SPECIAL PROCEEDINGS COURSE OUTLINE Justice Magdangal M. de Leon

Distinction between civil action and special proceedings

. Nature of special proceedings – initially non-adversarial

GENERAL PROVISION (Rule 72)

Subject matter and applicability of general rules - Sec. 1

Special Proceedings Under Various Laws

1. Summary proceedings under the Family Code

2. Actions mentioned in the Family Courts Act of 1997 (RA 8369)- declaration of absolute nullity of void marriages and annulment of voidable

marriages- legal separation- provisional orders on support, custody of minor children and administration of

common property- violence against women and their children and protection orders

3. Proceedings under: Child & Youth Welfare Code (PD 1083)

Child Abuse Act (RA 7610)Child Employment Act (RA 7658)

- declaration of status as abandoned, dependent or neglected children- voluntary or involuntary commitment of children- suspension, termination or restoration of parental authority

4. Domestic and Inter-country adoption ( ) 5. Petition for corporate rehabilitation 6. Petition for writ of amparo 7. Petition for writ of habeas data 8. Arbitration (RA 876, Secs. 22-23)

9. Recognition and enforcement of an arbitral award (RA 9285: The Alternate Dispute and Resolution Law [ADR])

Rules in civil actions applicable to special proceedings

Applicability of rules of civil actions - Sec. 2 Sheker vs. Estate of Alice Sheker, G.R. No. 157912, December 13, 2007

SETTLEMENT OF ESTATE OF DECEASED PERSONS

When rights to succession transmitted – Art. 777, Civil Code. Bunyi versus Factor. G.R. No. 172547, June 30, 2009

Kinds of settlement based on the FORM of settlement:

1. Extrajudicial settlement (Rule 74, Sec. 1)2. Summary settlement of estates of small value (Rule 74, Sec. 2)3. Judicial settlement through letters testamentary or letters of administration with or without

the will annexed (Rules 73, 75-90)

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Venue and Process (Rule 73)

Where estate of deceased persons settled.- Sec. 1. How is jurisdiction determined – residence of decedent at time of death The determination of which court exercises jurisdiction over matters of probate depends upon

the GROSS VALUE of the estate of the decedent. Rule 73, Sec. 1 is deemed amended by BP 129, as amended by RA 7691. Hence, the court may be the MTC or RTC. Lim vs. CA, G.R. No. 124715, January 24, 2000, 323 SCRA 102

Sec. 1, Rule 73 prescribing court where decedent’s estate shall be settled – (a) place of residence or (b) where his estate is located, actually relates to VENUE and not jurisdiction.

Meaning of residence San Luis vs. San Luis, G.R. No. 133743, February 6, 2007. Where two proceedings filed, one intestate, the other testate – illustrative cases on which courts should have “jurisdiction.”:

Roberts vs. Leonidas , G.R. No. L-55509 April 27, 1984,129 SCRA 33 Uriarte vs. CFI of Negros Occ., G.R. Nos. L-21938-39, May 29, 1970, 33 SCRA 252 Cuenco vs. CA, G.R. No. L-24742 October 26, 1973, 53 SCRA 360

Is a judicial administration proceeding necessary when deceased dies intestate without leaving any debts? Pereira vs CA, G.R. No. L-81147 June 20, 1989

Where estate settled upon dissolution of marriage - Sec. 2 Alipio vs. CA, 341 SCRA 441 [2000])

Power of probate court to issue warrants and process – Sec. 3

Presumption of death – Sec. 4

Presumption of death under the Civil Code (Arts. 390-391) 10 years, 5 years, 4 years

No independent action for a declaration of presumptive death is allowed. Exception - Need for declaration of presumptive death for purposes of remarriage (Article 41 of the Family Code)

Extent of jurisdiction of probate court

1. Probate court can only pass upon questions of title provisionally for the purpose of determining whether a certain property should or should not be included in the inventory -- separate action to determine title necessary.

Pobre vs. Gonong, G.R. No. L-60575 March 16, 1987

Exception: Where interested parties are all heirs and rights of third parties are not impaired. Coca vs. Pangilinan, G.R. No. L-27082, January 31, 1978, 81 SCRA 278 .

2. However, probate court has jurisdiction to (a) determine heirs (separate action for declaration of heirs not proper) and (b) distribute estate. Solivio vs. CA, G.R. No. 83484 February 12, 1990, 182 SCRA 119

Summary settlement of estates (Rule 74)

Extrajudicial settlement by agreement between heirs – Sec. 1

Requisites of extrajudicial settlement If heirs disagree – ordinary action for partition.

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If only one heir – affidavit of self-adjudication. Since Josefa Delgado had heirs other than Guillermo Rustia, Guillermo could not have validly adjudicated Josefa’s estate all to himself. In the Matter of the Intestate Estate of Delgado, G.R. No. 155733, January 27, 2006

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

When bond required – when settlement includes personal property Bond to be filed by distributees – Sec. 3

Liability of distributees and estate – Sec. 4

Action to annul deed of extrajudicial settlement – two year prescriptive period applies to persons who have participated or taken part or had notice of the extrajudicial partition Pedrosa vs. CA, G.R. No. 118680, March 5, 2001, 353 SCRA 620

Persons who did not participate or had no notice of an extrajudicial settlement will not be bound thereby. Publication of the settlement does not constitute constructive notice to the heirs who had no knowledge or did not take part in it because the same was notice after the fact of execution

Cua vs. Vargas, G.R. No. 156536, October 31, 2006

Remedy of an heir who did not participate in, or had no knowledge of, the extrajudicial partition -- file an action for reconveyance.

Prescriptive period for non-participants – 10 years, because an action for reconveyance based on implied or constructive trust, being an obligation created by law, prescribes in 10 years (Art. 1144, par. 2, Civil Code)

The period starts from issuance of title over the property. Constructive trusts under Art. 1456 are established to prevent unjust enrichment. The ruling in Gerona vs. De Guzman, 11 SCRA 153 (1964) [cited in Pedrosa vs. CA] that prescriptive period for non-participants is 4 years from discovery of fraud, i.e., when deed was filed with Register of Deeds and new title issued, is not applicable, because the same was based on the old Code of Civil Procedure (Sec. 43, which governed prescription). Marquez vs. CA, G.R. No. 125715, December 29, 1998, 300 SCRA 653

Exception to prescription of actions – when plaintiff, the legal owner, and not the defendant registered owner, is in possession of the land to be reconveyed. Said action, when based on fraud, is imprescriptible as long as the land has not passed to an innocent purchaser for value Heirs of Saludares vs. CA, G.R. No. 128254, January 16, 2004, 420 SCRA 54).

Summary settlement of estates of small value - Sec. 2

Characteristics of summary settlement

Compared to extrajudicial settlement

Production of will, Allowance of will necessary (Rule 75)

1. Allowance of will conclusive as to its due execution – Sec. 1 What is a will? (Art.783, Civil Code) Nittscher vs. Nittscher, G.R. No. 160530, November 20, 2007

2. Probate of will (special proceeding to establish the validity of a will) is MANDATORY

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a. The law enjoins probate of the will and public policy requires it. Unless will is probated and notice given to the whole world, right of a person to dispose of his property by will may be rendered nugatory

Maninang vs. CA, 114 SCRA 478 [1982]).

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

b. In testate succession, no valid partition among heirs until after will has been probated Ralla vs. Judge Untalan, 172 SCRA 858 [1989].

c. Presentation of will cannot be dispensed with on the ground of ESTOPPEL because public policy requires that a will should be probated Fernandez vs. Dimaguiba, 21 SCRA 428 [1967] d. Decree of probate conclusive as to its due execution Solano vs. Court of Appeals, 126 SCRA 122 (1983)

GENERAL RULE: Probate court’s authority is limited only to extrinsic validity of the will, i.e.:

a. due execution – voluntarinessb. testator’s testamentary capacity – sound mindc. compliance with formal requisites or solemnities

1. Intrinsic validity of the will normally comes after court declares that will has been duly authenticated.

2. Court at this stage of the proceedings is not called upon to rule on intrinsic validity or legality of the provisions of the will Nuguid vs. Nuguid, 17 SCRA 449 [1966]

EXCEPTIONS:

1. In exceptional instances, courts not powerless to pass upon certain provisions of will which it may declare invalid even as it upholds extrinsic validity of will.

Ajero vs. Ca, 236 SCRA 488 [1994]

2. For practical considerations. Probate court may disregard passing on extrinsic validity of will where intrinsic validity apparent on face of will

Certiorari as a remedy from dismissal of the testate case. Maninang vs. CA, 114 SCRA 478 [1982].

3. Probate of will might become idle ceremony if on its face it appears intrinsically void.

4. Will is intrinsically invalid if it completely preterited parents of the testator. Nuguid vs. Nuguid, 17 SCRA 449 [1966]

a. Preterition – annuls institution of heirsb. Disinheritance – annuls institution of heirs as to portion of estate which disinherited

heirs have been illegally deprived

Custodian of will to deliver – Sec. 2

Executor to present will and accept or refuse the trust - Sec. 3

Allowance or Disallowance of Will (Rule 76)

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Who may petition for allowance of will – Sec. 1 WHO

1. Executor 2. Legatee – need not be a relative of decedent3. Devisee – need not be a relative of decedent4. Other interested person - heir; creditor5. Testator – during his lifetime

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

WHERE – court having jurisdiction

WHAT – petition to have will allowed whether:

a. will in possession of petitioner or notb. will lostc. will destroyed

JURISDICTION HOW ACQUIRED

a. Court acquires jurisdiction upon filing of original petition and compliance with Secs. 3 and 4.b. Attaching of mere copy of will sufficient – annexing of original of will to the petition is not jurisdictional requirement.

c. Delivery of will sufficient even if no petition filed – under Sec. 3, “when a will is delivered to the court,” court could motu proprio take steps to fix time and place for proving the will and issue corresponding notices.

Contents of petition – Sec. 2 1. Jurisdictional facts:

a. that a person has died leaving a will; and b. the testator at the time of death is a resident within the territorial jurisdiction of the

court; or c. the testator is a non-resident at the time of death but left property within the territorial

jurisdiction of the court 2. names, ages and residences of the heirs, legatees and devisees of the testator or

decedent 3. probable value and character of the property of the estate 4. name of the person for whom letters are prayed 5. if the will has not been delivered to the court, the name of the person having custody

thereof

Court to appoint time for proving the will. Notice thereof to be published.- Sec. 3.

Notice and Hearing; Publication

1. After will delivered to, or petition for allowance of will filed in court having jurisdiction, court –

a. shall fix time and place for proving will – when all concerned may appear to contest allowance thereof.

b. cause notice of such time and place to be PUBLISHED 3 weeks successively in newspaper of general circulation in the province.

2. NO NEWSPAPER PUBLICATION – where petition for probate filed by TESTATOR himself.

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Probate of Will is In Rem

Notice by publication as prerequisite to allowance of will is CONSTRUCTIVE NOTICE to the whole world.

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

Probate JURISDICTIONAL

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

Heirs, devisees, legatees, and executors to be notified by mail or personally – Sec. 4Alaban vs. CA, G.R. No. 156021, September 23, 2005

Proof of hearing. What sufficient in absence of contest - Sec. 5.

Subscribing witnesses produced or accounted for where will contested – Sec. 11

Proof when testator petitions for allowance of will – Sec. 12

EVIDENCE INTRODUCED AT PROBATE OF WILL

1. Publication

2. Notice of hearing served on known heirs, legatees, devisees, etc. if places of residence known

3. Testimony of subscribing witnessesa. Uncontested – one witness sufficient b. Contested – all subscribing witnesses and

notary (wills executed under Civil Code)other witnesses (under certain conditions)

4. Holographic will a. Uncontested – at least one witness who knows handwriting and signature of testator;

expert testimony (in the absence of competent witness)b. Contested – at least 3 witnesses who know handwriting of testator; expert testimony

(in the absence of competent witness)

5. Holographic will – testator himself as petitionera. Contested – contestant has burden of disproving genuineness and due executionb. Uncontested – testator must affirm that will and signature are in his own handwriting

Grounds for disallowing will – Sec. 9

1. Legal formalitiesa. not executed and attested as required by law

2. Testamentary capacityb. testator insane or otherwise mentally incapable to make will at time of execution

3. Due execution c. executed under duress, or the influence of fear, or threatsd. procured by undue and improper pressure and influence on the part of the

beneficiary, or some other person, for his benefit.e. signature of testator procured by fraud or trick and he did not intend that the

instrument be his will at time of fixing his signature

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f. testator acted by mistake or did not intend that instrument be signed or should be his will at the time of affixing his signature (Art. 389, Civil Code)

Grounds for Disallowance of Will Exclusive

Lists in Sec. 9, Rule 76 and Art. 389 are EXCLUSIVE – NO OTHER GROUND can serve to disallow a will.

If testator fails to sign and date some dispositions in holographic will, it affects only the validity of the dispositions, but not the whole will. Exc. If unauthenticated alterations, cancellations or insertions are made on the DATE of will of on testator’s SIGNATURE.

Ajero vs. CA, 236 SCRA 488 [1994]

Separate wills may be probated jointly Vda. de Perez vs. Tolete, 232 SCRA 722 [1994]

REPROBATE OF WILL Allowance of Will Proved Outside of Philippines And Administration of Estate Thereunder (Rule 77)

Will proved outside of the Philippines may be allowed here - Sec. 1

Notice of hearing for allowance – Sec. 2

Evidence Necessary for Reprobate of Will or will probated outside the Philippines:

1. due execution of will in accordance with foreign laws 2. testator has domicile in foreign country and not Philippines 3. will has been admitted to probate in such country 4. fact that foreign court is a probate court 5. law of the foreign country on procedure and allowance of wills Vda. de Perez vs. Tolete, 232 SCRA 722 [1994]

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

Publication and notice required Compliance with Secs. 3 and 4 of Rule 76, re publication and notice by mail or personally to

known heirs, legatees and devisees of testator resident in the Philippines and to executor, if he is not the petitioner, required also in wills for reprobate.

Vda. de Perez vs. Tolete

Effect of Probate

When will allowed, and effect thereof – Sec. 3 When the will is allowed, it shall have the same effect as if originally proved and allowed in such court

Estate, how administered – Sec. 4

The letters testamentary or of administration granted shall extend to all of the estate of the testator in the Philippines. After payment of just debts and expenses of administration, the estate shall be disposed of according to such will, so far as such will may operate upon it.

