VI. SPECIAL PROCEEDINGS
A. SETTLEMENT OF ESTATE OF DECEASED PERSONS, VENUE AND PROCESS
1. Which court has jurisdiction
Pursuant to R.A. No. 7691, the question as to which court shall exercise jurisdiction over
probate proceedings depends upon the gross value of the estate of the decedent. In Metro
Manila, the Municipal Trial Court has jurisdiction on the said proceeding if the value does not
exceed Php 400,000, otherwise, the Regional Trial Court has jurisdiction over the same. Outside
Metro Manila, Municipal Trial Courts, Metropolitan Trial Courts and Municipal Circuit Trial
Courts have jurisdiction over probate proceedings if the gross value of the estate left by the
decedent does not exceed Php 300,000 beginning April 16, 2004 (before the said date, it was
Php 200,000).
2. Venue in judicial settlement of estate
Pursuant to Rule 73, Section 1, residence of the decedent at the time of his death is
determinative of the venue of the proceeding. It is only where the decedent was a non-resident
of the Philippines at the time of his death that venue lies in any province in which he had estate.
3. Extent of jurisdiction of probate court
As a general rule, a probate court cannot issue writs of execution because its orders
usually refer to the adjudication of claims against the estate which the executor or administrator
may satisfy without the need of executor processes.
4. Powers and duties of probate court
By way of exception, the court may issue writs of execution on the following:
i. To satisfy the contributive shares of the devisees, legatees and heirs on
possession of the decedent’s assets as laid down in Rule 88, Section 6;
ii. To enforce payment of the expenses of partition under Rule 90, Section 3;
iii. To satisfy the cost when a person is cited for examination in probate
proceedings under Rule 142, Section 13.
B. SUMMARY SETTLEMENT OF ESTATES
1. Extrajudicial settlement by agreement between heirs, when allowed
The following are the requisites of a valid extrajudicial settlement:
i. The decedent died intestate;
ii. The estate has no outstanding debts at the time of the settlement;
iii. The heirs are all of age, or the minors are represented by their judicial
guardians or legal representatives;
iv. The settlement is made in a public instrument, stipulation or affidavit duly
filed with the register of deed;
v. The fact of such judicial settlement must be established in a newspaper of
general circulation in the province once a week for three consecutive weeks;
and
vi. In case of personal property, a bond equivalent to the value of personal
property posted with the Register of Deeds is required.
2. Two-year prescriptive period
The provisions of Section 4 of Rule 74 barring distributes or heirs from objecting to an
extrajudicial partition after the expiration of two years from such extrajudicial partition, is
applicable only to:
1. Persons who have participated or taken part or had notice of the extrajudicial
partition; and, in addition,
2. When the provisions of Section 1 of Rule 74, have been strictly complied with.
3. Affidavit of self-adjudication by sole heir
It is an affidavit required by Section 1 of Rule 74 that is to be executed by the sole heir of
a deceased person in adjudicating to himself the entire estate left by the decedent. It is filed
with the Registry of Deeds.
4. Summary settlement of estates of small value, when allowed
It is a summary proceeding for the settlement of the estate of a deceased person
whether he died testate or intestate if the gross value of the estate is Php 10,000 without need
of an appointment of an administrator or executor.
5. Remedies of aggrieved parties after extra-judicial settlement of estate


No extra-judicial settlement shall be binding upon any person who has not
participated therein or had no notice thereof.
The action to annul an invalid deed of extra-judicial partition does not prescribe.
C. PRODUCTION AND PROBATE OF WILL
1. Nature of probate proceeding
Probate proceedings is in rem. The notice by publication as a prerequisite to the
allowance of a will, is a constructive notice to the whole world, and when probate is granted the
judgment is binding upon everybody, even against the State. The probate of a will of the court
having jurisdiction thereof is conclusive as to its due execution and validity.
2. Who may petition for probate; persons entitled to notice
Rule 76, Section 1 provides that any executor, devisee, or legatee named in a will, or any
other person interested in the estate, may, at any time after the death of the testator, petition
the court having jurisdiction to have the will allowed, whether the same be in his possession or
not, or is lost or destroyed.
The testator himself, may, during his lifetime, petition the court for the allowance of his
will.
D. ALLOWANCE OR DISALLOWANCE OF WILL
1. Contents of petition for allowance of will
Our rule requires that the petition for the allowance of a will must show, so far as known to
the petitioner:
a. The jurisdictional facts;
b. The names, ages and residences of the heirs, legatees and devisees of the testator or
decedent;
c. The probable value and character of the property of the estate;
d. The name of the person for whom letters are prayed; and
e. If the will has not been delivered to the court, the name of the person having custody of
it.
