V.

SPECIAL PROCEEDINGS AND

1. Division of estate in a public instrument of
SPECIAL WRITS affidavit of adjudication
2. Must be filed with the proper RoD. A bond
A. Settlement of estate of deceased persons equivalent to the value of personal property
shall be filed with the proper RoD.
Venue and process (Rule 73) 3. Publication of notice of the fact of extrajudicial
settlement once a week for 3 consecutive
Section 1. Where estate of deceased person settled weeks in a newspaper of gc.

This section relates to the matter of venue of estate Requisites of Extrajudicial settlement:
proceedings when it refers to the decedent’s place or
residence or location of the decedent’s estate. Substantive (WDA)
1. The decedent left:
VENUE a. No will; and
1. Inhabitant of the Philippines (whether citizen or b. No debts; if any, paid by heirs at the
alien) at the time of his death time the ej settlement is entered into.
- Court of the province/city where the deceased 2. The heirs are all of age or the minors are
resides at the time of death. represented by their judicial or legal rep.
2. Inhabitant of Foreign Country Procedural
- Court of any province wherein he had his estate 1. Must be in a public instrument
2. Filed with proper RoD
Section 3. PROCESS 3. Bond
4. Publication
In the exercise of probate jurisdiction, the RTC may
issue warrants and processes to compel the attendance Affidavit of Self Adjudication
of witnesses or to carry into effect their orders and Is an affidavit to be executed by the sole heir of
judgments, and all other powers granted them by law. a deceased person in adjudicating to himself the entire
estate left by the decedent filed in the RoD.

If a person does not perform an order of judgement Section 2. Summary Settlement of Estate (10,000)
rendered by a court in the exercise of its probate
jurisdiction, it may issue a warrant for the apprehension Section 3. Bond to be filed by Distributees
and imprisonment of such person until he performs
such order or judgment, or is released. A bond is required only when personal property is
involved, as the real state is subject to a lien in favor or
Summary settlement of estates (Rule 74) creditors, heirs, or other persons for the full period of 2
years from such distribution and such lien cannot be
GR: When a person dies intestate, or if estate, failed to substituted by a bond
name an executor in his will or the executor so named is
incompetent, or refuses the trust, or fails to furnish the Section 4. Remedies of the aggrieved parties after
bond required by the RoC, then the decedent’s estate settlement of the estate
shall be judicially administered and the competent court
shall appoint a qualified administrator in the order 1. Within 2 years- (1) compel settlement of the
established by Rule 78. estate if an heir or the other person has been
unduly deprived of his lawful participation in
EX: The heirs may resort to: the estate; (2) file a claim against the bond or
the real estate or both if there are unpaid debts
1. Extrajudicial settlement of estate 2. Rescission
2. Summary settlement of estates of small value 3. Reconveyance
4. Action to annul a deed of ej settlement on the
Procedure in extrajudicial settlement by agreement ground of fraud which should be filed within 4
between/among heirs years from the discovery of fraud
 5. Petition for Relief on the ground of FAME o The period for filing of such claim starts to run from
Remedies of the creditor if not settled within 2 the date of the first publication of notice referred to in
years Sec.1 and runs even against the State.

1. Filing a motion in the same proceeding

2. Ordinary action Sec.2 means that the filing of claims contemplated
3. Annotation of the lien therein should be during a period of 6 months starting
from the 6th month after the date of the first publication
Section 5. Period for claim of minor or incapacitated of the notice own to the 12th month. Within the range of
person said period, the probate court is permitted to set the
period for filing of claims and the period once fixed by
If on the date of the expiration of the 2y period, the the court is mandatory.
creditor heir is minor, mentally incapacitated, in prison,
or outside the Philippines, he may present his claim  The court for good cause shown may grant a 1 month
within 1 year after such disability is removed. period for a creditor to file a claim which he failed to file
during the original period granted for filing of claims.
Allowance or disallowance of wills (Rule 76) Such motion for leave to file a claim beyond original
period may be file at any time during the administration
Section 1. Who may petition for the allowance of will proceedings provided no order of distribution has yet
been entered.
1. Executor o Sec.2 should not be interpreted to mean that 1
2. Devisee or legatee month period commences to run from the expiration of
3. Any other interested person in the estate, may, the original period for filing claims.
at any time after the death of the testator, o What it means is that said claims must be filed within
petition the court having jurisdiction to have a time not exceeding 1 month from the order of the
the will allowed. court allowing the filing of such particular claim.
4. Testator
5. Any creditor 86.3, 86.4
 A notice to creditors to file their claims is not proper if
Section 2. Contents of petition only a special administrator has been appointed, he is
generally not empowered to pay debts of the deceased
1. Jurisdictional Facts and his bond unlike that of a regular administrator is
a. Death of the testator not conditioned upon the payment of such debts.
b. His residence at the time of death or the
province where estate was left by the  The publication of the notice to the creditors is
decedent who is a non-resident constructive notice to all, hence a creditor cannot be
2. The names, ages, and residences of the heirs, permitted to file his claim beyond the period fixed in
legatees, and devisees of the testator or said notice on the bare ground that he had no
decedent knowledge of the administration proceedings, since the
3. The probable value and character of the proceeding for filing claims is in rem.
property of the estate
4. The name of the person for whom letters are
prayed As the period for the filing of claims starts to run from
5. The name of the person having custody of the the first publication of the notice to creditors, unless
will if it has not been delivered to the court such publication is effected by the administrator or the
executor, the result would be to correspondingly extend
Claims against the Estate (Rule 86) the time for the presentation of claims.

