reply; and Motion to declare respondent in default (Sec. 9, Rule 7, A.M. No. 09-6-8-SC).

What are the interim reliefs available to the petitioner upon filing a verified motion? 1. Ocular inspection; or 2. Production or inspection of documents or things (Sec. 12, Rule 7, A.M. No. 09-6-8-SC). What are the requisites for granting an ocular inspection? The motion must show: 1. that an ocular inspection order is necessary to establish the magnitude of the violation or the threat as to prejudice the life, health or property of inhabitants in two or more cities or provinces; 2. it shall state in detail the place or places to be inspected; and 3. It shall be supported by affidavits of witnesses having personal knowledge of the violation or threatened violation of environmental law [ Sec. 12(a), Rule 7, A.M. No. 09-6-8-SC]. What does the ocular inspection order contain? The 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 cond itions to protect the constitutional rights of all parties [Sec. 12(a), Rule 7, A.M. No. 09-6-8-SC) What must the motion asking for the issuance of a production order or inspection of documents? The motion must show that a production order is necessary to establish the magnitude of the violation or the threat as to prejudice the life, health or property of inhabitants in two or more cities or provinces [ Sec. 12(b), Rule 7, A.M. No. 09-6-8-SC ]. What must the production order state? The production order shall specify the person or persons authorized to make the production and the date, time, place and manner of making the inspection or production and may prescribe other conditions to protect the constitutional rights of all parties ( Sec. 12(b), Rule 7, A.M. No. 09-6-8-SC ). Note: After hearing, the court 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 ev idence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant [Sec. 12(b), Rule 7, A.M. No. 09-6-8-SC]. On what grounds may a respondent be cited for contempt?


The court may after hearing punish the respondent who refuses or unduly delays the filing of a return, or who makes a false return, or any person who disobeys or resists a lawful process or order of the court for indirect contempt under Rule 71 of the Rules of Court ( Sec. 13, Rule 7, A.M. No. 09-6-8-SC ). Note: This section is similar to Sec. 16 of the Rule on the W rit of Amparo. When should the court render judgment? Within sixty (60) days from the time the petition is submitted for decision, the court shall render judgment granting or denying the privilege of the writ of kalikasan .(Sec. 15, Rule 7, Ibid.) What reliefs may be granted under the writ? (a) Directing respondent to permanently cease and desist from committing acts or neglecting the performance of a duty in violation of environmental laws resulting in environmental destruction or damage; (b) Directing the respondent public official, government agency, private person or entity to protect, preserve, rehabilitate or restore the environment; (c) Directing the respondent public official, government agency, private person or entity to monitor strict compliance with the decision and orders of the court; (d) Directing the respondent public official, government agency, or private person or entity to make periodic reports on the execution of the final judgment; and (e) Such other reliefs which relate to the right of the people to a balanced and healthful ecology or to the protection, preservation, rehabilitation or restoration of the environment, except the award of damages to individual petitioners. .(Sec. 15, Rule 7, Ibid.) What is the period to appeal from the judgment? Within fifteen (15) days from the date of notice of the adverse judgment or denial of motion for reconsideration, any party may appeal to the Supreme Court under Rule 45 of the Rules of Court. The appeal may raise questions of fact. (Sec. 16, Rule 7, Ibid.) May separate actions be filed after the filing of a petition for issuance of writ of kalikasan? The filing of a petition for the issuance of the writ of kalikasan shall not preclude the filing of separate civil, criminal or administrative actions.(Sec. 17, Rule 7. Ibid.)

-------------------------------------------------------------------------------------

a)

Petition

When any agency or instrumentality of the government or officer thereof unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station in connection with the enforcement or violation of an environmental law rule or regulation or a right therein, or unlawfully excludes another from the use or enjoyment of such right and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty, attaching thereto supporting evidence, specifying that the petition concerns an environmental law, rule or regulation, and praying that judgment be rendered commanding the respondent to do an act or series of acts until the judgment is fully satisfied, and to pay damages sustained by the petitioner by reason of the malicious neglect to perform the duties of the respondent, under the law, rules or regulations. The petition shall also contain a sworn certification of non-forum shopping. b)

Where to File


The petition shall be filed with the Regional Trial Court exercising jurisdiction over the territory where the actionable neglect or omission occurred or with the Court of Appeals or the Supreme Court. c)

No Docket Fees

The petitioner shall be exempt from the payment of docket fees. d)

Order to Comment If the petition is sufficient in form and substance, the court shall issue the writ and require the respondent to comment on the petition within ten (10) days from receipt of a copy thereof. Such order shall be served on the respondents in such manner as the court may direct, together with a copy of the petition and any annexes there

Any offended party, peace officer or any public officer charged with the enforcement of an environmental law may file a complaint before the proper officer in accordance with the Rules of Court.

When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged, shall be deemed instituted with the criminal action unless the complainant waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action. Unless the civil action has been instituted prior to the criminal action, the reservation of the right to institute separately the civil action shall be made during arraignment. In case civil liability is imposed or damages are awarded, the filing and other legal fees shall be imposed on said award in accordance with Rule 141 of the Rules of Court, and the fees shall constitute a first lien on the judgment award. The damages awarded in cases where there is no private offended party, less the filing fees, shall accrue to the funds of the agency charged with the implementation of the environmental law violated. The award shall be used for the restoration and rehabilitation of the environment adversely affected.

