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ONLINE AND
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NOTES IN REMEDIAL LAW
(SPECIAL PROCEEDINGS)
BY
ATTY. RONALD C. CHUA
Bachelor of Law
Ateneo de Manila University College of Law

Litigation Lawyer

Professor of Law
Ateneo de Manila University, University of Santo Tomas, Lyceum of the Philippines University

National Bar Reviewer

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T A N T A M O U N T T O I N T E L L E C T U A L P R O P E R T Y R I G H T S I N F R I N G E M E N T
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SPECIAL PROCEEDINGS
An application or proceeding to establish the status, or right of a party, or a particular fact.
Rule 72
Subject matter and applicability of general rules

Subject matter:
1. Settlement of State of Deceased Persons
2. Escheat
3. Guardianship and custody of children
4. Trustees
5. Adoption
6. Rescission and revocation of adoption
7. Hospitalization of insane persons
8. Habeas Corpus
9. Change of name
10. Voluntary dissolution of corporations
11. Judicial approval of voluntary recognition of minor natural children
12. Constitution of family home
13. Declaration of absence and death
14. Cancellation or correction of entries in the civil registry

2009 Bar Question No. 5

Frank and Gina were married on June 12, 1987 in Manila. Barely a year after the wedding, Frank exhibited
a violent temperament, forcing Gina, for reasons of personal safety, to live with her parents. A year
thereafter, Gina found employment as a domestic helper in Singapore, where she worked for ten
consecutive years. All the time she was abroad, Gina had absolutely no communications with Frank, nor
did she hear any news about him. While in Singapore, Gina met and fell in love with Willie.
On July 4, 2007, Gina filed a petition with the RTC of manila to declare Frank presumptively dead, so that
she could marry Willie. The RTC granted Gina’s petition. The office of the Solicitor General (OSG) filed a
notice of Appeal with the RTC, stating that it was appealing the decision of the Court of Appeals on
questions of fact and law.
(a) Is a petition for declaration of Presumptive Death a special proceeding?
(b) As the RTC judge who granted Gina’s petition, will you give due course to the OSG’s notice of appeal?
(c) No, a petition for declaration of presumptive death is not a special proceeding.
The Supreme Court has held that such a petition is not a special proceeding since it is not mentioned in
the enumeration of special proceedings in Section 1 Rule 72. (Republic v. Jomoc, G.R. 163604, 06 May 2005)
Note: It is submitted that a petition for declaration of presumptive death is a special proceeding for it is a
remedy by which a party seeks to establish a status, or particular fact, i.e. the fact (albeit presumptive) of
death. It is similar to the petition for declaration of absence under Rule 107. The enumeration in Section 1
Rule 72 should not be considered exclusive. For instance, the petition for writ of amparo is no included in
Section 1 Rule 72 but it is evidently a special proceeding for it seeks to establish a civil right.
(a) The Supreme Court has held that the judgment of the court in a petition for declaration of
presumptive death is immediately final and executory pursuant to Article 247 of the Family Code.

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T A N T A M O U N T T O I N T E L L E C T U A L P R O P E R T Y R I G H T S I N F R I N G E M E N T
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Hence, such a judgment may not be appealed. (Republic v. Bermudez-Lorino, G.R. 160258, 19
January2005).
2010 Bar Question No. 16
Sal Mineo died intestate, leaving a P1 billion estate. He was survived by his wife Dayanara and their five
children.
Dayanara filed a petition for the issuance of letters of administration. Charlene, one of the children, filed an
opposition to the petition, alleging that there was neither an allegation nor genuine effort to settle the
estate amicably before the filing of the petition. Rule on the opposition.
The opposition should be denied.
The Supreme Court has held that Article 151 of the Family Code, which requires that in suits involving the
members of the same family there must be a verified allegation of the earnest efforts at compromise,
applies only to suits or ordinary civil actions but not to a special proceeding, like a petition for settlement
of estate, which is simply for the establishment of a status, a right, or a particular fact. (Manalo v. Court of
Appeals, 16 January 2001).

SETTLEMENT OF ESTATE
Settlement of estate of deceased person
Modes of Settlement of Estate of a Deceased Person
1. Extrajudicial Settlement of Estate without court intervention
2. Judicial
a. Summary settlement of estate of small value
b. Partition
c. Probate of a will
d. Petition for letters of administration in case of intestacy

RULE 73 VENUE AND PROCESS

Jurisdiction
 Regional Trial Court
Gross value of the estate exceeds: 400,000.00 (within Metro Manila; or 300,000.00 (outside Metro
Manila)
 Metropolitan Trial Court
Gross value of the estate DOES NOT EXCEED: 4000,000.00 (within Metro Manila); or 300,000.00
(outside Metro Manila).

WHERE ESTATE OF DECEASED PERSONS SETTLED

If residing in the Philippines at the time of death, whether citizen or not: court of place of residence.
If residing in a foreign country: court of any place where he had estate.
The court first taking cognizance of the settlement of estate of a decedent shall exercise jurisdiction to the
exclusion of all other courts.
Subject to preferential jurisdiction of court where testate proceedings are filed

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Jurisdiction assumed by a court depending on place of residence of decedent, or location of the estate shall
not be contested in a suit or proceeding excepti:
1. In an appeal from that court, OR
2. When want of jurisdiction appears in the record

WHERE ESTATE SETTLED UPON DISSOLUTION OF MARRIAGE

A creditor cannot sue surviving spouse of a decedent in an ordinary proceeding for collection of sum of
money chargeable against the conjugal property. Proper remedy – file a claim in the settlement of estate
of the decedent. Reason: upon death of one spouse, powers of administration of surviving spouse ceases
and is passed to administrator appointed by probate court in the settlement proceedings.
(Alipio vs. CA, 341 SCRA 441 [2000])

2010 Bar Question No. 15

Pedrillo, a Fil-Am permanent resident of Los Angeles, California at the time of his death, bequeathed to
Winston a sum of money to purchase an annuity.
Upon Pedrillo’s demise, his will was duly probated in Los Angeles and the specified sum in the will was in
fact used to purchase an annuity with XYZ of Hong Kong so that Winston would receive the equivalent of
US$1,000 per month for the next 15 years.
Wanting to receive the principal amount of the annuity, Winston files for the probate of Pedrillo’s will in
the Makati RTC. As prayed for, the court names Winston as administrator of the estate.
Winston now files in the Makati RTC a motion to compel XYZ to account for all sums in its possession
forming part of Pedrillo’s estate. Rule on the motion.
The motion should be denied. The Supreme Court has held that the writs and processes of a probate court
cannot extend outside the Philippines. Here XYZ was in Hong Kong and thus beyond the jurisdiction of the
Philippine probate court.
Moreover, the probate court should have dismissed the petition at the onset. In a petition for probate of a
will where the testator is a non-resident, the petition should allege the jurisdictional fact that the testator
left estate within the Philippines. (Cuenco v. Court of Appeals, L-24742, 26 October 1973).

RULE 74 SUMMARY SETTLEMENT OF ESTATES

EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN HEIRS
1. Decedent died intestate
2. There are no outstanding debts at the time of the settlement
3. The heirs are all of age, or the minor heirs are represented by their judicial guardians or legal
representatives
4. Settlement is made in a public instrument, stipulations or affidavit
5. Duly filed with the register of deeds
6. The fact that such extrajudicial settlement must be published in a newspaper of general circulation
in the province, once a week for 3 consecutive weeks
7. A bond is required when personal property is involved in the extrajudicial partition

SUMMARY SETTLEMENT OF ESTATE OF SMALL VALUE

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1. The complaint must contain an allegation of the gross value of the estate of the deceased [must not
exceed P10,000]
2. There are no existing debts
3. A bond has been duly filed [in an amount fixed by the court]; and
4. A proper hearing is held: The hearing shall be set by the court not less than 1 month nor more than
3 months from the date of last publication of notice

EXTRAJUDICIAL SETTLEMENT BY SUMMARY SETTLEMENT OF ESTATE OF SMALL

AGREEMENT AMONG HEIRS VALUE
No court intervention required. Requires summary adjudication.
The value of estate is immaterial. Gross value of the estate must not exceed 10,000.

Allowed only in intestate succession. Allowed in both testate and intestate succession.

There must be outstanding debts of the Available even if there are debts, it is the court which will
estate at the time of the settlement. make provision for its payment.

Resorted at the instance and by agreement May be instituted by any interested party even a creditor
of all heirs. of the estate without the consent of all the heirs.

Amount of bond is equal to the value of Amount of bond is to be determined by the court.
personal property.

2009 Bar Question No. 18

Pinoy died without a will. His wife, Rosie and three children executed a deed of extrajudicial settlement of
his estate. The deed was properly published and registered with the Office of the Register of Deeds. Three
years thereafter, Suzy appeared, claiming to be the illegitimate child of Pinoy. She sought to annul the
settlement alleging that she was deprived of her rightful share in the estate.
Rosie and the Three Children contended that (1) the publication of the deed constituted constructive notice
to the whole world, and should therefore bind Suzy; and (2) Suzy’s action had already prescribed.
Are Rosie and the Three Children Correct? Explain.
Rosie and her three children are not correct.
The publication of the deed of extrajudicial partition does not constitute constructive notice to the whole
world since Section 1 Rule 74 provides that “no extrajudicial settlement shall be binding upon any person
who has not participated therein or had no notice thereof.”
Suzy’s action has not prescribed. Her action to annul the settlement is in effect an action for reconveyance
which may be filed within 10 years from the issuance of the title. Here only 3 years had lapsed; hence,
Suzy’s action has not yet prescribed.

1986 Bar Question No. 14

Kuya and Diko filed a complaint for partition of their deceased father’s estate against their sisters, Ate and
Ditse. The brothers alleged that the four of them are the only heirs of their deceased father; that they could
not agree as to how their father’s estate should be divided: that their father left no will and that he left no
debts whatsoever.