 Where a claimant with a claim under a judgment for

The period fixed by Sec. 2 for filing of claims is money against the deceased files a petition for the
sometimes referred to as the “statute of non-claims” issuance of letters of administration over the estate of
and supersedes the ordinary statute of limitations. the decedent within the 10 year period from the finality
of its judgment, and after said 10 year period filed a
claim against the estate of the deceased under  Claims not filed within the period for filing claims are
administration, said claim retroacts to the date of the barred, but if the claimant is sued by the administrator
filing of the petition for letters of administration and or executor either within the period or thereafter, such
therefore has not prescribed. claim may be availed of by
86.5, 86.6 the defendant as a counterclaim and if he proves the
 The claims referred to in Sec. 5 must be for money same, he may recover thereon against the estate.
which are not secured by a lien against property of the
estate.  A money claim upon a liability contracted by the
o If the claim is for recovery of real or personal deceased must be duly filed even if the deceased in his
property from the estate or the enforcement of any lien will acknowledged and ordered payment of such debt.
thereon, an action should be instituted for that purpose
against the executor or administrator.  Where the defendant dies before final judgment in
o These claims must have arisen from liabilities the FCI and the action is for recovery of money, debt or
contracted by the decedent before his death and money interest thereon the case shall not be dismissed but
claims arising after his death cannot be presented, shall continue until entry of judgment.
except funeral expenses and expenses of his last illness.
 If at the time of death of a decedent, an action is
 First type of money claims required to be filed under pending against him but for the primary purpose of
this section is one arising from contract, express or recovery of money, debt or interest, his heirs or other
implied, which was entered into by the decedent in his legal representatives will merely be substituted for the
lifetime. Consequently, a money claim against the decedent in said action without the appointment of an
estate arising from a crime or a quasi-delict committed executor or administrator (3.16).
by the decedent is not included in the concept of claims
which have to be filed under this Rule, but should be  If final judgment had already been rendered against
the subject of an action against the executor or the decedent prior to his death, but without levy on
administrator or against the heirs. execution having been effected against his property
o Also claims by the Government for unpaid taxes, filed such judgment for a sum of money must also be filed as
within the period of limitations prescribed in the NIRC a claim against the estate in the manner provided by
are not covered by the statute of non-claims as these this Rule.
are monetary obligations created by law. o If levy had already been made before his death,
o Claims for taxes due and assessed after the death of execution shall proceed (39.7c).
the decedent need not even be presented in the form o However if the final judgment rendered against the
of a claim; the probate court may just direct the decedent in his lifetime is for the recovery of personal
executor or administrator to pay the same. property other than money or the enforcement of a lien
o In fact, even after the distribution of the estate, thereon then the claimant has merely to obtain a writ of
claims for taxes may be enforced against the execution for enforcement against the executor,
distributees in proportion to their shares in the administrator or successor-in-interest of the deceased
inheritance. (39.7b)
o However, a claim based upon a quasi-contract shall
be deemed included in the concept of claims under Sec.  Where the defendant dies while the action for a sum
5 which speaks of “implied” contracts. of money against him is pending in the CA he shall be
substituted therein by his legal representative but the
final judgment of the appellate court cannot be
A contingent claim is one which depends for its enforced by a writ of execution but should be filed in
demandability upon the happening of a future uncertain the probate court as a money claim in accordance with
event (includes claims subject of suspensive condition). 86.5.
o Claims which are not yet due, or are contingent, may
be approved at their present value but as no payment  An action or a sum of money based on culpa
thereof can yet be authorized by the court until their contractual for the death of a passenger cannot be
demandability arises, a portion of the estate may be maintained against the heirs of the bus operator who
reserved for payment of the claims. had died thereafter. Plaintiff heirs should have filed
their claims against, and in the settlement of, the estate
of the deceased operator since such claims were based
on a contract of carriage. Even if the action was filed o Such enforcement cannot be delegated to the
after the settlement of the estate of the deceased probate court handling the settlement of the estate of
operator, neither can the suit be maintained against his the decedent, since the probate court as a court of
heirs as the distributees of his estate, since that may be limited jurisdiction has no authority to enforce a
done only if a contingent claim had been filed in the mortgage lien.
estate settlement in accordance with 88.5.
86.7  It has been held that the mortgagee can also resort to
 The first option granted to the mortgage creditor is to preliminary attachment of sufficient property of the
abandon his security and prosecute his claim. mortgagor where the mortgaged property is insufficient
o By filing his claim against the estate as a money to satisfy the mortgage account and the properties of
claim, he is deemed to have abandoned the mortgage the mortgagor are being disposed of in fraud of
and he can not thereafter file a foreclosure suit in the creditors.
event he fails to recover his money claim against the 86.8
estate.  Pertains to the second instance wherein a special
administrator may be appointed by the court. The
 The second alternative is for the mortgage creditor to special administrator shall have authority to act only
institute a foreclosure suit and recover upon the with respect to the claim of the regular administrator or
security. the executor.

86.9, 86.10, 86.11, 86.12, 86.13

o The foreclosure suit should be against the executor  A judgment of the probate court approving or
or administrator as party defendant. disapproving a claim shall be appealable as in ordinary
o If the creditor fails to obtain full recovery, he may cases – with a record on appeal and with a 30-day
obtain a deficiency judgment and file it as a claim reglementary period.
against the estate, provided he does so within the
period for filing claims against the estate, otherwise it 86.14
will be barred.  If there is no instrument evidencing the debt of the
o The safer recourse is for the mortgage creditor to file decedent and no writing is offered as proof thereof, the
a claim, for any probable deficiency within the period claim cannot be proved. This appears to be sustained by
for filing claims. It has been held that a deficiency the Dead Man Statute (disqualifies parties surviving
judgment is a contingent claim. parties under the circumstances from testifying to any
matter of fact occurring before the death of the
 The third recourse of the mortgage creditor is to rely decedent).
solely upon his mortgage and foreclose the same at any
time within the statute of limitations.
o If at the time he files the foreclosure suit the o It is assumed however that said provision does not
administration proceedings are still pending, the apply to money claims for funeral expenses or for the
executor or administrator shall be made the party last sickness of the deceased as these are claims arising
defendant. after death.
o However, if at the time of the foreclosure suit there
has been an order of distribution, then the party  A probate court has no jurisdiction to entertain a
defendants should be the heirs to whom the mortgaged claim in favour of the estate against a third person as
property has been awarded. the same should be the subject of an ordinary action
generally to be prosecuted by the executor or
o This includes extrajudicial foreclosure and with the
administrator under 87.2.
same consequences as a judicial foreclosure, the
o Exception is 86.10 which authorized executor or
mortgage creditor waives any further deficiency claim.
administrator to interpose any counterclaim in offset of
a claim against the estate. Such counterclaim regardless
 Where the mortgagor died during the pendency of a
of its basis is treated like a compulsory counterclaim
judicial foreclosure suit against him, the decision
since its failure to file it shall bar the claim forever.
therein shall be enforced by the trial court by writ of
execution in the foreclosure proceeding.
  The court may allow only the sale of personal
property for the purposes in section 1 and not
RULE 88: PAYMENT OF THE DEBTS OF THE ESTATE encumbrance thereof.
88.1, 88.11, 88.12, 88.13, 88.14, 88.15
 Provisions of section 15 for the payment of debts and  With respect to real property the court may permit
legacies is directory and extensions of the period may the same to be sold, mortgaged or otherwise
be granted by the court taking into account the encumbered under sections 2, 4, 5, 6.
circumstances attending the distribution of the estate. o Under both sections 4 and 6, if it will not be for the
convenience of or beneficial to the heirs and not for
88.2, 88.3, 88.6 payment of debts, administration expenses and
 The payment of the debts of the estate as a general legacies, real property can only be allowed to be sold
rule, must be taken (a) from the portion or property and not encumbered.
designated in the will (b) from the personal property
and (c) from the real property in that order. The court  As a rule, unless the testator had made provisions to
on petition of the interested parties may modify such the contrary in his will, the personal property of the
order of disposition. estate must first be sold for the payment of debts,
expenses of administration or legacies. If the same is
still insufficient, the real property may be proceeded
A legacy is not a debt of the estate, hence the against. Nevertheless, personalty may always be sold at
probate court cannot issue a writ of execution for the any time if it is necessary for the preservation of its
payment or satisfaction thereof. value.