LETTERS TESTAMENTARY AND OF ADMINISTRATION

Letters Testamentary and of Administration,

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When and to Whom Issued (Rule 78)

LETTERS TESTAMENTARY – issued to executor

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

LETTERS OF ADMINISTRATION – issued to administrator in intestate proceedings.

Who are incompetent to serve as executors or administrators - Sec. 1

Letters testamentary issued when will allowed – Sec. 4

When administration granted

1. No executor named in will ) letters of administration2. Executor/s (is/are): ) with will annexed

a. Incompetent - Minor - Non-resident - Unfitb. Refuse the trustc. Fail to give bond

3. Person dies intestate ) letters of administration

4. Will void and not allowed )

Order of preference in appointment of administrator

When and to whom letters of administration granted – Sec. 6

1. surviving spouse – partner in conjugal partnership and heir of deceased 2. next of kin

* Meaning of next of kin . Angeles vs. Maglaya, G.R. No. 153798, September 2, 2005

3. person requested by spouse or next of kin 5. principal creditors

a. if spouse or next of kin is incompetent or unwilling orb. neglects for 30 days after death of decedent to apply for administration, or to

request that administration be granted to some other person

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

The order of preference in the appointment of a regular administrator as provided in the afore-quoted provision does not apply to the selection of a special administrator. Tan vs. Gedorio, Jr., G.R. No. 166520, March 14, 2008

Court may reject order of preference While surviving spouse is entitled to preference in the appointment, circumstances might warrant his rejection and appointment of someone else, at the discretion of the court.

Interest in estate as principal consideration In the appointment of an administrator, the principal consideration is the interest in the estate of the one to be appointed. Those who will reap benefit of a wise, speedy and economical administration or will suffer consequences of waste, improvidence or mismanagement – have the HIGHEST INTEREST and MOST INFLUENTIAL MOTIVE to administer estate correctly.

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Gonzales vs. Aguinaldo, 190 SCRA 112 [1990].

Opposition to Issuance of Letters Testamentary.Petition and Contest for Letters of Administration(Rule 79)

Opposition to issuance of letters testamentary. Simultaneous petition for administration - Sec. 1

Contents of petition for letters of administration – Sec. 2 Compare to Rule 76, Sec. 2

Court to set time for hearing. Notice thereof – Sec. 3 Publication and notice of hearing jurisdictional. Also, notice to “known heirs and creditors of the decedent, and to any other person believed to have an interest in the estate” (per Sec. 4, Rule 76) if names and addresses are known. De Arranz vs. Galing, 161 SCRA 628).

Opposition to petition for administration – Sec. 4 Any person interested in a will may oppose in writing the issuance of letters testamentary to persons named as executors, and at the same time file petition for letters of administration with will annexed.

Meaning of “interested person” Sagunsin vs. Lindayag, 6 SCRA 874

The interest must be material and direct, and not merely indirect or contingent San Luis vs. San Luis, G.R. No. 133743, February 6, 2007)

Contingent interest does not make one an interested party. Tayag vs. Tayag-Gallor, G.R. No. 174680, March 24, 2008

Hearing and order for letters to issue – Sec. 5When letters of administration granted to any applicant – Sec. 6

Special Administrator (Rule 80)

Appointment of special administrator – Sec. 1

1. When there is delay in granting letters testamentary or of administration by any cause - including appeal from allowance or disallowance of will

2. court may appoint special administrator to take possession and charge of the estate of the deceased3. until a. questions causing delay decided or b. executors or administrators appointed

The principal object of the appointment of a temporary administrator is to preserve the estate until it can pass into the hands of a person fully authorized to administer it for the benefit of creditors and heirs. Tan vs. Gedorio, Jr., G.R. No. 166520, March 14, 2008

Publication and notice required Even in the appointment of a special administrator, same jurisdictional requirements under Sec. 3, Rule 79.

Order appointing special administrator interlocutory in nature and mere incident in the judicial proceedings, hence not appealable Samson vs. Samson, 102 Phil. 735

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GROUNDS FOR REMOVAL OF ADMINISTRATOR Revocation of Administration, Death, Resignation and Removal of Executors and Administrators (Rule 82)

Administration revoked if will discovered. Proceedings thereon. - Sec. 1

Court may remove or accept resignation of executor or administrator. Proceedings upon death, resignation, or removal. - Sec. 2. A creditor may seek the removal of the administrator in accordance with Section 2, Rule 82.

Hilado vs. Court of Appeals, G.R. No. 164108, May 8, 2009

Acts before revocation, resignation, or removal to be valid. - Sec. 3.

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.

Whether intestate proceedings already commenced should be discontinued and a new proceeding under a separate number and title should be constituted – entirely a MATTER OF FORM and lies within SOUND DISCRETION of court. Does not prejudice substantial rights of heirs and creditors. Intestate Estate of Wolfson, 45 SCRA 381

General Powers and Duties of Executors and Administrators (Rule 84) Powers: a. Possess and manage estate of the deceased to pay debts and expenses of administration. (Sec. 4) b. (Executor or administrator of estate of a deceased partner) Have access to, examine

and take copies of, books and papers relating to the partnership business, and examine and make invoices of the property belonging to such partnership ( Sec. 1).

c. With the approval of the court, to compound or compromise with a debtor of the deceased (Rule 87, Sec. 4)

Duties a. Maintain the estate in tenantable repair, and. b. Deliver the same to the heirs or devisees when directed by the court. (Rule 84, Sec. 2)

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

Claims against Estate (Rule 86)

Notice to creditors to be issued by court – Sec. 1

Time within which claims shall be filed; exception – Sec. 2

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

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

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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

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

1. Period fixed by probate court must not be less than 6 months nor more than 12 months from the date of first publication of the notice.

2. Such period once fixed by the court is MANDATORY – it cannot be shortened. ex. Period fixed within 6 months

3. SNC supersedes statute of limitations – even if claim has not yet prescribed, it may be barred by SNC.

Ruling spirit of our probate law – SPEEDY SETTLEMENT of the estate of deceased persons for the benefit of CREDITORS and those entitled to the RESIDUE by way of INHERITANCE or LEGACY after the debts and expenses of administration have been PAID

Sikat vs. Villanueva, 57 Phil. 486

Publication of notice to creditors - Sec. 3 Immediately after notice to creditors is issued, executor or administrator shall cause -

1. publication of said notice 3 weeks successively in newspaper of general circulation in the province, and

2. posting for the same period in a. 4 public places in the province andb. 2 public places in the municipality where decedent last resided

Publication of notice to creditors constructive notice to the whole world

Creditor cannot be permitted to file his claim beyond the period fixed in the notice on the ground that he had no knowledge of the administration proceedings Villanueva vs. PNB, 9 SCRA 145

Claims that must be filed under the notice. If not filed, barred; exceptions - Sec. 5

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 a. The judgment must be presented as a claim against the estate where the judgment debtor dies before levy on execution of his properties Evangelista vs. La Provedra, 38 SCRA 379 b. When the action is for recovery of money arising from contract, and defendant dies before entry of final judgment, it shall not be dismissed but shall be allowed to continue until entry of final judgment. A favorable judgment obtained by plaintiff shall be enforced under Rule 86 (Rule 3, Sec. 20).

Money claims against a deceased debtor

1. Section 5 of Rule 86 of the Rules of Court expressly allows the prosecution of money claims arising from a contract against the estate of a deceased debtor. Those claims are not actually extinguished. What is extinguished is only the obligee’s action or suit filed before the court, which is not then acting as a probate court. Hence, the debtor’s death did not result in the extinguishment of those obligations or liabilities, which merely passed on to his estate. Death is not a defense that he or his estate can set up to wipe out the obligations under the performance bond. Stronghold Insurance Company, Inc. vs. Republic-Asahi Glass Corporation, G.R. No. 147561, June, 2006

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

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

Exception – may be set forth as COUNTERCLAIMS in any action executor or administrator may bring against the claimants.

Rationale for time limit: 1) to protect the estate of the deceased by informing the executor or administrator of the claims against it, thus enabling him to examine each claim and to determine whether it is a proper one which should be allowed; 2) speedy settlement of affairs of deceased; and 3) early delivery of property to distributes, legatees, or heirs Union Bank of the Philippines vs. Santibaňez, G.R. No. 149926, February 23, 2005

A money claim is only an incidental matter in the main action for the settlement of the decedent's estate; more so if the claim is contingent since the claimant cannot even institute a separate action for a mere contingent claim. Hence, petitioner's contingent money claim, not being an initiatory pleading, does not require a certification against non-forum shopping. Sheker vs. Estate of Alice Sheker, G.R. No. 157912, December 13, 2007

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

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

Claims arising after his death cannot be presented EXCEPT - funeral expenses - expenses for last sickness

Claims arising after decedent’s death other than the above may be allowed as expenses

of administration.

Enumeration exclusive – refers only to contractual money claims Only claims for money, debt or interest thereon, arising from contract can be presented in the testate or intestate proceedings.

Claims which survive death of accused

Claim for civil liability survives notwithstanding death of accused if the same may also be based on a source of obligation other than delict (contract, law, quasi-contract, quasi-delict)

Separate civil action may be enforced either against

a. Estate of accused (contract)b. Executor/ administrator (law, quasi-contract, quasi-delict)

People vs. Bayotas, 236 SCRA 239 [1994]

Civil actions for tort or quasi-delict do not fall within the class of claims to be filed under the notice to creditors required under Rule 86. These actions, being civil, survive the death of the decedent and may be commenced against the administrator pursuant to Section 1, Rule 87.. Hilado vs. Court of Appeals, G.R. No. 164108, May 8, 2009

Execution of final judgment not proper remedy but filing of claim

When judgment in a civil case has become final and executory, execution not proper remedy to enforce payment; claimant should PRESENT CLAIM before probate court

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Domingo vs. Garlitos, G.R. No. L-18994, June 29, 1963

Mandamus not available – immediate payment of claim by the administrator is NOT A MATTER OF RIGHT. In the absence of any showing that respondent judge who is taking cognizance of the estate proceedings had already allowed the administrator to dispose of the estate and to pay the debts and legacies of the deceased, a writ of mandamus will not issue to compel him to order payment of petitioner's claim.

Echaus vs. Blanco, G.R. No. L-30453, December 4, 1989

Solidary obligation of decedent – Sec. 6 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.

Mortgage debt due from estate – Sec. 7 Creditor holding a claim against the deceased secured by mortgage or other collateral security may 1. Abandon the security and prosecute his claim against the estate and share in the general distribution of the assets of thereof; 2. Foreclose his mortgage or realize upon his security by action in court, making the executor or administrator a party defendant and if there is judgment for deficiency, he may file a contingent claim against the estate within the statute of non-claims; 3. Rely solely on his mortgage and foreclose (judicial or extrajudicial) the same at anytime within the period of the statute of limitations but he cannot be admitted as creditor and shall not receive in the distribution of the other assets of the estate.

Claim of executor or administrator against an estate - Sec. 8 1. If the executor or administrator has a claim against the estate he represents, he shall give notice thereof, in writing, to the court. 2. The court shall appoint a special administrator, and the special administrator shall, in the adjustment of such claim, have the same power and be subject to the same liability as the general administrator or executor in the settlement of the estate From an estate proceeding perspective, the Special Administrator’s commission is no less a claim against the estate than a claim that third parties may make. The ruling on the extent of the Special Administrator’s commission – effectively, a claim by the special administrator against the estate – is the lower court’s last word on the matter and one that is appealable. Briones vs. Henson-Cruz, G.R. No. 159130, August 22, 2008

PROCEDURE FOR FILING OF CLAIMS How to file a claim. Contents thereof. Notice to executor or administrator - Sec. 9 1. Delivering the claim with the necessary vouchers to the clerk of court and by serving a copy on the executor or administrator 2. An affidavit must support such claim, stating the amount justly due, that no payments have been made thereon which are not credited and that there are no offsets to the same.

Answer of executor or administrator. Offsets – Sec. 10 1. 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. 2. The executor or administrator in his answer shall allege in offset any claim which the decedent before death had against the claimant, and his failure to do so shall bar the claim forever.

Disposition of admitted claims - Sec.11 1. Any claim admitted entirely by the executor or administrator shall immediately be submitted by the clerk to the court which may approved the same without hearing. 2, But the court, in its discretion, before approving the claim, may order that known heirs, legatees or devisees be notified and heard. 3. If upon hearing, an heir, legatee or devisee opposes the claim, the court may, in its discretion, allow him 15 days to file an answer in the manner prescribed In the preceding section.

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Trial of contested claims – Sec. 12 Upon the filing of an answer to a claim, or expiration of the time for such filing, the claim shall be set for trial with notice to both parties. The court may refer the claim to a commissioner.

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

Actions by and Against Executors and Administators (Rule 87)

Actions which may and which may not be brought against executor or administrator - Sec. 1.

Executor or administrator may bring or defend actions which survive. - Sec. 2.

1. NOT ALLOWED AGAINST EXECUTOR OR ADMINISTRATOR – action upon claim for recovery of money or debt or interest thereon.

- MUST BE AGAINST ESTATE (Secs. 1, 2 & 5, Rule 86)

2. ALLOWED – actions which survivea. Actions to recover real or personal property or interest thereon, or to enforce a lien

thereon

Civil Case No. 2570 is an action for quieting of title with damages which is an action involving real property. It is an action that survives pursuant to Section 1, Rule 87 as the claim is not extinguished by the death of a party. Saligumba vs. Palanog, G.R. No. 143365, December 4, 2008

Civil Case No. 3488, which is an action for the recovery of a personal property, a motor vehicle, is an action that survives pursuant to Section 1, Rule 87 of the Rules of Court. As such, it is not extinguished by the death of a party. Sarsaba vs. Vda. de Te, G.R. No. 175910, July 30, 2009

b. Actions to recover damages for an injury to person or property, real or personal

Executor or administrator may sue upon any cause of action which accrued to the decedent during his lifetime (Bayot vs. Sorbito, 39 Phil. 650).