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T A N T A M O U N T T O I N T E L L E C T U A L P R O P E R T Y R I G H T S I N F R I N G E M E N T
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Ate and Ditse filed a motion to dismiss insisting that the proper action should be a petition for the issuance
of letters administration and not an action for partition. Is the motion meritorious? Explain.
No, the motion to dismiss is not meritorious. Under the Law on Partition, the estate of a deceased person
may properly be partitioned since a co-ownership has arisen among the deceased’s heirs, provided that
the deceased died intestate and left no debts. A petition for issuance of letters of administration is only an
option to settle the estate and is not mandatory. In fact the heirs in such a case are encouraged to have the
estate partitioned, whether judicially or extrajudicially, as this is less expensive than a probate proceeding.
(Butiong v. Plazo, 05 August 2017, Peralta, J.).

RULE 75 PRODUCTION OF WILL. ALLOWANCE OF WILL NECESSARY

 Allowance of will is conclusive as to its due execution.
 Probate of will is mandatory.
 General Rule: probate court is limited only to the extrinsic validity of the will.
- Due execution
- Testamentary capacity
- Compliance with formal requisites

CUSTODIAN OF WILL TO DELIVER

 The person with custody of a will shalll within 20 days after he knows of the death of the testator,
deliver the will to:
- The court having jurisdiction or
- To the executor named in the will

EXECUTOR TO PRESENT WILL AND ACCEPT OR REFUSE TRUST

 Within 20 days after he knows the death of the testator, or within 20 days after he knows that he is
named executor, if he obtained such knowledge after the death of the testator:
 Present the will to the court having jurisdiction
 Signify to the court in writing his acceptance of he trust or his refusal to accept it, if the will reached
the court in any other manner

2005 Bar Question No. 5 [1]

After Lulu’s death, her heirs brought her last will to a lawyer to obtain their respective shares in the estate.
The lawyer prepared a deed of partition distributing Lulu’s estate in accordance with the terms of her will.
Is the act of the lawyer correct? Why?
No, the act of the lawyer is not correct.
Under Section 1, Rule 75, no will shall pass either real or personal estate unless it is proved and allowed in
the proper court. The Supreme Court has held that the probate of a will is mandatory. (Guevarra v.
Guevarrra, 74 Phil 749). Extrajudicial settlement is not proper if the decedent left a will. (Section 1 Rule
74).

2007 Bar Question No. 8 (b)

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The heirs of H agree among themselves that they will honor the division of H’s estate as indicated in her
Last Will and Testament. To avoid the expense of going to court in a Petition for Probate of the Will, can
they instead execute an Extrajudicial Settlement Agreement among themselves? Explain briefly.
No. The heirs of H cannot execute an extrajudicial settlement.
Under Section 1, Rule 75, no will shall pass either real or personal estate unless it is proved and allowed in
the proper court. The Supreme Court has held that the probate of a will is mandatory. (Guevarra v.
Guevarrra, 74 Phil 749). Extrajudicial settlement is not proper if the decedent left a will. (Section 1 Rule
74).
1992 Bar Question No. 9
The last will and testament of the deceased was presented in the proceeding to settle his estate and in due
course hearing was set for the probate of the will. Before evidence thereon could be presented, the legal
heirs of the deceased, his widow and two surviving daughters, filed a manifestation that the probate of the
will would no longer be necessary since they had already agreed to divide the net estate differently in
accordance with a project partition attached to their manifestation. Consequently, they moved that the
project of partition be approved a forthwith implemented without probate of the decedent’s will. Should
the court grant the heirs’ motion and accordingly approve their project of partition without the probate of
the will? Explain.
No, the heirs of H cannot execute an extrajudicial settlement.
Under Section 1, Rule 75, no will shall pass either real or personal estate unless it is proved and allowed in
the proper court. The Supreme Court has held that the probate of a will is mandatory. (Guevarra v.
Guevarrra, 74 Phil 749). Partitioning the estate without probating the will is thus improper, regardless of
whether the partition would or would not be in accordance with the provisions of the will. (Section 1, Rule
74).

1999 Bar Question No. 11 (b)

The will of the deceased wife was allowed probate upon the petition of the executor, her husband, and the
estate of the wife distributed in accordance with the will. Two years later, the husband was charged with
the crime of falsification for allegedly forging the signature of the wife in the will. Will the charge prosper?
No. Subject the right of appeal, the allowance of the will shall be conclusive as to its due execution. (Section
1, Rule 75). Here, since the order allowing the will became final, the same became conclusive as to the due
execution of the will. (Mercado vs. Santos, 66 Phil. 215).

RULE 76 ALLOWANCE OR DISALLOWANCE OF WILL

Who may petition for allowance of will
Who:
1. Executor
2. Legatee
3. Devisee
4. Other interested person – heir; creditor
5. Testator during his lifetime

When:
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1. At a reasonable time after the death of the testator

2. During the lifetime of the testator, upon petition by him to the court having jurisdiction

Where: Court having jurisdiction

What: petition to have will allowed whether:
1. Will is in possession of petitioner or not
2. Will is lost
3. Will is destroyed

Contents of a petition
1. Jurisdictional facts
a. Death of the testator
b. His residence at the time of death
c. If non-resident, province where the estate was left
d. The will has been delivered to the court and is in possession thereof (unless not delivered)
(Salazar vs. CFI)
e. Value of the estate to determine court with jurisdiction
2. The names, ages and residences of the heirs, legatees and devisees of the testator or decedent.
3. The probable value and character of the property of the estate.
4. The name of the persons for whom letters are prayed.
5. The name of the person having custody of the will (if not yet delivered to the court)

COURT TO APPOINT TIME FOR PROVING WILL; NOTICE THEREOF TO BE PUBLISHED

Jurisdiction over the probate of the will becomes vested in the court:
1. Upon filing of a petition for the proving of a will
2. Upon delivery of a will to the court

Jurisdictional requirements:
1. Publication for 3 weeks successively of the order setting the case for hearing
2. Notice to all persons interested

If the petition was initiated by the testator himself:

1. No publication is necessary
2. Notice only to the compulsory heirs
Heirs, devisees, legatees, and executors to be notified by mail or personally
1. Notice of time and place of hearing should be addressed to:
a. Designated or known heirs, legatees and devisees
b. Person named as executor (if he is not petitioner)
c. Person named as co-execuor
2. Residing in the Philippines
3. At their places of residence, if known
4. By personal service at least 10 days before hearing
5. By mailed service at least 20 days before hearing
6. If the testator asks for the allowance of his own will, notice shall be sent only to his compulsory
heirs
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PROOF OF HEARING. WHAT SUFFICIENT IN ABSENCE OF CONTEST

Evidence introduced at probate of will:
1. Publication
2. Notice of hearing was served on known heirs, legatees, devisees, etc. If places of residences known:
3. Testimony of subscribing witnesses

Grounds for disallowing will

1. If not executed and attested as required by law
2. If the testator was insane, or otherwise mentally incapable of making a will at the time of the
execution
3. If it was executed under duress, influence of fear, or threats
4. If it was procured by undue and improper pressure or influence, on the part of the beneficiary, or
of some other person for his benefit
5. If the signature of the testator was procured by fraud or trick, and he did not intend that the
instrument should be his will at the time of fixing his signature

Exclusive

2010 Bar Question No. 15

Pedrillo, a Fil-Am permanent resident of Los Angeles, California at the time of his death, bequeathed to
Winston a sum of money to purchase an annuity. Upon Pedrillo’s demise, his will was duly probated in Los
Angeles and the specified sum in the will was in fact used to purchase an annuity with XYZ of Hong Kong
so that Winston would receive the equivalent of US$1,000 per month for the next 15 years.
Wanting to receive the principal amount of the annuity, Winston files for the probate of Pedrillo’s will in
the Makati RTC. As prayed for, the court names Winston as administrator of the estate.
Winston now files in the Makati RTC a motion to compel XYZ to account for all sums in its possession
forming part of Pedrillo’s estate. Rule on the motion.
The motion should be denied. The Supreme Court has held that the writs and processes of a probate court
cannot extend outside the Philippines. Here XYZ was in Hong Kong and thus beyond the jurisdiction of the
Philippine probate court.
Moreover, the probate court should have dismissed the petition at the onset. In a petition for probate of a
will where the testator is a non-resident, the petition should allege the jurisdictional fact that the testator
left estate within the Philippines. (Cuenco v. Court of Appeals, L-24742, 26 October 1973).

1993 Bar Question No. 07 (Civil Law)

Maria, to spite her husband Jorge, whom she suspected was having an affair with another woman, executed
a will, unknown to him, bequeathing all the properties she inherited from her parents, to her sister Miguela.
Upon her death, the will was presented for probate. Jorge opposed probate of the will on the ground that
the will was executed by his wife without his knowledge, much less consent, and that it deprived him of his
legitime. After all, he had given her no cause for disinheritance, added Jorge in his opposition.
How will you rule on Jorge's opposition to the probate of Maria's will, if you were the Judge?
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If I were the judge, I will deny Jorge’s opposition to the probate of the Maria’s will.
The Supreme Court has held that during the probate of a will, the probate court can pass only upon the
extrinsic validity of a will.
Here the ground that the will deprived Jorge of his legitime relates to the will’s intrinsic validity which the
probate court will pass upon only during the determination of the heirs and he distribution stage but not
during the probate of a will. Hence Jorge’s opposition should be denied.
The ground that the will was executed without the knowledge or consent of Jorge is not even a ground to
attack the validity of a will, whether extrinsic or intrinsic, since a will is not a contract but a unilateral act
of the testator.
(a) No, the will is no intrinsically valid.
Under Article 1028 of the Civil Code in relation to Article 739 of the Civil Code, testamentary dispositions
between persons who were guilty of adultery or concubinage at the time of such disposition are void.
Here the testamentary disposition was made between H and X who were guilty of adultery and/or
concubinage. Considering that the will was only one testamentary disposition, since legitime are already
provided for by the law, the will is entirely void.
(b) The court may disallow the will.
The general rule is that a probate court during the probate proper stage cannot pass upon the intrinsic
validity of a will. However, where the defect of the will is apparent on its face, the court may pass upon its
intrinsic validity since the probate of the will would become a useless ceremony.
Here the defect of the will is apparent on its face since the will itself stated that the devisee was a paramour
of the testator. Hence the court may disallow the will. (Nepomuceno v. Court of Appeals, 139 SCRA 206
[1985]).

