SPECIAL PROCEEDING Proceedings.

If, perhaps, the examiner is teaching

special proceedings, then perhaps he will ask you
NOTE: Declaration of absence and death: There is more questions in the BAR, but ordinarily no…not
no such thing as declaration of death…it should be that I’m demeaning its importance.
absence leading to the declaration of death. My other consolation is that you are well-versed in
Special Proceedings, that remains to be seen
These are the only things which we will be starting this afternoon.
discussing in Special Proceedings (I will state
them in the order of importance, procedurally Remember, Special Proceedings is different from
speaking): all other actions, including Special Civil Actions. If
1. Settlement of Estates- states the meat of you are asked to define what a Special Proceeding
special proceedings is, A Special Proceeding is an action other than
2. Adoption- although this is already studied in an ordinary action, a special civil action, or a
civil law; it is important because of the new criminal action. That is a correct definition by
rule on adoption, not the laws on adoption exclusion. To be more specific, Special
(R.A. 3552, the Domestic Adoption Act of Proceedings are actions geared or directed
1998 as well as R.A. 8043, the Inter Country towards the establishment of a right, status, or
Adoption Law of 1995)…not that because that a particular fact. The ordinary rules apply here
is substantive. I am talking of the new rule on and more so because there are specific provisions
adoption which took effect sometime in that distinguishes it from special civil actions
August 2004. I that’s why I think it’s the where it has a special rule. Here, no. It has its
second most important thing to discuss here. own uniqueness. Every Special Proceeding has its
3. Rule 103 in relation to Rule 108, Change of own nuances. For example, because the objective
Name and Correction of Entry..again, because is the establishment of a right, status, or a
of the new law. So the possibility of being particular fact, summons, here, is ordinarily not
asked in the BAR is great. (Read also R.A. needed. In special proceedings, there is no
9048) defendant, so there is no need for summons.
4. Guardianship- practically the same rules of Summons, as we have studied is the way by which
procedure as settlement of estate..only that in a court acquires jurisdiction over the person of the
settlement of estate, the subject is dead unlike defendant (Rule 14). The only exception is, of
in guardianship, the subject is still alive. course, Habeas Corpus Proceedings wherein
Physically alive, but mentally dead or a minor. you name a respondent but the respondent
That is the difference between the two. here is different from a defendant because
5. Habeas Corpus- a peculiar kind of special summons is not necessary.
proceeding
6. Escheat Q: So, how does a court acquire jurisdiction over
7. Trust (not the trust you buy in Mercury, but the case?
relation…trust relation) A: There is no need for the court to acquire
jurisdiction over the person of the defendant
All the rest, we will not discuss anymore. because there is no defendant. Therefore, the
Voluntary Dissolution of Corporations; Declaration court should acquire jurisdiction of the case, over
of Absence & Death; Hospitalization of Insane the subject matter. How? Because it is an action
Persons…(but, I still advise you to read), even the in rem, ordinarily publication. So that is the
Constitution of the Family Home. uniqueness of Special Proceedings. Publication is
the means by which the court acquires jurisdiction
If I were an examiner, I would definitely ask in over the subject matter. It is ordinarily not
Special Proceedings, Settlement of Estate and next initiated by Complaint, but by Petition.
to Settlement of Estate would be Adoption and
next to that would be Habeas Corpus. NOTE: Again, unlike other actions, as a general
rule, Special Proceedings do not prescribe. There
Note that even in last year’s BAR examination might be limitations of such periods in some
there was no question on special proceedings instances, but ordinarily, they do not prescribe.
because utmost you get only one question for BAR
purposes, one question in Special Proceedings.
Very seldom if you find two questions in Special

1
Q: What are the Special Proceedings?
A: Name them according to the Rules starting from Q: Suppose Mr. X, who died, was known to
Rule 73-90 Settlement of Estate; Rule 91 Escheat; everyone to have one child but later on, it was
Rules 92-97 General Guardians & Guardianship; found out that he had other illegitimate children.
Rule 98 Trustees; Rules 99-100 are no longer What will happen to the affidavit of self
applied because they are deemed repealed by the adjudication? Is there any finality?
new rules on adoption, including Rescission & A: NO. Even if the properties have already been
Custody of Children, these Rules are no longer distributed, they aer still subject to claims.
applied because of the adoption of the Child &
Youth Welfare Code. Q: How do you go about in making an Affidavit of
Self Adjudication?
SETTLEMENT OF ESTATE OF DECEASED A: The word suggests already that it is an
PERSONS affidavit…so, how do you formulate an affidavit?
When you speak of Settlement of Estate, You simply state in your affidavit that your father
immediately what comes to your mind is that or your mother died; and that he/she left the
someone died (and that’s the beauty in law…men following properties; and that you are the only
live forever in law…they continue in their estate… heir of your parent; and that the estate are such
There are those who want someone dead because and such, valued accordingly; and that they are
of his estate. there are also those who want found there (location of property)..you simply
somebody alive because he has no estate…but submit that to the Register of Deeds and the
actually, even if you are a pauper or a millionaire, Register of Deeds will act on it only after you
you always have an estate. So you live forever comply with the requirement of publication and if
through your estate. That estate must be settled). there are personal properties belonging to the
estate, put up a bond according to the value or
Q: There are two ways to Settle an Estate: upon the discretion of the register of Deeds.
A: Extrajudicial Settlement and Judicial Settlement (extrajudicial ha…the court has no participation
of Estate. In, extrajudicial settlement, the rules whatsoever here) You simply submit to the
speak of settlement through Affidavit of Self Register of Deeds, the Register of Deeds acts on it
Adjudication and the other way to settle it is by and if there is already publication, once a week for
extrajudicial partition. Those are the extrajudicial 3 consecutive weeks in a newspaper of general
manner of settling the estate. Extrajudicial circulation, the Register of Deeds will simply
settlement proper is by agreement of the parties.. transfer the title in favor of the affiant.
extrajudicial settlement is distinct from partition.
When you go to judicial settlement, you have the The other mode of extrajudicial settlement is
first which is Summary Settlement Sec. 2, Rule 74, extrajudicial partition...that is not under Rule 69
which is very practical and then judicial partition because under Rule 69 is judicial partition…here,
under Rule 61, that is a mode of settlement and the parties agreed, but take note that there is also
then you have the conventional mode of no will and there are also no debts and even if
settlement of estate. We can even add a fourth there are debts, there is sufficient money to
kind, whish is also a mode of settlement of answer for those debts which are reserved…the
estate…Escheat proceedings under Rule 91. money is reserved to answer for debts…so you can
partition among and between yourselves these
The conventional mode settlement is either testate properties, provided all of you are of age. If one is
or intestate. The testate can either be with the will a minor, he is duly represented…ordinarily, you
annexed or without the will annexed. The ask the court for the appointment of a guardian ad
intestate, of course, there is no will. But both litem. This form of extrajudicial settlement is
testate and intestate may also be done either in similar to Partition…there is really no
the Philippines or outside the Philippines. distinguishing feature between extrajudicial
partition and extrajudicial settlement.
Q: What are the requirements for an Affidavit of Jurisprudence tells us that any act between and
Self Adjudication? among persons that would lead to the division of
A: property is a form of partition or settlement…any
1. There is a will act that would terminate indivision would be
2. No debts; division.
3. Only one heir.