2. Grounds for disallowing a will
The grounds for disallowance of a will are exclusive and may be categorized into three main
groups:
1. Non-compliance with the legal formalities required by law;
2. Lack of testamentary capacity; and
3. The will was not duly executed.
3. Reprobate; requisites before will proved outside allowed in the Philippines; effects of probate
Section 1 of Rule 77 provides that a will proved and allowed in a foreign country must be reprobated in the Philippines. If the decedent owns properties in different countries, separate
proceedings must be had to cover the same.
At the reprobate proceedings in the Philippines, the proponent must prove:
a) That the testator was domiciled in the foreign country;
b) That the will has been admitted to probate in such country;
c) That the foreign court was, under the laws of said foreign country, a probate
court with jurisdiction over the proceedings;
d) The law on probate procedure in said foreign country and proof of compliance
therewith; and
e) The legal requirements in said foreign country for the valid execution of the will.
The effects are as follows:
a) The will shall be treated as if originally proved and allowed in Philippine courts;
b) Letters testamentary or administration with a will annexed shall extend to all
estates of the Philippines;
c) After payment of just debts and expenses of administration, the residue of the
estate shall be disposed of as provided by law in cases of estates in the
Philippines belonging to persons who are inhabitants of another state or
country.
E. LETTERS TESTAMENTARY AND OF ADMINISTRATION
1. When and to whom letters of administration granted
Letters testamentary - It is an authority issued to an executor named in the will to
administer the estate.
Letters of Administration – It is an authority issued by the court to a competent person
to administer the estate of the deceased who died intestate.
Section 5 of Rule 78 provides that when all of the executors named in a will cannot act
because of incompetency, refusal to accept the trust, or failure to give bond, on the part of one
or more of them, letters testamentary may issue to such of them as are competent, accept and
give bond, and they may perform the duties and discharge the trust required by the will. Where
some co-executors are disqualified, others who are qualified may thereby act.
2. Order of preference
If no executor is named in the will, or the executor or executors are incompetent, refuse
the trust, or fail to give bond, or a person dies intestate, administration shall be granted:
a.
To the surviving husband or wife, as the case may be, or next of kin, or both, in the
discretion of the court, or to such person as such surviving husband or wife, or next of
kin, requests to have appointed, if competent and willing to serve;
b. If such surviving husband or wife, as the case may be, or next of kin, or the person
selected by them, be incompetent or unwilling, or if the husband or widow, or next of
kin, neglects for 30 days after the death of the person to apply for administration or to
request that administration be granted to some other person, it may be granted to one
or more of the principal creditors, if competent and willing to serve;
c.
If there is no such creditor competent and willing to serve, it may be granted to such
other person as the court may select.
3. Opposition to issuance of letters testamentary; simultaneous filing of petition for
administration
Any person interested in a will may state in writing the grounds why letters
testamentary should not issue to the persons named therein as executors, or any of them. The
court, after hearing upon notice, shall pass upon the sufficiency of such grounds.
4. Powers and duties of executors and administrators; restrictions on the powers
The general rule universally recognized is that administration extends only to the assets
of a decedent found within the state or country where it was granted, so that an administrator
appointed in one state or country has no power over the property in another state or country.
This is specifically embodied in Section 4, Rule 78 of the Rules of Court.
The general powers and duties of executors and administrators are the following:
a) Shall at all times have access to, and may examine and take copies of,
books and papers relating to the partnership business;
b) May examine and make invoices of the property belonging to such
partnership;
c)
Shall maintain in tenantable repair the houses and other structures and
fences belonging to the estate, and deliver the same in such repair to the
heirs or devisees when directed to do so by the court;
d) Shall have the right to the possession and management of the real as well
as the personal estate of the deceased so long as it is necessary for the
payment of the debts and the expenses of administration.
5. Appointment of special administrator
A special administrator is a representative of the decedent appointed by the probate
court to care for and preserve his estate until an executor or general administrator is appointed.
When there is delay in granting letters testamentary or of administration occasioned by an
appeal from the allowance or disallowance of a will or some other cause, the court may appoint
the same.
6. Grounds for removal of administrator
The court is invested with ample discretion in the removal of an administrator for as
long as there is evidence of an act or omission on the part of the administrator not conformable
to or in disregard of the rules of the orders of the court which it deems sufficient or substantial
to warrant the removal of the administrator.