 On the other hand section 6 authorizes execution

against the contributive shares of the devisees, legatees The sale or encumbrance of real property may be
and heirs in possession of the decedent’s assets to allowed by the court if the petition therefore avers: (a)
satisfy the debts of the estate. that the personal estate is not sufficient to pay the
88.4, 88.5 debts, expenses of administration and legacies or that
 These two sections provide for the payment of the sale of such personalty may injure the business or
contingent claims. If the contingent claim becomes the interests of persons interested in the estate; (b) that
absolute and is presented to the courts as an absolute the testator has not otherwise made sufficient
claim within two years from the time allowed for the provisions for the payment of such debts, expenses of
presentation of claims, it will be paid in the same administration and legacies; and (3) that such sale or
manner as the other absolute claims. After said period, encumbrance would be beneficial to the parties
the creditor may proceed against the distributees, interested in the estate.
provided said contingent claims had been seasonably o The averment as to the value of the personal estate
filed in and allowed by the probate court. The property is a requisite in the petition for sale of real property,
reserved for the payment of such contingent claims may without such averment court has no jurisdiction to
therefore be retained by the administrator or executor authorize sale of realty. Sale of such is null and void.
only within said two-year period a thereafter the same
shall be included among assets for distribution to the  Personal property may be sold, or the real property
heirs. may be sold, mortgaged or otherwise encumbered for
the following reasons
88.7, 88.8 o Payment of debts, expenses of administration and
 Under these provisions, the preference of credits has legacies in the Philippines;
been specifically incorporated in the rule, to be o When such sale would be beneficial to the persons
followed in the payment of debts where the estate is interested in the estate
not sufficient therefor. o Payment of debts, expenses of administration and
legacies involved in the settlement of the estate of a
88.9, 88.10, 88.16 decedent in a foreign country.
RULE 89: SALES, MORTGAGES, AND OTHER
ENCUMBRANCES  If the administrator or executor sells property of
OF PROPERTY OF DECEDENT estate without the requisite authority of the court, such
89.1, 89.2, 89.4, 89.5, 89.6 sale is null and void. The same rule would apply to
encumbrances of real property without authority of the creditors may be affected since unlike the situation in
court. section 8, the properties contemplated do not form part
of the estate of the deceased who merely held the same
 Also such application for authority to sell or encumber in trust.
property of the estate must be with notice to the heirs,
devisees and legatees. Otherwise, the sale is void. Such  Notice of such application must be given to all
notice is presumed to have been given absent proof to interested parties, otherwise both the order of the
the contrary and order of the court granting such court and the conveyance made pursuant thereto are
authority cannot be assailed in a collateral proceeding. completely void.

 Prohibitions RULE 90: DISTRIBUTION AND PARTITION OF THE

o Executors and administrators cannot purchase the ESTATE
property of the estate under administration. 90.1
o Also justices, judges, prosecuting attorneys, clerks of  Partial distribution of the decedent’s estate pending
court and other officers and employees connected with the final termination of the estate or intestate
the administration of justice cannot purchase the proceeding should as much as possible be discouraged
property and rights in litigation or levied upon an by the courts and except in extreme cases such form of
execution before the court within whose jurisdiction or advances of inheritance should not be countenanced.
territory they exercise their respective functions.
o Same prohibition applies to lawyers with respect to  Before the court can issue an order of distribution, the
the property and rights which may be the object of any debts, funeral charges, expenses of administration,
litigation in which they may take part by virtue of their allowance to the widow and inheritance tax must first
profession. Any sale covered by this prohibition will be have been paid.
null and void.
89.3  While it speaks only of allowance to the widow, it
 If the opposition to the sale is based on the fact that should also include the allowance to the children of the
the oppositor claims title to the property sought to be deceased as the payment of such allowances during the
sold, the court can hold in abeyance the authority to sell pendency of the administration proceedings. Legacies
such property until the issue of title has been settled in must have been paid (88.15), an advance or partial
an ordinary civil action, as the probate court generally distribution may be allowed provided the forgoing
has no power to adjudicate the question of ownership obligations are secured by a bond.
in the administration proceedings.
 Under this section the probate court is specifically
89.7 granted jurisdiction to determine who are the lawful
 After the sale or encumbrance of the property is heirs of the deceased as well as their shares. Hence
effected in accordance with this section, the document there is no further need to institute an independent civil
of sale must be submitted for the approval of the court. action to pass upon the status of a person who claims to
The court may also require the administrator or be an heir.
executor to deposit the proceeds of the sale in a o The order of distribution must also be at the same
banking institution. time a declaration of heirs since a separate action for
the declaration of heirs is not proper.
89.8, 89.9 o If the proceedings have been closed the same may
 The authority granted to the probate court by section be reopened to pass upon the status of one claiming to
8 presupposes that there is no controversy as to the be an heir.
contract contemplated therein and that the assets of
the estate will not be reduced to the extent of depriving
the creditor of full payment of his claim or his just The heirs may also by agreement submit a project of
dividend. If such objections obtain, the remedy of the partition to serve as a basis of the order of distribution.
person seeking the execution of the contract is an The heirs who do not agree may submit a counter
ordinary and separate action to compel the same. project of partition.