2
In affidavit of self adjudication, of course you have even foreigners who were former Filipinos, can
to support your allegations with documentary now acquire property in the Philippines and that
evidence (like for example, that you are the only was given more strength because of the Dual
heir, this can be proven through your birth Citizenship Law.
certificate and also the marriage contract and the
properties you wish to adjudicate unto yourself Q: Which court has jurisdiction over Petitions for
should be established by Titles or muniments of Settlement of Estate?
titles). A: Under RA 7691, inferior courts now have
jurisdiction over settlement of estate, whether
Judicial Settlement refers to Conventional: testate or intestate. So it is not under the provision
Rules 73-90. Summary Settlement of Estate is which speaks of actions involving title to or any
very impractical because up to now the value of interest in property but it is a direct provision of
the estate is still P10T (P10,000) but you will note the law that settlement of estate, whether testate
that there is still a requirement for publication (so or intestate, may be taken cognizance of by
if you have it published once a week for 3 inferior courts, depending on the gross value
consecutive weeks, ubos na yung ten thousand (hindi assessed). Remember, there is another
mo). provision under BP 129, the basis of which is the
“assessed value”…dito, gross value of the estate
RULE 91 ESCHEAT and the location is determinative somehow of
Is another form of Judicial Settlement, Escheat jurisdiction because if it is outside Metro Manila,
tells us that if a person dies without a will, without less that P300T and within Metro Manila, P400T…
an heir, and no debts, then the Office of the so suppletory character lang yun.
Solicitor General will file, under the directive of
the President of the Philippines, will file an The old books speak of Courts of First Instance
Escheat Proceeding. But if it happens that during (RTC), exclusively…hindi na yun.
the pendency of the proceeding, a will pops up,
then the proceeding is discontinued. If an heir
pops up, then the proceeding may be suspended RULE 73 VENUE AND PROCESS.
and establish your right…otherwise, after the
hearing, the property will go to the government. Q: Is settlement of estate limited to the estate of
This escheat proceeding is founded on the theory Filipino Citizen?
that all lands belong to the State…the Regalian A: No.
Doctrine that you studied under LTD (Land Titles
& Deeds)… all lands belong to the State and he Q: If an American was in the Philippines because
who claims otherwise has the burden of proof so he was a member of the Armed Forces, who joined
after the escheat proceedings, the property the Balikatan Forces in Mindanao and he died
belonging to the estate will go to the city or here, where should the settlement of estate be
municipality where it is found. done? Is it the place of one’s death which is
determinative of the venue? Suppose one had 5
So if the proceeding is in Manila, but the property residences because he had 5 wives?
escheated is in Calamba, the property escheated A: This is a very confusing provision because the
located in Calamba will go to the City of Calamba title is “Venue & Process” but the word ‘venue’ is
and not to the City of Manila. The same thing with never mentioned. On the other hand, the word
personal property…where it may be found and the jurisdiction is mentioned three (3) times.
Rule is very specific that the property will be spent
for charitable purposes, for educational purposes, Q: So, is the last residence of the decedent a
so on and so forth. So that is Rule 91. matter of jurisdiction or a matter of venue?
A: It is a matter of venue so you cannot question
Under Rule 91, Sec.5 is another form of escheat it.
because that was given in the BAR 5 years ago (sa
dami daming pwedeng ibigay sa Special
Proceedings, yun lang ang binigay). This speaks of
REVERSION. In other words, the property was
acquired by an individual in violation of the
Constitution. Under the Constitution, any person,

3
Q: Suppose Mr. X, a Filipino citizen residing in his residence was in Cebu. When he died, he was
Cebu City died at St. Luke’s Hospital, Quezon City, already a widower at the time, so he had two
where should his estate be settled? families. The first family with his first wife, and
A: In Cebu because it is the place of the final the second family with his second wife. His
residence of the decedent. second wife, staying with him in Quezon City, filed
a petition for the settlement of his estate in the
Q: Suppose the heirs filed a petition for RTC (Then CFI) of Q.C. After the 9- day novena for
settlement of the estate in Quezon City, is the his demise, the heirs of Senator Cuenco, filed a
venue properly laid? petition for settlement of his estate in Cebu. This
A: No. reached the SC. The issue was in fact wrong:
Which court has jurisdiction? Mali. It is not a
Q: So, what happens to the case? matter of jurisdiction but only of venue. But the
A: The settlement must continue because venue is greater error here is not the error of the
not jurisdictional. petitioners but the error of the Court. Why?
Because the Q.C. Court on its own (motu propio)
Let me emphasize to you that in civil cases, said “we are going to give way to the court in Cebu
including special proceedings, venue is not to settle the estate.” That cannot be done because
jurisdictional, unlike in criminal cases, venue is under the Rule, the court which first takes
jurisdictional and from what we have learned cognizance of a petition for settlement of estate,
under Rule 4 of the Rules of Court, venue may be takes it to the exclusion of all other courts. And so,
waived. which court has jurisdiction? Both courts have
jurisdiction actually, but because of the Rule, since
So, if there is no opposition, there is no question as it was first filed with the Q.C. Court, it was already
to the petition filed by anybody for the settlement taken cognizance of by said court in Q.C. to the
of the estate of Mr. X who is a resident of Cebu, the exclusion of all other courts, including the Cebu
petition is filed in Quezon City, the issue is not Court. That is why if ever the court cedes its
jurisdiction but only of venue. But considering authority in favor of the Cebu Court, that is wrong.
that there was no opposition, then the petition for It should have been correct if anybody interested
settlement must continue. in the petition files a motion to dismiss on the
ground of improper venue but there was none.
Sec. 1 there does not speak of jurisdiction.
Jurisdiction here is conferred by law and RA In one of the Bar Exams using Cuenco vs. Cuenco,
7691 confers that depending on the value of way back in 1992, this was treated by the
the gross estate, which can either be the MTC examiner saying that a motion to dismiss was filed
or the RTC. with the Cebu Court and the Cebu Court granted it.
Wrong. Why? Because the Cebu court did not
Q: What is Residence? acquire jurisdiction because the petition was first
(You must have come across the leading case, filed in Q. C. and there can be no dual jurisdiction
Cuenco, et. al vs. Cuenco, cited in your book (it has here because the Rule says: the court acquires
to cited in your book) because that is a very jurisdiction to the exclusion of all other courts.
leading case, also the case of Fule, et al. vs. CA,
these are the cases about venue and jurisdiction… This case was followed by the case of Eusebio vs.
emphasizes these cases cited in all books. Eusebio Eusebio and finally settled in the case of Fule vs.
vs. Eusebio, that is also cited in your book… These CA, a 1975 case. Philippine reports pa ito. If you
are questions about the conflicting rules on venue want to read it, you can find it in the Philippine
and jurisdiction.) Reports. But Fule, you find it already in the SCRA.
A: It is now settled (because of there cases) that Is that clear? Take note of that doctrine because
residence is only a matter of venue. It is not a that is very basic in Settlement of Estate. Sec. 1 of
matter of jurisdiction. the Rule there does not speak of jurisdiction but
only of venue. In Fule it has been settled that
This case of Cuenco is about Senator Cuenco. That the residence is the actual place of habitation.
Cuenco Street in Quezin City, parallel to Espanñ a or
Quezon Blvd. He was a resident of Cebu but also So that if a person has two (well nagayon, hindi
had a house in Qezon City because he was a lang two, marami, apat, lima, anim..tingnan nyo si
member the Senate. When he died in Quezon City, Pacquiao, hindi na malaman kung saan sya