F. CLAIMS AGAINST THE ESTATE
1. Time within which claims shall be filed; exceptions
The range of the period specified in Rule 86, Section 2 is intended to give the court the
discretion to fix the period for the filing of claims. The probate court is permitted by the rule to
set the period as long as it is within the limitation provided. It should not be less than six
months nor more than 12 months from the day of the first publication of the notice thereof.
Such period when fixed by the probate court becomes mandatory.
2. Statute of non-claims
It is the period fixed by Section 2 of Rule 86 for the filing of the claims against the estate.
The rule mandates certain creditors of a deceased person to present their claims for
examination and allowance within a specified period, the purpose thereof being to settle the
estate with dispatch, so that the residue may be delivered to the persons entitled thereto
without their being afterwards called upon to respond in actions for claims, which, under the
ordinary statute of limitations, have not yet prescribed.
3. Claim of executor or administrator against the estate
An executor or administrator who has a claim against the estate he represents is required to
give written notice to the court. The court shall then appoint a special administrator who is vested
with the same power and subjected to the same liability as the general executor or administrator
but only as to the adjustment of the claim.
The executor or administrator having a claim against the estate cannot simply pay himself
from the estate. It is neither proper nor lawful for an executor or administrator of an estate to pay
to himself claims he may have against the deceased and to take possession of property of the same
to which he thinks he is entitled, without observing the procedure fixed by the law.
4. Payment of debts
It is only the executor or administrator of the estate whom the court may authorize to
dispose of the properties of the estate so that the proceeds of the sale or mortgage may be
applied to its obligations.
Heirs are not required to respond with their own property for the debts of their
deceased ancestors. But even after the partition of the estate, the heirs and distributes are
liable individually for the payment of all lawful outstanding claims against the estate in
proportion to the amount or value of the property they have respectively received from the
estate. The hereditary property consists only of that part which remains after the settlement of
all lawful claims against the estate, for the settlement of which the entire estate is first liable.
The heirs cannot, by any act of their own or by agreement among themselves, reduce the
creditors’ security for the payment of their claims.
G. ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS
1. Actions that may be brought against executors and administrators
Under Rule 87, Section 1, the following are the actions that may be commenced directly
against the executor or administrator:
a) Recovery of real or personal property or any interest therein from the estate;
b) Enforcement of a lien thereon;
c) Action to recover damages for any injury to person or property, real or personal.
2. Requisites before creditor may bring an action for recovery of property fraudulently conveyed
by the deceased
An executor or administrator may commence and prosecute to final judgment an action
for the recovery of property, right, interest, debts, or credit for the benefit of creditors when the
following circumstances occur:
1. The deceased in his lifetime had converted real or personal property, right or
interest therein, or debt or credit;
2. Such conveyance was:
a) Made with intent to defraud his creditors;
b) Made to avoid any right, debt, or duty or had so conveyed such
property, right, interest, debt, or creditors; and
c) The subject of the attempted conveyance would be liable to attachment
by any of them in his lifetime; and
3. There is deficiency of assets in the hands of an executor or administrator for the
payment of debts and expenses of administration.
The executor or administrator is not bound to commence the action, unless the
creditors apply to the court and that they shall pay such part of the costs and expenses, or give
security therefor to the executor or administrator, as the court deems equitable.
H. DISTRIBUTION AND PARTITION
1. Liquidation
It is the determination of all assets of the estate and payment of all debts and expenses.
2. Project of partition
It is a proposal for distribution of the hereditary estimates and determines the persons
entitled thereto.
3. Remedy of an heir entitled to residue but not given his share
If an heir has not received his share, his proper remedy is to file a motion with the
probate court for delivery to him of his share or if the estate proceedings had been closed, he
should file a motion for reopening of the proceeding, within the prescriptive period, and not to
file an independent action for annulment of the project of partition.
However, where the order closing the intestate proceeding was already final and
executory, the same cannot be reopened on a motion filed after the lapse of the reglementary
period.
4. Instances when probate court may issue writ of execution
As a general rule, a probate court cannot issue a writ of execution. The following are
the exceptions:
a) To satisfy the contributive shares of the devisees/legatees/heirs when the latter
had entered prior possession over the estate (Rule 88, Section 6)
b) To enforce payment of the expenses of partition (Rule 90, Section 3)
c) To satisfy the costs when a person is cited for examination in probate
proceedings (Rule 142, Section 13)
I.
TRUSTEES
A trustee is necessary:
i.