2010 Bar Question No. 14

Czarina died single. She left all her properties by will to her friend Duqueza. In the will, Czarina stated that
she did not recognize Marco as an adopted son because of his disrespectful conduct towards her.
Duqueza soon instituted an action for probate of Czarina’s will. Marco, on the other hand, instituted
intestate proceedings. Both actions were consolidated before the RTC of Pasig. On motion of Marco,
Duqueza’s petition was ordered dismissed on the ground that the will is void for depriving him of his
legitime. Argue for Duqueza.
I would argue that the will is not void for there was no preterition. Preterition applies only to inadvertent
omission in the will. Here there was no inadvertenent omission because Czarina mentioned Marco in the
will and made an ineffective disinheritance. Hence the will was valid and should be given effect to the extent
that it does not impair Marco’s legitime.
I would also argue during the probate proper stage, the probate court can pass only upon the extrinsic, not
intrinsic validity of the will. When the court declared the will void for depriving Marco of his legitime, it
was passing upon the intrinsic validity of the will.

RULE 77 ALLOWANCE OF WILL PROVED OUTSIDE THE PHILIPPINES AND ADMINISTRATION OF

ESTATE THEREUNDER

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Will proved outside of the Philippines may be allowed here

1. Due execution of will in accordance with foreign laws
2. Testator has domicile in foreign country and not Philippines
3. Will has been admitted to probate in such country
4. Fact that foreign court is a probate court
5. Law of the foreign country on procedure and allowance of wills (Vda

1990 Bar Question No. 9 (Civil Law)

H died leaving a last will and testament wherein it is stated that he was legally married to W by whom he
had two legitimate children A and B. H devised to his said forced heirs the entire estate except the free
portion which he gave to X who was living with him at the time of his death.
In said will he explained that he had been estranged from his wife W for more than 20 years and he has
been living with X as man and wife since his separation from his legitimate family.
In the probate proceedings, X asked for the issuance of letters testamentary in accordance with the will
wherein she is named sole executrix. This was opposed by W and A and B. Assume that the will had been
executed in accordance with the formalities required by law.
(a) Is the will intrinsically valid?
(b) May the probate court disallow the will?

RULE 78 LETTERS TESTAMENTARY AND OF ADMINISTRATION AND TO WHOM ISSUED

Who are incompetent to serve as executors or administrators
1. Minority
2. Non-residence
3. Unfitness
- Drunkenness
- Incompetence
- Want of understanding
- Want of integrity
- Conviction of offense involving moral turpitude

When and to whom letters of administration are granted

When administration granted:
1. No executor named in the will
2. Executor/s (is/are)
- Incompetent
- Refuse the trust
- Fail to give bond
3. Person dies intestate
4. Will void and not allowed

When and to whom letters of administration are granted

Order of preference in appointment of administrator

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1. Surviving spouse
2. Next of kin
3. Person requested by spouse or next of kin
4. Principal creditors
5. Other person selected by court – if no creditor competent or willing

RULE 79 OPPOSING ISSUANCE OF LETTERS TESTAMENTARY, PETITION AND CONTEST FOR

LETTERS OF ADMINISTRATION
Opposition to issuance of letters testamentary. Simultaneous petition for administration
 Any person interested in a will may file a written opposition
 Contents of petition for letters of administration:
- The jurisdictional facts;
- The names, ages, and residences of the heirs, and the names and residences of the
creditors, of the decedent;
- The probable value and character of the property of the estate;
- The name of the person for whom letters of administration are prayed.

2008 Bar Question No. 18

Domencio and Gen lived without benefit of marriage for 20 years, during which time they purchased
properties together. After Domencio died without a will, Gen filed a petition for letters of administration.
Domencio’s siblings opposed the same on the ground that Gen has no legal personality. Decide.
Opposition denied.
The Supreme Court has held that a person who has co-habited with another is a co-owner of the properties
acquired through their joint efforts during the cohabitation pursuant to Article 147 and 148 of the Family
Code and that such co-ownership would qualify her as an interested person within the purview of Section
2, Rule 79. (San Luis v. San Luis, G.R. No. 133743, 06 February 2007).
(Note: The ruling in San Luis seems arguable. The interest of the person who has cohabited with another is
not on the estate of the deceased party but on her share of the co-ownership. She does not stand to benefit
from the estate of the deceased party. She would have legal personality to bring an action for partition but
not for settlement of estate.)

RULE 80 SPECIAL ADMINISTRATOR

APPOINTMENT OF A SPECIAL ADMINISTRATOR
1. When there is delay in granting letters testamentary or of administration by any cause, including an
appeal from the allowance or disallowance of a will
2. The court may appoint special administrator to take possession and charge of the estate of the
deceased
1. Until questions causing delay are decided, or executors or administrators appointed
POWERS AND DUTIES OF SPECIAL ADMINISTRATOR
1. Take possession and charge of the goods, chattels, rights, credits, and estate of the deceased and
2. Preserve the same for the executor or administrator afterwards appointed, and
3. For that purpose may commence and maintain suits as administrator.
4. He may sell only such perishable and other property as the court orders sold.

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5. A special administrator shall not be liable to pay any debts of the deceased unless so ordered by
the court.

Regular Administrator Special Administrator

Order of Appointment may be the subject of an appeal Order of Appointment is interlocutory
hence not appealable
One of the obligations is to pay the debts of the estate Cannot pay the debts of the estate

Appointed when the deceased died intestate or did not Appointed when there is delay in granting
appoint an executor in the will or the will was disallowed letters testamentary or administration

WHEN POWERS CEASE

When letters testamentary or of administration are granted on the estate of the deceased:
1. The powers of the special administrator shall cease, and
2. He shall forthwith deliver to the executor or administrator the goods, chattels, money, and
estate of the deceased in his hands.

The executor or administrator may prosecute to final judgment suits commenced by such special
administrator.

RULE 81 BONDS OF EXECUTORS AND ADMINISTRATORS

Conditions of bond
1. Make and return inventory within 3 months
2. Administer estate
3. Pay and discharge all debts, legacies, and charges
4. Render accounting within one year
5. Perform all orders of court

BOND OF EXECUTOR WHERE DIRECTED IN WILL. WHEN FURTHER BOND REQUIRED

 If the testator in his will directs that the executor serve without bond, or with only his individual
bond, he may be allowed by the court to give bond in such sum and with such surety as
the court approves conditioned only to pay the debts of the testator;
 but the court may require of the executor a further bond in case of a change in his circumstances, or
for other sufficient cause, with the conditions named in the last preceding section.
 Bonds of joint executors and administrators
 Bond of special administrator
- Inventory of the estate which come to his possession or knowledge
- Accounting
- Deliver to the person appointed executor or administrator, or such other person as may be
authorized to receive them

RULE 82 REVOCATION OF ADMINISTRATION, DEATH, RESIGNATION AND REMOVAL OF

EXECUTORS AND ADMINISTRATORS
ADMINISTRATION REVOKED IF WILL DISCOVERED. PROCEEDINGS THEREON

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 If after letters of administration have been granted as if decedent died intestate, his will is PROVED
AND ALLOWED by the court,
 letters of administration shall be REVOKED and all powers thereunder cease.
 Administrator shall forthwith
- Surrender letters to the court and
- Render his account within such time as the court directs
 proceedings for issuance of letters testamentary or of administration will follow.

COURT MAY REMOVE OR ACCEPT RESIGNATION OF EXECUTOR OR ADMINISTRATOR

Grounds for removal:
1. Neglect to render an account and settle an estate according to law
2. Neglect to perform an order or judgment of the court, or a duty expressly provided by the Rules
3. Absconds
4. Becomes insane
5. Becomes incapable or unsuitable to discharge the trust

ACTS BEFORE REVOCATION, RESIGNATION, OR REMOVAL TO BE VALID

Effect of revocation, resignation or removal of executor or administrator on his previous acts –
lawful acts shall have same validity as if no revocation, resignation or removal.

POWERS OF EXECUTOR OR ADMINISTRATOR. RENEWAL OF LICENSE TO SELL REAL ESTATE

1. The power to settle the estate not administered that the former executor or administrator had
2. To prosecute or defend actions commenced by or against the former executor or administrator
3. To recover execution on judgments in the name of former executor or administrator
4. Before a new executor or administrator may exercise the power to sell or mortgage real estate –
license must be renewed. Notice or hearing no longer necessary

RULE 83 INVENTORY AND APPRAISAL, PROVISION FOR SUPPORT OF FAMILY

INVENTORY AND APPRAISAL TO BE RETURNED WITHIN 3 MONTHS
Duty of executor or administrator to present an inventory of the real state and of all the goods, chattels,
rights and credit of the deceased which have come to his possession or knowledge
CERTAIN ARTICLES NOT TO BE INVENTORIED
1. Wearing apparel of the surviving spouse
2. Wearing apparel of the minor children
3. Marriage bed and bedding
4. Other provisions and articles as will necessarily be consumed in the subsistence of the family of the
deceased

ALLOWANCE TO WIDOW AND FAMILY

The widow and minor or incapacitated children of deceased, during the settlement of the estate shall
receive therefrom, under the discretion of the court, such allowance as are provided by law

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RULE 84 GENERAL POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS

Powers and duties of executors and administrators
1. To have access to, and examine and take copies of books and papers relating to the partnership in
case
2. To examine and make invoices of the property belonging to the partnership in case of a deceased
partner
3. To maintain in tentable repairs, houses and other structures and fences and to deliver the same in
such repair to the heirs or devisees when directed so to do by the court
4. To make improvements on the properties under administration with the necessary court approval
except for necessary repairs
5. To possess and manage the estate when necessary:
- For the payment of debts
- For the payment of expenses of administration

RULE 85 ACCOUNTABILITY AND COMPENSATION OF EXECUTORS AND ADMINISTRATORS

EXECUTOR OR ADMINISTRATOR CHARGEABLE WITH ALL THE ESTATE AND INCOME
He is chargeable with the whole of the estate of the deceased which has come into his possession but not
for the estate which he has never possessed.