Any action affecting the property rights of a deceased which may be brought by or against him if he were alive, may be instituted and prosecuted by or against the administrator, unless by its very nature, it cannot survive, because death extinguishes such right.

Heir (and devisee) may not sue (executor or administrator to recover title or possession or for damages to property) until share assigned. - Sec. 3.

Before distribution is made or before any residue known – heirs and devisees have NO CAUSE OF ACTION against the administrator for recovery of property left by the deceased. Lao vs. Dee, 90 Phil. 868

When heirs may file action in court

General rule: heirs have no legal standing to sue for recovery or protection of property rights of the deceased.

Exceptions:

1. Pending the filing of administration proceedings – under Art, 777, rights to succession are transmitted from the moment of death of the decedent.2. Administration proceedings have already been commenced but administrator has not yet been appointed.

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3. Executor or administrator is unwilling or refuses to bring suit.4. Administrator is alleged to have participated in the act complained of and he is made a party defendant.

Embezzlement before letters issued - Sec. 8.

Double value rule

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

Property conveyed by deceased may be recovered. When executor or administrator may bring action – Sec. 9 When 1. There is deficiency of assets in the hands of an executor or administrator for the payment

of debts and expenses of administration, and 2. Deceased in his lifetime had converted real or personal property, right or interest therein,

or debt or credit, with intent to defraud his creditors or to avoid any right, debt, or duty; or had so conveyed such property, right, interest, debt, or creditors, and the subject of of the attempted conveyance would be liable to attachment by any of them in his lifetime,

3. The executor or administrator may COMMENCE and PROSECUTE to final judgment an action for the recovery of such property, right, interest, debts or credit for the benefit of creditors;

4. But he shall not be bound to commence the action unless the creditors making the application pay such part of the costs and expenses, or give security therefor to the executor or administrator, as the court deems equitable

Requisites before creditor may bring an action for recovery of property fraudulently conveyed by the deceased

. When creditor may bring action. Lien for cost - Sec. 10

When 1. There is deficiency of assets, and 2. Deceased in his lifetime had made or attempted such a conveyance (with intent to

defraud creditors or to avoid any right, debt or duty) as stated in Sec. 9, and 3. Executor or administrator has not commenced the action provided in Sec. 9 4. Any creditor of the estate may, with the permission of the court, COMMENCE and

PROSECUTE to final judgment, in the name of the executor or administrator, a like action for the recovery of the subject of the conveyance or attempted reconveyance for the benefit of the creditors.o Creditor should file a BOND executed to the executor or administrator, in an amount approved by the judge, conditioned to indemnify the executor or administrator against the costs and expenses incurred by reason of such action.o Creditor shall have a LIEN upon any judgment recovered by him for reasonable costs and expenses

When conveyance or attempted conveyance made by deceased in his lifetime in favor of the executor or administrator, action shall be in the name of all the creditors and

permission of the court and filing of bond not necessary.

Payment of the Debts of the Estate (Rule 88)

Debts paid in full if estate sufficient - Sec. 1.

Part of estate from which debt paid when provision made by will - Sec. 2.

Order of payment if estate insolvent - Sec. 7. - follow preference of credits under Arts. 1059, 2239-2251 of Civil Code

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If Estate is Sufficient

General rule: The payment of the debts of the estate must be taken (by order of preference):1. From the portion or property designated in the will;2. From the personal property, and 3. From the real property.If there is still a deficiency, it shall be met by contributions by devisees, legatees, or heirs who have been in possession of portions of the estate BEFORE debts and expenses have been settled and paid.(Secs. 1-3).

Exceptions: Instances When Realty Can Be Charged First: 1. When the personal property is not sufficient. (Sec. 3)2. Where the sale of personal personalty would be detrimental to the participants (everyone) of the estate. (Sec. 3) 3. When sale of personal property may injure the business or interests of those interested in the estate. (Section 2, Rule 89) 4. When the testator has not made sufficient provision for payment of such debts/expenses/legacies. (Section 2, Rule 89)5. When the decedent was, in his lifetime, under contract, binding in law, to deed real property to beneficiary. (Section 8, Rule 89)6. When the decedent during his lifetime held real property in trust for another person. (Section 9, Rule 89)

Requisites for Exceptions to Ensue: 1. Application by executor/administrator 2. Written notice to persons interested3. Hearing

The SAME principles apply if the debt of the estate is in another country.(Sec, 10)

Payment of Contingent Claims (Secs. 4 & 5)

CONTINGENT CLAIM – Claim that is subject to the happening of a future uncertain event.

If the court is satisfied that a contingent claim duly filed is valid, it may order the executor/administrator to retain in his hands sufficient estate to pay such contingent claim when the same becomes absolute, or, if the estate is insolvent, sufficient to pay a portion equal to the dividend of the other creditors.

Requisites for the Estate to be Retained to Meet Contingent Claims: 1. Contingent claim is duly filed within the two (2) year period allowed for the creditors to present claims;2. Court is satisfied that the claim is valid;3. The claim has become absolute.

Contingent Claims Which Mature AFTER the Two (2) Year Period for Filing of ClaimsThe assets retained in the hands of the executor/administrator, not exhausted in the payment of claims, shall be distributed by the order of the court to the persons entitled to the same.

But the assets so distributed MAY still be applied to the payment of the claim when

established, and the creditor may maintain an action against the DISTRIBUTEES to recover the debt, and such distributees and their estates shall be liable for the debt in proportion to the estate they have respectively received form the property of the deceased

TIME FOR PAYING DEBTS (Secs. 15 & 16)

1. Executor/administrator allowed to pay debts (and legacies) for a period not more than 1 year.

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2. Extendible (on application of executor/ administrator and after notice and hearing) – not exceeding 6 months for a single extension.3. Whole period allowed to original executor/administrator shall not exceed 2 years.4. Successor of dead executor/administrator may have time extended on notice not exceeding 6 months at a time and not exceeding 6 months beyond the time allowed to original executor/administrator.

Sec. 6. Court to fix contributive shares where devisees, legatees or heirs have been in possession.

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.

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

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

As ruled in Pastor, ordered payment of legacy violative of rule requiring prior liquidation of estate (determination of assets of estate and payment of debts and expenses) before apportionment and distributed of residue among heirs; legatees and devisees.

Correct rule: Sec. 1 of Rule 90 does not include legacies as among those that should be paid before order of distribution – only debts, funeral charges, expenses of administration, allowance to widow and inheritance tax.

After debts and expenses of administration paid, residue given to heirs and those entitled by way of inheritance or legacy (Magbanua vs. Akol, 72 Phil. 567). Purpose of administration – distribution of residue among heirs and legatees after payment of debts and expenses Luzon Surety vs. Quebrar, 127 SCRA 301

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

Upon motion of the administrator with notice to all heirs, legatees and devisees residing in the Philippines, court shall order sale of personal property or sale or mortgage of real property of the deceased to pay debts and expenses of administration out of the proceeds of the sale or mortgage.

Exception: where devisees, legatees or heirs have entered into possession of their respective portions in the estate prior to settlement and payment of debts and expenses (See Sec. 6, Rule 88 above).

Distribution and Partition of the Estate (Rule 90)

When order for distribution of residue made - Sec. 1

General rule : distribution of the residue to persons entitled thereto after notice and hearing and after payment of –

a. debtsb. funeral chargesc. expenses of administrationd. allowance to widow

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e. inheritance tax

Exception: distribution before payment of obligations provided distributees give BOND conditioned for payment thereof within such time as court directs.

Requisites before distribution of estate

1. Liquidation - determination of all assets of the estate and payment of all debts and expenses

2. Declaration of heirs – to determine to whom residue of the estate should be distributed. Separate action for declaration of heirs not proper.

The Regional Trial Court in the instant case, acting in its general jurisdiction, is devoid of authority to render an adjudication and resolve the issue of advancement of the real property in favor of herein petitioner Natcher, inasmuch as Civil Case No. 71075 for reconveyance and annulment of title with damages is not, to our mind, the proper vehicle to thresh out said question.

The net estate of the decedent must be ascertained, by deducting all payable obligations and charges from the value of the property owned by the deceased at the time of his death; then, all donations subject to collation would be added to it With the partible estate thus determined, the legitime of the compulsory heir or heirs can be established; and only then can it be ascertained whether or not a donation had prejudiced the legitimes. (Heirs of Doronio versus Heirs of Doronio, G.R. No. 169454, December 27, 2007)

WHEN PROBATE COURT LOSES JURISDICTION Project of partition – Towards the end of the proceedings in a settlement of estate petition, a project of partition is usually prepared and presented to the court. The project of partition is a PROPOSAL for distribution of the hereditary estimates and determines the persons entitled thereto Finality of approval of project of partition by itself does NOT TERMINATE probate proceeding Timbol vs. Cano, 1 SCRA 1271

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

A judicial partition is not final and conclusive and does not prevent the heir from bringing an action to obtain his share, provided the prescriptive period has not closed (Mari vs. Bonilla, 83 SCRA 1137).

The RTC of Makati, acting as a special commercial court, has no jurisdiction to settle, partition, and distribute the estate of a deceased. A probate court has the power to enforce an accounting as a necessary means to its authority to determine the properties included in the inventory of the estate to be administered, divided up, and distributed. Beyond this, the determination of title or ownership over the subject shares (whether belonging to Anastacia or Oscar) may be conclusively settled by the probate court as a question of collation or advancement. Reyes vs. RTC Makati, Branch 142, G.R. No. 165744, August 11, 2008

Partial distribution of the estate should not have been allowed. There was no determination on sufficiency of assets or absence of any outstanding obligations of the estate of the late Raymond Triviere made by the RTC in this case. In fact, there is a pending claim by LCN against the estate, and the amount thereof exceeds the value of the entire estate. Quasha Ancheta Pena and Nolasco Law Office vs. LCN Construction Corp., G.R. No. 174873, August 26, 2008

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Although the right of an heir over the property of the decedent is inchoate as long as the estate has not been fully settled and partitioned, the law allows a co-owner to exercise rights of ownership over such inchoate right. Once an action for the settlement of an estate is filed with the court, the properties included therein are under the control of the intestate court. And not even the administrator may take possession of any property that is part of the estate without the prior authority of the Court. Silverio, Jr. vs. Court of Appeals, G.R. No. 178933, September 16, 2009

Remedy of heir entitled to residue but not given his share

To demand his share through -

a. a proper motion in the same probate or administration proceedings, OR b. motion to reopen if it had already been closed, and not through an independent

action which would be tried by another court or judge which might reverse a decision or order of the probate court already final and executed and reshuffle properties long ago distributed and disposed of

Guilas vs. Judge of CFI of Pampanga, infra

Four cases illustrate the proper remedy: Vda de Lopez vs. Lopez, Divinagracia vs. Rovira, Guillas vs. Judge of CFI of Pampanga and Heirs of Jesus Fran vs. Salas.

Lopez (35 SCRA 81 ) compared to Divinagracia (72 SCRA 307 ):

Both involved the issue of the reglementary period within which NON-PARTIES to the partition, heir, devisee or any person interested in the estate, can reopen the case.

Conclusion – if proceeding already closed, motion to reopen may be filed by a non-party deprived of his lawful participation, as long as it is within 30 days (now 15 days) or before order closing the proceedings becomes final.

Guilas (43 SCRA 111) compared to Fran (210 SCRA 303):

Both involved PARTIES who have not received their shares.

Conclusion – parties to partition agreement who have not received their shares can file a motion for execution within 5 YEARS. But if other grounds such as forgery of will are raised, final judgment cannot be attacked except through a separate action. The validity of a final judgment can be assailed through a petition for relief under Rule 38, annulment of judgment under Rule 47, and petition for certiorari under Rule 65, assuming the judgment is void for want of jurisdiction.

REMEDY OF PRETERITED HEIR

The intestate proceedings, although closed and terminated, can still be opened within the prescriptive period upon petition by the preterited heir Solivio vs. CA, 182 SCRA 1199

Prescriptive period – 10 years. Action upon an obligation created by law must be brought within 10 years from the time the right of action accrues (Art. 1144, Civil Code).

Where judgment has become final, what is the remedy for inclusion of a party-heir?

After the decision became final and executory, the trial judge lost jurisdiction over the

case. Any modification that he would make, i.e., the inclusion of Mary Lyon Martin would be in excess of his authority. The remedy of Mary is to file an INDEPENDENT SUIT against the parties and all other heirs for her share in the subject property, in order that all the parties in interest can prove their respective claims Nunal vs. CA, 221 SCRA 26 [1991]

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Instances when probate court may issue writ of execution

As a general rule, a probate court cannot issue a writ of execution. Exceptions: 1. To satisfy the distributive shares of devisees, legatees and heirs in possession of the

decedent’s assets 2. To enforce payment of the expenses of partition 3, To satisfy the costs when a person is cited for examination in probate proceedings

SEVEN STAGES IN SETTLEMENT OF ESTATE

1. Petition2. Hearing3. Court Order4. Claims Against Estate5. Payment of Debts of Estate6. Distribution and Partition of Estate7. Closing

SETTLEMENT OF ESTATE

STAGES

I

PETITION

Testate Intestate

Filing of petition Filing of petitionfor allowance for issuance ofof will – by executor, letters ofdevisee, legatee, administration -other interested person person(Rule 76, Secs. 1 & 2) (Rule 79, Sec. 2)

Order setting petition for hearing

Notice of hearing

1. Publication of notice forthree consecutive weeks(Rule 76, Sec. 3)

2. Notice by mail or personallyto designated or known heirs,legatees, devisees, executor(Rule 76, Sec. 4);

known heirs, creditors,other interested persons(Rule 79, Sec. 3)

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II

HEARING

Proof of notice of hearing(Rule 76, Sec. 5)(Rule 79, Sec. 5)

Evidence for petitioner

1. Death of decedent2. Residence at time of death

Testimony/ies of Decedent left no will orsubscribing there is no competentwitness/es and willing executor(Rule 76 Secs. 5 & 11) (Rule 79, Sec. 5)

Petitioner is qualified for

appointment(Rule 78, Secs. 1 & 6)

Proof whentestator is petitioner(Rule 76, Sec. 12)

Evidence for Oppositor

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

III

COURT ORDER

Order or decision allowing will or admitting it to probate

Certificate of allowanceattached to prove will(Rule 76, Sec. 13)

Order for issuanceof letters testamentary(Rule 78, Sec. 4)

Order for issuance ofletters of administration(Rule 79, Sec. 5)

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Issuance of letters by clerk of court

Oath of executor or administrator

Filing of executor or administrator’s bond(Rule 81, Sec. 1)

Filing of inventory within 3 mos.(Rule 81, Sec. 1[a])

Accounting within 1 year(Rule 81, Sec. 1 [c];Rule 85, Sec. 8)

Actions by or against executor or administrator(Rule 87)

IV

CLAIMS AGAINST ESTATE

Notice of filing of claims – time for filing not more than

12 mos. nor less than 6 mos. from first publication

(Rule 86, Secs. 1 & 2)

Publication of notice for 3 consecutive weeks

and posting(Rule 86, Secs. 3 & 4)

Filing of claim and answer thereto(Rule 86, Secs. 9 & 10)

Trial of contested claim(Rule 86, Sec. 12)

Judgment approving or disapproving claim

(Rule 86, Sec. 13)

V

PAYMENT OF DEBTS OF ESTATE

Debts paid in full if estate sufficient(Rule 88, Sec. 1)

Order of payment if estate insolvent

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(Rule 88, Sec. 7)

Order for payment of debts(Rule 88, Sec. 11)

Time for payment not to exceed 1 year, extendible for 1 more year(Rule 88, Sec. 15)

Sales, mortgages and other encumbrancesof property of decedent for payingdebts. etc.(Rule 89)

VI

DISTRIBUTION AND PARTITION OF ESTATE

Rule 90

Approval of final accounting and project of partition

Actual distribution or delivery to heirs of their respective shares

VII

CLOSING

Order declaring proceedings closed and terminated

____________________________________________________________________________

Escheat (Rule 91)

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Escheat defined

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

Nature of Escheat Proceedings

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

Parties in Escheat Proceedings

An escheat proceeding is initiated by the government through the Solicitor General. All interested parties, especially the

- actual occupants and- adjacent lot owners

shall be personally notified of the proceeding and given opportunity to present their valid claims; otherwise, it will be reverted to the state.