To carry into effect a will where the testator omitted appointing a
trustee in the Philippines;
To carry into effect other written instruments where the trustee
declines, resigns, dies or is removed before the accomplishment of
trust.
ii.
1. Distinguish: trustee and executor/administrator
A trustee, like an executor or administrator, holds an office of trust, particularly when
the trustee acts as such under judicial authority. The executor’s or administrator’s duties are,
however, fixed or limited by law, while those of the trustees are usually governed by the
intention of the trustor or the parties, if it is established by contract. A trustee’s duties generally
cover a wider range than those of executors or administrators of the estate.
Distinctions:
a) 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; and
b) Duties of trustees may cover a wider range than those of executors or
administrators of the estate of the deceased persons.
2. Conditions of the bond
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 considered as declining or resigning the trust. The
bond shall include the following conditions of the trustee:
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 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; and
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.
3. Requisites for the removal and resignation of a trustee
The trustee, whether appointed by the court or under a written instrument, may resign
his trust if it appears to the court proper to allow such resignation.
4. Grounds for removal and resignation of a trustee
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; or
3. The trustee is otherwise incapable of discharging the trust or is
evidently unsuitable to act as one.
The trustee, whether appointed by the court or under a written instrument, may resign
his trust if it appears to the court proper to allow such resignation.
5. Extent of authority of trustee
The powers of a trustee appointed by a Philippine court cannot extend beyond the
confines of the territory of the Republic 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.
Also, 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.
J.
ESCHEAT
It is the falling of a decedent’s estate into the general property of the State on his death
intestate without lawful heirs, and is applied indifferently to all his rights to property of whatever
nature.
It is a proceeding whereby the real and personal property of a deceased person become the
property of the State upon his death without leaving a will or legal heirs. It is not an ordinary action,
but a special proceeding, and commenced by petition and not by complaint.
1. When to file
A petition for escheat may be filed with the Regional Trial Court of the province where the
deceased last resided or in which he had estate, if he was a non-resident. Escheat proceedings must
be initiated by the Solicitor General.
2. Requisites for filing of petition
For an escheat proceeding to prosper, the following must be present:
1. That a person died intestate;
2. That he left no heirs or persons entitled by law to the same; and
3. That the deceased left properties.
3. Remedy of respondent against petition; period for filing a claim
Any person alleged to have a direct right or interest in the property sought to be escheated,
likewise an interested and necessary party, may properly oppose the petition for escheat or file a
claim thereto with the court within the period provided for in Section 4 of the Rule.
Since escheat is one of the incidents of sovereignty, the state may, and usually does,
prescribe the conditions and limits the time within which a claim to such property may be made.
The procedure by which the escheated property may be recovered is generally prescribed by statue,
and a time limit is imposed within which such action must be brought. A devisee, legatee, widow,
widower, or other person entitled to the estate must file a claim with the court within five years
from the date of such judgment in the escheat proceedings.
K. GUARDIANSHIP
It is a trust relation of the most sacred character, in which one person, called a “guardian”
acts for another called the “ward” whom the law regards as incapable of managing his own affairs.
1. Venue
It is the place of residence of the minor or incompetent person. However, if the minor or
incompetent resides outside the Philippines (non-resident), the petition may be filed in the Regional
Trial Court of the place where the property of such minor or incompetent may be situated.
2. Appointment of guardians
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 visà-vis other parties.
The objectives of an RTC hearing a petition for appointment of a guardian under Rule 93 is
to determine, first, whether a person is indeed a minor or an incompetent who has no capacity to
care for himself and/or his properties; and, second, who is most qualified to be appointed as his
guardian.
3. General powers and duties of guardians
The general powers and duties of a guardian are as follows:
i. Have the care and custody of the person of the ward, and the management
of his estate, or the management of the estate only, as the case may be;
ii. Pay the debts of ward;
iii. Settle accounts, collect debts and appear in actions for ward;
iv. Manage the estate of the ward frugally, and apply the proceeds to
maintenance of the ward;
v. Render verified inventory within three months after his appointment and
annually thereafter upon application of interested persons.
vi. Must present his account to the court for settlement and allowance.
4. Termination of guardianship
The grounds for termination of guardianship over a minor are as follows:
i.
ii.
iii.
The ward has come of age;
Death of the ward; or
Death of the guardian.
The grounds for termination of guardianship of an incompetent other than a minor are
as follows:
i.
ii.
iii.
iv.
Competency of the ward has been judicially determined;
Guardianship is no longer necessary;
Death of the ward; or
Death of the guardian.