NOT TO PROFIT BY INCREASE OR LOSE BY DECREASE IN VALUE

No executor shall profit by increase nor suffer loss by the decrease or destruction, without his fault, of any
part of the estate.
He must account for the excess when he sells any part of the estate for more than the appraisement, and
if any is sold for less than the appraisement, he is not responsible for the loss, if the sale has been justly
made.
If he settles any claim against the estate for less than its nominal value, he is entitled to charge in his account
only the amount he actually paid on the settlement.

WHEN NOT ACCOUNTABLE FOR DEBTS DUE ESTATE

No executor or administrator shall be accountable for debts due the deceased which remain uncollected
without his fault.

ACCOUNTABLE FOR INCOME FROM REALTY USED BY HIM

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

ACCOUNTABLE IF HE NEGLECTS OR DELAYS TO RAISE OR PAY MONEY

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1. When an executor or administrator neglects or unreasonably delays to raise money, by collecting

the debts or selling the real or personal estate of the deceased, or
2. Neglects to pay over the money he has in his hands, and the value of the estate is thereby lessened
or unnecessary cost or interest accrues, or the persons interested suffer loss,
The same shall be deemed waste and the damage sustained may be charged and allowed against him in
his account, and he shall be liable therefor on his bond.

WHEN ALLOWED MONEY PAID AS COSTS

 The amount paid by an executor or administrator for costs awarded against him shall be allowed in
his administration account,
 unless it appears that the action or proceeding in which the costs are taxed was prosecuted or
resisted without just cause, and not in good faith.

WHAT EXPENSES AND FEES ALLOWED EXECUTOR OR ADMINISTRATOR

 The necessary expenses in the care, management, and settlement of the estate, and
 For his services, P4.00 per day for the time actually and necessarily employed, or
 Commission upon the value of so much of the estate as comes into his possession and is finally
disposed of by him
 But in any special case, where the estate is large, and the settlement has been attended with great
difficulty, and has required a high degree of capacity on the part of the executor or administrator, a
greater sum may be allowed.
 Not to charge for services as attorney.
 Compensation provided by will controls unless renounced

WHEN EXECUTOR OR ADMINISTRATOR TO RENDER ACCOUNT

 within one (1) year from the time of receiving letters testamentary or of administration
 Examinations on oath with respect to account
 The court may examine the executor or administrator except when no objection is made to the
allowance of the account and its correctness is satisfactorily established by competent proof.

The heirs, legatees, distributees, and creditors of the estate shall have the same privilege as the executor
or administrator of being examined
Account to be settled on notice to persons interested of the time and place of examining and allowing the
same
Surety on bond may be party to accounting

RULE 86 CLAIMS AGAINST ESTATE

NOTICE AND TIME FOR FILING
Notice to creditors – immediately after granting letters testamentary or of administration, court shall
issue
NOTICE requiring all persons having MONEY CLAIMS against the estate
to FILE them in the office of the clerk of court (Sec. 1)

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

TIME FOR FILING

New period allowed (Sec. 2, second sentence)
At any time before order of distribution is entered, creditor who failed to file his claim within the time set
may move to be allowed to file such claim.
Court may for good cause shown and on such terms as are just allow such claim to be filed within a period
NOT EXCEEDING ONE MONTH.
One month does not commence from expiration of the original period for filing claims. It begins from the
date of the order of the court allowing said filing (Barredo vs. CA, 6 SCRA 620 [YEAR]).
Statute of Non-Claims (SNC) – the period fixed for the filing of claims against the estate.
1. Period fixed by probate court must not be less than 6 months nor more than 12 months from the
date of first publication of the notice.
2. Such period once fixed by the court is MANDATORY – it cannot be shortened.
3. ex. Period fixed within 6 months
4. SNC supersedes statute of limitations – even if claim has not yet prescribed, it may be barred by
SNC.

PUBLICATION OF NOTICE
Immediately after notice to creditors is issued, executor or administrator shall cause:
1. publication of said notice 3 weeks successively in newspaper of general circulation in the province,
and
2. posting for the same period in 4 public places in the province and 2 public places in the municipality
where decedent last resided
3. Within 10 days after notice is published and posted, the executor or administrator shall file with
court a printed copy of the notice accompanied with an affidavit setting forth the dates of the first
and last publication, and the name of the newspaper

CLAIMS THAT MUST BE FILED

1. Claims for money against the decedent arising from contract, express or implied, whether due, not
due or contingent
2. Claims for funeral expenses and expenses for last sickness of decedent
3. Judgment for money against decedent must be filed within the time limited in the notice; otherwise
they are barred forever, except that they may be set forth as counterclaims in any action that the
executor or administrator may bring against the claimants.

SOLIDARY OBLIGATION OF DECEDENT

Where the obligation of the decedent is solidary with another debtor, the claim shall be filed against the
decedent as if he were the only debtor, without prejudice to the right of the estate to recover contribution
from the other debtor.
In a joint obligation of the decedent, the claim shall be confined to the portion belonging to him.

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MORTGAGE DEBT DUE FROM ESTATE

Mortgagee has three remedies that may be alternatively availed of in case the mortgagor dies:
To waive the mortgage and claim the entire debt from the estate of the mortgagor as an ordinary claim
To foreclose the mortgage judicially and prove the deficiency as an ordinary claim
To rely on the mortgage exclusively or other security and foreclose the same anytime, before it is barred
by prescription, without the right to file a claim for any deficiency

CLAIM OF EXECUTOR OR ADMINISTRATOR AGAINST AN ESTATE

He shall give notice thereof, in writing, to the court
The court shall appoint a special administrator, who shall, in the adjustment of such claim, have the same
power and be subject to the same liability as the general administrator or executor in the
settlement of other claims.
The court may order the executor or administrator to pay to the special administrator necessary funds to
defend such claim.

HOW TO FILE A CLAIM.

1. Delivering the same with the necessary vouchers to the clerk of court and by serving a copy thereof
on the executor or administrator
2. Within fifteen (15) days after service of a copy of the claim on the executor or administrator, he
shall file his answer admitting or denying the claim specifically
3. A copy of the answer shall be served by the executor or administrator on the claimant
4. Any claim admitted entirely by the executor or administrator shall immediately be submitted by the
clerk to the court who may approve the same without hearing
5. Upon the filing of an answer to a claim, or upon the expiration of the time for such filing, the
clerk of court shall set the claim for trial with notice to both parties.
6. A judgment against the executor or administrator shall be: that he pay, in due course
of administration, the amount ascertained to be due, and it shall not create any lien upon the
property of the estate, or give to the judgment creditor any priority of payment.

COSTS
When the executor or administrator, in his answer, admits and offers to pay part of a claim, and the
claimant refuses to accept the amount offered in satisfaction of his claim, if he fails to obtain a more
favorable judgment, he cannot recover costs, but must pay to the executor or administrator costs from the
time of the offer.
Where an action commenced against the deceased for money has been discontinued and the claim
embraced therein presented as in this rule provided, the prevailing party shall be allowed the costs of his
action up to the time of its discontinuance

2009 Bar Question No. 7

Cresencio sued Dioscoro for colletion of a sum of money. During the trial, but after the presentation of
plaintiff’s evidence, Dioscoro died. Atty. Cruz, Dioscoro’s counsel, then filed a motion to dismiss the action
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on the ground of his client’s death. The court denied the motion to dismiss and, instead, directed counsel
to furnish the court with the names and addresses of Dioscoro’s heirs and ordered that the designated
administrator of Dioscoro’s estate be substituted as representative party. After trial, the court rendered
judgment in favor of Cresencio. When the decision had become final and executory, Cresencio moved for
the issuance of a writ of execution against Dioscoro’s estate to enforce his judgment claim. The court issued
the writ of execution. Was the court’s issuance of the writ of execution proper? Explain.
The court’s issuance of the writ of execution was not proper.
Under Section 20 of Rule 3, a favorable judgment in a contractual money claim shall be enforced in the
manner especially provided in the Rules for prosecuting claims against the estate of a deceased person.
Under Rule 86 of the Rules of Court, a judgment for money should be filed as a money claim with the
probate court. The Supreme Court has held that a money claim cannot be enforced by a writ of execution
but should instead be filed as a money claim.

1991 Bar Exam Question No. 10

A filed a complaint against Y with the RTC of Argao, Cebu, for payment of a promissory note in the sum of
P350,000, for liquidated damages of P10,000 and attorney’s fees of P50,000. After he filed his answer, Y
died, but his lawyer did not file a motion to dismiss. In the meantime, Y’s widow filed with the above court
a special proceeding for the settlement of the instestate estate of Y. The widow, Z, was appointed the
administratrix of the estate. A filed in the civil case a motion to have Y substituted by the administratrix;
the latter did not object. The court granted the motion. Trial on the merits was had. In due course, the court
rendered a decision in favor of A. At the time it was rendered, the period to file claims in the intestate estate
of Y had already lapsed. The administratrix, X, did not appeal from the decision; and after it became final,
A moved for the execution of judgment. Z opposed the motion contending that the decision is void because
the claim does not survive. The case should have been dismissed upon the death of Y since upon his death,
the court lost jurisdiction over the case.
a) Rule on the issue.
b) If the opposition is without merit, can the writ of execution be validly enforced?
c) If it cannot be issued, what is the remedy of A?
d) The case should not be dismissed upon the death of Y. Under the Rules of Civil Procedure, upon the
death of the defendant in a contractual money claim before entry of final judgment, the case shall
not be dismissed but shall be allowed to continue until final judgment. (Section 20, Rule 3).

(b) The writ of execution cannot be validly enforced.

Under Section 20 of Rule 3, a favorable judgment in a contractual money claim shall be enforced in the
manner especially provided in the Rules for prosecuting claims against the estate of a deceased person.
Under Rule 86 of the Rules of Court, a judgment for money should be filed as a money claim with the
probate court. The Supreme Court has held that a money claim cannot be enforced by a writ of execution
but should instead be filed as a money claim.
(c) The remedy of A is to file judgment for money as a money claim with the probate court. The substitution
of the deceased in the civil action by the administrator of the decedent’s representative is generally
considered as equivalent to the presentation of the claim with the probate court. Hence, the claim is not
barred by the statute of non-claims. (Ignacio b. Pampanga Bus Co., G.R. No. L-18936, 23 May 1967).