A peace officer or an individual deputized by the proper government agency may, without a warrant, arrest a person: 1. When, in his presence, the person to be arrested has committed, is actually committing or is attempting to commit an offense 2. When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it. Individuals deputized by the proper government agency who are enforcing environmental laws shall enjoy the presumption of regularity under Section 3(m), Rule 131 of the Rules of Court when effecting arrests for violations of environmental laws.

a)

Custody and Disposition of Seized Items

The custody and disposition of seized items shall be in accordance with the applicable laws or rules promulgated by the concerned government agency.


b)

Procedure

In the absence of applicable laws or rules promulgated by the concerned government agency, the following procedure shall be observed: 1. The apprehending officer having initial custody and control of the seized items, equipment, paraphernalia, conveyances and instruments shall physically inventory and whenever practicable, photograph the same in the presence of the person from whom such items were seized. 2. Thereafter, the apprehending officer shall submit to the issuing court the return of the search warrant within five (5) days from date of seizure or in case of warrantless arrest, submit within five (5) days from date of seizure, the inventory report, compliance report, photographs, representative samples and other pertinent documents to the public prosecutor for appropriate action. 3. Upon motion by any interested party, the court may direct the auction sale of seized items, equipment, paraphernalia, tools or instruments of the crime. The court shall, after hearing, fix the minimum bid price based on the recommendation of the concerned government agency. The sheriff shall conduct the auction. 4. The auction sale shall be with notice to the accused, the person from whom the items were seized, or the owner thereof and the concerned government agency. 5. The notice of auction shall be posted in three conspicuous places in the city or municipality where the items, equipment, paraphernalia, tools or instruments of the crime were seized. 6. The proceeds shall be held in trust and deposited with the government depository bank for disposition according to the judgment.

a)

Where Filed

Bail in the amount fixed may be filed with the court where the case is pending, or in the absence or unavailability of the judge thereof, with any regional trial judge, metropolitan trial judge, municipal trial judge or municipal circuit trial judge in the province, city or municipality. If the accused is arrested in a province, city or municipality other than where the case is pending, bail may also be filed with any Regional Trial Court of said place, or if no judge thereof is available, with any metropolitan trial judge, municipal trial judge or municipal circuit trial judge therein. If the court grants bail, the court may issue a hold-departure order in appropriate cases. a)

Duties of the Court

Before granting the application for bail, the judge must read the information in a language known to and understood by the accused and require the accused to sign a written undertaking, as follows: 1. To appear before the court that issued the warrant of arrest for arraignment purposes on the date scheduled, and if the accused fails to appear without justification on the date of arraignment, accused waives the reading of the information and authorizes the court to enter a plea of not guilty on behalf of the accused and to set the case for trial 2. To appear whenever required by the court where the case is pending 3. To waive the right of the accused to be present at the trial, and upon failure of the accused to appear without justification and despite due notice, the trial m ay proceed in absentia.

a)

Arraignment

The court shall set the arraignment of the accused within fifteen (15) days from the time it acquires jurisdiction over the accused, with notice to the public prosecutor and offended party or concerned government agency that it will entertain plea-bargaining on the date of the arraignment. b)

Plea Bargaining


On the scheduled date of arraignment, the court shall consider plea-bargaining arrangements. Where the prosecution and offended party or concerned government agency agree to the plea offered by the accused, the court shall: 1. Issue an order which contains the plea-bargaining arrived at 2. Proceed to receive evidence on the civil aspect of the case, if any 3. Render and promulgate judgment of conviction, including the civil liability for damages

a)

Setting of Pre-Trial Conference

After the arraignment, the court shall set the pre-trial conference within thirty (30) days. It may refer the case to the branch clerk of court, if warranted, for a preliminary conference to be set at least three (3) days prior to the pre-trial. b)

Manner of Questioning

All questions or statements must be directed to the court. c)

Agreements or Admissions

All agreements or admissions made or entered during the pre-trial conference shall be reduced in writing and signed by the accused and counsel; otherwise, they cannot be used against the accused. The agreements covering the matters referred to in Section 1, Rule 118 of the Rules of Court shall be approved by the court. d)

Record of Proceedings

All proceedings during the pre-trial shall be recorded, the transcripts prepared and the minutes signed by the parties or their counsels. e)

Pre-Trial Order

The court shall issue a pre-trial order within ten (10) days after the termination of the pre-trial, setting forth the actions taken during the pre-trial conference, the facts stipulated, the admissions made, evidence marked, the number of witnesses to be presented and the schedule of trial. The order shall bind the parties and control the course of action during the trial.

In case of conviction of the accused and subsidiary liability is allowed by law, the court may, by motion of the person entitled to recover under judgment, enforce such subsidiary liability against a person or corporation subsidiarily liable under Article 102 and Article 103 of the Revised Penal Code.

a) Applicability When there is a lack of full scientific certainty in establishing a causal link between human activity and environmental effect, the court shall apply the precautionary principle in resolving the case before it. The constitutional right of the people to a balanced and healthful ecology shall be given the benefit of the doubt. b) Standards for Application In applying the precautionary principle, the following factors, among others, may be considered: 1. threats to human life or health Special Proceedings Bar Review Guide 2018 by Justice Magdangal M. de Leon. © 2018 by Jurists Review Center Inc. Copying, dissemination, storage, use, modification, uploading, and downloading without the express written consent of Jurists Review Center Inc. is strictly prohibited and shall be subjected to criminal prosecution and administrative charges, including the appropriate complaint with the Bar Confi dant’s Office and IBP. Page 67 of 68

Special Proceedings Bar Review Guide 2018 by Justice Magdangal M. de Leon. 1

Recommend Documents