L. ADOPTION
It is defined as a juridical act, a proceeding in rem, which creates between two persons a
relationship similar to that which results from legitimate paternity and filiation.
1. Distinguish domestic adoption from inter-country adoption
Domestic adoption is compared to inter-country adoption in the following manner:
i. In domestic adoption, jurisdiction is vested with the Family Court in the place
where the adopter resides while in inter-country adoption, it is the Family Court
having jurisdiction over the place where the child resides or may be found. It
may be filed directly with the Inter-Country Adoption Board;
ii. In domestic adoption, application is made only by filing a petition with the
Family Court in the Philippines while in the inter-country adoption, application
may be through the agency located in the foreign country;
iii. In domestic adoption, as a rule, trial custody shall be made in the Philippines for
six months while in the inter-country adoption, trial custody shall be mandatory
in the country of the adopter;
iv. In domestic adoption, publication of the petition is necessary while in the intercountry adoption, there is no requirement for publication;
v. In domestic adoption, petition is allowed to be accompanied with prayers for
change of name, rectification of simulated birth or declaration that the child is a
foundling, abandoned dependent or neglected child while in the inter-country
adoption, there is none.
2. Domestic adoption
a. Effects of adoption
Parental authority
Except in cases where the biological parent is the spouse of the adopter, all legal
ties between the biological parent(s) and the adoptee shall be severed and the same
shall then be vested on the adopter(s).
Legitimacy
The adoptee shall be considered the legitimate son/daughter of the adopter(s)
for all intents and purposes and as such is entitled to all the rights and obligations
provided by law to legitimate sons/daughters born to them without discrimination of
any kind. To this end, the adoptee is entitled to love, guidance, and support in keeping
with the means of the family.
Succession
In legal and intestate succession, the adopter(s) and the adoptee shall have
reciprocal rights of succession without distinction from legitimate filiation. However, if
the adoptee and his/her biological parent(s) had left a will, the law on testamentary
succession shall govern
b. Instances when adoption may be rescinded
Upon petition of the adoptee, with the assistance of the Department if a minor
or if over eighteen (18) years of age but is incapacitated, as guardian/counsel, the
adoption may be rescinded on any of the following grounds committed by the
adopter(s):
1. Repeated physical and verbal maltreatment by the adopter(s) despite
having undergone counseling;
2. Attempt on the life of the adoptee;
3. Sexual assault or violence; or
4. Abandonment and failure to comply with parental obligations.
c. Effects of rescission of adoption
If the petition is granted, the parental authority of the adoptee’s biological
parent(s), if known, or the legal custody of the Department shall be restored if the
adoptee is still a minor or incapacitated. The reciprocal rights and obligations of the
adopter(s) and the adoptee to each other shall be extinguished.
The Court shall order the Civil Registrar to cancel the amended certificate of
birth of the adoptee and restore his/her original birth certificate.
Succession rights shall revert to its status prior to adoption, but only as of the
date of judgment of judicial rescission. Vested rights acquired prior to judicial rescission
shall be respected.
3.
Inter-country adoption
a. When allowed
The Inter-Country Adoption Board shall ensure that all possibilities for adoption
of the child under the Family Code have been exhausted and that inter-country
adoption is in the best interest of the child. Toward this end, the Board shall set up the
guidelines to ensure the steps that will be taken to place the child in the Philippines
before the child is placed for inter-country adoption: Provided, however, that the
maximum number that may be allowed for a foreign adoption shall not exceed six
hundred (600) a year for the first five (5) years.
b. Functions of the Regional Trial Court
An application to adopt a Filipino child shall be filed either with the Philippine
Regional Trial Court having jurisdiction over the child, or with the Board, through an
intermediate agency, whether governmental or an authorized and accredited agency, in
the country of the prospective adoptive parents, which application shall be in
accordance with the requirements as set forth in the implementing rules and
regulations to be promulgated by the Board.
The application shall be supported by the following documents written and
officially translated in English.
1. Birth certificate of applicant(s);
2. Marriage contract, if married, and divorce decree, if applicable;
3. Written consent of their biological or adoptive children above ten (10)
years of age, in the form of sworn statement;
4. Physical, medical and psychological evaluation by a duly licensed
physician and psychologist;
5. Income tax returns of any document showing the financial capability of
the applicant(s);
6. Police clearance of applicant(s);
7. Character reference from the local church/minister, the applicant’s
employer and a member of the immediate community who have known
the applicant(s) for at least five (5) years; and
8. Recent postcard-size pictures of the applicant(s) and his immediate
family.
c. "Best interest of the child" standard
Inter-country adoption is allowed only when the same shall prove beneficial to
the child’s best interests, and shall serve and protect his/her fundamental rights.