 Under section 9 the court can authorize such  In approving a project for partition it is not necessary
conveyance only if there is no controversy and even if for the court to state the specific property adjudicated
to an heir but may award the same to the heirs in pro  Petitions for escheats may only be filed in the name of
indiviso shares. the republic of the Philippines by the solicitor general or
his representative such as the provincial or city
 If they cannot agree on their respective specific prosecutor.
participations they can thereafter resort to an action for
partition.
Even if the decedent died testate but his will was not
 The judicial decree of distribution vests title in the allowed to probate, it is as if he died intestate and if he
distributees and any objection thereto should be duly has not known heirs and there are no persons entitled
raised in a seasonable appeal, otherwise it will have to his property, the same can still be escheated.
binding effect like any other judgment in rem. 91.2, 91.3, 91.4
 Art. 1014 provides that the 5-year period is to
 After the institution of the testate or intestate reckoned from the date the property was delivered to
proceedings, the assignment pendent lite by one heir of the state and further directs that if the property had
his hereditary share requires the approval of the been sold the municipality or city shall be accountable
probate court. only for such part of the proceeds as may not have been
lawfully spent.
 The sale by a widow of land belonging to the conjugal
partnership is valid with respect to her one-half share 91.5
therein even if the sale was made before partition,  Actions for reversion are proper in illegal sales of land
except where there are numerous assets of the to disqualified aliens. Unlike petition for escheat the
partnership as in that case the particular and corporeal action for reversion shall be filed in the province where
share of the widow cannot be determined until after the the land lies in whole or in part.
liquidation and partition thereof.
90.2, 90.3, 90.4  The 1987 constitution requires that the Congress shall
 The probate court loses jurisdiction of an estate under provide efficacious procedures and adequate remedies
administration only after payment of all debts and the for the reversion to the State of all lands of the public
delivery of the remaining estate to the heirs. domain and real rights connected therewith which were
o The finality of the approval of the project of partition acquired in violation of the Constitution or the public
does not terminate the probate proceeding. land laws, or through corrupt practices.

 As long as the order of distribution has not been Guardianship

complied with, the probate proceedings cannot be RULE 92: VENUE
deemed terminated because a judicial partition is not 92.1
final and conclusive and does not prevent the heir from  There are three kinds of guardians under the law.
bringing an action to obtain his share within the o The legal guardian is such by provision of law,
prescriptive period. without need of appointment, as in the case of the
parents over the persons of their minor children or
 The better practice for the heir who has not received father or in his absence the mother with respect to
his share is to demand the same through a proper property of minor children not exceeding P 50,000.00 in
motion in the same probate or administration value.
proceedings or for reopening of said proceedings if o The guardian ad litem who may be any competent
already closed but still within the reglementary period person appointed by the court for purposes of a
for appeal and not through an independent action. particular action or proceeding involving the minor.
o The judicial guardian who is a competent person
 Where the order closing the intestate proceeding was appointed by the court over the person and/or property
already final and executory the same cannot be of the ward to represent the latter in all his civil acts and
reopened on a motion therefor filed after the lapse of transactions, and is one contemplated in the
the reglementary period. aforementioned rules.

RULE 91: ESCHEATS  Judicial guardianship may be with respect only to the
91.1 person of the ward, or his property or of both. Where
the ward has no property, guardianship may be only
with respect to his person; in case of a non-resident person should be appointed guardian if his interests
ward, guardianship may be with respect only to his conflict with those of the ward or if he is a non-resident
property. of the Philippines.

 While there is no prohibition against appointment of  The court has no jurisdiction to appoint a guardian
different judicial guardians, one for person and one for over the person of a non-resident minor but there can
property, the practice is to appoint judicial guardians for be guardianship over the property of such non-resident
both unless otherwise called for by the circumstances. minor.

 The appointment of a guardian is good until set aside

and despite an appeal therefrom, the guardian can do
Under BP 129 inferior courts no longer have whatever is necessary under the direction of the court,
concurrent jurisdiction to appoint guardians over for the protection of the ward or his property.
persons or properties of incompetents.
o However, where the minor or incompetent is a party RULE 96: GENERAL POWERS AND DUTIES OF
to an action in a n inferior court, he may be assisted by GUARDIANS
or may sue or be sued therein through his legal 96.1, 96.2, 96.3, 96.4, 96.5, 96.6, 96.7
guardian or the inferior court may appoint a guardian  The executor or administrator must render within one
for him. year and at any other time when required by the court.
In case of a guardian he has to render an inventory and
 Where in a guardianship case an issue arises as to who account annually.
has a better right or title to the properties in the course
of the proceedings, the controversy should be threshed  A guardian just like a trustee is prohibited from
out in a separate ordinary action as the dispute is making a donation of the properties entrusted to him
beyond the jurisdiction of the guardianship court. (Art. 736).
o However, where the right or title of the ward to the
property is clear and indisputable, the guardianship
court may issue an order directing its delivery or return. Since only the estate of the ward should be included
92.2, 92.3 in the inventory in the case of a married woman under
RULE 93: APPOINTMENT OF GUARDIANS guardianship by reason of insanity her half of the
93.1, 93.2, 93.6 property in a subsisting conjugal partnership should not
 The courts should not appoint as a guardian any be included in the inventory since the determination
person who is not personally subject to their thereof requires the prior liquidation of the conjugal
jurisdiction, such as nonresidents of the Philippines. partnership.