When and by whom petition filed – Sec. 1

Requisites for filing petition for escheat1. person died intestate2. he left properties in the Philippines3. he left no heirs or persons entitled to the same.

Where to file

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

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

Order for hearing – Sec. 2

Notice and Publication

1. Date of hearing not more than 6 months after entry of order. 2. Publication of order at least once a week for 6 consecutive weeks in newspaper of

general circulation in the province.

Publication jurisdictional

Publication of the notice of hearing is a jurisdictional requisite, non-compliance with which affects the validity of the proceedings (Divino v. Hilario, 62 Phil. 926).

Hearing and judgment – Sec. 3

Remedy of respondent against escheat petition

Motion to dismiss for failure to state a cause of action. where petition for escheat does not state facts which entitle petitioner to the remedy prayed for (Go Poco Grocery vs. Pacific Biscuit Co., 65 Phil. 443; Rep. vs, PNB, G.R. No. L-16016, Dec. 30, 1961); or other grounds for

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dismissal under the rules (Municipal Council of San Pedro, Laguna vs. Colegio de San Jose, 65 Phil. 318). When and by whom claim to estate filed – Sec. 4

Filing of claim to estate

1. Devisee, legatee, widow, widower or other person entitled to such estate who2. appears and files claim thereto within 5 years from date of judgment

(Note: 5-year period is prescribed to encourage would-be claimants to be punctilious in asserting their claims, otherwise they may lose them forever in a final judgment.)

3. shall have possession and title thereto or if sold, municipality or city accountable to him for proceeds, after deducting reasonable charges of care of estate.

4. Claim not made within said time barred forever.

Other actions for escheat – Sec. 5

Escheat and reversion distinguished – the same in effects; they only differ in procedure.Escheat proceedings may be instituted as a consequence of a violation of Art. XIII of the Constitution which prohibits transfers of private agricultrual land to aliens, whereas an action for reversion is expressly authorized under the Public Land Act. Bellosa vs, Gaw Chee Haw, G.R. No. L-1411, September 29, 1953, 93 Phil. 827

Escheat of unclaimed balances Unclaimed balances which include credits or deposits of money, bullion, security or other evidence of indebtedness of any kind, and interest thereon with banks in favor of any person unheard from for a period of ten (10) years of more, together with the interest and proceeds thereof shall be deposited with the Insular Government of the Philippines as the Philippine Legislature may direct (Act No. 3936, Unclaimed Balances Act, Sec. 1) Action to recover unclaimed balances shall be commenced by the Solicitor General in an action for escheat in the name of the People of the Philippines in the Regional Trial Court of the province where the bank is located, in which shall be joined as parties the bank and such creditors or depositors. All or any member of such creditors or depositors or banks, may be included in one action. Republic vs. Court of First Instance of Manila and Pres.. Roxas Rural Bank, Inc., G.R. No. L-30381, August 30, 1988

General Guardians and Guardianship (Rules 92-97)

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

Basis of Guardianship (Parens Patriae)

Where minors are involved, the State acts as parens patriae. It is the duty of protecting

the rights of persons or individuals who because of age or incapability are in an unfavorable position vis-à-vis other parties.

Purpose of Guardianship

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

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

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Rule on guardianship of minors

Guardianship of minors as distinguished from “incompetents” other than minority is now governed by the RULE ON GUARDIANSHIP OF MINORS (A.M. No. 003-03-05-SC), or RGM, effective May 1, 2003. This was promulgated by the Supreme Court pursuant to the Family Courts Act of 1997 ( RA 8369). which vested in the Family Courts exclusive jurisdiction on guardianship of minors. Sections 1 and 27 of the RGM make it clear that it shall apply only to petitions for guardianship over the person, property or both, of a minor. Petitions for guardianship of incompetents who are not minors shall continue to be governed by Rules 92-97 and heard and tried by regular Regional Trial Cou(rts. Rules 92-97 may therefore be deemed modified by the RGM.

Aside from the RGM, the Supreme Court also issued the following rules pursuant to the Family Courts Act:

1. Rule on Examination of a Child Witness (A.M. No. 00-4-07-SC), effective December 15, 20002. Rule on Juveniles in Conflict with the Law (A.M.No. 02-1-18-SC), effective April 15, 20023. Rule on Commitment of Children (A.M. No. 02-1-19-SC), effective April 15, 20024. Rule on Domestic and Inter-Country Adoption (A.M.No. 02-6-02-SC), effective August 22, 20025. Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable (A.M. No. 02-11-10-SC), effective March 15, 20036. Rule on Legal Separation (A.M. No. 02-11-11-SC), effective March 15, 20037. Rule on Provisional Orders (A.M. No. 02-11-12-SC), effetive March 15, 2003 8. Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Minors (A.M. No. 03-04-04-SC), effective May 15, 20039. Rule on Violence Against Women and Their Childen (A.M. No. 04-10-11-SC), effective November 15, 2004 (following the enactment of RA 9262, An Act Defining Violence against Women and their Children, Providing for Protective Measures for Victims, Prescribing Penalties Therefor, and for Other Purposes, or Anti-VAWCI Law, effective March 27, 2004)

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

General powers and duties of guardians a. Care and custody of person of the ward and b. Management of his estate, or c. Management of his estate only d. The guardian of the estate of a non-resident shall have the management of his estate within the Philippines, and no other court than that in which such guardian was appointed shall have jurisdiction over the guardianship (Sec. 1, Rule 96)

KINDS OF GUARDIANS 1) Legal Guardian – such by provision of law without the need for judicial appointment, as in the case of the parents over the persons of their minor children, or in his absence the mother,

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with respect to the property of the minor children not exceeding P50,000 in value; (2) Guardian ad litem, who is a competent person appointed by the court for purposes of a particular action or proceeding involving a minor; (3) the Judicial guardian, or a person appointed by the court for the person and/or property of the ward to represent the latter in all civil acts and litigation .

Parents as guardians When the property of the child under parental authority is worth P2,000.00 or less, the father or the mother, without the necessity of court appointment, shall be his legal guardian. When the property of the child is worth more than P2,000.00, the father or the mother shall be considered guardian of the child’s property, with the duties and obligations of guardians under these Rules, and shall file the petition required by Section 2 hereof. For good reasons, the court may, however, appoint another suitable person.(Sec. 7, Rule 93)

Bond of parents as guardians of property of minor. - If the market value of the property or the annual income of the child exceeds P50,000.00, the parent concerned shall furnish a bond in such amount as the court may determine, but in no case less than 10% of the value of such property or annual income, to guarantee the performance of the obligations prescribed for general guardians. ( Sec. 16, RGM)

Conditions of the bond of the guardian

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

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

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

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

1. Relative or other person on behalf of the minor2. Minor himself if 14 years of age or over

for the appointment of a general guardian over the person or property, or both, of such minor.

The petition may also be filed by the Secretary of Social Welfare and Development and

Secretary of Health in the case of an insane minor person who needs to be hospitalized.

Contents of petition (Sec. 2, Rule 93)1. jurisdictional facts a. incompetency b. domicile2 incompetency of person for whom guardianship is sought;3. names, ages and residences of relatives of the incompetent and of persons having him in their care4. probable value and character of his estate5. name of person for whom letters of guardianship are prayed

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

Notice of hearing of the petition shall be served on1. persons mentioned in the petition residing in the Philippines;2. incompetent himself

* minor if 14 years of age or over (Sec. 8, RGM)

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NOTICE IS JURISDICTIONAL

Service of notice upon the minor if 14 years of age or over or upon the incompetent is jurisdictional. Without such notice, the court acquired no jurisdiction to appoint a guardian Nery vs. Lorenzo, 44 SCRA 431 [1972]

The rules do not necessitate that creditors of the minor or incompetent be likewise identified and notified. The reason is simple: because their presence is not essential to the proceedings for appointment of a guardian. They will only insist that the supposed minor or incompetent is actually capacitated to enter into contracts, so as to preserve the validity of said contracts and keep the supposed minor or incompetent obligated to comply therewith. Alamayri vs. Pabale, G.R. No. 151243, April 30, 2008

Grounds of petition (Sec. 4, RGM) 1. death, continued absence, or incapacity of his parents 2. suspension, deprivation or termination of parental authority 3. remarriage of his surviving parent, if the latter is found unsuitable to exercise parental authority4. when the best interests of the minor so require

Qualifications of a guardian (Sec. 5, RGM)1. moral character2. physical, mental and psychological condition3. financial status4. relationship of trust with the minor5. availability to exercise the powers and duties of a guardian for the full period of the guardianship6. lack of conflict of interest with the minor7. ability to manage the property of the ward

Rules 92-97 do not contain a provision on the qualifications which the court may consider in appointing a guardian

Who may be appointed guardian of the ward, or order of preference (Sec. 6. RGM)1. surviving grandparent and in case several grandparents survive, the court shall select any of them taking into account all relevant considerations2. oldest brother or sister of the minor over 21 years of age, unless unfit or disqualitied3. actual custodian of the minor over 21 years of age, unless unfit or disqualified4. any other person, who in the sound discretion of the court, would serve the best interests of the minor

Opposition to petition (Sec, 10, RGM)1. majority of the minor2. unsuitability of person for whom letters are prayed

Trustees (Rule 98) When trustee appointed (Sec. 1)

1. A trustee necessary to carry into effect the provisions of aa. Willb. Written instrument

2. shall be appointed by the RTC in which the will is allowed, or3. RTC of the province in which the property or some portion thereof affected by the

trust is situated

Trust defined

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

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

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

Acquiring the trust by prescription

A trustee may acquire the trust estate by prescription provided there is a repudiation of the trust, such repudiation being open, clear and unequivocal, known to the cestui qui trust Salinas vs. Tuazon, 55 Phil. 729.

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

Distinguished from executor/administrator

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

Conditions of the bond (Sec. 6)

The trustee must file a bond in an amount fixed by the court payable to the Government of the Philippines. Failure to do so shall be cosidered as declining or resigning the trust. Conditions of the bond:

1. Make and return to the court a true inventory of all real and personal estate that at the time of the inventory shall have come to his possession or knowledge

2. Manage and dispose of all such estate according to law and the will of the testator or provisions of the instrument or order under which he was appointed

3. Render a true account of the property in his hands 4. At the expiration of the trust, settle his accounts in court and pay over and deliver all the estate remaining in his hands, or due from him on such settlement, to the person or persons entitled thereto

Grounds for removal and resignation of a trustee (Sec. 8)

The court may remove a trustee on the following grounds: 1. The removal appears essential in the interest of the petitioners 2. The trustee is insane 3. The trustee is otherwise incapable of discharging the trust or is evidently unsuitable

to act as one A trustee, whether appointed by the court or under a written instrument, may resign his trust if it appears to the court proper so allow such resignation Extent of authority of trustee

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

Adoption

Nature and concept of adoption

Adoption is a juridical act, a proceeding in rem which creates between two persons a relationship similar to that which results from legitimate paternity and filiation.

Purpose of Adoption

Adoption used to be for the benefit of the adoptor. It was intended to afford persons who have no child of their own the consolation of having one by creating thru legal fiction the relation of paternity and filiation where none exists by blood relationship.

Present tendency – more toward the promotion of the welfare of the child, and enhancement of his opportunities for a useful and happy life.

Under the law now in force, having legitimate, legitimated, acknowledged natural children or children by legal fiction is no longer a ground for disqualification to adopt.

Objectives of Rule on Adoption

a. Best interests of child – paramount consideration in all matters relating to his care, custody and adoption.

b. The state shall provide alternative protection and assistance thru foster care or adoption for every child who is a foundling, neglected, orphaned, or abandoned.

Laws on adoption

The prevailing laws on adoption are RA 8552 ( Domestic Adoption Act of 1998) and RA 8043 (Inter-Country Adoption Act of 1995). Relevant also is the Family Code (EO 209, effectiveAugust 3, 1988, which repealed the substantive provisions of PD 603 and EO 91 on adoption).

Rule on Adoption (A.M. No. 02-6-02-SC), or ROA, effective August 22, 2002 – Guidelines issued by the Supreme Court in petitions for adoption. The Rule repealed Rules 99-100. It covers domestic adoption (Secs. 1-25) and inter-country adoption (Secs. 26-32).