M. WRIT OF HABEAS CORPUS
It is a proceeding which provides for two stages whereby: (1) a person restrained of his
liberty may be released from any kind of illegal detention; or (2) are detained from the control
of those who are entitled to their custody. It requires the determination of whether his
detention or confinement is illegal or not or whether by his detention, another person is
deprived of his legal custody over him.
1. Contents of the petition
The requisites for the application of the writ of habeas corpus are as follows:
i. The petition must be signed and verified;
ii. The petition must contain:
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; and
d) Copy of the commitment or cause of detention of such person. If it can
be procured without any legal authority, such fact shall appear.
2. Contents of the return
The return must contain the following:
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; and
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.
3. Peremptory writ and preliminary citation
A peremptory writ of habeas corpus is a written document unconditionally commanding
the respondent to have the body of the detained person before the court at a time and place
specified therein. This is different from the writ of preliminary citation, which requires the
respondent to appear and show cause why the peremptory writ should not be granted.
4. When not proper or applicable
It is not proper to one who was released on bail because actual physical restraint is
required.
5. When writ disallowed or discharged
If it appears that the person to be restrained of his liberty is in the 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, and that court or judge had jurisdiction to issue the process, render the judgment, or
make the order, the writ shall not be allowed. If the jurisdiction appears after the writ is
allowed, the person shall not be discharged by reason of any informality or defect in the
process, judgment, or order.
6. Distinguish: writ of habeas corpus, writ of amparo, and writ of habeas data
Governing Rule
Available to whom
Habeas Corpus
Person illegally
deprived of liberty
or from whom
rightful custody of
any person is
withheld
Amparo
Person whose right to
life, liberty and
security has been
violated or
threatened with
violation by public or
private individual or
entity. Extends to
extralegal killings or
enforced
disappearances
(EKED) or threats
thereof.
Jurisdiction / where
filed
SC, CA, SB
SC, CA, SB
RTC in the judicial
region where writ
sought to be
enforced.
RTC where threat, act
or omission
committed or where
any of its elements
occurred.
MTC (in the absence
of all RTC judges in
the province or city)
Habeas Data
Person whose right to
privacy in life, liberty
or security is violated
or threatened by an
unlawful act or
omission of a public
or private individual
or entity engaged in
the gathering or
storing of data or
information regarding
the person, family,
home, and
correspondence of
the aggrieved party.
SC, CA, SB (public
data files of govt
offices)
RTC where petitioner
or respondent resides
or that which has
jurisdiction over the
place where the data
or information is
gathered or stored, at
petitioner’s option.
Who may file
Aggrieved party or
any person on his
behalf.
Aggrieved party or by
following in the order
mentioned:
Immediate family,
relative within 4th
degree, and
concerned citizen or
organization
Aggrieved party. In
cases of EKED,
immediate family, or,
in default thereof,
relative within 4th
degree.
7. Writ of habeas corpus in relation to custody of minors
The requisites for the valid grant of the writ where rightful custody over a minor is
withheld from a person lawfully entitled therein are as follows:
1. The petitioner has the right of custody over the minor child;
2. The rightful custody over the minor is being withheld by the respondent;
3. That it serves the best interest of the minor child to be in the custody of the
petitioner rather than with the respondent.
N. WRIT OF AMPARO
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 was intended to address extra-legal
killings and enforced disappearances or threats thereof.
1. Coverage
The Writ of Amparo was first adopted in Mexico in 1957. It is broader in scope and
application than the writ of habeas corpus in that it protects a person against illegal arrest and
violation of human rights.
2. Differences between amparo and search warrant
The production order under the Amparo Rule should not be confused with a search
warrant or law enforcement under Article III, Section 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
Section 1, Rule 27 of the Rules of Civil Procedure.
3. Who may file
The petition may be filed by the aggrieved party or by any qualified person or entity in
the following order:
Any member of the immediate family, namely: the spouse, children and parents of the
aggrieved party;
Any ascendant, descendant or collateral relative of the aggrieved party within the fourth
civil degree of consanguinity or affinity, in default of those mentioned in the preceding
paragraph; or
Any concerned citizen, organization, association or institution, if there is no known
member of the immediate family or relative of the aggrieved party.