 In case of a minor, the petition may be filed by the RULE 97: TERMINATION OF GUARDIANSHIP
DSWD and in case of an insane minor who needs to be 97.1, 97.2
hospitalized, by the Secretary of Health.  The court which appointed the guardian is also the
court competent to decide the petition for restoration
 Notice of the petition for the appointment of a to capacity which is merely a continuation of the
general guardian must now be given to all relatives of original guardianship proceeding.
the ward, instead of only to the next of kin required in
the old rules. The giving of notice to relatives is a  The petition for the removal of the guardian must be
jurisdictional requirement. filed in the same guardianship proceeding. It must be
based only on the grounds in section2 which must be
93.3 satisfactorily proved.
 Service of notice upon a minor who is more than 14
years if age or an incompetent is jurisdictional.  The notice to the guardian and the ward required in
section 1 is only procedural, not jurisdictional, the lack
93.4, 93.5 of which only affects the validity of the proceeding only
 In the appointment of a guardian the courts should when prejudice is caused thereby.
take into consideration the competency, character and
financial condition of the prospective guardian. No 97.3
 Marriage or voluntary emancipation terminates o However, where daughter is of legal age, living with a
guardianship only over the person but not the property married man who is not restraining her of her liberty,
of the ward. the writ is not available.
102.2, 102.3
97.4, 97.5  Writ is enforceable throughout the judicial region,
AM 03-02-05-SC may now be filed in RTC in the region where it is sought
to be enforced.
RULE 102: HABEAS CORPUS
102.1  Petition is required to be verified but the defect in
 The writ of habeas corpus is a writ directed to the form will not be fatal.
person detaining another and commanding him to
produce the body of the prisoner at a certain time and  It is the duty of a court to issue the writ if there is
place, with the day and the cause of his caption and evidence that a person is unjustly restrained of liberty
detention, to do, submit to, and receive whatsoever the within its jurisdiction even if there is no application
court or judge awarding the writ shall consider in that therefor.
behalf.
102.4, 102.5, 102.6
 Habeas corpus under this rule is the remedy in cases  Preliminary citation - Where the person is detained
of illegal confinement or detention or where the rightful under governmental authority and illegality of his
custody of a person is withheld from one entitled to detention is not patent from the petition for the writ,
such custody. court may issue a citation to the government officer
o Actual and effective, and not merely nominal or having custody to show cause why the writ of habeas
moral restraint is required. corpus should not issue.
o However, actual physical restrain is not always
required; any restraint which will prejudice freedom of  Peremptory writ – issued when the cause of detention
action is sufficient. appears to be patently illegal and the non-compliance
therewith is punishable.
 Writ may also be availed of where as a consequence
of a judicial proceeding 102.7, 102.8, 102.9, 102.10, 102.11, 102.12, 102.13
o There has been a deprivation of a constitutional right  If detention is by reason of public authority, the return
resulting in the restraint of a person is considered prima facie evidence of the validity of the
o The court had no jurisdiction to impose the sentence restraint and the petitioner has burden of proof to show
or that restraint is illegal.
o An excessive penalty has been imposed, such
sentence being void as to the excess.  If detention is by reason of private authority, return is
considered only a plea of facts asserted therein and the
person responsible for the detention has the burden of
It is necessary that the judgment of the court which proof to establish that the detention is legal and
resulted in illegal deprivation of liberty is no longer justified.
appealable, in which case the writ is in the nature of a
collateral attack against a final but void judgment. 102.14
o If it is still appealable, remedy of the person detained  Where prisoner has been detained and held without
is to duly appeal therefrom as habeas corpus is not a bail although the offense is bailable he may in a habeas
substitute for appeal. corpus proceeding be allowed to post bail.

 Generally writ shall not issue if restrain is voluntary,

but it will If the offense is not bailable, he cannot obtain his
o To enable parents to recover custody of minor provisional liberty on bail by habeas corpus.
102.15, 102.16, 102.17, 102.18, 102.19
daughter although she is in custody of a third person on
 Habeas corpus is not the proper mode to question
her own volition
conditions of confinement.
o Or to enable to regain custody of a minor younger
sister living voluntarily in adulterous relations with
another.
 Writ of Amparo addressed other fundamental human o To be valid and to confer jurisdiction upon the court,
rights in the constitution not covered by habeas corpus such publication must give the correct information, and
(Spanish for protection) a defect in such publication is fatal.

 Writ of Habeas Data can be invoked by persons to find  All aliases of the applicant must be set forth in the
out the information collated about him, particularly by title of the petition, otherwise though the petition has
law enforcement agencies, and to compel them to been duly published, such defect would be fatal even if
disclose the use and purpose of such information. said other aliases are contained in the body.
o Reliefs may seek the updating, rectification,
suppression or destruction of the database or 103.4, 103.5, 103.6
information and in case of threats a plea for an order  A change of name granted by the court affects only
enjoining the act complained of. the petitioner.
o A separate petition for change of name must be filed
RULE 103: CHANGE OF NAME for his wife and children.
103.1 o Inceptively, a joint petition for all the qualified
 Procedure in rule 103 and 108 are separate and member of said family as co-petitioners would have
distinct, if both reliefs are sought, requirements for been permissible and should have been the appropriate
both must be complied with. remedy.

 An alien can petition for a change of name, but he  Art 364-380 of Civil Code regulate the use of
must be domiciled in the Philippines. surnames.
o No person can change his name or surname without
 The name that can be change is the one that appears judicial authority.
in the civil register, not one in baptismal certificate or
that by which person is known in community.  A decree of adoption grants the adoptee right to use
that adopter’s surname but not to change the former’s
 First name in civil registry is “Baby” – petition for first name which relief must be sought in a discrete
change is proper remedy. petition under 103

103.2 RULE 108: CANCELLATION OR CORRECTION OF ENTRIES

 Petition must be filed by the person desiring to IN THE CIVIL REGISTRY
change name, as proper party in the petition, even if it  The proceedings under 108 may in effect be either
may be signed and verified by some other person. summary or adversary in nature.
o If the correction sought to be made in the civil
 Petition for correction of name in birth certificate is register is clerical, the procedure to be adopted is
actually a petition for change of name and covered by summary.
this Rule and not Rule 108.

 Married woman’s status is not affected by a decree of o If the rectification affects the civil status, citizenship
legal separation as the vinculum is not severed, hence or nationality of a party, it is deemed substantial and
she must continue to use her married name. Change of the procedure to be adopted is adversarial.
name cannot be justified by legal separation.
 RA 9048 authorizes the City or Municipal Registrar or
 A change of name should not be permitted if it would the Consul General to correct a clerical or typographical
give a false impression of family relationship to another, error in an entry and/or change of first name or
but not if the proposed change of name would not nickname in the civil register without need of a judicial
cause prejudice to the family whose surname it is. order.