RULE 87 ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS

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Actions which may and which may not be brought

NOT ALLOWED AGAINST EXECUTOR OR ADMINISTRATOR – action upon claim for recovery of money or
debt or interest thereon.
MUST BE AGAINST ESTATE (Secs. 1, 2 & 5, Rule 86)
ALLOWED – actions which survive
Actions to recover real or personal property or interest thereon, or to enforce a lien thereon
Actions to recover damages for an injury to person or property, real or personal
Executor or administrator may bring or defend actions which survive
Heir may not sue until share assigned
When an executor or administrator is appointed and assumes the trust, no action to recover the title or
possession of lands or for damages done to such lands shall be maintained against him by an heir or devisee
Until there is an order of the court assigning such lands to such heir or devisee or until the time allowed
for paying debts has expired.
Executor or administrator may compound with debtor
Mortgage due estate may be foreclosed
Proceedings when property concealed, embezzled, or fraudulently conveyed
The court may cite such suspected person to appear before it and may examine him on oath on the
matter of such complaint;
And if the person so cited refuses to appear, or to answer on such examination or such interrogatories as
are put to him, the court may punish him for contempt, and may commit him to prison until he submits
to the order of the court.
Embezzlement before letters issued
If a person, before the granting of letters testamentary or of administration on the estate of the deceased,
embezzles or alienates any of the money, goods, chattels, or effects of such deceased,
Such person shall be liable to an action in favor of the executor or administrator of the estate for double
the value of the property sold, embezzled, or alienated, to be recovered for the benefit of such estate.

RULE 88 PAYMENT OF DEBTS OF THE ESTATE

PAYMENT OF DEBTS OF THE ESTATE
 Debts paid in full if estate sufficient
 Part of estate from which debt paid when provision made by will
 Personalty first chargeable for debts, then realty
 Estate to be retained to meet contingent claims

If such contingent claim becomes absolute and is presented to the court, or to the executor or
administrator, within two (2) years from the time limited for other creditors to present their claims, it may
be allowed by the court if not disputed by the executor or administrator, and, if disputed, it may be proved
and allowed or disallowed by the court as the facts may warrant.

20 | P a g e – U N A U T H O R I Z E D R E P R O D U C T I O N O F T H I S R E V I E W M A T E R I A L I S I L L E G A L A N D
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COURT TO FIX CONTRIBUTIVE SHARES

1. Where devisees, legatees or heirs have entered into possession or the estate before debts and
expenses settled and paid, and
2. have become liable to contribute for payment of such debts and expenses,
3. Court may, after hearing, order settlement of their several liabilities and order how much and in
what manner each person shall contribute and may issue execution as circumstances require.

ORDER OF PAYMENT IF ESTATE INSOLVENT

 follow preference of credits under Arts. 1059, 2239-2251 of Civil Code

ESTATE OF INSOLVENT NONRESIDENT

 When and how claim proved outside the Philippines against insolvent resident's estate paid

TIME FOR PAYING DEBTS

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

RULE 89 SALES, MORTGAGES AND OTHER ENCUMBRANCES OF PROPERTY OF DECEDENT

Sec. 1. Order of sale of personality -- when necessary for paying debts, expenses of administration, or
legacies, or for preservation of property
Sec. 2. Sale, mortgage, or other encumbrance of realty to pay debts and legacies though personality
not exhausted – when necessary and beneficial to persons interested (heirs, devisees and legatees)
Sec. 4. Sale of real or personal estate as beneficial to interested persons – when beneficial (to heirs,
devisees and legatees, and other interested persons) but not necessary to pay debts, legacies, or expenses
of administration

RULE 90 DISTRIBUTION AND PARTITION OF ESTATE

When order for distribution of residue made
General rule: distribution of the residue to persons entitled thereto after notice and hearing and after
payment of –
1. Debts
2. funeral charges
3. expenses of administration
4. allowance to widow
5. inheritance tax

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Exception: distribution before payment of obligations provided distributees give BOND conditioned for
payment thereof within such time as court directs.
RULE 91 ESCHEAT
WHEN AND BY WHOM PETITION FILED
 Escheat is a proceeding whereby the real and personal property of a deceased person in the
Philippines, who died without leaving any will or legal heirs, become the property of the state upon
his death.
 An escheat proceeding is initiated by the government through the Solicitor General

REQUISITES FOR FILING PETITION FOR ESCHEAT

1. Person died intestate
2. He left properties
3. He left no heirs or persons entitled to the same.

NOTICE AND PUBLICATION

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

FILING OF CLAIM TO ESTATE

1. Devisee, legatee, widow, widower or other person entitled to such estate who
2. Appears and files claim thereto within 5 years from date of judgment
3. Shall have possession and title thereto or if sold, municipality or city accountable to him for
proceeds, after deducting reasonable charges of care of estate.
4. Claim not made within said time barred forever.

RULE 92-97 GUARDIANSHIP

GUARDIANSHIP
Guardianship – a trust relation in which one person acts for another whom the law regards as incapable
of managing his own affairs. The person who acts is called the guardian and the incompetent is called the
ward.
Guardianship of minors as distinguished from “incompetents” other than minority is now governed by the
RULE ON GUARDIANSHIP OF MINORS (A.M. No. 003-03-05-SC).
WHO MAY PETITION

Incompetent Minor

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1. Relative, 6. Relative or other person on behalf of

2. Friend, or the minor
3. Other person on behalf of incompetent who has 7. Minor himself if 14 years of age or over
no parent or lawful guardian, for the for the appointment of a general
appointment of a general guardian for the guardian over the person or property
person or estate or both of such incompetent. or both, of such minor.
4. Director of Health in favor of an insane person 8. Secretary of Social Welfare and
who should be hospitalized or in favor of an Development and the Secretary of
isolated leper Health in case of an insane minor who
5. Anyone interested in the estate of a non- needs to be hospitalized
resident incompetent 9. Anyone interested in the estate of a
non-resident incompetent

GROUNDS OF PETITION

Incompetent Minor
1. Civil interdiction 7. Death, absence, incapacity of parent
2. Hospitalized lepers 8. Suspension or deprivation of parental
3. Prodigals authority
4. Deaf and dumb, can’t read or write 9. Remarriage of surviving spouse, if unsuitable
5. Unsound mind 10. Best interest of the minor
6. Sound mind but can’t take care of
themselves

CONTENTS OF PETITION

Incompetent Minor
1. Jurisdictional facts 6. Jurisdictional facts
2. Incompetency 7. Name, age and residence of prospective ward
3. Names, ages and residences of 8. Ground for appointment
relatives 9. Death of parents/termination of parental authority
4. Probable value & character of the 10. Remarriage of surviving parent
estate 11. Names, ages, residences of relatives up to 4th civil
5. Name to whom letters prayed for degree
12. Probable value, character, location of property
13. Name, age, residence to whom letters prayed for

OPPOSITION
 Any interested person may oppose
 Grounds:

BOND CONDITIONS
1. Complete inventory within 3 months from issuance of letters
2. Faithfully execute duties, manage and dispose of property, provide proper care/custody/education
3. True and just account of all property and settle account upon expiration
23 | P a g e – U N A U T H O R I Z E D R E P R O D U C T I O N O F T H I S R E V I E W M A T E R I A L I S I L L E G A L A N D
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4. Perform all others of court

GUARDIAN GENERAL DUTIES

1. Pay just debts
2. Settle all accounts, demand/sue for/receive all debts due, compound (with court approval), appear
and represent in all actions and special proceedings
3. Manage property frugally and without waste, apply income and profits to maintenance of ward
(insufficient = sell or encumber property)
4. Consent to a partition of co-owned property
5. Submit verified inventory
6. Report property not included if discovered, succeeded to or acquired within 3 months after such
7. Render accounting 1 year after appointment

GROUNDS FOR REMOVAL/RESIGNATION

1. Insane
2. Incapable of discharging trust
3. Unsuitable
4. Wasted or mismanaged property
5. Failed to render account or make return within 30 days
6. Resignation for justifiable causes

Grounds for termination

Incompetent Minor
1. Competency 1. Majority of ward
2. Marriage 2. Death of ward
3. Voluntary emancipation

1985 Bar Question No. 18

Wanting to unclog his docket and coming across the records of Special Proceedings No. 501, a guardianship
case involving a minor with properties worth more than a million pesos, and finding the same case to have
been pending way back in 1981, after petitioner has presented but only 3 witnesses, following the
appointment of Dizon as guardian, Judge Jurado of Nueva Ecija Regional Trial Court dismissed the case for
failure to prosecute. Discuss with reasons the validity of said order of dismissal.
The order of dismissal was not valid. The provision of Section 3 Rule 17, which apply to actions, should not
be unqualifiedly applied to special proceedings, especially a guardianship proceeding over a minor,
wherein the court should observe the “best interests of the minor” standard. The court should conduct a
clarificatory hearing to determine why the case had been pending for so long and order the parties to
proceed with dispatch.

RULE 98 TRUSTEES
WHEN TRUSTEE APPOINTED
1. A trustee necessary to carry into effect the provisions of a
a. Will
b. Written instrument
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2. shall be appointed by the RTC in which the will is allowed, or

3. RTC of the province in which the property or some portion thereof affected by the trust is situated

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

Although the will does not name a trustee, the probate court exercises sound judgment in appointing a
trustee to carry into effect the provisions of the will – where a trust is actually created by the will by the
provision that certain of the property shall be kept together undisposed during a fixed period and for a
stated purpose (Lorenzo v. Posadas, 64 Phil. 353).
Acquiring the trust by prescription
A trustee may acquire the trust estate by prescription provided there is a repudiation of the trust, such
repudiation being open, clear and unequivocal, known to the cestui qui trust (Salinas vs. Tuazon, 55 Phil.
729).