4. Contents of return
The petition shall be signed and verified and shall allege the following:
i. The personal circumstances of the petitioner;
ii. The name and personal circumstances of the respondent responsible for the
threat, act or omission, or, if the name is unknown or uncertain, the respondent
may be described by an assumed appellation;
iii. The right to life, liberty and security of the aggrieved party violated or
threatened with violation by an unlawful act or omission of the respondent, and
how such threat or violation is committed with the attendant circumstances
detailed in supporting affidavits;
iv. The investigation conducted, if any, specifying the names, personal
circumstances, and addresses of the investigating authority or individuals, as
well as the manner and conduct of the investigation, together with any report;
v. The actions and recourses taken by the petitioner to determine the fate or
whereabouts of the aggrieved party and the identity of the person responsible
for the threat, act or omission; and
vi. The relief prayed for the petition may include a general prayer for other just and
equitable reliefs.
5. Effects of failure to file return
The effects of the failure to file the return are the following:
1. The respondent waives any defense that he may have had.
2. The court shall proceed to hear the petition ex parte.
3. The court may cite for contempt a respondent who refuses to make a return.
6. Omnibus waiver rule
7. Procedure for hearing
The hearing on the petition shall be summary. The court may, however, hold a
preliminary conference to simplify issues and obtain stipulations and admissions from the
parties.
8. Institution of separate action
The Rule on the Writ of Amparo does not preclude the filing of a separate criminal, civil
or administrative action.
9. Effect of filing of a criminal action
PRECLUSION. When a criminal action arising out of the act or omission subject of the
Amparo case 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.
10. Consolidation
CONSOLIDATION. When the criminal action is filed subsequent to the filing of the
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 the writ,
the petition shall be consolidated with the criminal action.
11. Interim reliefs available to petitioner and respondent
Petitioner:
Upon filing of the petition or at any time before final judgment, the court, justice or
judge may grant any of the following reliefs:
 Temporary Protection Order
 Inspection Order
 Production Order
 Witness Protection Order
Respondent:


Inspection Order
Production Order
These interim orders may be issued only after a verified motion is filed by the
respondent, supported by affidavits or testimonies of witnesses having personal
knowledge of the defenses of the respondent, and after due hearing.
12. Quantum of proof in application for issuance of writ of amparo
Substantial evidence or that amount of relevant evidence which a reasonable mind
might accept as adequate to support a conclusion.
1. WRIT OF HABEAS DATA
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 or storing of data or information regarding
the person, family, home, and correspondence of the aggrieved party.
2. Scope of writ
Anywhere in the Philippines.
3. Availability of writ
It may be filed with the RTC where petitioner or respondent resides or that which has
jurisdiction over the place where the data or information is gathered or stored, at petitioner’s
option. It may also be filed with the Sandiganbayan, Court of Appeals, and the Supreme Court if
the petition concerns public data files of government offices.
4. Who may file
The aggrieved party. However, in cases of extralegal killings and enforced
disappearances, the petition may be filed by a member of the aggrieved party’s immediate
family or in default thereof by a relative within the 4th civil degree.
5. Contents of the petition
A verified petition for a writ of habeas data should contain the:
i. Personal circumstances of the petitioner and respondent;
ii. Manner of violation of the right to privacy and how it affects the right to life,
liberty or security of the aggrieved party;
iii. Actions and recourses taken by petitioner to secure the data or information;
iv. Location of the files, the government office, and the person in charge or in
control of the data or information, if known;
v. The reliefs prayed for, which may include the updating, rectification,
suppression or destruction of the database or information or files kept by the
respondent; or in case of threats, an order enjoining the act complained of; and
vi. Other relevant reliefs as may be just and equitable.
6. Contents of return
The return together with supporting affidavits shall, among other things, contain the
following:
1. Lawful defenses
2. In case of a respondent in charge or in control of the data or information subject
of the petition:
a. Disclosure of the data, the nature of such data, and the purpose for its
collection;
b. The steps taken by the respondent to ensure the security and
confidentiality of the data;
c. The currency and accuracy of the data held; and
3. Other allegations relevant to the resolution of the proceeding. A general denial
of the allegations in the petition shall not be allowed.
7. Instances when petition be heard in chambers
A hearing in chambers (in camera) may be conducted where the respondent invokes the
defense that the release of the data or information in question shall compromise national
security or state secrets, or when the data or information cannot be divulged to the public due
to its nature or privileged character.
8. Consolidation
When a criminal action is filed after the filing of the petition for the writ, the latter shall
be consolidated with the criminal action.
9. Effect of filing of a criminal action
When a criminal action 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.