103.3  A person’s first name cannot be changed on the

 A petition for change of name is a proceeding in rem ground of sex reassignment. All entries in the birth
and the publication of the order is a jurisdictional certificate of the petitioner were correct since sex of a
requisite. person is determined at birth.
 o However an intersexual, may have name changed on Requirements:
basis of the sex he/she wishes to adopt. [Sec 3, RA 10172]
Documentary Attachments:
Change of Name Corrections or 1. A certified true machine copy of the certificate
Cancellation of Entries or of the page of the registry book containing
Venue is the residence of the Venue is the place where civil the entry or entries sought to be corrected or
petitioner registry is located changed;
Solicitor general must be notified by Civil registrar concerned is made a
service of a copy of the petition party to the proceeding 2. as Ata least two (2) public or private documents
respondent showing the correct entry or entries upon which the
correction or change shall be based; and
CLERICAL ERROR LAW (RA 9048) 3. Other documents which the petitioner or the city
or municipal civil registrar or the consul general may
RA 9048 (Correction of Error in Name), as amended by consider relevant and necessary for the approval of the
RA 10172 (Correction of Error in Birthday and Sex) petition

GROUNDS The petition for change of Additional Documentary Attachments

first name or nickname Generally:
may be allowed in any of 1. Certification from appropriate law enforcement
the following cases [Sec. 4, agencies that petitioner has no pending case or
RA 9048]: no criminal record.

● The petitioner finds the For Day and Month in Date of Birth and Sex:
first name or nickname to 1. Earliest school record or earliest school
be ridiculous, tainted with documents.
dishonor or extremely 2. Medical records.
difficult to write or 3. Other documents issued by religious
pronounce; authorities.
● The new first name or
nickname has been For Sex: Certification by an accredited
habitually and government physician attesting to the fact that
continuously used by the petitioner did not undergo sex change or sex transplant.
petitioner and he has been
publicly known by the first Note: RA 9048 (as amended by RA 10172) does
name or nickname in the not allow a change of first name on the ground of sex
community, or; reassignment [Silverio v. Republic, G.R. No. 174689
● The change will avoid (2007)].
confusion. Under Sec. 1, Changes in Procedure: The petition shall be
RA 10172: No entry in a published at least once a week for two consecutive
civil register shall be weeks in a newspaper of general circulation
changed or corrected
without a judicial order, Clerical or Typographical Error [Sec. 2 (3), RA 10172]
except: Refers to a mistake committed in the performance of
● clerical or typographical clerical work in writing, copying, transcribing or typing
errors and change of first an entry in the civil register that is
name or nickname, ● the 1. harmless and innocuous,
day and month in the date 2. visible to the eyes or obvious to the understanding,
of birth or sex of a person and
where it is patently clear 3. can be corrected or changed only by reference to
that there was a clerical or other existing record or records.
typographical error or
mistake in the entry.
Examples: their safety. If the petitioner is an organization,
1. Misspelled name or association or institution referred to in Section 3(c) of
2. Misspelled place of birth, this Rule, the protection may be extended to the
3. Mistake in the entry of day and month in the date of officers involved.
birth or
The Supreme Court shall accredit the persons and
4. The sex of the person or the like
private institutions that shall extend temporary
protection to the petitioner or the aggrieved party and
What Cannot Be Corrected: any member of the immediate family, in accordance
1. Nationality with guidelines which it shall issue.
2. Age
3. Status The accredited persons and private institutions shall
comply with the rules and conditions that may be
THE RULE ON THE WRIT OF AMPARO imposed by the court, justice or judge.

The petition for a writ of amparo is a remedy available (b) Inspection Order. — The court, justice or judge,
to any person whose right to life, liberty and security is upon verified motion and after due hearing, may order
violated or threatened with violation by an unlawful act any person in possession or control of a designated
or omission of a public official or employee, or of a land or other property, to permit entry for the purpose
private individual or entity. of inspecting, measuring, surveying, or photographing
the property or any relevant object or operation
The writ shall cover extralegal killings and enforced thereon.
disappearances or threats thereof.
The motion shall state in detail the place or places to
Who May File be inspected. It shall be supported by affidavits or
testimonies of witnesses having personal knowledge
a. Any member of the immediate family, namely: of the enforced disappearance or whereabouts of the
the spouse, children and parents of the aggrieved party.
aggrieved party;
b. Any ascendant, descendant or collateral If the motion is opposed on the ground of national
relative of the aggrieved party within the fourth security or of the privileged nature of the information,
civil degree of consanguinity or affinity, in the court, justice or judge may conduct a hearing in
default of those mentioned in the preceding chambers to determine the merit of the opposition.
paragraph; or
The movant must show that the inspection order is
c. Any concerned citizen, organization, necessary to establish the right of the aggrieved party
association or institution, if there is no known alleged to be threatened or violated.
member of the immediate family or relative of
the aggrieved party.
The inspection order shall specify the person or
persons authorized to make the inspection and the
Where to File date, time, place and manner of making the inspection
and may prescribe other conditions to protect the
On any day and at any time with the Regional constitutional rights of all parties. The order shall
Trial Court of the place where the threat, act or expire five (5) days after the date of its issuance,
omission was committed or any of its elements unless extended for justifiable reasons.
occurred, or with the Sandiganbayan, the Court of
Appeals, the Supreme Court, or any justice of such (c) Production Order. – The court, justice or judge,
courts. The writ shall be enforceable anywhere in the upon verified motion and after due hearing, may order
Philippines. any person in possession, custody or control of any
designated documents, papers, books, accounts,
Interim Reliefs letters, photographs, objects or tangible things, or
objects in digitized or electronic form, which constitute
(a) Temporary Protection Order. – The court, or contain evidence relevant to the petition or the
justice or judge, upon motion or motu proprio, may return, to produce and permit their inspection, copying
order that the petitioner or the aggrieved party and or photographing by or on behalf of the movant.
any member of the immediate family be protected in a
government agency or by an accredited person or The motion may be opposed on the ground of national
private institution capable of keeping and securing security or of the privileged nature of the information,
in which case the court, justice or judge may conduct abuse in the information age.” It can be availed of as an
a hearing in chambers to determine the merit of the independent remedy to enforce one’s right to privacy,
opposition. more specifically the right to informational privacy
[Vivares v. St. Theresa’s College, G.R. No. 202666
The court, justice or judge shall prescribe other (2014)]
conditions to protect the constitutional rights of all the
parties.
b. Nothing in the Rule suggests that the habeas data
(d) Witness Protection Order. – The court, justice or protection shall be available only against abuses of a
judge, upon motion or motu proprio, may refer the person or entity engaged in the business of gathering,
witnesses to the Department of Justice for admission storing, and collecting of data [Vivares v. St. Theresa’s
to the Witness Protection, Security and Benefit College, supra]
Program, pursuant to Republic Act No. 6981.
Where to file
The court, justice or judge may also refer the
witnesses to other government agencies, or to a. RTC, at the option of the petitioner
accredited persons or private institutions capable of 1. Where petitioner resides, or
keeping and securing their safety.
2. Where respondent resides, or
3. Which has jurisdiction over the place where
Writ of Habeas Data (A.M. No. 08-1-16-SC)
the data or information is gathered, collected or stored
b. SC, CA, SB (when action concerns public data files of
1. Scope of Writ
government offices) [Sec. 3]
The writ of habeas data is a remedy available to Writ is enforceable anywhere in Philippines [Sec. 4]
any person whose right to privacy in life, liberty
or security is violated or threatened by an No fees for indigent petitioners
unlawful act or omission of a public official or The petition of the indigent shall be docked and acted
employee, or of a private individual or entity upon immediately, without prejudice to subsequent
engaged in the gathering, collecting or storing submission of proof of indigency not later than fifteen
of data or information regarding the person, (15) days from the filing of the petition [Sec. 5]
family, home and correspondence of the
aggrieved party [Sec. 1] Nexus between right to privacy, and right to life,
liberty or security
Purpose The writ, however, will not issue on the basis merely of
an alleged unauthorized access to information about
It is an independent and summary remedy the person. Availment of the writ requires the existence
designed to protect the image, privacy, honor, of a nexus between the right to privacy on the one
information, and freedom of information of an hand, and the right to life, liberty or security on the
individual, and to provide a forum to enforce one’s right other [Vivares v. St. Theresa’s College, supra]
to the truth and to informational privacy. It seeks to
protect a person’s right to control information regarding It will not issue to protect purely property or
oneself, particularly in instances in which such commercial concerns nor when the grounds invoked in
information is being collected through unlawful means support of the petition therefor are vague and doubtful
in order to achieve unlawful ends [Gamboa v. Chan, G.R. [Manila Electric Company v. Lim, G.R. No. 184769
No. 193636 (2012)]. (2010)].