4
resident, Manila, Gensan.. hindi na malaman.. But Q: So, when you go to testate, why is it here that
if only Pacquiao studied law, he would not have they are of two kinds: with the will or without a
run for any position in the first place… had he will annexed? How would you explain that? Kailan
studied law, he would not be a millionaire in the nangyayari ito? If you are a custodian of a will of
first place.) Fule settled that residence is the place the decedent, what is your obligation?
of actual habitation or it may not be the place of A: To deliver to the court the will within 20 days
actual habitation, provided there is animus after the death. (Sec. 2, Rule 75)
manendi (intent to remain) and animus revertendi
(intent to return). Kaya pag yung isang lalaki, Q: Are you bound to file a petition?
mayron legal na asawa, mayron pang kerida, A: No. The obligation there is only to deliver the
mayron pang kabit, at mayron ding scholar, in will. But if you do file a petition, because you are
different houses, the residence is that of the the custodian of the will, you must have an interest
original. Why? Because there is animus manendi in the estate. You may either be the named
and animus revertendi. In all other residences, administrator, a devisee, a legatee, or a creditor,
there is only animus amare (intent to love)… so and with more reason, if you are an heir, you have
that is regarding this Section 1. an interest. If you are in the custody of the will,
and you filed a petition for settlement of estate,
Let us go now regarding these two: It can be you have to attach the will in your petition.. But if
testate or intestate. You know testate, in other you are not in custody of the will and you are
words, there is a will. Intestate, there is no will. interested in the settlement of the estate, you
The distinction, regarding these two will give you simply file a petition without the will annexed.
also the distinction between an executor and an
administrator. In many instances, I was telling you that
settlement of estate is the best example of
Q: What is the distinction between an executor multiple appeals, diba? Because in the settlement
and an administrator? of estate there are several stages.
A: The executor is the one appointed by the
decedent as embodied in the will. The Q: If it is a testate proceeding, what is the first
administrator is the one appointed by the court if stage?
there in no will, or if there is a will but does not A: Probate of a will.
designate an executor, or even if there is an
executor, the executor refuses to accept the trust Under this lesson on a probate of a will, there is
or fails to put up a bond… These are the this general proposition that the probate court
requirements: He is either not qualified; he fails to (the court probating a will) either the MTC or the
accept the trust; or he fails to put up a bond so an RTC, is a court of limited jurisdiction.
administrator may be appointed.
Q: What does it mean when the Rule says that a
Q: An administrator is of two kinds, what are probate court is a court of limited jurisdiction?
they? A: A probate court can only rule on the due
A: Rule 80 execution of the will and not as to its intrinsic
1. Special Administrator ( also of two kinds): validity.
With the will or Without a will annexed;
2. Regular Administrator This is what you have to understand. Even
lawyers do not realize this. Sabi nila probate court
Q: In what instances may the court appoint a yan so you cannot question, you cannot raise the
special administrator? issue of ownership. The probate court ceases to
A: be a probate court upon allowance or
1. Delay in granting of Letters of Administration; disallowance of a will but it remains to be a court
2. Sec. 8, Rule 86: The executor is a claimant of no longer of limited jurisdiction. That is why I was
the estate he represents. emphasizing on the petition as settlement of
estate and not as a petition for the probate of a
will. Why? Once a will has been probated, that’s
the end of it? No. It is only the first stage in the
testate proceedings. So when the Rule says that
the probate court is a court of limited jurisdiction,

5
only as far as the probate of a will is concerned. In the case of Balaraw which was assigned to you,
Pagkatapos nun, the court is no longer of limited that was also the issue involved.
jurisdiction because it has to go…appointment of
the administrator or executor, approval of the In the beginning, there is no defendant. The
accounting, approval of the inventory, then equivalent of a defendant in a probate proceeding
payment of debts..papaano limited pa yun? No is the oppositor. The oppositor is not only
longer. opposing the probate of the will, but also
settlement of the estate, for one reason or another.
So as a probate court, the court is limited to the
issue of authenticity and due execution, but you The objective of the settlement of the estate is the
do not transfer courts after the will has been distribution of the estate among the heirs or those
probated, after the will has been allowed or entitled thereto, although not heirs (those persons
disallowed which is a final resolution which is a named in the will).
final order or resolution of the court which is
appealable. But the appeal here is by record on Once the court allows or disallows a will, as the
appeal because it is multiple appeal. The court case may be, the nature of the court as a probate
now is no longer of limited jurisdiction because it court ceases. Therefore, the issue of limited
is no longer a probate court. jurisdiction no longer applies. Limited jurisdiction
applies only to the authenticity and due execution
Q: Ano ba ang end of settlement of estate? of the will.
A: Distribution under Rule 90. The first stage of
settlement of estate, if it is a testate proceeding is Q: Once the will is allowed, What does it mean?
the probate of the will. That is where the court A: Rule 76: Allowance of the Will
has limited jurisdiction.
If Mr. A is accused of a crime of falsification of
Q: Why is this so? Why does this issue pop up documents by forging the signature allegedly of a
here? testator and during the pendency of the criminal
A: This is because during probate of the will, in the action, the will allegedly forged by Mr. A was
very petition, the jurisdictional requirement is probated and allowed, the criminal case should be
that you have to state what constitutes the estate dismissed because the probate of the court is final
and the value of the estate. Jurisdictional facts. and if not appealed becomes conclusive. Wala na
yung forgery because the probate of a will only
Q: If an oppositor enters the picture, the oppositor avows the fact that the signature there is
says mali yan because what constitutes the estate authentic; that there was due execution of the will.
are these properties, but what is stated in the The case against A for falsification should be
petition do not belong to the estate, now, can the dismissed. Suppose he has been convicted, he
court decide the ownership of those properties? shall be released. Supposing he is not released,
A: No. That is where the limited jurisdiction comes your remedy is to file a petition for habeas corpus
into the picture. It cannot because the court has because the basis .for restraining his liberty no
only the duty of discussing whether the will has longer exists. (So kita nyo ang correlations.)
been duly executed so this is only as to the
extrinsic validity of a will. The intrinsic will come We are talking here of allowance of the will within
much, much later, the disposition of the will. the Philippines.

The issue of ownership is outside the jurisdiction Q: Suppose a will was executed and allowed
of the probate court. But if the probate court (probated) outside the Philippines, what happens?
cannot continue without deciding the issue of
ownership, the issue of ownership being A: Go to the next Rule, Rule 77: Allowance of Will
incidental (intimately related to the issue of proved Outside of the Philippines and
probate) to the probate of the will, must be Administration of Estate thereunder.
decided, but the decision here is not final. It is
only provisional and it can be contested in other
proceedings and the rule on res judicata will not
apply.

6
Q: An American citizen residing in California died Q: What are the qualifications for one to be
in California, his will was probated in the county appointed as administrator of the estate?
state of San Bernardino. That will has been A: Any competent person may serve as executor
allowed in the U.S. Should that will be also or administrator. He is incompetent if:
allowed in the Philippines? 1. a minor
A: No. 2. a non-resident
3. one who in the opinion of the court is unfit to
Q: What should anyone interested in the exercise the duties of the trust by reason of :
allowance of the will in the Philippines do because a. drunkenness
the deceased had property in the Philippines? b. improvidence
A: It should be re-probated here and the venue is c. want of understanding and integrity
in the proper court of any province where the d. conviction for an offense involving
decedent had property. moral turpitude.