10. Institution of separate 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.
11. Quantum of proof in application for issuance of writ of habeas data
Substantial evidence or that amount of relevant evidence which a reasonable mind
might accept as adequate to support a conclusion.
O. CHANGE OF NAME
1. Differences under Rule 103, Republic Act No. 9048 and Rule 108
Rule 103 covers principally the change of surname and middle name.
R.A. 9048 covers change of first name and/or nickname. It authorizes the local civil registrar
or the consul general to effect such change.
Rule 108 covers principally correction of entries which are not merely clerical or
typographical errors.
2. Grounds for change of name
The following are valid grounds for a change of name:
i. When the name is ridiculous, dishonorable, or extremely difficult to write or
pronounce;
ii. When the change results as a legal consequence, as in legitimation;
iii.
iv.
When the change will avoid confusion;
When the petitioner has been using a name for school purposes and his school
records are in such name, then his name in the civil registry may be changed to
the name that he has been using in school;
v. A sincere desire to adopt a Filipino name to erase signs of former alienage.
P. ABSENTEES
1. Purpose of the rule
The primordial purpose of Rule 107 is to provide for an administrator of the
property of the absentee. The general interest of society may require that property does
not remain abandoned without someone representing it and without an owner.
2. Who may file; when to file
After the lapse of 2 years from a person’s disappearance and without any news
about the absentee or since the receipt of the last new, or of 5 years in case the absentee
has left a person in charge of the administration of this property, the declaration of his
absence and the appointment of a trustee or administrator may be applied for by any of the
following:
i.
ii.
iii.
iv.
The spouse present;
The heirs instituted in a will, who may present an authentic copy of the
same;
The intestate heirs; and
Those who have over the property of the absentee some right
subordinated to the condition of his death.
Q. CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY
1. Entries subject to cancellation or correction under Rule 108, in relation to Republic Act No.
9048
Rule 108 covers principally correction of entries which are not merely clerical or
typographical errors. For correction of clerical or typographical errors, the principal governing
law is R.A. No. 9048 which authorizes the local civil registrar or the consul general to effect such
corrections.
R. APPEALS IN SPECIAL PROCEEDING
1. Judgments and orders for which appeal may be taken
An appeal may be taken from an order or judgment that:
i.
Allows or disallows a will.
ii.
iii.
iv.
v.
vi.
Determines who are the lawful heirs or the distributive share of the
estate to which such heir is entitled.
Allows or disallows any claim against the estate or any claim presented
on behalf of the estate to offset a claim against it.
Settles the account of an executor, administrator, trustee, or guardian.
Constitutes in estate proceedings or those relating to the administration
of a trustee or a guardian, a final determination in the lower court of
the rights of the party appealing.
Which is the final order or judgment rendered in the case, and affects
the substantial rights of the person appealing.
2. When to appeal
Proceeding
Special proceedings
Writ of habeas corpus
Writ of amparo
Writ of habeas data
Writ of kalikasan
Deadline to file an appeal
 15 days from notice of the order or
judgment appealed from
 30 days from notice of the order or
judgment appealed from if the case
involves multi-appeals
48 hours from service of judgment
5 working days from notice of judgment
5 working days from notice of judgment
15 days from notice of judgment or denial of
motion for reconsideration
3. Modes of appeal
Rules 40, 41, 42 and 45 apply in conformity with Rule 72, Section 2 on the applicability
of rules of civil actions. If it is an ordinary appeal under Rule 40 or 41, and the special
proceedings are subject to multiple appeals, like settlement of estate, the appeal period is 30
days, a notice of appeal and record on appeal being required.
4. Rule on advance distribution
Section 2, Rule 109 of the Revised Rules of Court expressly recognizes advance
distribution of the estate. The second paragraph of Section 1 of Rule 90 of the Revised Rules of
Court allows the distribution of the estate prior to the payment of the obligations mentioned
therein, provided that “the distributes, or any of them, gives a bond, in a sum to be fixed by the
court, conditioned for the payment of said obligations within such time as the court directs.
Sources:
Gemy Lito Festin, Special Proceedings (A Foresight to the Bar Exam and the Practice of Law)
(2015)
Gemy Lito Festin, Special Proceedings (A Foresight to the Bar Exam and the Practice of Law)
(2020)
Magdangal De Leon & Dianna Louise Wilwayco, Special Proceedings Essentials for Bench and Bar
(2015)
Manuel Riguera, Primer-Reviewer on Remedial Law, Volume 2 (2020)