Distinguish domestic adoption from inter-country adoption

KIND Domestic Adoption Inter-country Adoption

Type of Proceeding Judicial Adoption Extrajudicial Adoption

Who may adopt The following may adopt:(a) Any Filipino citizen; (b) Any alien possessing the

same qualifications as above stated for Filipino nationals;

(c)The guardian with respect to

An alien or a Filipino citizen permanently residing abroad may file an application for inter-country adoption of a Filipino child.

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the ward.(Sec. 7)

Who may be adopted The following may be adopted:(a) Any person below eighteen

(18) years of age who has been administratively or judicially declared available for adoption;

(b) The legitimate son/daughter of one spouse by the other spouse;

(c) An illegitimate son/daughter by a qualified adopter to improve his/her status to that of legitimacy;

(d) 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;

(e) A child whose adoption has been previously rescinded; or

(f) A child whose biological or adoptive parent(s) has died; Provided, That no proceedings shall be initiated within six (6) months from the time of death of said parent(s) (Section 8)

Only a legally free child maybe the subject of inter-countryadoption

Where to file application Family Court of the place where the adopter resides

RTC having jurisdiction over the child, or with the Inter-Country Adoption Board, through an intermediate agency, whether governmental or an authorized and accredited agency, in the country of the prospective adoptive parents. (Section 10)

What petition for adoption may include

May include prayer for change of name, rectification of simulated birth or declaration that the child is a foundling, abandoned, dependent or neglected child.

Only petition for adoption.

Supervised trial custody Supervised trial custody period in the Philippines for at least six (6) months (Court may reduce period or exempt parties from trial custody) (Section 12)

Supervised trial custody period in the Philippines for at least six (6) months. (Section 14)

Domestic Adoption

Who may adopt (Sec. 7, RA 8552; Sec. 4, ROA)

1. Any FILIPINO- of legal age - in possession of full civil capacity and legal rights- of good moral character- has not been convicted of any crime involving moral turpitude

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- emotionally and psychologically capable of caring for children- at least 16 yrs. older than the adoptee* may be waived when adopter is biological parent of adoptee or is spouse of adoptee’s parent- in a position to support and care for his children in keeping with means of the family.

2. Any ALIEN possessing same qualifications, subject to certain conditions.

Husband and wife must jointly adopt (Sec. 7, RA 8552; Sec. 4, ROA)

Exceptions:a) if one spouse seeks to adopt legitimate child of the other;b) if one spouse seeks to adopt his own illegitimate child (provided the other spouses

signified his consent thereto)c) if the spouses are legally separated from each other.

In case husband and wife jointly adopt or one spouse adopts the illegitimate child of the other, joint parental authority shall be exercised by the spouses.

Venue (Sec. 6, ROA)Family court of province or city where prospective adoptive parents reside

Whose consent necessary (Sec. 9, RA 8552)

1. biological parents of adoptee, if known *However, consent of biological parents, even if they are known, is not necessary if

they have ABANDONED the child (Lang vs. CA, 298 SCRA 128 [1998]).

2. adoptee, if 10 years of age or older3. legitimate or adopted children of adopter or adoptee, if 10 years of age or older4. illegitimate children of adopter, if living with him, if 10 years of age or older5. spouse of adopter or adoptee

Change of name (Sec. 10, ROA)

In case petition also prays for change of name, title or caption must contain:

1. registered name of child 2. aliases of other names by which child has been known 3. full name by which child is to be known

Order of Hearing (Sec. 12, ROA)

PUBLICATION JURISDICTIONAL

Adoption is action in rem – involves the status of persons.

Decree of Adoption (Sec. 16, ROA) If supervised trial custody SATISFACTORY and - court CONVINCED from trial custody report and evidence adduced that

- adoption shall redound to BEST INTERESTS of adoptee- DECREE OF ADOPTION issued which shall take effect as of date original petition filed

even if petitioners DIE before issuance

Effects of adoption – parental authority, legitimacy, succession (See Secs. 16-18, RA 8552)

(1) For civil purposes the adopted shall be deemed to be a legitimate child of the adoptioners and both shall acquire the reciprocal rights and obligations arising from the

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relationship of parents and child, including the right of the adopted to use the surname of the adopters; (2) The parental authority of the parents by nature over the adoped shall terminate and be vested in the adopters, except that if the adopter is the spouse of the parents by nature of the adopted, the parental authority over the adopted shall be exercised jointely by both spouses; and (3) The adopted shall remain an intestate heir of his parents and other blood relatives. (Art. 189, Family Code)

Adoption strictly between adopter and adopted

If adopting parent should die before adopted child, latter cannot represent the adopter in the inheritance from the parents and ascendants of the adopter. Adopted child is not related to the deceased in that case because filiation created by fiction of law is exclusive between adopted and adopter. By adoption, the adopters can make for themselves an heir but they cannot make one for their relatives. Republic vs. Valencia, G.R. No. L-32181, March 5, 1986

An illegitimate child, upon adoption by her natural father, may use the surname of her natural mother as her middle name.

In the Matter of the Adoption of Stephanie Nathy Astorga Garcia, G.R. No. 148311, March 31, 2005.

Heirs of the adopted child (Art. 190, Family Code)

RESCISSION OF ADOPTION (Sec. 19, RA 8552; Sec. 19, ROA)

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

Adoption, being for best interests of child, not subject to rescission by ADOPTER. However, the adopter may disinherit the adoptee for causes provided in Article 919 of the Civil Code.

Venue - Family Court of province where adoptee resides (Sec. 20, ROA)

Time within which to file petition (Sec. 21, ROA)

If MINOR – within 5 yrs. after reaching age of majority If INCOMPETENT – within 5 yrs. after recovery from incompetency.

Effects of rescission of adoption (Sec. 23, ROA)

(a) parental authority of the biological parent of the adoptee, if known, or the legal custody of

DSWD is restored if the adoptee is still a minor or incapacitated;(b) reciprocal rights and obligations of the adopter and adoptee to each other are

extinguished;(c) succession rights revert to their status prior to adoption, as of the date of judgment of

rescission, but vested rights acquired prior to rescission are to be respected(d) court shall order adoptee to use the name stated In the original birth or foundling

certificate(e) court shall order the Civil Registrar where the adoption decree was registered to cancel the new birth certificate of the adoptee and reinstate the original birth or foundling certificate

Inter-country Adoption

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a. when allowed

Inter-country adoption of Filipino children by foreign nationals and Filipino citizens

permanently residing abroad is allowed by law if such children cannot be adopted by qualified Filipino citizens or aliens.

b. functions of the RTC (Family Court)

A verified petition for inter-country adoption may be filed by a foreign national or Filipino citizen permanently residing abroad with the Family Court having jurisdiction over the place where the child resides or may be found. Its functions are (1) receive the application, (b) assess the qualification of the prospective adopter and (3) refer its findings, if favorable, to the Inter-Country Adoption Board. The latter, on its own, however, can receive the original application (Sec. 10, RA 8043; Secs. 28 & 32, ROA)

The Inter-Country Adoption Board is the central authority in matters relating to

intercountry adoption. It is the policy-making body for purposes of carrying out the provisions of the law, in

consultation and coordination with the DSWD, the different child-care and placement agencies, adoptive agencies as well as non-governmental organizations engaged in child care and placement activities (Sec. 4, RA 8043).

c. “best interest of the minor” standard

Inter-country adoption is allowed only when the same shall prove beneficial to the child’s best interests, and shall serve and protect his/her fundamental rights (Sec. 2, RA 8043,)

Only a child legally available for domestic adoption may be the subject of inter-

country adoption (Sec. 29, ROA). Financial qualification in adoption

Since the primary consideration in adoption is the best interest of the child, it follows that the financial capacity of prospective parents should also be carefully evaluated and considered. Certainly, the adopter should be in a position to support the would-be adopted child or children, in keeping with the means of the family..

Landingin vs. Republic, G.R. No. 164948, June 27, 2006

Habeas Corpus (Rule 102)

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

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

Specifically: 1. to obtain immediate relief from illegal confinement 2. to liberate those who may be imprisoned without sufficient cause 3. to deliver them from unlawful custody

Essentially a writ of inquiry and is granted to test the right under which a person is

detained

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Velasco v. CA, 245 SCRA 677 In general, the purpose of the writ of habeas corpus is to determine whether or not a particular person is legally held. A prime specification of an application for a writ of habeas corpus, in fact, is an actual and effective, and not merely nominal or moral, illegal restraint of liberty. In the Matter of the Petition of Habeas Corpus of Eufemia Rodriguez vs. Luisa Villanueva, G.R. No. 169482, January 29, 2008

It is a remedy intended to determine whether the person under detention is held under lawful authority In the second part of the same provision, however, Habeas Corpus may be resorted to in cases where "the rightful custody of any person is withheld from the person entitled thereto." It may even be said that in custody cases involving minors, the question of illegal and involuntary restraint of liberty is not the underlying rationale for the availability of the writ as a remedy; rather, the writ of habeas corpus is prosecuted for the purpose of determining the right of custody over a child. Sombong v. CA, G.R. No. 111876, January 31, 1996

Habeas corpus is a summary remedy. It is analogous to a proceeding in rem when instituted for the sole purpose of having the person of restraint presented before the judge in order that the cause of his detention may be inquired into and his statements final.The writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be the unlawful authority.Hence, the only parties before the court are the petitioner (prisoner) and the person holding the petitioner in custody, and the only question to be resolved is whether the custodian has authority to deprive the petitioner of his liberty Caballes vs. CA, G.R. No. 163108, February 23, 2005

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

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

Distinguish peremptory writ from preliminary citation

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

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

Order to produce body not a grant of the remedy of habeas corpus In a habeas corpus petition, the order to present an individual before the court is a preliminary step in the hearing of the petition. The respondent must produce the person and explain the cause of his detention. However, this order is not a ruling on the propriety of the remedy or on the substantive matters covered by the remedy. Thus, the Court’s order to the

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Court of Appeals to conduct a factual hearing was not an affirmation of the propriety of the remedy of habeas corpus. In the Matter of the Petition for Habeas Corpus of Alejano vs. Cabuay, G.R. No. 160792, August 25, 2005 When not proper/applicable

a. For asserting or vindicating denial of right to bail (Enrile vs. Salazar, 186 SCRA 217 [1990]) b. For correcting errors in appreciation of facts and/or in the application of law. It is not a writ of error. Sotto vs. Director of Prisons, May 30, 1962

When writ disallowed/discharged authorized (Sec. 4) a. When the person alleged to be restrained of his liberty is in the custody of an officer 1. under process issued by a court or judge or 2. by virtue of a judgment or order of a court of record and 3. the court or judge had jurisdiction to issue the process, render the judgment or make the order

the writ shall not be allowed b. When a person is 1. charged with or 2. convicted of an offense or 3. suffering imprisonment under lawful judgment

his discharge shall not be authorized

Writ of habeas corpus cannot be issued once person is charged with a criminal offense

Under Section 1, Rule 102 of the Rules of Court, the writ of habeas corpus extends to “all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto.” The remedy of habeas corpus has one objective: to inquire into the cause of detention of a person, and if found illegal, the court orders the release of the detainee. If, however, the detention is proven lawful, then the habeas corpus proceedings terminate. In the Matter of the Petition for Habeas Corpus of Kunting, G.R. No. 167193, April 19, 2006

Effect of filing of charges in court1. Once person detained is duly charged in court, he may no longer

question his detention by petition for habeas corpus 2. Remedy: motion to quash the information and/or warrant of arrest 3. Filing of bond for temporary release is waiver of illegality of detention Bernarte vs. CA, G.R. No. 107741, October 18, 1996 Petitioner was detained pursuant to a final judgment of the Quezon City RTC convicting him for the crimes of carnapping and illegal possession of firearms. He is therefore not entitled to the writ of habeas corpus. The rule is that if a person alleged to be restrained of his liberty is in custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a court of record the writ of habeas corpus will not be allowed. Barredo vs. Vinarao,. G.R. No. 168728, August 2, 2007

Once a person detained is duly charged in court, he may no longer question his detention through a petition for issuance of a writ of habeas corpus. His remedy would be to quash the information and/or the warrant of arrest duly issued. The writ of habeas corpus should not be allowed after the party sought to be released had been charged before any court. The term “court” includes quasi-judicial bodies or governmental agencies authorized to order the person’s confinement, like the Deportation Board of the Bureau of Immigration. The provisional or temporary release of Gao Yuan also effectively granted the petition for habeas corpus insofar as the discharge of the detainee is concerned, since the main prayer in a petition for habeas corpus relates to the release or discharge of the detainee. The general rule

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is that the release, whether permanent or temporary, of a detained person renders the petition for habeas corpus moot and academic. Office of the Solicitor General vs. Judge de Castro, A.M. No. RTJ-06-2018 (Formerly Adm. Matter OCA-IPI No. 05-2360-RTJ), August 3, 2007 The writ of habeas corpus should not be allowed after the party sought to be released had been charged before any court. The term “court” in this context includes quasi-judicial bodies of governmental agencies authorized to order the person’s confinement, like the Deportation Board of the Bureau of Immigration. Likewise, the cancellation of his bail cannot be assailed via a petition for habeas corpus. When an alien is detained by the Bureau of Immigration for deportation pursuant to an order of deportation by the Deportation Board, the Regional Trial Courts have no power to release such alien on bail even in habeas corpus proceedings because there is no law authorizing it Go, Sr. vs. Ramos, G.R. No. 167569, September 4, 2009

Even if the arrest of a person is illegal, supervening events may bar his release or discharge from custody, such as the filing of a complaint and issuance of order denying petition for bail. By then, the restraint of liberty is already by virtue of the complaint or information and, therefore, the writ of habeas corpus is no longer available.  Velasco vs. CA, G.R. No. 118644, July 7, 1995

Kidnapping & serious illegal detention 1. Filing of charges and issuance of warrant of arrest cures defect of

invalid detention 2. Absence of preliminary investigation – will not nullify information and warrant of arrest Larrañaga vs. CA, G.R. No. 130644, March 13, 1998

Absence of preliminary investigation not a ground for habeas corpus. Remedy: motion to quash warrant of arrest and/or information, or ask for investigation/reinvestigation Paredes vs. Sandiganbayan, G.R. No. 89989, January 28, 1991

N.B. Rule 114, Sec. 26 of 2000 Revised Rules of Criminal Procedure: Bail not a bar to objections on illegal arrest, lack of or irregular preliminary investigation, provided he raises them BEFORE entering his plea

Grant of writ

When court is satisfied that prisoner does not desire to appeal, the prisoner shall be forthwith released (Sec. 15)

Period to appeal – within 48 hours from notice of judgment or final order appealed from (Rule 41, Sec. 3, as amended by A.M.No. 01-1-03-SC, July 19, 2001).