Conditions of the bond of a trustee

1. That he will render upon oath at least once a year until his trust is fulfilled a true account of the
property in his hands and of the management and disposition thereof, and such other accounts as
the court may order;
2. That at the expiration of his trust he will 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. That the trustee will make and return to the court, at such time as it may order, a true inventory of
all the estate belonging to him as trustee, which at the time of the making of such inventory shall
have come to his possession or knowledge;
4. That he will manage and dispose of all such estate, and faithfully discharge his trust in relation
thereto, according to law and the will of the testator or the provisions of the instrument or order
under which he is appointed.

When the trustee is appointed as a successor to a prior trustee, the court may dispense with the making
and return of an inventory if one has already been filed.

REMOVAL OR RESIGNATION OF TRUSTEE

Requisites:
1. Petition filed by parties beneficially interested;
2. Notice to trustee; and
3. Hearing

WHO MAY PETITION:

 Parties beneficially interested.

GROUNDS FOR TERMINATION OF TRUSTEESHIP

1. Insanity
2. Incapability of discharging the trust or unsuitability thereafter
3. Resignation

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4. Death of the trustee

5. When termination appears essential to the interest of the persons beneficially interested in the trust

ADOPTION

DOMESTIC ADOPTION INTER-COUNTRY ADOPTION

R.A. No. 8552 (Domestic Adoption Act) amended Procedure governed by

Arts. 183-193 of the Family Code and is the Amended Implementing Rules
governing law for Filipino citizens adopting other and Regulations on Inter Country
Filipinos (whether relatives or strangers) with Adoption Act approved January
some exceptions. 8, 2004
Procedure governed by A.M. No. 02-06-02-SC.
Rescission of adoption is no longer allowed under
R.A. No. 8552.

DEFINITION “Child” is a person below 18 years of age. A person below 15 years of age
OF A CHILD unless sooner emancipated by
law.
WHO MAY a. Any Filipino citizen; An alien or a Filipino citizen
ADOPT permanently residing abroad
b. Any alien possessing the same qualifications
may file an application for inter-
for Filipino nationals;
country adoption of a Filipino
c. Guardian with respect to the ward child

DOMESTIC ADOPTION INTER-COUNTRY ADOPTION

Q Filipino Citizen 1. At last 27 years of age and
at least 16 years older than
U 1.
Legal age; the adoptee at the time of
2.
In possession of full civil capacity and legal rights; the application for
A 3.
Good moral character; adoption unless the
L 4.
Has not been convicted of any crime involving moral adopter is the parent by
turpitude; nature of the child to be
I 5. Emotionally and psychologically capable of caring for adopted or the spouse of
children; and such parent;
F 6. At least 16 years older than the adoptee (waived when 2. If married, his/her spouse
I the adopter is the biological parent of the adoptee, or must jointly file for the
is the spouse of the adoptee’s parent) adoption;
C Alien 3. Has the capacity to act and
A 1. Same as the qualifications for Filipino citizens; assume all rights and
2. His/her country has diplomatic relations with the responsibilities of parental
T authority under his
Philippines;
3. He/she has been living in the Philippines for at least 3 national laws, and has
I
continuous years prior to the filing of the application undergone the appropriate
O for adoption and maintains such residence until the counseling from an
adoption decree is entered; accredited counselor in
N his/her country;

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S 4. He/she has been certified by his/her diplomatic or 4. Has not been convicted of a
consular office or any appropriate government agency crime involving moral
that he/she has the legal capacity to adopt in his/her turpitude
country; and 1. Eligible to adopt under
5. His/her government allows the adoptee to enter his/her national law;
his/her country as his/her adopted son/daughter
Residency and certification of the alien’s qualification to 2. In a position to provide the
adopt may be waived on any of the following: proper care and support
and to give the necessary
1. A former Filipino citizen who seeks to adopt a relative moral values and example
within the 4th civil degree of consanguinity or affinity; to all his children, including
2. One who seeks to adopt the legitimate son/daughter the child to be adopted;
of his/her Filipino spouse; 3. Agrees to uphold the basic
3. If one spouse seeks to adopt his/her own illegitimate rights of the child as
son/daughter: Provided, however, that the other embodied under Philippine
spouse has signified his/her consent thereto; or laws, the UN Convention on
the Rights of the Child, and
4. If the spouse are legally separated from each other to abide by the rules and
In case husband and wife jointly adopt, or one spouse adopts regulations issued to
the illegitimate son/daughter of the other, joint parental implement the provisions
authority shall be exercised by the spouses. of this Act;

Guardian 4. Comes from a country with

whom the Philippines has
Only after the termination of the guardianship and clearance diplomatic relations and
of his/her financial accountabilities whose government
maintains a similarly
authorized and accredited
agency and that adoption is
allowed under his/her
national laws;
5. Possesses all the
qualifications and none of
the disqualifications
provided herein and in
other applicable Philippine
laws.

DOMESTIC ADOPTION INTER-COUNTRY ADOPTION

WHO MAY BE ADOPTED 1. Any person below 18 Only a legally free child may be
years of age who has the subject of intercountry
been adoption.
administratively or
judicially declared
available for
adoption;
2. Legitimate
son/daughter of one

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spouse by the other

spouse
3. Illegitimate child by a
qualified adopter to
improve his/her
status to that of
legitimacy;
4. A person of legal age
if, prior to the
adoption, said person
has been consistently
considered and
treated by the
adopter(s) as his/her
own child since
minority;
5. A child whose
adoption has been
previously rescinded;
or
6. A child whose
biological or adoptive
parent(s) has died:
Provided that no
proceedings shall be
initiated within 6
months from the time
of death of said
parent(s).
WHERE TO FILE APPLICATION Family Court of the place RTC (Family Court) having the
where the adopter resides jurisdiction over the child, or
with the Inter-Country Adoption
After filing: The petition
Board, through an intermediate
shall not be set for hearing
agency, whether governmental
without a case study report
or an authorized and accredited
by a licensed social worker.
agency, in the country of the
prospective adoptive parents.
After filing:
a) if filed in the Family Court,
it shall determine the
sufficiency of petition in
respect to form and
substance, if sufficient,
the petition is transmitted
to Inter-Country
Adoption Board;
b) if petition is filed with
Inter-Country Adoption
Board, it shall conduct the
matching of the applicant
with an adoptive child;

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c) after matchmaking, the

child is personally fetched
by the applicant for the
trial custody which takes
place in the foreign
country where the
adopter resides.

DOMESTIC ADOPTION INTER-COUNTRY ADOPTION

WHAT MAY BE 1. Prayer for change of name; Only a petition for adoption.
INCLUDED IN THE 2. Ratification of simulated birth;
PETITION 3. Declaration that the child is a
foundling, abandoned, dependent or
neglected child.

ANNEXES Income tax returns, police clearance, Income tax returns, police clearance,
character reference, family picture, birth character reference, family picture,
certificate of the adopter are not required birth certificate of the adopter are
to be annexed in the petition required to be annexed in the
petition
PUBLICATION Petition must be published at least once a No publication requirement
week for 3 successive weeks in a
newspaper of general circulation in the
province or city where the court is situated

DOMESTIC ADOPTION INTER-COUNTRY ADOPTION

SUPERVISED Supervised trial custody period in Supervised trial custody in the country of
TRIAL the Philippines for at least 6 months adopter for at least 6 months and is mandatory
CUSTODY (Court may reduce period or before a decree of adoption is issued (expenses
exempt parties from trial custody). are borne by the adopter).
If unsuccessful, the Board shall look for another
prospective applicant. Repatriation of the child
is to be resorted only as a last resort; If
successful, the Board shall transmit a written
consent for the adoption to be executed by the
DSWD, and the applicant then files a petition for
adoption in his/her country.

DECREE OF Issued by the Family Court having Issued by a foreign court

ADOPTION jurisdiction over the case

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PENALTIES Any government official, employee Same

or functionary who shall be found
guilty of violating any of the
provisions of this adoption laws
shall automatically suffer
suspension until the resolution of
the case

RESCISSION OF ADOPTION BY ADOPTEE

- Petition VERIFIED
- Filed by adoptee
 over 18 years of age
 with assistance of DSWD, if minor
 by guardian or counsel, if over 18 but incapacitated

GROUNDS COMMITTED BY ADOPTER:

1. repeated physical and verbal maltreatment by adopter despite having undergone counseling
2. attempt on life of adoptee
3. sexual assault or violence
4. abandonment or failure to comply with parental obligations

Period within which to file verified petition:

Within 5 YEARS from reaching the age of majority or after recovery from incompetency.
Venue: Family Court of the city or province where the adoptee resides

EFFECTS OF JUDGMENT OF RESCISSION

1. Parental authority of biological parent or legal custody of DSWD will be restored;
2. Reciprocal rights of adoptee and adopter will be extinguished;
3. Vested rights acquired prior to judicial rescission shall be respected;
4. Successional rights shall revert to its status prior to adoption, as of the date of judgment of judicial
rescission;
5. Adoptee shall use the name stated in his original birth or foundling certificate;
6. Civil registrar will reinstate his original birth or foundling certificate.

2009 Bar Question No. 13 (Civil Law)

Rafael, a wealthy bachelor, filed a petition for the adoption of Dolly, a one-year old foundling who had a
severe heart ailment. During the pendency of the adoption proceedings, Rafael died of natural causes. The
Office of the Solicitor General files a motion to dismiss the petition on the ground that the case can no longer
proceed because of the petitioner’s death.
a) Should the case be dismissed? Explain.
b) Will your answer be the same if it was Dolly who died during the pendency of the adoption
proceedings? Explain.

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c) No. Under Section 16 of the Rules on Adoption, a decree of adoption shall take effect as of the date
the original petition was filed even if the petitioner(s) die before its issuance. Hence the death of the
petitioner Rafael will not result in the dismissal of the case.
d) No, my answer will not be the same. In such case the motion to dismiss should be granted. The death
of Dolly extinguishes her legal personality or juridical capacity; thus she may no longer be adopted.
(Article 37, Civil Code).