This rule shall be read in conjunction with Sec. 48, Q: If a man cannot sleep without drinking at least
Rule 39: Foreign Judgment. 3 beers before he goes to sleep, can he be
appointed as administrator?
Q: What are you supposed to establish or prove in A: Yes. He is not a drunkard.
the re-probate of a will?
A: Q: Suppose in the very will, the testator named an
1. The due execution of the will in executor of his estate, may the court appoint
accordance with the foreign law; another one other than the one named in the will?
2. That the testator had his domicile in A: Yes, when such person:
the foreign country and not in the 1. refuses to accept the trust ( ang gusto
Philippines; nya kasi is he would accept the trust if
3. That the will has been admitted to it is candy flavored);
probate in such country; 2. fails to give a bond; and
4. The fat that the foreign tribunal is a 3. is incompetent.
probate court;
5. That the laws of a foreign country on Q: In the course of the administratorship, when
procedure and allowance of wills. one has already be appointed, can he be removed?
6. The fact of death (jurisdictional fact) On what grounds?
of the testator in a place within the A: Yes. Rule 82: Revocation of Administration,
territorial jurisdiction of the court. Death, Resignation and Removal of Executor or
Administrator.
These are mandatory requirements. These must Sec. 2. Grounds:
all be established in the Philippine courts. That is 1. neglect to render accounts within 1 year or
how to re-probate a will which has already been when the court directs;
allowed. Thereafter, the court should appoint an 2. neglect to settle the estate according to the
administrator. The foreign allowance of a will Rules;
leads to the appointment of a domiciliary 3. neglect to perform an order or judgment of
administrator. Once it is probated in the the court or a duty expressly provided by
Philippines, the court appoints an ancillary these rule;
administrator. 4. absconding; or
5. insanity or incapability or unsuitability to
Q: Who may petition for the allowance of the will discharge the trust.
or who may oppose thereto?
A: Anybody who has an interest in the estate or in Q: If a special administrator is appointed because
the disposition of the estate of the decedent the regular administrator has a claim against the
estate, what happens to the regular administrator?
A: The regular administrator is not removed by
the appointment of the special administrator
because the regular administrator has a claim
under Sec. 8 of Rule 86. The special administrator

7
only has a specific function which is only to work Once a regular administrator is appointed, the
on the claim of the regular administrator. continuation of the duties and functions of a
special administrator will now reside in the
The executor of an executor cannot be appointed special administrator. But always remember that
as executor of the principal testator. if it is an act of disposition or conveyance, which
cannot be done by an appointed executor or
Example: Richard is the testator. He appointed administrator without permission of the court.
Piolo as his executor. Later on Piolo died. In the You always file a motion for leave of court to sell a
will of Piolo, he appointed Sam as his executor. specific property and this is part of your
Sam cannot be the executor of the estate of accounting one year after.
Richard.
Accounting is one of the principal duties of an
Reason: An executor takes charge of the estate. If administrator. His first duty is to prepare an
you are an executor and you died and you have an inventory within three (3) months from
own estate and the executor of your own estate appointment and within one (1) year, prepare an
will now execute the estate of your testator that accounting of his administratorship and the bond
appointed you, there will be conflict of interest that he put up is precisely to answer for the
(Magkakaroon ng sama sama yung estate. misadministration .
Magkaka halo halo). To avoid possible corruption
in the administration of one’s estate.

Q: What are the duties of a special administrator?

A: Sec. 2, Rule 80:
1. possession and charge of the properties;
2. preserve the properties;
3. commence and maintain a suit for the estate;
4. sell only:
a. perishable property; and
b. those ordered by the court
5. pay debts only as may be ordered by the court.

Q: Can he encumber the property of the estate

through lease?
A: It depends. If the lease is not for more than one
(1) year, he can because it would fall under acts of
administration. Beyond that, it is already an act of
disposition

Q: If the court appoints Mr. X as special

administrator, is the order final and appealable?
A: No. It is only interlocutory and unappealable
because if you appeal the appointment of a special
administrator, there will be no end to the
settlement of the estate.

The special administrator is likewise required to

put up a bond.

Q: Suppose the testator in naming an executor of

his estate specifically states there that he should
serve as administrator without a bond. Can the
court nonetheless require a bond?
A: Yes. The court has a very wide discretion.
RULE 83 INVENTORY AND APPRAISAL
PROVISION FOR SUPPORT OF FAMILY

8
 Provisions on a holographic will. It wasn’t clearly
Q: Who are entitled to allowance during stated in this case.
proceedings? The parties entered into an agreement.
A:
1. legitimate surviving spouse; and Q. Can prospective heirs whether under the
2. children of the decedent (legitimate & testate or intestate enter into a partition
illegitimate children) over the properties belonging to the estate?
A. There can be no partition until and unless
Relate to Art. 194, Family Code: Children, even if the will is allowed or probated.
18 years of age are still entitled to support from
the estate. Q. Was it really a partition?
A: According to the SC they may act to put an end
Read Ruiz Case in any indivision is considered and deemed to be a
partition.
RULE 86 CLAIMS AGAINST ESTATE There can be no partition in a testate proceeding
before the will is allowed.
Q: What may be claimed against the estate?
A: Q: What is the rationale behind that?
1. Contractual money claims; A: Because the SC said if it is allowed then you are
2. funeral expenses; divesting the court of its jurisdiction over the
3. expenses for the last illness; and property partition. Bec it is partition, it amounts to
4. judgments for money. distribution. Distribution is the final stage in a
settlement proceeding and there will be no
Q: Suppose they are not due yet, can they be filed distribution of the estate until and unless all debts
against the estate? has been paid. The court looks into it as an act of
A: Yes. divesting of its jurisdiction.

Q: Suppose they are not yet due? Q: Can principle of estoppel be applied?
A: Yes…whether due, not yet due, or contingent, A: The SC said the principle of estoppel will not
you can file against the estate. apply because the basis which is the extra judicial
partition is in fact void, a void act of declaration or
Q: When do you file it? omission of a party cannot be used as evidence
A: Not more than 12 months nor less than 6 against the party. If the act is null and void,
months after the date of first publication. estoppel will not arise therefrom.
Otherwise it is deemed waived. (STATUTE OF
NON- CLAIMS) Q: Are the heirs liable?
A: The SC said he did not even established the fact
STATUTE OF LIMITATIONS: prescriptive period that you are the proper party in interest because
in the Civil Code. Union Bank did not show any evidence to prove
that you are really the affiny.
FCC vs Santibanez
Settlement of Estate
Q: What were the issues assigned as errors before Sec 7. Mortgage debt due from estate
the CA? Remedy
A: Issues 1. Claim against the estate
1. Whether or not estoppel applies - after all the debts has been paid; upon
2. Whether or not the extra judicial partition distribution
bet among the heirs were valid
3. Whether or not it is necessary for a 2. Foreclose the mortgage - judicial
partition to be approved by the probate - deficiency judgement – by motion only in the
court same action
4. Whether or not the respondent could be
held jointly liable with Santibanez. 3. Extrajudicial foreclosure
Testate Proceeding. - you solely rely on his mortgage, you don’t get
any deficiency judgement

9
 A: No because it is beyond the statute of non-
Q: Sec 9 How to file a claim claims. Even if it is within the statute of
A: In form of a simple application form limitations, you can no longer file it because it is
1. Deliver the claim to the clerk of court beyond the statute of non-claims.
2. Serve a copy on the executor or administrator That is the meaning of the “statute of non-claims
3. if the claim is due, it must be supported by supersedes the statute of limitations.”
affidavit stating the amount due and the fact
that there has been no effects. On the other hand, if B died in 1999 of December,
4. if the claim is not due or contingent, it must you have only have up to January of 2000 because
be accompanied by affidavit stating the the action has already prescribed, the ordinary
particulars action.