Note: Where the petitioner was not able to sufficiently allege

that his right to privacy in life, liberty or security was or
a. Writ of Habeas Data was not enacted solely for the would be violated through the supposed reproduction
purpose of complementing the Writ of Amparo in cases and threatened dissemination of the subject sex video,
of extralegal killings and enforced disappearances. It the petition is dismissible.
may be availed of in cases outside of extralegal killings
and enforced disappearances. Habeas data, to stress, As the rules and existing jurisprudence on the matter
was designed “to safeguard individual freedom from evoke, alleging and eventually proving the nexus
between one’s privacy rights to the cogent rights to life, 2. In case of respondent in charge, in possession or in
liberty or security are crucial in habeas data cases, so control of the data or information subject of the
much so that a failure on either account certainly petition
renders a habeas data petition dismissible [Lee v. Ilagan, i. Disclosure of the data or information about the
G.R. No. 203254 (2014)]. petitioner, the nature of such data or information, and
the purpose for its collection,
[Link] May File ii. The steps or actions taken by the respondent to
Any aggrieved party may file a petition for the writ of ensure the security and confidentiality of the data or
habeas data. However, in cases of extralegal killings and information, and
enforced disappearances, the petition may be filed by iii. The currency and accuracy of the data or information
a. Any member of the immediate family of the held, and
aggrieved party, namely the spouse, children and
parents, or 3. Other allegations relevant to the resolution of the
b. Any ascendant, descendant or collateral proceeding
relative of the aggrieved party within the fourth civil
degree of consanguinity or affinity, in default of those A general denial of the allegations in the petition shall
mentioned in the preceding paragraph [Sec. 2] not be allowed [Sec. 10]