RULE 107 ABSENTEES

Purpose of rule 107
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. (Reyes v. Alejandro, G.R. No. L-32026, January 1986)
General rule:
No independent action for declaration of presumption of death – presumption may arise and be invoked
in an action or special proceeding
Exception
Under Art. 41 of Family Code, for purpose of present spouse contracting a second marriage, must file
summary proceeding for declaration of presumptive death of the absentee, without prejudice to the latter’s
reappearance.
This is intended to protect present spouse from criminal prosecution for bigamy under Art. 349 of RPC.
With judicial declaration that missing spouse is presumptively dead, good faith of present spouse in
contracting marriage is established.
Period of absence of spouse before subsequent marriage
4 consecutive years – well founded belief that absent spouse already dead
2 years – danger of death
REQUISITES FOR THE FILING OF A PETITION
1. person disappears from domicile
2. whereabouts unknown
3. no agent to administer property or power conferred on agent has expired

WHO MAY PETITION?

1. interested party
- preferred (Sec. 7)
a) spouse present
b) competent person
2. Relative
3. Friend

Change of name and correction and cancellation of entries in the civil registry

RULE 103 CHANGE OF NAME

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Under Art. 376 of the Civil Code, no person can change his name or surname without judicial authority.
A person desiring to change his name must petition with the RTC
Must be a bona fide resident of the province petition is filed for at least 3 years prior to filinh

RULE 108 CORRECTION AND CANCELLATION OF ENTRIES IN THE CIVIL REGISTRY

Any person person interested in any act, event, order or decree concerning the civil status of persons which
has been recorded in the civil registry may file a petition with the RTC where the civil registry is located
Births, marriages, deaths, legal separation, judgments of annulments of marriage, adoption, etc.
Concerns substantial corrections in the civil registry

R.A. 9048 AND R.A. 10172

Summary administrative proceedings
R.A. 9048 – Correction of clerical or typographical errors or change of first name or nickname in the entries
of the civil registry
R.A. 10172 – Day and month in the date of birth or sex of a person

Rule 103 R.A. 9048 R.A. 10172 Rule 108

Change of Change of first name or Correction of clerical or Correction of clerical or
first name nickname/correction of typographical errors in substantial errors in the Civil
or surname clerical errors of entries in the the day and month in the Registry/Cancellation of
Civil Registry date of birth or sex of a entries
person

1992 Bar Question No. 10

Pernito, also known in the community as Peregrino, filed a petition for change of name to Pedro. The name
Peregrino appeared in the body of the petition but not in the caption. When the petition was published, the
caption and the body of the petition were merely lifted verbatim, so that as published, the petition’s caption
still did not contain Peregrino as the petitioner’s alias. The government lawyer filed a motion to dismiss on
the ground that, notwithstanding publication for requisite number of times, the court did not acquire
jurisdiction over yhe petition because petitioner’s alias (Peregrino) did not appear in the published
caption. The court denied the motion to dismiss with the ruling that there was substantial compliance with
the law and that the omission of the alias in the caption may be deemed de minimis because the alias was
clearly set forth in the petition itself. Was the court correct in denying the motion to dismiss? Explain.
No, the court was not correct in denying the motion to dismiss.
The Supreme Court has held that the caption of the petition as published must contain the applicant’s real
name, and his aliases or other names, and should recite the bame sought to be adopted. The fact that the
aliases were mentioned in the body of the petition itself is of no moment.

32 | P a g e – U N A U T H O R I Z E D R E P R O D U C T I O N O F T H I S R E V I E W M A T E R I A L I S I L L E G A L A N D
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Here the caption of the petition as published did not contain the alias Pereginio. This was a jurisdiction
defect and hence the court did not acquire jurisdiction over the petition. (Republic v. Tanada, 29 November
1971; Go v. Republic, 77 SCRA 65).
Note: There is an imperfection in the drafting of the question. What is required to be published is the order
of the hearing not the petition.

2007 Bar Question No. 7

B files a petition for cancellation of the birth certificate of her daughter R on the ground of the falsified
material entries therein made by B’s husband as the informant. The RTC sets the case for hearing and
directs the publication of the order for hearing and directs the publication of the order once a week for
three consecutive weeks in a newspaper of general circulation. Summons was service on the Civil Registrar
but there was no appearance during the hearing. The RTC granted the petition. R filed a petition for
annulment of judgment before the Court of Appeals, saying that she was not notified of the petition and
hence, the decision was issued in violation of due process. B opposed saying that the publication of the
court order was sufficient compliance with due process. Rule.
The judgement of the RTC should be annulled.
The failure to implead the parties who would naturally and legally be affected by the grant of the petition
would render the proceedings and the judgment void. (Republic v. Coseteng-Magpayo, No. 189476, 2
February 2011).
Here R would naturally and legally be affected by the grant of the petition since it is her birth certificate
which would be amended. Hence the judgment against her is null and void since she was not impleaded
and notified.

2014 Bar Question No. 24 (Civil Law)

Ted, married to Annie, went to Canada to work. Five (5) years later, Ted became a naturalized Canadian
citizen. He returned to the Philippines to convince Annie to settle in Canada. Unfortunately, Ted discovered
that Annie and his friend Louie were having an affair. Deeply hurt, Ted returned to Canada and filed a
petition for divorce which was granted. In December 2013, Ted decided to marry his childhood friend
Corazon in the Philippines. In preparation for the wedding, Ted went to the Local Civil Registry of Quezon
City where his marriage contract with Annie was registered. He asked the Civil Register to annotate the
decree of divorce on his marriage contract with Annie. However, he was advised by the National Statistics
Office (NSO) to file a petition for judicial recognition of the decree of divorce in the Philippines.
Is it necessary for Ted to file a petition for judicial recognition of the decree of divorce he obtained in
Canada before he can contract a second marriage in the Philippines? (4%)
Yes. The Supreme Court has held that before a foreign divorce decree dissolving a marriage contracted in
the Philippines can be given effect, a petition for judicial recognition of the foreign divorce decree should
be first filed. (Corpuz v. Sto. Tomas, 11 August 2010). Hence a court judgement recognizing the Canadian
divorce decree is necessary in order to give effect to the decree dissolving the marriage between Ted and
Annie and to allow Ted to contract a second marriage in the Philippines.

2015 Bar Question No. 9

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Hades, an American citizen, through a dating website, got acquainted with Persephone, a Filipina. Hades
came to the Philippines and proceeded to Baguio City where Persephone resides. Hades and Persephone
contracted marriage, solemnized by the Metropolitan Trial Court judge of Makati City. After the wedding,
Hades flew back to California, United States of America, to wind up his business affairs. On his return to the
Philippines, Hades discovered that Persephone had an illicit affair with Phanes. Immediately, Hades
returned to the United States and was able to obtain a valid divorce decree from the Superior Court of the
County of San Mateo,
California, a court of competent jurisdiction against Persephone. Hades desires to marry Hestia, also a
Filipina, whom he met at Baccus Grill in Pasay City.
a.) As Hades' lawyer, what petition should you file in order that your client can avoid prosecution for
bigamy if he desires to marry Hestia?
b.) In what court should you file the petition?
a) As Hades’ lawyer, I would file a petition for cancelation of entry of marriage under Rule 108 with
prayer for recognition of foreign divorce judgment.
In a case involving similar facts, the Supreme Court held that a foreign divorce decree must be recognized
before it can be given effect. The Supreme Court stated that the recognition may be prayed for in the
petition cancellation of the marriage entry under Rule 108. (Corpuz v. Sto. Tomas, 628 SCRA 266).
b) I would file the petition in the regional trial court of Makati City, where the corresponding civil
registry is located. (Section 1 of Rule 108).

SPECIAL WRITS
RULE 102 WRIT OF HABEAS CORPUS
SCOPE
 All cases of illegal confinement of detention
- By which any person is deprived of his liberty, or
- By which the rightful custody of any person is withheld from the person entitled thereto
 Custody of minors (A.M. No. 03-04-04-SC or the Rule on Custody of Minors and Writ of Habeas
Corpus in Relation to Custody of Minors)

FILING
 Petitioner -- The person himself, any person o behalf of the person unlawfully detained
 Venue – SC, CA, RTC, Sandiganbayan, MTC
 Enforceable anywhere in the Philippines

ENFORCEMENT OF WRIT
 The officer to whom the writ is directed shall convey the person detained before the court and shall
make a return stating whether or not he has the detainee and the cause of the detention
 For custody of minors, determination of who has rightful custody over the minor.

A.M. NO. 07-9-12-SC WRIT OF AMPARO

SCOPE
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 The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and
security is violated or threatened with violation by an unlawful act or omission of a public official
or employee, or of a private individual or entity.
 The writ shall cover extralegal killings and enforced disappearances or threats thereof.

FILING
 Petitioner – aggrieved party, or any qualified person or entity
 Venue – SC, CA, Sandiganbayan, or RTC of place where act was committed or any of the elements
occurred
 Enforceable anywhere in the Philippines

INTERIM RELIEFS
 Temporary Protection Order
 Inspection Order
 Production Order
 Witness Protection Order

A.M. NO. 08-1-16-SC WRIT OF HABEAS DATA

CONCEPT
Remedy available to any person whose right to privacy in life, liberty or security is violated or threatened
by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged
in the gathering, collecting, or storing of data or information regarding the person, family, home, and
correspondence of the aggrieved party.
FILING
 PETITIONER – aggrieved party, immediate family, ascendant, descendant or collateral relative
within 4th civil degree
 Venue – SC, CA, RTC, Sandiganbayan
 Enforceable anywhere in the Philippines

JUDGMENT
If the allegations are proved by substantial evidence, the court will enjoin the act complained of, or order
the deletion, destruction, or rectification of the erroneous data or information and grant other relevant
reliefs as may be just and equitable.
Otherwise, the privilege of the writ shall be denied.