Habeas corpus as a post-conviction remedy

The writ of habeas corpus applies to all cases of illegal confinement or detention in which individuals are deprived of liberty. The writ may not be availed of when the person in custody is under a judicial process or by virtue of a valid judgment.

However, as a post-conviction remedy, it may be allowed when, as a consequence of a judicial proceeding, any of the following exceptional circumstances is attendant: (1) there has been a deprivation of a constitutional right resulting in the restraint of a person; (2) the court had no jurisdiction to impose the sentence; or (3) the imposed penalty has been excessive, thus voiding the sentence as to such excess.

Go vs. Dimagiba, G.R. No. 151876, June 21, 2005; Andal v. People, 307 SCRA 605 [1999]

When constitutional rights disregarded – writ may issue Exceptional remedy to

release a person whose liberty is illegally restrained such as when the constitutional rights of the accused are disregarded. Such defect results in the absence or loss of jurisdiction and therefore invalidates the trial and consequent conviction of the accused. That void judgment

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may be challenged by collateral attack which precisely is the function of habeas corpus. .  This writ may issue even if another remedy which is less effective may be availed of by the defendant.  Thus, failure by the accused to perfect his appeal before the Court of Appeals does not preclude a recourse to the writ.  The writ may be granted upon a judgment already final. 

Chavez v. CA, . G.R. No. L-29169, August 19, 1968

Section 1, Rule 102 of the Rules of Court provides that a petition for the issuance of a writ of habeas corpus may be availed of in cases of illegal confinement by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto. The writ may also be issued where, as a consequence of a judicial proceeding, (a) there has been a deprivation of a constitutional right resulting in the restraint of a person; (b) the court had no jurisdiction to impose the sentence; or (c) an excessive penalty has been imposed, as such sentence is void as to such excess. In the Matter of the Application for the Writ of Habeas Corpus Reclassifying Sentence to R.A. NO. 8353 in Behalf of Rogelio Ormilla, et al. vs, The Director, Bureau of Corrections, G.R. No. 170497, January 22, 2007

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

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

Retroactive effect of favorable law -

1. Caco sentenced to life imprisonment for violation of Dangerous Drugs Act (RA 6425) 2. Filed motion for modification of sentence pursuant to RA 7659 and People vs. Simon and People vs. De Lara that where marijuana is less than 200 grams penalty is prision correccional 3. Petition granted – provisions of RA 7659 favorable to accused should be given retroactive effect.

4. Where decision already final, appropriate remedy of accused to secure release from prison is petition for habeas corpus

People vs. Caco, G.R. Nos. 94994-95, March 7, 1997

Habeas corpus and certIorari 1. Habeas corpus and certiorari may be ancillary where necessary to give effect to supervisory power of higher courts 2. Habeas corpus – reaches body and jurisdictional matters but not the records 3. Certiorari – reaches record but not the body  4. However, habeas corpus does not lie where the petitioner has the remedy of appeal or certiorari because it will not be permitted to perform the functions of a writ of error or appeal for the purpose of reviewing mere errors or irregularities in the proceedings of a court having jurisdiction over the person and the subject matter.  5. Habeas corpus is not ordinarily available in advance of trial to determine jurisdictional questions that may arise.  6. Not appropriate for asserting right to bail – file petition to be admitted to bail Galvez vs. CA, G.R. No. 114046 October 24, 1994

The record shows that Judge Perello granted the writs of habeas corpus even without the pertinent copies of detention and judgment of conviction. This is contrary to the provisions of Section 3(d) of Rule 102 of the Rules of Court. The Rules clearly require that a copy of the commitment or cause of detention must accompany the application for the writ of habeas corpus.

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Office of the Court Administrator vs. Judge Perello, A.M. No. RTJ-05-1952, December 24, 2008

Habeas corpus in custody cases

Habeas corpus may be resorted to in cases where rightful custody is withheld from a

person entitled thereto. Under Article 211 of the Family Code, respondent Loran and petitioner Marie Antonette have joint parental authority over their son and consequently joint custody. Further, although the couple is separated de facto, the issue of custody has yet to be adjudicated by the court. In the absence of a judicial grant of custody to one parent, both parents are still entitled to the custody of their child. In the present case, private respondent’s cause of action is the deprivation of his right to see his child as alleged in his petition. Hence, the remedy of habeas corpus is available to him. In a petition for habeas corpus, the child’s welfare is the supreme consideration. The Child and Youth Welfare Code unequivocally provides that in all questions regarding the care and custody, among others, of the child, his welfare shall be the paramount consideration. Salientes vs. Abanilla, G.R. No. 162734, August 29, 2006

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

A writ of habeas corpus extends to all cases of illegal confinement or detention or by which the rightful custody of person is withheld from the one entitled thereto. Respondent, as the judicial guardian of Lulu, was duty-bound to care for and protect her ward. For her to perform her obligation, respondent must have custody of Lulu. Thus, she was entitled to a writ of habeas corpus after she was unduly deprived of the custody of her ward. Hernandez vs. San Juan-Santos, G.R. No. 166470, August 7, 2009

Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors

(A.M. No. 03-04-04-SC) – took effect May 15, 2003 a. A verified petition for the rightful custody of a minor may be filed by any person claiming such right. The petition shall be filed with the Family Court of the province or city where the petitioner resides or where the minor may be found. b. After trial, the court shall render judgment awarding custody of the minor to the proper party considering the best interests of the minor. c. However, if it appears that both parties are unfit to have the care and custody of the minor, the court may designate either the paternal or maternal grandparent of the minor or his oldest brother or sister, or any reputable person to take charge of such minor, or commit him to any suitable home for children.

d. The court may issue any order that is just and reasonable permitting the parent who is deprived of the care and custody of the minor to visit or have temporary custody.

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

Distinguish from writ of amparo and habeas data (See Table)

WRIT OF HABEAS CORPUS AMPARO HABEAS DATA

DEFINITION “Habeas corpus” is a Latin phrase which literally means “you have the body.” It is a

It is a remedy available to any person whose right to life, liberty, and security has been

It is a remedy available to any person whose right to privacy in life,

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writ directed to the person detaining another, commanding him to produce the body of the prisoner at a designated time and place, with the day and cause of his capture and detention, to do, submit to, and receive whatsoever the court or judge awarding the writ shall consider in that behalf.

violated or is threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ covers extralegal killings and enforced disappearances or threats thereof.

liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing data or information regarding the person, family, home and correspondence of the aggrieved party.

AVAILABILITY

Sec. 1 To all cases of illegal confinement or detention:

1. By which any person is deprived of his liberty; or

2. By which the rightful custody of any person is withheld from the person entitled thereto.

Sec. 1

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.

Sec. 1

To any person whose right to privacy in life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in:

1. Gathering2. Collecting3. Storing

Of data or information regarding the person family, home and correspondence of the aggrieved party.

PETITIONER Sec. 3

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

Sec. 2

By the aggrieved party, or by any qualified person or entity in the order provided in Sec. 2

Sec. 2

General rule:

The aggrieved party

Except:

In cases of extralegal killings and enforced disappearances:

1. Immediate family;2. In default of no. 1, ascendant, descendant or collateral relative within the 4th civil degree of consanguinity or

41

affinity.

VENUE If filed with RTC, where detainee is detained

.

Sec. 3

SC, CA and SB

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

Sec. 3

SC, CA and SB

RTC:

1. Where petitioner resides; or2. Where respondent resides; or3. Which has jurisdiction over the place where data or information is gathered, etc.

All at the option of petitioner.

EXTENT OF ENFORCEABILITY

SC, CA and SB: anywhere in the Philippines

RTC: only within its judicial district

Sec. 3

Anywhere in the Philippines

Sec. 4

Anywhere in the Philippines

WHEN TO FILE/EXEMPTION FROMDOCKET FEES

Sec. 2

On any day and at any time

Sec. 3

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

Sec. 5

Indigent petitioner exempt from docket fees

SETTING OF HEARING

Sec. 12

Hearing on return

Sec. 6

Not later than 7 days from date of issuance of writ

Sec. 7

Not later than 10 days from date of issuance of writ

HOW SERVED Sec. 7

Service of the writ shall be made by leaving the original with the person to whom it is directed and preserving a copy on which to make return of service. If that person cannot be found, or has not the prisoner in custody then the service shall be made on any person having or exercising such custody

Sec. 8

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

Sec. 9

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

FILING OF RETURN Sec. 10

Signed and shall also be sworn to if the

Sec. 9

Verified written return within 5 work days from

Sec. 9

Verified written return within 5 days from

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prisoner is not produced service of writ

- cannot be extended except on highly meritorious grounds

service of writ

-may be reasonably extended by the court for justifiable grounds

EFFECT OF FAILURE TO FILE RETURN

Sec. 12

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

Sec. 14

In case respondent fails to return, the court, justice or judge shall proceed to hear the petition ex parte, granting petitioner such relief as the petition may warrant unless the court in its discretion requires petitioner to submit evidence.

PROHIBITED PLEADINGS AND MOTIONS

Sec. 11

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

Sec. 13

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

SUMMARY HEARING Sec. 13

The hearing on the petition shall be summary. However, the court, justice or judge

Sec. 15

Same as WOA

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may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties.

The hearing shall be from day to day until completed and given the same priority as petitions for habeas corpus.

INTERIM RELIEFS SEC. 12

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

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

Sec. 14

(a) Temporary Protection Order.

(b) Inspection Order.

(c) Production Order.

(d) Witness Protection Order.

JUDGMENT Sec. 15

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

Sec. 18

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

Sec. 16

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

APPEAL Sec. 15 in relation to Sec. 3 Rule 41 and Sec. 39 of BP 129:

Sec. 19

Rule 45 by petition for review on certiorari with

Sec. 19

Same as WOA

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48 hours from notice of judgment appealed from by ordinary appeal

peculiar features:

1. Appeal may raise questions of fact or law or both;

2. Period of appeal shall be 5 working days from the date of notice of the adverse judgment;

3. Same priority as habeas corpus cases

INSTITUTION OF SEPARATE ACTIONS

Sec. 21

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

Sec. 20

Same as WOA

EFFECT OF FILING CRIMINAL ACTION

Sec. 2

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

Sec. 21

Same as WOA

CONSOLIDATION Sec. 23

When a criminal action is filed subsequent to the filing of a petition for the writ, the latter shall be consolidated with the criminal action.

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

Sec. 22

Same as WOA

Writ of Amparo (A.M. No. 07-9-12-SC) - October 24, 2007

Coverage – what the writ includes (Sec. 1) (See Table under Definition)

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

“Enforced disappearances” – attended by the following characteristics: an arrest,

detention or abduction of a person by a government official or organized groups or

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private individuals acting with the direct or indirect acquiescence of the government; the refusal of the State to disclose the fate or whereabouts of the person concerned or a refusal to acknowledge the deprivation of liberty which places such persons outside the protection of law.

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

Both preventive and curative The remedy of the writ of amparo serves both preventive and curative roles in addressing the problem of extrajudicial killings and enforced disappearances. It is preventive in that it breaks the expectation of impunity in the commission of these offenses, and it is curative in that it facilitates the subsequent punishment of perpetrators by inevitably leading to subsequent investigation and action. Rodriguez vs. Arroyo, G.R. No. 191805, November 15, 2011

Distinguish from habeas corpus and habeas data (See Table)

Differences between Amparo and search warrant

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

Who may file - Sec. 2 (See Table)

Venue and extent of enforceability - Sec. 3 (See Table)

Contents of Petition – Sec. 5

a. Personal circumstances of the petitioner;b. Name and personal circumstances of the respondent responsible for the threat, act or

omission, or, if the name is unknown or uncertain, the respondent may be described by an assumed appellation;

c. Right to life, liberty and security of the aggrieved party violated or threatened with violation by an unlawful act or omission of the respondent, and how such threat or violation is committed with the attendant circumstances detailed in supporting affidavits;

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d. Investigation conducted , if any, specifying the names, personal circumstances, and addresses of the investigating authority or individuals, as well as the manner and conduct of the investigation, together with any report;

e. Actions and recourses taken by the petitioner to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible for the threat, act or omission; and

f. Relief prayed for.

The petition may include a general prayer for other just and equitable reliefs.

Issuance of the Writ - Sec. 6Upon the filing of the petition, 1. the court, justice or judge shall immediately order the issuance of the writ if on its face it ought to issue. 2. The clerk of court shall issue the writ under the seal of the court; or in case of urgent necessity, 3. the justice or the judge may issue the writ under his or her own hand, and may deputize any officer or person to serve it.

Contents of return - Sec. 9 (a) Lawful defenses to show that respondent did not violate or thereaten with violation the right to life, liberty or security of the aggrieved party, through any act or omisson . (b) Steps or actions taken by the respondent to determine the facts or whereabouts of the aggrieved party and person /s responsible for the threat, act or omission; (c) All relevant information in the possession of respondent pertaining to the threat, act or omission against the aggrieved party; (d) If respondent is a public official or employee, the return shall further state the actions that have been or will be taken: (i) to verify the identity of the aggrieved party; (ii) to recover and preserve evidence related to the death or disappearance of the person identified in the petition which may aid in the prosecution of the person or persons

responsible; (iii) to identify witnesses and obtain statements from them concerning the death or

disappearance (iv) to determine the cause, manner, location and time of death or disappearance as well as

any pattern or practice that may have brought about the death or disappearance; (v) to identify and apprehend the person or persons involved in the death or disappearance;

and (vi) to bring the suspected offenders before a competent court. A general denial of the allegations in the petition shall not be allowed.