Sec 10 Answer of executor or administrator The statute of non-claims prevails over the statute
1. Executor may file answer within 15 days from of limitations. However, the statute of non- claims
the service of claim will not apply if there is no settlement
2. Answer must set forth claims which decedent proceedings.
has against claimant or else it will be barred
forever. RULE 87 ACTIONS BY AND AGAINST
EXECUTORS AND ADMINISTRATORS
Q. What is a statute of non-claims?
A. A claim against the estate shall be filed within a We have limited claims against the estate to
period of not less than 6 mos and not more than the following:
12mos from the date of first publication. 1. Contractual money claims;
2. funeral expenses;
Q. What is the relationship bet a statute of non- 3. expenses for the last illness; and
claims and limitations? 4. judgments for money.
A. A statute of non claims supersedes a statute of
limitations. The statute of limitation is a period These are considered as contractual money claims
provided for in the Civil Code where actions under Rule 86. When you go to Rule 87, you will
prescribe. An ordinary prescriptive period in a note that you cannot file a claim against the estate
civil case is 10 years from accrual. if it is claimable under Rule 86. So contractual
money claims, hindi. That is why in Rule 87, you
Q: Mr. A took the bus, Philippine Rabbit, owned by are also limited to the following claims or actions:
Mr. B to Baguio. He never reached his destination 1. Recovery of real or personal
because the bus fell over a ravine on January 5, property;
1990. That is the date of the accrual of the cause 2. Recovery of interest or lien therein;
of action (Jan. 5, 1990). Can Mr. A file a case 3. Judgment arising from injuries
against Mr. B on March 2001?
A: No because the action is barred by the statute Q: In actions by and against executors and
of limitations. administrators, where will the executor or
administrator get his money to satisfy your prayer
Q: Suppose Mr. B died in 1995. (yung owner ng in your action? Hindi ba from the estate? So why
bus, Mr. B, not Mr. Bean) What should A do? not against the estate, bakit against the executor
A: File a claim against the estate within a period or administrator?
of not less than 6 mos. and not more than 12mos A: Rule 86 is not an action… tapos na dyan yung
from the date of first publication. So, the action, it is already through. In 87, it is a separate
presumption here is that there is a settlement of and distinct action, so that if it is a complaint, you
the estate of B. Otherwise the statute of non- always file it against the executor or administrator.
claims will not apply. Pero dito, tapos na yan. Hence, dahil tapos na, it is
urgent… urgency of the subject matter… so the
Q: Suppose notice was given on March 1, 1995. So presumption in 86, that there must an estate
you have 6 months and it was published March 20, proceeding, whether testate or intestate… without
you have not less than 6 months from March 20, that , you cannot file any claim. Suppose wala, ano
nor more than up to the 19 th of March 1996. Can gagawin mo? Iinitiate the testate or intestate
you file it in 1998?

10
proceeding so that you file a claim. It is not an Q: What are these debts? There are only 5
independent action here. specific kinds of debts.
A:
But in 87, it is an independent action. Meron bang 1. Debts of the decedent;
testate or intestate proceeding? Not necessarily. 2. Funeral expenses;
You might say, bakit executor, administrator? Kaya 3. Expenses for administration;
nga ‘or’ because when you say executor, meron 4. Allowance for the widow; and
yan. Kung walang executor, administrator. You 5. Taxes.
mean to say that there can be no administrator
without an estate proceeding? No. There can be Q: Under the rules on preference of credit, taxes
an administrator even if there is no estate are given priority. Is there an
proceeding because you can even undertake exception? What did you Labor Law teacher teach
extrajudicial settlement of the estate. In you about that?
extrajudicial settlement there can be an A: PNB vs. NLRC case (March 1990): In case of
agreement by and between the parties as to the liquidation of the assets of the corporation, even
administrator of the estate. The estate does not taxes give way to unpaid salaries and wages. But
have a separate and distinct personality. It is only in all other instances, palaging ang gobyerno ang
an entity authorized by law in special cases. uunahin. Sabi nga sa mga Reviewers, pag wala ka
na daw maisasagot sa question sa taxation,
As a general rule, the estate cannot sue and be taxation is the lifeblood of the government.
sued. It can only be sued in certain instances. It
cannot be sued because under Sec.1, Rule 3 (Who Pag hindi mo mabayaran avail of Rule 89: Sales,
may be parties), it is only an entity authorized by Mortgages, and other Encumbrances of the
law. That is why you file against the executor or Property of the Deceased. The fundamental
administrator. Remember that an executor or reason for sales, mortgages, and other
administrator is a natural person. Iba yun sa encumbrances is to pay off debts.
Guardian ha? A guardian can be a juridical
person.. only guardianship over the property of Q: The estate is worth one million (P1M). After
the ward. In guardianship over the ward, the payment of debts, all that had been paid amounted
guardian cannot be an artificial being or to P500T. How much is left for distribution?
corporation. A: Only P500T.

Q: Compare Sec. 7, Rule 86 ( Mortgage debt due

from estate) with Sec. 5, Rule 87 (Mortgage due Q: If there are 5 compulsory heirs, devisees and
estate may be foreclosed). legatees, A, B, C, D, E, and under the will, A should
A: The parties under Sec. 7, Rule 86 are the estate receive P500T; B- P100T; C- P100T; D and E- P50T
of the decedent and the creditor. The creditors each and what remains is only P500T, how will
may have affirmative remedies as to their claims you distribute the estate?
against the decedent such as going after his estate. A: Distribute the estate by ratio and proportion.
The estate is the debtor, the mortgagor (‘mortgage
due from the estate’). As compared to Sec. 5, Rule Q: Suppose the asset was P10M gross value and
87, the estate is the mortgagee. the obligation was only P1M. You have P900T left
but the will says to distribute only P500T; P100T;
Q: Is the estate, under Sec. 5, Rule 87 allowed the P100T and P50T to the last two, may sobra ka,
alternative remedies in Sec 7, Rule 86? (that goes to the pocket of the lawyer?) it should
A: NO. He is only allowed one remedy which is be distributed in accordance with intestate
foreclosure. succession but also pro rata. A: Remember we are
talking here of the remainder, wala nang
After all these claims have been settled, all debts babayaran. We have also studied the Rules on
have been paid, you go now to distribution. This is contingent claims, under Sec. 4, Rule 74 ( Liability
the last stage. But in the distribution of the estate, of Distributees and Etate), the two-year lien.
what Rule should be followed? First, before
distribution, there shall be payment of debts. Q: Can the estate be distributed even before
payment of debts?
A: General Rule: No.