A.M. NO. 09-6-8-SC, RULE 7 WRIT OF KALIKASAN

CONCEPT
When the constitutional right to a balanced and healthful ecology is violated or threatened with violation
by a public official or employee, or a private individual or entity involving environmental damage of such
magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces.
FILING

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 Petitioner – natural person, juridical person, people’s organization, NGO, etc. on behalf of persons
whose constitutional right is violated
 Venue – SC, CA,
 Enforceable anywhere in the Philippines

DISCOVERY MEASURES
1. Order for Ocular Inspection
2. Order for Production or Inspection of Documents or Things

RELIEFS GRANTED
1. Permanently cease and desist
2. Protect, preserve rehabilitate or restore the environment
3. Monitor strict compliance with decision and orders of court
4. Make periodic reports on the execution of the final judgment
5. Other related reliefs

2009 Bar Question No. 11

May the Sandiganbayan grant petitions for the issuance of a writ of habeas corpus in the exercise of its
original jurisdiction?
No, the Sandiganbayan has jurisdiction to issue the writ of habeas corpus only in aid of its appellate
jurisdiction. (Section 4, PD No. 1606).

1988 Bar Question No. 15

In 1978, Pete was convicted by the then Court of First Instance of Cavite on the sole basis of his extrajudicial
confession. The decision soon became final and Pete has since been serving sentence until now, although
to this day, he insists that he is innocent and that his confession was coerced. He later learned of the
Supreme Court’s decision in People v. Galit in which the Court reversed a conviction that had been solely
based on an uncounselled confession. He forthwith caused a petition for habeas corpus to be filed, alleging
that his confinement has all along been illegal. The Government opposed the petition on the ground that
the decision of conviction had long become final and may no longer be reopened and that he is in fact
serving sentence.
Will habeas corpus lie? Reasons.
Yes habeas corpus will lie. The writ may be availed of as a post-conviction remedy where there has been a
deprivation of a constitutional right resulting in the restraint of a person. (Harden v. Director of Prisons,
81 Phil. 741). Where a deprivation of a constitutional right is established, the court that rendered the
judgment is deemed ousted of jurisdiction and habeas corpus is the remedy to assail the legality of
detention. (Olaguer v. Miltary Commission No. 34, G.R. Nos 54558 & 69882, 22 May 1987).
Here since there was an uncounselled confession, there was a violation of Pete’s constitutional right to
counsel during custodial investigation. Hence the writ of habeas corpus may be availed of as a post-
conviction remedy.

2008 Bar Question No. 19

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After Alma had started serving her sentence for violation of BP 22, she filed a petition for a writ of habeas
corpus, citing Vaca vs. CA where the sentence of imprisonment of a party found guilty of violation of BP 22
was reduced to a fine equal to double the amount of the check involved. She prayed that her sentence be
similarly modified and that she be immediately released from detention. In the alternative, she prayed that
pending determination on whether the Vaca ruling applies to her, she be allowed to post bail pursuant to
Rule 102, Sec. 14, which provides that if a person is lawfully imprisoned or restrained on a charge of having
committed an offense not punishable by death, he may be admitted to bail in the discretion of the court.
accordingly, the trial court allowed Alma to post bail and then ordered her release. In your opinion, is the
order of the trial court correct?
(a) Under Rule 102?
(b) Under Rules of Criminal Procedure?
(a) In my opinion, the order of the trial court is not correct under Rule 102.
Alma’s invocation of Vaca is misplaced since Vaca did not delete the penalty of imprisonment but merely
established a rule of preference, subject to judge’s discretion, in the imposition of penalties under B.P. Blg.
22. Hence, the judgment convicting Alma is valid. Under Section 4 Rule 102, the writ of habeas corpus shall
not be allowed if a person is in custody by virtue of a judgment or order of a court of record. With more
reason here where the judgment of conviction is already final. (Go v. Dimagiba, G.R. No. 151876, June 21,
2005).
Alma’s invocation of Section 14 of Rule 102 is also misplaced. A perusal of Section 14 Rule 102 shows that
it applies only where there is no final conviction yet as it speaks of the bail bond being “conditioned for
[the prisoner’s] appearance before the court where the offense is properly cognizable to abide by its order
or judgment.”
(b) In my opinion, the order of the trial court is not correct under the Rules of Criminal Procedure.
Section 24 Rule 114 provides that no bail shall be allowed after a judgment of conviction has become final
and that in no case shall bail be allowed after the accused has commenced to serve sentence.
Here Alma was already serving her sentence. Hence bail cannot be allowed.

2005 Bar Question No. 12

Mariano was convicted by the RTC for raping Victoria and meted the penalty of reclusion perpetua. While
serving sentence at the National Penitentiary, Mariano and Victoria were married. Mariano filed a motion
in said court for his release from the penitentiary on his claim that under Republic Act No. 8353, his
marriage to Victoria extinguished the criminal action against him for rape, as well as the penalty imposed
on him. However, the court denied the motion on the ground that it had lost jurisdiction over the case after
its decision had become final and executory.
a) Is the filing of the court correct? Explain.
b) What remedy/remedies should the counsel of Mariano take to secure his proper and most expeditious
release from the National Penitentiary? Explain.
(a) The ruling of the court is correct. Where the judgment has become final and executor, the same
cannot be modified or set aside anymore. (Section 7, Rule 120). The only remedy therefor is the writ
of habeas corpus. (Directo v. Director of Prisons, 56 Phil. 692; People v. Simon, G.R. No. 93028, 29
July 1994).

37 | P a g e – U N A U T H O R I Z E D R E P R O D U C T I O N O F T H I S R E V I E W M A T E R I A L I S I L L E G A L A N D
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(b) I would file a petition for habeas corpus as a post-conviction remedy since the detention of Mariano is
without legal basis anymore. In this case the writ is in nature of a collateral attack against a final and
executor judgment. (Chavez v. Court of Appeals, G.R. No. L-29169, 19 August 1968). The petition for habeas
corpus is an expeditious remedy since in the calendaring of cases, preference is given to habeas corpus
cases (Section Rule 20) and under Section 12 Rule 102 the court before whom the writ is returned or
adjourned must immediately proceed to hear and examine the return.

2013 Bar Question No. 9 (Political Law)

Conrad is widely known in the neighborhood as a drug addict. He is also suspected of being a member of
the notorious “Akyat-Condo Gang” that has previously broken into and looted condominium units in the
area.
Retired Army Colonel Sangre — who is known as an anti-terrorism fighter who disclaimed human and
constitutional rights and has been nicknamed “terror of Mindanao” — is now the Head of Security of
Capricorn Land Corporation, the owner and developer of Sagittarius Estates where a series of robberies
has recently taken place.
On March 1, 2013, Conrad informed his mother, Vannie, that uniformed security guards had invited him
for a talk in their office but he refused to come. Later that day, however, Conrad appeared to have relented;
he was seen walking into the security office flanked by two security guards. Nobody saw him leave the
office afterwards.
Conrad did not go home that night and was never seen again. The following week and after a week-long
search, Vannie feared the worst because of Col. Sangre’s reputation. She thus reported Conrad’s
disappearance to the police. When nothing concrete resulted from the police investigation, Vannie — a the
advice of counsel — filed a petition for a writ of amparo to compel Col. Sangre and the Sagittarius Security
Office to produce Conrad and to hold them liable and responsible for Conrad’s disappearance. Did Vannie’s
counsel give the correct legal advice?
No, Vannie’s counsel did not give the correct legal advice.
The Supreme Court has held that in an amparo petition proof of disappearance alone is not enough. It must
also be shown and proved by substantial evidence that the government or its agents had a hand in the
disappearance or that they failed to exercise extraordinary diligence in investigating his case, even if the
person sought to be held accountable or responsible in an amparo petition is a private individual or entity,
still, government involvement in the disappearance remains an indispensable element. Otherwise the writ
of amparo may not issue.
Here the facts show that it was a private security agency which was involved and there was no showing of
any direct or indirect government involvement. The mere fact that nothing concrete came out of the police
investigation after a week is not proof that the police failed to exercise extraordinary diligence in
investigating the case. (Navia v. Pardico, 19 June 2012, e,b., Del Castillo, J.).

2010 Bar Question No. 20

Azenith, the cashier of Temptation Investments, Inc. (Temptation, Inc.) with principal offices in Cebu City,
is equally hated and loved by her co-employees because she extends cash advances or "vales " to her
colleagues whom she likes. One morning, Azenith discovers an anonymous letter inserted under the door
of her office threatening to kill her.

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Azenith promptly reports the matter to her superior Joshua, who thereupon conducts an internal
investigation to verify the said threat.
Claiming that the threat is real, Temptation, Inc. opts to transfer Azenith to its Palawan Office, a move she
resists in view of the company’s refusal to disclose the results of its investigation.
Decrying the move as a virtual deprivation of her employment, Azenith files a petition for the issuance of a
writ of habeas data before the Regional Trial Court (RTC) to enjoin Temptation, Inc. from transferring her
on the ground that the company’s refusal to provide her with a copy of the investigation results
compromises her right to life, liberty and privacy.
Resolve the petition. Explain.
The petition should be denied.
Under the Rule on the Writ of Habeas Data, the writ is available in cases where a person’s right to privacy
in life, liberty, or security is violated or threatened by an unlawful act of an entity engaged in the gathering,
collecting, or storing of data or information regarding the person, family, home, or correspondence of the
aggrieved party.
The writs of amparo and habeas data will NOT issue to protect purely property or commercial concerns
nor when the grounds invoked in support of the petitions therefor are vague and doubtful. Employment
constitutes a property right under the context of the due process clause of the Constitution. It is evident
that respondent’s reservations on the real reasons for her transfer – a legitimate concern respecting the
terms and conditions of one’s employment – are what prompted her to adopt the extraordinary remedy of
habeas data. Jurisdiction over such concerns is inarguably lodged by law with the NLRC and Labor Arbiters.
(Meralco v. Gopez-Lim, 05 October 2010, e.b., Carpio-Morales, J.)

RULE 109 APPEALS IN SPECIAL PROCEEDINGS

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

WHEN SHOULD APPEAL BE FILED?

SPECIAL PROCEEDINGS 30 DAYS (Record on appeal required)

HABEAS CORPUS 48 HOURS from service of judgment

WRIT OF AMPARO 5 WORKING DAYS from date of notice of judgment

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WRIT OF HABEAS DATA 5 WORKING DAYS from date of notice of judgment

WRIT OF KALIKASAN 15 DAYS from notice of judgment or denial of motion for reconsideration

---oOo---

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