Omnibus waiver rule – Sec. 10 Defenses Not Pleaded Deemed Waived. -- All defenses shall be raised in the return, otherwise, they shall be deemed waived

Effect of failure to file return - Sec. 12 (See Table)

Prohibited pleadings and motions – Sec. 11 (See Table)

Procedure for hearing - Sec. 13 (See Table on Summary Hearing)

Interim reliefs available to petitioner – Sec. 14 (See Table)

Interim reliefs available to respondent - Sec. 15

Quantum of proof in application for issuance of Writ of Amparo - Sec. 17

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

Judgment – Sec. 18 (See Table) 1. The court shall render judgment within ten (10) days from the time the petition is submitted for decision. 2. If the allegations in the petition are proven by substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate; 3. Otherwise, the privilege shall be denied.

Appeal – Sec. 19 (See Table)

Institution of separate actions - Sec 21 (See Table)

Effect of filing of a criminal action - Sec. 22 (See Table)

Consolidation - Sec. 23 (See Table)

Jurisprudence

  The remedy is initiated through a petition to be filed in a Regional Trial Court, Sandiganbayan, the Court of Appeals, or the Supreme Court.The judge or justice then makes an "immediate" evaluation of the facts as alleged in the petition and the affidavits submitted "with the attendant circumstances detailed". After evaluation, the judge has the option to issue the Writ of Amparo or immediately dismiss the case. Dismissal is proper if the petition and the supporting affidavits do not show that the petitioner's right to life, liberty or security is under threat or the acts complained of are not unlawful. On the other hand, the issuance of the writ itself sets in motion presumptive judicial protection for the petitioner. The court compels the respondents to appear before a court of law to show whether the grounds for more permanent protection and interim reliefs are necessary. De Lima vs. Gatdula, G.R. No. 204528, February 19, 2013

The privilege of the Writ of Amparo should be distinguished from the actual order called the Writ of Amparo. The privilege includes availment of the entire procedure outlined in A.M. No. 07-9-12-SC, the Rule on the Writ ofAmparo. After examining the petition and its attached affidavits, the Return and the evidence presented in the summary hearing, the judgment should detail the required acts from the respondents that will mitigate, if not totally eradicate, the violation of or the threat to the petitioner's life, liberty or security. De Lima vs. Gatdula, G.R. No. 204528, February 19, 2013 The Rules on the Writs of Habeas Corpus and Amparo are clear; the act or omission or the threatened act or omission complained of - confinement and custody for habeas corpus and violations of, or threat to violate, a person’s life, liberty, and security for amparo cases - should be illegal or unlawful. Certainly, with the dismissal of the non-bailable case against accused Guisande, she is no longer under peril to be confined in a jail facility, much less at the NCMH. Effectively, accused Guisande’s person, and treatment of any medical and mental malady she may or may not have, can no longer be subjected to the lawful processes of the RTC Mandaluyong City. In short, the cases have now been rendered moot and academic So vs. Tacla, G.R. No. 190108,  October 19, 2010

The Rule on the Writ of Amparo explicitly states that the violation of or threat to the right to life, liberty and security may be caused by either an act or an omission of a public official. Moreover, in the context of amparo proceedings, responsibility may refer to the participation of

48

the respondents, by action or omission, in enforced disappearance. Accountability, on the other hand, may attach to respondents who are imputed with knowledge relating to the enforced disappearance and who carry the burden of disclosure; or those who carry, but have failed to discharge, the burden of extraordinary diligence in the investigation of the enforced disappearance Rodriguez vs. Arroyo, G.R. No. 191805, November 15, 2011

The writ of amparo partakes of a summary proceeding that requires only substantial evidence to make the appropriate interim and permanent reliefs available to the petitioner. As explained in the Decision, it is not an action to determine criminal guilt requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of evidence, or even administrative responsibility requiring substantial evidence. The totality of evidence as a standard for the grant of the writ was correctly applied by this Court, as first laid down in Razon v. Tagitis: The fair and proper rule, to our mind, is to consider all the pieces of evidence

adduced in their totality, and to consider any evidence otherwise inadmissible under our usual rules to be admissible if it is consistent with the admissible evidence adduced. In other words, we reduce our rules to the most basic test of reason – i.e., to the relevance of the evidence to the issue at hand and its consistency with all other pieces of adduced evidence. Thus, even hearsay evidence can be admitted if it satisfies this basic minimum test.

Rodriguez vs. Arroyo, G.R. No. 191805, April 16, 2013

This Decision reflects the nature of the Writ of Amparo – a protective remedy against violations or threats of violation against the rights to life, liberty and security.3 It embodies, as a remedy, the court’s directive to police agencies to undertake specified courses of action to address the disappearance of an individual, in this case, Engr. Morced N. Tagitis. It does not determine guilt nor pinpoint criminal culpability for the disappearance; rather, it determines responsibility, or at least accountability, for the enforced disappearance for purposes of imposing the appropriate remedies to address the disappearance. Razon vs. Tagitis, G.R. No. 182498,  December 3, 2009

For the protective writ of amparo to issue, allegation and proof that the persons subject thereof are missing are not enough. It must also be shown and proved by substantial evidence that the disappearance was carried out by, or with the authorization, support or acquiescence of, the State or a political organization, followed by a refusal to acknowledge the same or give information on the fate or whereabouts of said missing persons, with the intention of removing them from the protection of the law for a prolonged period of time. Simply put, the petitioner in an amparo case has the burden of proving by substantial evidence the indispensable element of government participation. To fall within the ambit of A.M. No. 07-9-12-SC in relation to RA No. 9851 (An Act Defining And Penalizing Crimes Against International Humanitarian Law, Genocide And Other Crimes Against Humanity), the disappearance must be attended by some governmental involvement. This hallmark of State participation differentiates an enforced disappearance case from an ordinary case of a missing person. Navia vs. Pardico, G.R. No. 184467, June 19, 2012

The threatened demolition of a dwelling by virtue of a final judgment of the court is not included among the enumeration of rights for which the remedy of a writ of amparo is made available. Their claim to their dwelling, assuming they still have any despite the final and executory judgment adverse to them, does not constitute right to life, liberty and security. There is, therefore, no legal basis for the issuance of the writ of amparo. Canlas vs. Napico Homeowners Association I – XIII, Inc.,. G.R. No. 182795, June 5, 2008

Under these legal and factual situations, we are far from satisfied with the prima facie existence of the ultimate facts that would justify the issuance of a writ of amparo. Rather than acts of terrorism that pose a continuing threat to the persons of the petitioners, the violent incidents alleged appear to us to be purely property-related and focused on the disputed land. Thus, if the petitioners wish to seek redress and hold the alleged perpetrators criminally

49

accountable, the remedy may lie more in the realm of ordinary criminal prosecution rather than on the use of the extraordinary remedy of the writ of amparo. Tapuz vs. Judge del Rosario, G.R. No.182484, June 17, 2008

To start off with the basics, the writ of amparo was originally conceived as a response to the extraordinary rise in the number of killings and enforced disappearances, and to the perceived lack of available and effective remedies to address these extraordinary concerns. It is intended to address violations of or threats to the rights to life, liberty or security, as an extraordinary and independent remedy beyond those available under the prevailing Rules, or as a remedy supplemental to these Rules. What it is not, is a writ to protect concerns that are purely property or commercial. Neither is it a writ that we shall issue on amorphous and uncertain grounds. 

Castillo vs. Cruz, G.R. No. 182165,   November 25, 2009

Sec. 22 of the Amparo Rule proscribes the filing of an amparo petition should a criminal action have, in the meanwhile, been commenced. The succeeding Sec. 23, on the other hand, provides that when the criminal suit is filed subsequent to a petition for amparo, the petition shall be consolidated with the criminal action where the Amparo Rule shall nonetheless govern the disposition of the relief under the Rule. Rubrico vs. Arroyo, G.R. No. 183871, February 18, 2010 Here, the restriction on petitioner’s right to travel as a consequence of the pendency of the criminal case filed against him was not unlawful. Petitioner has also failed to establish that his right to travel was impaired in the manner and to the extent that it amounted to a serious violation of his right to life, liberty and security, for which there exists no readily available legal recourse or remedy. (Issuance of Hold Departure Order against Fr. Robert Reyes, who was among those charged with rebellion in connection with the Manila Peninsula siege) Reyes vs. Gonzales, G.R. No. 182161, December 3, 2009

An inspection order is an interim relief designed to give support or strengthen the claim of a petitioner in an amparo petition, in order to aid the court before making a decision. A basic requirement before an amparo court may grant an inspection order is that the place to be inspected is reasonably determinable from the allegations of the party seeking the order. In this case, the issuance of inspection order was properly denied since the petitioners specified several military and police establishments based merely on the allegation that the testimonies of victims and witnesses in previous incidents of similar abductions involving activists disclosed that those premises were used as detention centers. In the same vein, the prayer for issuance of a production order was predicated on petitioners’ bare allegation that it obtained confidential information from an unidentified military source, that the name of James was included in the so-called Order of Battle. Indeed, the trial court could not have sanctioned any "fishing expedition" by precipitate issuance of inspection and production orders on the basis of insufficient claims of one party. Balao vs. Arroyo, G.R. No. 186050, December 13, 2011

The Amparo Rule placed a potent safeguard—requiring the "respondent who is a public official or employee" to prove that no less than "extraordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty." Thus, unless and until any of the public respondents is able to show to the satisfaction of the amparo court that extraordinary diligence has been observed in their investigations, they cannot shed the allegations of responsibility despite the prevailing scarcity of evidence to that effect. With this in mind, We note that extraordinary diligence, as required by the Amparo Rule, was not fully observed in the conduct of the police and military investigations in the case at bar. Roxas vs. Arroyo, G.R. No. 189155, September 7, 2010

The right to security of a person includes the positive obligation of the government to ensure the observance of the duty to investigate. Secretary of National Defense vs. Manalo, G.R. No. 180906, October 7, 2008

The writ’s curative role is an acknowledgment that the violation of the right to life, liberty, and security may be caused not only by a public official’s act, but also by his omission. Accountability may attach to respondents who are imputed with knowledge relating to the enforced disappearance and who carry the burden of disclosure; or those who carry, but have

50

failed to discharge, the burden of extraordinary diligence in the investigation of the enforced disappearance. The duty to investigate must be undertaken in a serious manner and not as a mere formality preordained to be ineffective Rodriguez vs. Arroyo, G.R. No. 191805, April 16, 2013 While the right to life under Article III, Section 1 guarantees essentially the right to be alive - upon which the enjoyment of all other rights is preconditioned - the right to security of person is a guarantee of the secure quality of this life. First, the right to security of person is “freedom from fear.” (Universal Declaration of Human Rights [UDHR] and International Covenant on Civil and Political Rights [ICCPR]) The Philippines is a signatory to both the UDHR and the ICCPR. Second, the right to security of person is a guarantee of bodily and psychological integrity or security. (Article III, Section 12 of the 1987 Constitution) Third, the right to security of person is a guarantee of protection of one’s rights by the government. Protection includes conducting effective investigations, organization of the government apparatus to extend protection to victims of extralegal killings or enforced disappearances (or threats thereof) and/or their families, and bringing offenders to the bar of justice. Secretary of National Defense vs. Manalo, G.R. No. 180906, October 7, 2008

Writ of Habeas Data (A.M. No. 08-1-16-SC) – February 2, 2008

Scope of writ (See Table under Definition)

The writ of habeas data provides a judicial remedy to protect a person’s right to control information regarding oneself, particularly in instances where such information is being collected through unlawful means in order to achieve unlawful ends.   As an independent and summary remedy to protect the right to privacy – especially the right to informational privacy   – the proceedings for the issuance of the writ of habeas data does not entail any finding of criminal, civil or administrative culpability. If the allegations in the petition are proven through substantial evidence, then the Court may (a) grant access to the database or information; (b) enjoin the act complained of; or (c) in case the database or information contains erroneous data or information, order its deletion, destruction or rectification. Rodriguez vs. Arroyo, G.R. No. 191805, November 15, 2011

The writ of habeas data is an independent and summary remedy designed to protect the image, privacy, honor, information, and freedom of information of an individual, and to provide a forum to enforce one’s right to the truth and to informational privacy. It seeks to protect a person’s right to control information regarding oneself, particularly in instances in which such information is being collected through unlawful means in order to achieve unlawful ends. It must be emphasized that in order for the privilege of the writ to be granted, there must exist a nexus between the right to privacy on the one hand, and the right to life, liberty or security on the other. Gamboa vs. Chan, G.R. No. 193636,  July 24, 2012

Availability of writ - Sec. 1 (See Table under Availability)

Distinguish from Habeas Corpus and Amparo (See Table)

Who may file - Sec. 2 (See Table) Venue – Sec. 3 (See Table) Extent of enforceability – Sec. 4 (See Table)

Contents of petition – Sec. 6

(a) The personal circumstances of the petitioner and the respondent; (b) The manner the right to privacy is violated or threatened and how it affects the right to life, liberty or security of the aggrieved party;

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(c) The actions and recourses taken by the petitioner to secure the data or information;

(d) The location of the files, registers or databases, the government office, and the person in charge, in possession or in control of the data or information, if known;

(e) The reliefs prayed for, which may include the updating, rectification, suppression or destruction of the database or information or files kept by the respondent. In case of threats, the relief may include a prayer for an order enjoining the act complained of; and

(f) Such other relevant reliefs as are just and equitable Issuance of the Writ. – Sec. 7 . Upon the filing of the petition, 1. the court, justice or judge shall immediately order the issuance of the writ if on its face it ought to issue. 2. The clerk of court shall issue the writ under the seal of the court and cause it to be served within three (3) days from the issuance; or, 3. In case of urgent necessity, the justice or judge may issue the writ under his or her own hand, and may deputize any officer or person serve it.

Contents of return – Sec. 10

(a) Lawful defenses such as national security, state secrets, priviliged communication, confidentiality of the source of information of media and others; (b) If respondent in charge, in possession or in control of the data or information subject of the petition --

(i) a disclosure of the data or information about petitioner, nature of such data or information, and purpose of its collection; (ii) steps or actions taken by respondent to ensure the security and confidentiality of the data or information;

(iii) currency and accuracy of the data and information held; and (c) other allegations relevant to the resolution of the proceeding;

A general denial of the allegations in the petition shall not be allowed.