11
Exception: Assets may be distributed even prior to You file a guardianship proceeding only on 2
payment of debts provided the distributee first grounds:
gives a bond. 1. Minority; and
2. Incompetency.
The remedy is to give a bond. If the asset to be
distributed is quite important, such as real The term “incompetent” here is different from that
property, then you give the asset. in settlement of estate. Here,
“incompetent” refers to:
RULE 92 GUARDIANSHIP Sec. 2. Meaning of the word “incompetent”.
Incompetent includes:
Madali lang itong guardianship. You know why? 1. Those suffering from the penalty of civil
Because the Rules are practically the same. The interdiction (a penalty attached to
fundamental difference is that in guardianship, the conviction);
subject is still alive. In settlement of estate, the 2. Hospitalized lepers;
subject matter is already dead. 3. Prodigals (one who is a spendthrift; wastes
money or property on things without
Three Kinds of Guardians: reserving any for himself and before you
1. Judicial guardian – that appointed by the know it, he is not only a prodigal son but also
court in a judicial proceeding for legal a grasa man.);
guardianship 4. Deaf and Dumb unable to read and write;
2. Legal guardian— guardian by operation of 5. Those of unsound mind although they have
law; not just appointed by any court. (ex.: lucid intervals;
parents of minor children) 6. Persons not of unsound mind but by reason of
3. Guardian ad litem- that which is appointed age, disease, weak mind, and other similar
by the court not necessarily in a guardianship causes, cannot, without outside aid, take care
proceeding, because this guardian ad litem is of themselves or manage their property.
only on a temporary basis with a specific
duty to perform. A minor, under the age of 18, can be the subject
of guardianship.
Q: Which court has jurisdiction over a petition for
guardianship? Case of Evangelista: The petition for
A: Exclusively and originally cognizable by the guardianship was granted by the court and Caniza
Family Court (RTC specifically designated as a was appointed as the guardian of Evangelista. As a
Family Court because of RA 8369 ). There is no guardian, remember the rights, the guardian can
inferior court here. sue and be sued, can collect debts, can manage the
properties of the ward. So one of his actions here
However, in settlement of estate, jurisdiction may was to ask the Estradas to vacate the premises
be lodged in inferior courts depending on the owned by the ward. Judgment was rendered in
gross value of the estate. favor of plaintiff, but on appeal, it was reversed
and on appeal again from the order of reversal, it
The venue is the residence of the ward. If the was sustained. That is why it went up to the
ward has no residence and the guardianship Supreme Court. But pending the appeal with the
application is over the property of the ward, CA, the ward died. This is a case for ejectment.
the venue is where the property is situated/ The issue here is that considering that there is no
located. more guardianship because death terminates
guardianship, hence, the case must be dismissed
Take note that the venue here is the residence of because the party appellant is not the proper
the ward as distinguished from the venue in party-in-interest. The SC said No. Even if death
adoption, which is the residence of the adopter. terminates guardianship, in this particular case, it
Bakit? Because in adoption, the result is that the is contrary to the principle of equity of justice if
adoptee will become the child of the adopter for we have to start all over again. The case is already
all legal intents and purposes. But here, it is the with us, so remand of the case to the lower court
guardian that goes to the ward as the relation here would be a waste of time and more importantly,
is only of a temporary character. they found from the record that Caniza was one of
the heirs of the ward. Hence, there is still a party-

12
in-interest even if there is no settlement of the A: Death also terminates guardianship, but the
estate. Ang importante ay pag guardian ka tapos general rule is that if the ground for the
heir ka din, there is no need for the settlement of appointment of the guardian ceases, then
the estate. guardianship ceases as well.. If the minor is
already of age (remember, even the minor himself
NOTE: Remember that you find that also in Sec. 16 can ask for guardianship). This is an exception
of Rule 3: Substitution of Parties (“without a need regarding lack of a minor’s legal personality to
of appointing an administrator or executor of the sue. If the ground is based on incompetency and it
estate in the substitution of parties.”). That is the is established that the ward is already competent,
doctrine laid down in this case. or that he was insane, but now, he is no longer
insane; a petition for termination of guardianship
Q: Who can initiate a petition for guardianship? may be filed.
A: Anybody who has interest in the person of or
property of the ward. If you cannot establish any Q: Should the legal guardian file guardianship
interest in the person of or in the property of the proceedings over the person and property of their
ward, you cannot file a petition for guardianship. minor children?
A: Yes if the property of the war, which is their
Buyena vs. Ledesma: In this case, they were able own children, is worth more than P50T. If they
to establish interest. They were both single and sell the property of their ward, even if they are the
they were living together. legal guardians, the sale of the property is void.

You have to establish interest. The Rule says, Q: Distinction between a guardian and a trustee
friends, relatives, or any person who has interest. A: The distinction between a guardian and a
trustee is that the latter has the legal title while
Q: What is the procedure? the guardian has no legal title of the property. So
A: File a petition with a court of competent that the trustee can negotiate and encumber the
jurisdiction in the proper venue. And the court property under trust. Although the same trustee
will issue an order setting the case for hearing. If may either be a trustee and a beneficiary at the
there are oppositors, then they can file their same time.
opposition. Remember, this is a special
proceeding and jurisdiction is always acquired A trust relationship can either be express if there
through publication. After trial, there will be is a trust agreement between parties or implied if
decision either allowing or disallowing it is by operation of law. Examples of trust by
guardianship. In other word, appointing a operation of law is when parents die without a will
guardian or not appointing a guardian. and then some children are still minors, whoever
The guardian now enters into the guardianship is the guardian of the minor holds the property for
after he has filed the necessary bond. The duties and in behalf of the minors in trust. So that you
and responsibilities of a guardian are similar to will note that the guardian here, being the trustee,
that of an executor or administrator . may not be a party to a written trust agreement
but he cannot dispose the minor's property
Q: Can he sell the properties of his ward? without consent of the court for the reason that he
A: Yes. Even without permission from the court if is only in trust for the ces qui trust. Even in the
the property involved is personal property. But, if absence of a written contract, there is a trust
it is real property, just like, an executor or relationship by operation of law.
administrator, he has to get permission from the
court. Only with the permission of the court will
the sale of real property be considered a valid sale.
It is not only permission of the court which is
required, but also notice to all interested parties.
In guardianship, the absence of notice, even with
permission of the court, still renders the sale void.

Q: In what instances may guardianship be

terminated? ADOPTION
Background of adoption: The rule on adoption has

13
been amended several times and even the rules on and perfectly correct answer because it may be
procedure, which you find in 99 and 100 are no another RTC.
longer applicable. They have been repealed
expressly. As early as the mid-70s when the Child Q: What is the venue?
and Youth Welfare Code (PD 603) was enacted, it A: The place where the adoptive parents reside.
already amended the rules on adoption. PD 603 NOTE: Here, the meaning of residence is the actual
was also amended by the Family Code. But all habituation of the petitioner.
these are no longer applicable in toto because of
the new laws on adoption which should be the We are only going to study 2 fundamental
subject matter of today's section. The laws questions on adoption. Who may be adopted and
applicable now is not even the Civil Code per se, who may adopt. Once you perfect that we can go to
but rather it should be RA 8562, the Domestic another lesson.
Adoption Law of 1998 and the Inter Country
Adoption Law of 1995 (RA 8043). These are the Q: Who may adopt? Or who is a qualified
substantive law governing adoption. Our concern prospective adopter?
is the rule on adoption. A:
1. Any Filipino Citizen
AM 02-6-02SC, dated July 2002, is the new rule 2. Any alien
on Adoption. 3. Guardian, with respect to the ward. And
remember, there is no qualification as to the
Q: Who may be adopted only? citizenship of the guardian. The only
A: General Rule: one who is legally available for qualification is that the guardianship must
adoption. have ended AND his accountability as a
guardian has been completed. Yun lang ang
Q: Who are legally available for adoption? qualification.
A: Those who are voluntarily committed and/or
involuntarily committed. Q: Now let's go to the Filipino, what are the
qualifications?
The parents or guardians of these persons have A:
voluntarily surrendered their parental or 1. of legal age;
guardianship authority to the DSWD. 2. he must possess full civil capacity and legal
rights;
Q: Who are those involuntarily committed? 3. of good moral character;
A: Judicially or administratively deprived. Minors, 4. has not been convicted of any crime
whose parents or guardians are administratively involving moral turpitude;
or judicially deprived of their authority over these 5. emotionally and psychologically capable of
persons. They are involuntarily committed. And caring or children;
within that concept, you have the abandoned, the 6. financially capable or economically capable;
dependents, and neglected children. 7. at least 16 years older than the adoptee.