4. Contents of the Petition When to file return

A verified written petition for a writ of habeas data Respondent must file a verified written return within 5
should contain working days from service of the writ, together with
a. The personal circumstances of the petitioner and the supporting affidavits. The 5-day period may be
respondent, reasonably extended by the Court for justifiable reasons
b. The manner the right to privacy is violated or [Sec. 10]
threatened and how it affects the right to life, liberty or
security of the aggrieved party city, Prohibited pleadings and motions
c. The actions and recourses taken by the petitioner to a. Motion to dismiss
secure the data or information, b. Motion for extension of time to file return,
d. The location of the files, registers of databases, the opposition, affidavit, position paper and other pleadings
government office, and the person in charge, in c. Dilatory motion for postponement
possession or control of the data or information, if d. Motion for a bill of particulars
known, e. Counterclaim or cross-claim
e. The reliefs prayed for, which may include the f. Third-party complaint
updating, rectification, suppression or destruction of the g. Reply
database or information or files kept by the respondent, h. Motion to declare respondent in default
f. In case of threats, the relief may include a prayer for i. Intervention
an order enjoining the act complained of, and j. Memorandum
g. Such other relevant reliefs as are just and equitable k. Motion for reconsideration of interlocutory orders or
[Sec. 6] Issuance of writ Upon the filing of the petition, interim relief orders, and petition for certiorari,
the court, justice or judge shall immediately order the mandamus or prohibition against any interlocutory
issuance of the writ if on its face it ought to issue [Sec. order [Sec. 13]
7]
Quantum of Proof in Application for Issuance of Writ
Contents of Return of Habeas Data
The respondent shall file a verified written return
together with supporting affidavits. It shall contain, If the allegations in the petition are proven by
among others, the following: substantial evidence, the court shall
(a) enjoin the act complained of, or order the
1. The lawful defenses such as national security, state deletion, destruction, or rectification of the
secrets, privileged communication, confidentiality of the erroneous data or information AND (b) grant
source of information of media and others other relevant reliefs as may be just and
equitable; otherwise, the privilege of the writ
shall be denied [Sec. 16]
 An indispensable requirement before the privilege Ground to dissolve
of the writ may be extended is the showing, at least TEPO
by substantial evidence, of an actual or threatened
violation of the right to privacy in life, liberty or The TEPO may be dissolved if it appears after
security of the victim [Roxas v. Arroyo, G.R. No. hearing that its issuance or continuance would
189155 (2010)]
cause irreparable damage to the party or person
Not only direct evidence, but circumstantial
enjoined while the applicant may be fully
evidence, indicia, and presumptions may be compensated for such damages as he may suffer
considered, so long as they lead to conclusions and subject to the posting of a sufficient bond by
consistent with the admissible evidence adduced the party or person enjoined.
[Saez v. Arroyo, G.R. No. 183533 (2012)] HOWEVER,
the right to informational privacy may yield to an Note: The grounds for a motion to dissolve a TEPO
overriding legitimate state interest [Gamboa v. shall be supported by affidavits of the party or the
Chan, G.R. No. 193636 (2012)]. person enjoined which the applicant may oppose,
also by affidavits [Sec. 9, Rule 2].
K. Rules of Procedure on Environmental Cases
(A.M. No. 09-6-8-SC) 2. Writ of Continuing Mandamus
1. Temporary Environmental Protection Order
Court action
(TEPO)
In the judgment, the court may—
Ground for Issuance
a. Convert the TEPO to a permanent EPO, or
b. Issue a writ of continuing mandamus directing
If it appears from the verified complaint with a
the performance of acts which shall be effective
prayer for the issuance of an EPO that
until the judgment is fully satisfied [Sec. 3, Rule 5]
a. The matter is of extreme urgency and
b. The applicant will suffer grave injustice and
Definition
irreparable injury [Sec. 8, Rule 2]
Environmental protection order – An order issued
Note: The applicant shall be exempted from the
by the court directing or enjoining any person or
posting of a bond for the issuance of a TEPO [Sec.
government agency to perform or desist from
8, Rule 2].
performing an act in order to protect, preserve, or
rehabilitate the environment [Sec. 3(d), Rule 1]
Period of Effectivity
Writ of continuing mandamus – A writ issued by a
72 hours from date of the receipt of the TEPO by
court in an environmental case directing any
the party or person enjoined [Sec. 8, Rule 2]
agency or instrumentality of the government or
Duty of Court officer thereof to perform an act or series of acts
decreed by final judgment which shall remain
a. Within the 72-hour period, the court shall effective until judgment is fully satisfied [Sec. 3(c),
conduct a summary hearing to determine whether Rule 1]
the TEPO may be extended until the determination
of the case [Sec. 8, Rule 2] Execution

b. The court where the case is assigned, shall The court may, by itself or through the appropriate
periodically monitor the existence of acts that are government agency:
the subject matter of the TEPO even if issued by
a. Monitor the execution of the judgment, and
the executive judge, and may lift the same at any
time as circumstances may warrant [Sec. 8, Rule 2]
b. Require the party concerned to submit written f. All relevant and material evidence - Affidavits,
reports on a quarterly basis or sooner as may be documentary evidence, scientific/expert studies, object
necessary. The reports shall detail the progress of evidence
the execution and satisfaction of the judgment. The g. Certification of the petitioner under oath that:
i. Petitioner has not commenced any action or
other party may, at its option, submit its comments
filed any claim involving the same issues in any court,
or observations on the execution of the judgment
tribunal, or quasi-judicial agency, and no such action is
[Sec. 3, Rule 5]. pending;
ii. If there is an action pending, the complete
Return of writ of execution statement of its present status;
iii. If the petitioner shall learn that there is a
The process of execution shall terminate upon a pending action, he shall report such to the court within
sufficient showing that the decision or order has 5 days.
been implemented to the satisfaction of the court h. Reliefs prayed for which may include a TEPO
in accordance with Sec. 14, Rule 39 of the ROC. [Sec. 2, Rule 7]

3. Writ of Kalikasan Issuance

When available It is a remedy available: If the petition is sufficient in form and
a. To a natural or juridical person, entity authorized by substance, the writ shall be issued within 3 days from
law, people’s organization, NGO, or any public interest the date of filing.
group accredited by or registered with any government • The respondent shall be required to file a
agency, verified return.
b. On behalf of persons whose constitutional right to a • The order shall include the issuance of a cease
balanced and healthful ecology is violated or threatened and desist order and other temporary reliefs effective
with violation, until further order [Sec. 5, Rule 7].
c. By an unlawful act or omission of a public official or
employee, or private individual or entity, Judgment
d. Involving environmental damage to such magnitude Judgment shall be rendered granting or
as to prejudice the life, health, or property of denying the writ of kalikasan within 60 days from the
inhabitants in two or more cities or provinces [Sec. 1, time the petition is submitted for decision.
Rule 7]
Reliefs that may be granted under the writ:
Note: The filing of the petition shall not preclude the
filing or separate civil, criminal, or administrative a. Directing the respondent to permanently cease
actions [Sec. 17, Rule 7]. and desist from committing acts/neglecting the
performance of a duty in violation of
Where to file environmental laws resulting in environmental
The petition shall be filed with the SC or any of the destruction or damage;
stations of the CA [Sec. 3, Rule 7]. b. Directing the respondent to protect, preserve,
rehabilitate, or restore the environment;
Form c. Directing the respondent to monitor strict
The verified petition shall contain the following: compliance with the decisions and orders of the
a. The personal circumstances of the petitioner; court;
b. The name and personal circumstances of the d. Directing the respondent to make periodic
respondent or if unknown/uncertain, an assumed reports on the execution of the final judgment; and
appellation of the respondent; e. Such other reliefs which relate to the right of the
c. The environmental law, rule, or regulation violated or people to a balance and healthful ecology or to the
threatened to be violated; protection, preservation, rehabilitation, or
d. The act or omission complained of; restoration of the environment.
e. The environmental damage of such magnitude as to
prejudice the life, health, or property of the inhabitants Note: An award of damages to individual petitioners
in 2 or more cities or provinces; is not allowed as a relief [Sec. 15, Rule 7]. Appeal
Any party may appeal to the SC under Rule 45 of the
ROC within 15 days from notice of the adverse
judgment or denial of MR.

Note: The appeal may raise questions of fact [Sec.

16 Rule 7].