Q: What is a child-placement agency as NOTE: When one is of legal age, a minor cannot
distinguished from a child-caring agency? adopt. Because he must be capable of
A: The distinction is in the services that they cater. unquestionable demonstration. Under the Rules
Pag placement, it is to provide comprehensive on Evidence, the court can either take judicial
child welfare services including, but not limited to, notice of that because he is capable of
receiving applications for adoption, evaluating the unquestionable demonstration.
prospective adoptive parents, and preparing the
adoption home study while pag caring, it is like Q: What does possession of full civil capacity and
Hospicio de San Jose, which provides 24 hour legal rights mean?
residential care services for abandoned, orphaned, A: Give me a person who is not possessed of full
neglected or voluntarily committed therein. civil capacity and legal right. A convicted person
which has received an additional penalty of civil
Q: Which court has jurisdiction over a petition for interdiction.
adoption?
A: It is the Family Court. RTC is not even a totally Q: How about a deaf-mute? Is a deaf-mute in

14
possession of full civil capacity? requirement to be adopted. Relationship is not
A: Under the rules, a deaf-mute who is not able to even a disqualification on the part of the adoptee.
read and write is not in possession of full civil because they can be adopted.
capacity, thus it is incapable of contracting
obligations. What I would like to emphasize is the doctrine laid
down in Cang v CA, which is that consent must be
Q: A person caught urinating, and charged of given either by the prospective adoptee, if he is at
urinating in public. Is this not moral turpitude? least 10 years old, or parents, or guardians, or the
A: Urinating or defecating in public is an offense DSWD. Without that consent, as laid down in this
and not a crime. The requirement speaks of one doctrine, adoption is null and void.
who has not been convicted of a crime, which is So you can adopt even your own child. You can
punishable by the Revised Penal Code. even adopt your own grandchildren just like what
Juan Ponce Enrile did to his grandchildren.
Q: But if you are charged of Rape, can you not
adopt? Q: Another person who may adopt is a foreigner,
A: No. Because it speaks of conviction. You must and he may adopt under the domestic adoption
first be convicted. law or the inter-country adoption law. What are
the requirements?
But if you are convicted of homicide, recent A: So all the requirements applied to a Filipino
jurisprudence say, you can still adopt because it is prospective adopter are also required of an alien.
not a crime of moral turpitude. So tatlo, there Therefore, he must be of legal age, in possession of
must be a crime, there must be conviction, and full civil capacity and legal rights, of good moral
it must be of moral turpitude. character, not convicted of a crime involving moral
turpitude, etc.
Q: How do you establish your emotional and Over and above this, an alien is also required:
psychological capacity? 1. he must have continuously resided in the
A: Clearances to show that you have not been Philippines 3 years prior to the filing of the
convicted from a crime of moral turpitude. adoption;
Clearances from RTC, police, PNP, barangay, MTC, 2. he must have a certification from his consular
etc. And these clearances will ought to show that official that he is in possession of full civil
you are of good moral character, that you are capacity;
emotionally and psychologically capacitated, 3. his country of origin must have diplomatic
subject of course to presentation of evidence and relations with our country;
cross-examination. Wala namang summons sa 4. his country of origin must allow the adoptee
adoption. to become a citizen of his country;
5. that his country of origin allows the adoptee
Q: How do you establish your financial capacity? to enter the country of origin of the adopter;
A: Certificate of employment, income tax returns.
Q: Where should he file this petition for adoption?
Q: When we speak of age gap, the miracle number (Section 28)
is 16, why? What is sought to be avoided by this A:
age gap? 1. It may be filed by a foreign national or Filipino
A: To avoid temptation. You look at the history of citizen permanently residing abroad with the
the Civil Code of the Philippines which was Family Court having jurisdiction over the
adopted from the Civil Code of Spain. And being of place where the child resides or may be found;
European origin, there is that also a 16 year old 2. It may be filed directly with the Inter-Country
gap. Malalaking bulas ang mga european and they Adoption Board.
seek adoption as a means of having mistresses.
When an alien files a petition before the Inter-
Q: Who may be adopted? Country Adoption Board, the alien will come here
A: General Rule: one who is legally available for in the Philippines and will bring the adoptee and
adoption. the social worker back to his country of origin for
the trial custody of 6 months will happen there.
Q: Who are legally available for adoption?
A: There are 7. So that minority is not an absolute This is purposely done by the law, because there is

15
an objective of discouragement. To discourage the adoptee.
adoption of Filipino citizens by aliens. In fact that
is only allowed if the prospective adoptee cannot Q: After the hearing, may the court render
be adopted by a Filipino. Filipinos have the judgment now?
preference of adopting. A: The judgment referred to here is not similar to
the judgment that we have ordinarily because the
Q: What constitutes the allegations? judgment here is always subject to the issuance of
A: another decree of adoption. Ang finality dito is not
1. Jurisdictional facts; the finality of the judgment but rather the finality
2. legal capacity of the prospective adopter and of the decree of adoption.
the adoptee;
Q: When is the decree of adoption issued?
In the case of Republic v. Hernandez (1997), the A: After complying with the 6 month trial custody.
SC said that the petition for adoption does not Again, this is another undertaking of the DSWD.
carry with it the change of name of the adoptee. Tignan niyo, the home or case study report is
With the present rules on adoption specifically before the decision is rendered, but before a
under Section 10, this doctrine does not apply decree of adoption is rendered kailangan pa ng isa
anymore. This is a good bar question. So you can pang report which is the trial custody report.
now have joinder of causes of action in special
proceedings, in effect. Dati wala. So you can now Q: For how long?
join in your prayer, asking for a change of name A: General Rule: 6 months.
and for adoption. Let me emphasize, it is a change Exception: when it is in the best interest of the
of name and not a change of surname because child; the petition during the hearing is that the
change of surname is an automatic effect of prospective adoptee is already living with the
adoption. adopter.

Q: After you have filed a petition for adoption, Q: After the decree of adoption has become final
what happens now? and executory, what is the next?
A: There would be a case study, where it is A: There should be a new birth certificate issued.
immediately assigned to a social worker. Under Remember that one of the rights of a party in
present dispensation in our jurisdiction, every litigation is the right to a speedy and public trial.
family courts is now provided with a social But this adoption proceeding is exceptional
worker. Because a petition for adoption is because even the documents there are public
exclusively cognizable by the Family Courts. records but are not open to the public, not
anybody can get it including the new birth
certificate issued to the adopter.

Q: For what purpose is this? NOTE: But take note that under the rule on
A: One is the home study report and the other is rescission of adoption, the issued certificate of the
the case study report. The home study report is civil registrar's office is cancelled in favor of the
about assigning to the social worker of the old birth certificate, which means that the old
respective adoptee and the case study report is birth certificate is not deleted, but remains in the
about the prospective adopter. record. And this is the reason of the confidential
nature of the proceedings.
The general objective of adoption, why it is
allowed under the rules, is that which leads to the Q: What is adoption?
benefit of the adoptee. A: It is a judicial proceeding whereby the
relationship of paternity and filiation is
Under the rules, it is mandatory that the petitioner established. AS simple as that.
must appear and testify. Similar to an annulment
of marriage case, there can be no stipulation of According to a noted professor, when a decree of
facts here or confessions of judgment. There must adoption is final and executory, there is the total
be actual presentation of evidence here. And basic and absolute cut of any legal relationship between
requirement here is the consent given by the the natural parent and the child.
adoptee, the parents or the guardians of the

16
Under the new rules, the adopter cannot rescind Because what do you intend to annul there? wala.
the adoption but only disinherit the adopted child.
An adopted child has all the rights of a legitimate Q: What is a preliminary citation as compared to
child. the writ of habeas corpus or the peremptory writ?
A: Preliminary citation is a citation to the
government officer having the person in his
HABEAS CORPUS custody to show cause why the writ of habeas
Q: What is the constitutional provision about corpus should not issue (detention not patently
habeas corpus? illegal).
A: The privilege of the writ of habeas corpus shall Preemptory writ is issued when the cause of the
not be suspended except in cases of invasion or detention appears to be patently illegal and the
when public safety requires it. It is not the writ non-compliance wherewith is punishable.
which is suspended but the privilege. In preliminary citation, it is not mandatory where
the court may dispense with the issuance of the
Q: What is a writ of habeas corpus? preliminary citation and go directly to the
A: It is an order or judicial process directed to the issuance of the writ of habeas corpus.
person to show cause for the reason of detention.
A person in custody of another, restraining the
Q: By that definition, it is directed in two liberty of another, must give a return upon receipt
conditions, which are: of the writ of habeas corpus. That return can
A: either be prima facie evidence of the detention or
1. illegal detention or confinement; a plea of the facts stated therein, in the return.
2. illegal withholding of custody from a person
entitled thereto. Q: Ano ang ibig sabihin nito? (Section 13)
It is directed to someone who commits an act of A: The content of the return as to whether it is a
either illegal detention or confinement or illegal plea only or prima facie evidence of detention,
withholding of custody from a person entitled they distinguish as to who has burden of proof. If
thereto. the return contains prima facie evidence of the
detention, then petitioner has the burden of proof
Q: What is an example of the first instance? to show that the detention is illegal. But if it is only
A: Violation of the constitution, whereby a person a plea of the facts stated in the return, then the one
is deprived or restrained of his liberty or not who has the custody of the person has the burden
afforded a right to due process, or an order from of proof.
an authority which has no jurisdiction.
So a writ of habeas corpus is directed to a jail
Q: What is an example of the second instance? warden. When the jail warden prepares the return,
A: Malimit itong mangyari within the family, which is brought to the court, he says that this
where the mother or father fights over for the person is under a commitment order, merong
custody of the child. desisyon ang korte that this one should be
imprisoned because he was denied bail although is
Q: If a woman leaves the parental home in order to appeal is still pending. That is prima facie
stay with her paramour, can the parents file a evidence of the cause of his detention, and when
petition for a writ of habeas corpus? that is submitted to the court, the applicant has
A: It depends. If the child is a minor, a writ of the burden to establish that that commitment
habeas corpus is available. But when a child comes order is illegal.
of age, the writ of habeas corpus is not available.
But if the return, it says well i am taking custody of
Q: Suppose a judge renders a judgment penalizing this child because i am the father, that is not a
a person with imprisonment of 6 years 1 month commitment order or judicial order, that is coming
and 1 day, and then the convict has already stayed from a private person. Therefore, that is not prima
for more than that period of time, is the writ facie evidence but only a plea of the facts stated
available? therein. Hence, the father will show that he has the
A: Yes, the writ is available because that is the right to take custody of the child and not anymore
immediate remedy. Although you can also file the petitioner.
certiorari but it is no longer immediate here.

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RULE 103 (CHANGE OF NAME) and 108 RA 9048 if the change sought is clerical or
(CORRECTION OF ENTRIES) are still applicable. typographical in nature.
They have only been amended but are not yet
repealed by RA 9048. Therefore, an affected Q: Name is Maria Cecilia when in her birth
person can avail of Rule 103 or Rule 108 without certificate it shows as Ma. Cecilia, is that
RA 9048 being violated. typographical or clerical error?
A: There is no error there. What you have to seek
RA 9048 is known as administrative procedure of is change of name because Ma is different from
changing one's name or nick name or Maria Cecilia. There is no error there.
administrative procedure of correcting an entry in
a document. Therefore, being administrative, it is You cannot avail of RA 9048 if it will change sex,
extrajudicial. In case of Rules 103 and 108, they status, or nationality. If there is error you can
are judicial processes. change it under Rule 108 and not RA 9048.

Q: Which courts have jurisdiction over Rules 103 Q: Suppose you do it under Rule 108, and it was
and 108? denied. Where do you appeal or what is the
A: RTC, specifically the Family Courts. remedy?
A: The remedy is to go to the Civil Registrar
Q: Venue? General who is the Manager of the National
A: Residence in case of change of name. Where the Census Administrative Office. It is not an appeal
registry is located in case of correction of entries. but a motion for reconsideration. If the civil
registrar affirms the denial, you file a PETITION
Q: What are the amendments to these two rules under Rule 108.
brought about by RA 9048?
A: Remember that RA 9048 speaks only of names Q: Going back to RA 9048, A was born in Quezon
and nickname but when Rule 103 says change of City, he now resides in Baguio City. Should he go to
name, it does not only refer to name or nick name Quezon City in order to file under RA 9048?
but also to family name. So if you want to change A: No, he has to file it in Baguio and under the
the family name you cannot avail of RA 9048. rules the two civil registrar, that of Baguio and
Quezon city will coordinate. It also can be done
Q: What are the grounds? abroad, by filing the same with the Philippine
A: Consulate, it is a matter of communication.
The same grounds. Under RA 9048, the same
grounds: NOTE: Appeal in RA 9048 is with the Civil
1. That the name is ridiculous. If your name is Registrar General. Although it is not really an
Lucifer, you can have it changed under Rule appeal, it is a motion for reconsideration. Appeal
103 or RA 9048. under Rule 103 or 108 is ordinary/ regular appeal.
2. Tainted with dishonor. If your name is Osama In RA 9048, it is not really an appeal, wala naman
Bin Laden, you can have it changed. kasi appeal sa administrative remedies, you use
3. Your name is very difficult to pronounce or the word appeal for facilitation of better
write. If your name is understanding. But that is not an appeal, motion
supercalifragilisticexpialidocious. for reconsideration siguro.
4. That you are known by the name in the
community.
5. To avoid confusion.
6. To avoid foreign alienage.
So the same grounds either under Rule 103 or RA
9048.

Under Rule 108, you have to correct entries in a

document. And the enumerated public documents
where entries have had are as many as possible.
Those which are in the custody of the register of
deeds. If the change are substantial, you cannot
avail RA 9048 but Rule 108. You can only avail of

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