Instances when petition heard in chambers – Sec. 12

Hearing in chambers may be conducted where respondent invokes the defense that the release of the data or information shall compromise national security or state secrets, or when the data or information cannot be divulged to the public due its nature or privileged character

Prohibited pleadings and motions – Sec. 13 (See Table)

N.B. No interim reliefs are available in writ of habeas data

Summary hearing – Sec. 15 (See Table)

Judgment – Sec. 16 1. The court shall render judgment within ten (10) days from the time the petition is submitted for decision.2. If the allegations in the petition are proven by substantial evidence, the court shall a. enjoin the act complained of, or b. order the deletion, destruction, or rectification of the erroneous data or information and c. grant other relevant reliefs as may be just and equitable; 3. Otherwise, the privilege of the writ shall be denied.

Appeal – Sec. 19 (See Table)

Institution of separate action – Sec. 20 (See Table)

Effect of filing a criminal action – Sec. 21 (See Table)

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Consolidation – Sec. 22 (SeeTable)

Jurisprudence

Section 6 of the Rule on the Writ of Habeas Data requires material allegations of ultimate facts in a petition for the issuance of a writ of habeas data: Specifically, we see no concrete allegations of unjustified or unlawful violation of the right to privacy related to the right to life, liberty or security. The petition likewise has not alleged, much less demonstrated, any need for information under the control of police authorities other than those it has already set forth as integral annexes. The necessity or justification for the issuance of the writ, based on the insufficiency of previous efforts made to secure information, has not also been shown. In sum, the prayer for the issuance of a writ of habeas data is nothing more than the “fishing expedition” that this Court - in the course of drafting the Rule on habeas data - had in mind in defining what the purpose of a writ of habeas data is not. In these lights, the outright denial of the petition for the issuance of the writ of habeas data is fully in order. Tapuz vs. Judge Rosario, G.R. No.182484, June 17, 2008 This Court rules that Gamboa was unable to prove through substantial evidence that her inclusion in the list of individuals maintaining PAGs (private armed groups) made her and her supporters susceptible to harassment and to increased police surveillance. In this regard, respondents sufficiently explained that the investigations conducted against her were in relation to the criminal cases in which she was implicated. As public officials, they enjoy the presumption of regularity, which she failed to overcome. It is clear from the foregoing discussion that the state interest of dismantling PAGs far outweighs the alleged intrusion on the private life of Gamboa, especially when the collection and forwarding by the PNP of information against her was pursuant to a lawful mandate. Therefore, the privilege of the writ of habeas data must be denied. Gamboa vs. Chan, G.R. No. 193636,  July 24, 2012 Needless to state, an indispensable requirement before the privilege of the writ may be extended is the showing, at least by substantial evidence, of an actual or threatened violation of the right to privacy in life, liberty or security of the victim. This, in the case at bench, the petitioner failed to do. The main problem behind the ruling of the Court of Appeals is that there is actually no evidence on record that shows that any of the public respondents had violated or threatened the right to privacy of the petitioner. The act ascribed by the Court of Appeals to the public respondents that would have violated or threatened the right to privacy of the petitioner, i.e., keeping records of investigations and other reports about the petitioner’s ties with the CPP-NPA, was not adequately proven—considering that the origin of such records were virtually unexplained and its existence, clearly, only inferred by the appellate court from the video and photograph released by Representatives Palparan and Alcover in their press conference. No evidence on record even shows that any of the public respondents had access to such video or photograph Roxas vs. Arroyo, G.R. No. 189155, September 7, 2010

Castillo v. Cruz underscores the emphasis laid down in Tapuz v. del Rosario that the writs of amparo and habeas data will NOT issue to protect purely property or commercial concerns nor when the grounds invoked in support of the petitions therefor are vague or doubtful. Employment constitutes a property right under the context of the due process clause of the Constitution. It is evident that respondent’s reservations on the real reasons for her transfer - a legitimate concern respecting the terms and conditions of one’s employment - are what prompted her to adopt the extraordinary remedy of habeas data. Jurisdiction over such concerns is inarguably lodged by law with the NLRC and the Labor Arbiters. In another vein, there is no showing from the facts presented that petitioners committed any unjustifiable or unlawful violation of respondent’s right to privacy vis-a-vis the right to life, liberty or security. To argue that petitioners’ refusal to disclose the contents of reports allegedly received on the threats to respondent’s safety amounts to a violation of her right to privacy is at best speculative. Respondent in fact trivializes these threats and accusations from unknown individuals in her earlier-quoted portion of her July 10, 2008 letter as "highly suspicious, doubtful

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or are just mere jokes if they existed at all." And she even suspects that her transfer to another place of work "betray[s] the real intent of management]" and could be a "punitive move." Her posture unwittingly concedes that the issue is labor-related. Manila Electric Company vs. Lim, G.R. No. 184769,  October 5, 2010

The Court has ruled that in view of the recognition of the evidentiary difficulties attendant to the filing of a petition for the privilege of the writs of amparo and habeas data, not only direct evidence, but circumstantial evidence, indicia, and presumptions may be considered, so long as they lead to conclusions consistent with the admissible evidence adduced. Given that the totality of the evidence presented by the petitioner failed to support his claims (his inclusion in the “order of battle” and monitoring activities conducted against him), the reliefs prayed for, therefore, cannot be granted. The liberality accorded to amparo and habeas data cases does not mean that a claimant is dispensed with the onus of proving his case. "Indeed, even the liberal standard of substantial evidence demands some adequate evidence." Saez vs. Arroyo, G.R. No. 183533, September 25, 2012

It thus appears that respondents are not without recourse and have in fact taken full advantage of the legal system with the filing of civil, criminal and administrative charges.avvphi1 It need not be underlined that respondents’ petitions for writs of amparo and habeas data are extraordinary remedies which cannot be used as tools to stall the execution of a final and executory decision in a property dispute.

At all events, respondents’ filing of the petitions for writs of amparo and habeas data should have been barred, for criminal proceedings against them had commenced after they were arrested in flagrante delicto and proceeded against in accordance with Section 6, Rule 112 of the Rules of Court. Validity of the arrest or the proceedings conducted thereafter is a defense that may be set up by respondents during trial and not before a petition for writs of amparo and habeas data. The reliefs afforded by the writs may, however, be made available to the aggrieved party by motion in the criminal proceedings.

Castillo vs. Cruz, G.R. No. 182165,   November 25, 2009

Support for the habeas data aspect of the present petition only alleges that:

"1. [ … ] Similarly, a petition for a WRIT OF HABEAS DATA is prayed for so that the PNP may release the report on the burning of the homes of the petitioners and the acts of violence employed against them by the private respondents, furnishing the Court and the petitioners with copy of the same;

[ … ]

66. Petitioners apply for a WRIT OF HABEAS DATA commanding the Philippine National Police [PNP] to produce the police report pertaining to the burning of the houses of the petitioners in the land in dispute and likewise the investigation report if an investigation was conducted by the PNP."

These allegations obviously lack what the Rule on Writ of Habeas Data requires as a minimum, thus rendering the petition fatally deficient. Specifically, we see no concrete allegations of unjustified or unlawful violation of the right to privacy related to the right to life, liberty or security. The petition likewise has not alleged, much less demonstrated, any need for information under the control of police authorities other than those it has already set forth as integral annexes. The necessity or justification for the issuance of the writ, based on the insufficiency of previous efforts made to secure information, has not also been shown. In sum, the prayer for the issuance of a writ of habeas data is nothing more than the "fishing expedition" that this Court - in the course of drafting the Rule on habeas data - had in mind in defining what the purpose of a writ of habeas data is not. In these lights, the outright denial of the petition for the issuance of the writ of habeas data is fully in order. Tapuz vs. Judge del Rosario, G.R. No.182484, June 17, 2008

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Change of Name

Rule 103Change of Name

Purpose of Rule

Under Art. 376, Civil Code – no person can change his name or surname without juridical authority

Involving substantial changes, objective is the prevention of fraud.

Nature of proceeding

To establish the status of a person involving his relation with others, that is, his legal position in, or, with regard to the rest of the community

Who may file petition

“Person” – all natural persons regardless of status. Includes 1. Alien - - domiciled in the Philippines, not one temporarily staying (Ong Huan Ting vs. Rep., G.R. No. L-20997, April 27, 1967)

2. Adopted child (Rep. v. Wong, 209 SCRA 189)

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

Contents of petition - Sec. 2 1. Residence of petitioner in the place where the petition resided for at least 3 years prior to date of filing. 2. Cause for which change of name is sought3. Name asked for

Order for hearing – Sec. 31. If petition sufficient in form and substance, 2. The court, by an order reciting the purpose of the petition, shall a. fix a date and place for the hearing thereof, b. direct that copy of the order be published at least once a week for 3 successive weeks in a newspaper of general circulation3. The date set for hearing shall not be a. within 30 days prior to an election nor b. within 4 months after the last publication of the notice

Jurisdictional facts1. Publication of petition for 3 consecutive weeks in newspaper, etc. 2. Both title or caption and body shall recite a. name or names or alias of applicant b. cause for which change of name is sought c. new name asked for

Reason: change of name a matter of public interest- petitioner might be in rogues gallery or hiding to avoid service of sentence or escaped from prison- if alien might have given case for deportation, or subject of deportation order

Differences under Rule 103, RA 9048 and Rule 108

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Rule 103 Rule 108 R.A. 9048

Rule or Law Change of Name Cancellation/ Correction of Entries in the Civil Registry

Clerical Error Act

Subject Matter Change of full name or family name (substantial corrections)

Cancellation or correction of civil registry entries (substantial corrections)

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

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

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

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

Venue RTC of the province in which petitioner resided for 3 years prior to filing.

RTC of city or province where the corresponding civil registry is located.

1. Local civil registry office of the city or municipality where the record being sought to be corrected or changed is kept;

2. Local civil registrar of the place where the interested party is presently residing or domiciled;

3. Philippine Consulate

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

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

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

(a) Facts necessary to establish the merits of petition;

(b) Particular erroneous entry or entries, which are sought to be corrected and/or the change sought to be made.

Petition shall be supported by the following documents:

(1) A certified true machine copy of the certificate or of the page of the registry book containing the entry or entries sought to be corrected or changed;

(2) At least two (2) public or private documents showing the correct entry or entries

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upon which the correction or change shall be based; and

(3) Other documents which petitioner or the city or municipal civil registrar or the consul general may consider relevant and necessary for the approval of petition. (Section 5)

Grounds 1. Name is ridiculous, tainted with dishonor and extremely difficult to write of pronounce;

2. Consequence of change of status;

3. Necessity to avoid confusion;

4. Having continuously used and been known since childhood by a Filipino name, unaware of her alien parentage;

5. A sincere desire to adopt a Filipino name to erase signs of former alienage all in good faith and without prejudicing anybody.

Upon good and valid grounds.

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

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

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

Kind of proceeding Judicial Proceeding Judicial Proceeding

Adversarial in nature because involves substantial changes and affects the status of an individual

Administrative Proceeding

What to file File a signed and verified petition.

.

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

File an affidavit.

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

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

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

Posting No posting No posting Duty of the civil registrar or Consul to post petition in a conspicuous place for 10 consecutive days

Who participates on the part of the Government

The Solicitor General or the proper provincial or city fiscal shall appear

The Civil Registrar. The CivilRegistrar or Consul.

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on behalf of the Government of the Republic.

Where to appeal: Appeal decision to the Court of Appeals.

Appeal decision to the Court of Appeals.

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

Grounds for change of name

The State has an interest in the names borne by individuals and entities for purposes of identification. A change of name is a privilege and not a right, so that before a person can be authorized to change his name, he must show proper or reasonable cause, or any compelling reason which may justify such change.

Grounds for change of name which have been held valid:1) Name is ridiculous, dishonorable, or extremely difficult to write or pronounce;2) Change results as a legal consequence, as in legitimation;3) Change will avoid confusion;4) When one has continuously used and been known since childhood by a Filipino

name, and was unaware of alien parentage;5) Sincere desire to adopt Filipino name to erase signs of former alienage, all in good

faith and without prejudicing anybody;6) Surname causes embarrassment and there is no showing that the desired change of

name was for a fraudulent purpose or that the change of name would prejudice public interest.

Republic vs. Wong, May 2, 1992, 209 SCRA 189

N. B. R.A. 9225 amended Article 176 of the Family Code allowing the Illegitimate Child To Use The Surname Of The Father If The Latter Expressly Recognized Filiation In A Record Of Birth (approved February 24, 2004). This modifies Leonardo vs. Court of Appeals (G. R. No. 125329, September 10, 2003) disallowing an illegitimate child the right to use his/her father’s name.

Other cases

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

Middle names serve to identify the maternal lineage or filiation of a person as well as further distinguish him from others who may have the same given name and surname as he has. In the case at bar, the only reason advanced by petitioner for dropping his middle name is convenience In Re Petition for Change of Name and/or Correction/Cancellation of Entry of Civil Registry of Julian Lin Carulasan Wang, G.R. No. 159966, March 30, 2005

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A change of name should not be permitted if it will give a false impression of family relationship to another where none actually exists. Republic vs.Marcos, February 15, 1990, 182 SCRA 223

No need for change of name by married woman In case of annulment of marriage or divorce, there is no need to file a petition for resumption of maiden name or surname.The true and real name of a person is that given to him and entered in the civil register which a woman may continue to use despite her marriage or cessation of marriage for whatever cause. The use of the husband’s name is merely permissive which the wife may continue to use except in case of legal separation. Yasin vs. Judge, Sharia District Court, G.R. No. 94986, February 23, 1995

Under Art. 370 of the Civil Code, a married woman may use: 1. Her maiden first name and surname and add her husband’s surname, 2. Her maiden first name and her husband’s surname, or 3. Her husband’s full name, but prefixing a word indicating that she is hiswife, such as “Mrs.”

On the other hand, Art. 372 provides: When legal separation has been granted, the wife shall continue using her name and surname employed before the legal separation.

Under Art. 176 of the Civil Code, Giovanni is entitled to change his name as he was never recognized by his father while his mother has always recognized him as her child. A change of name will erase the impression that he was ever recognized by his father. It is also his best interest as it will facilitate his mother’s intended petition to have him join her in the United States. The Court will not stand in the way of the reunification of moter and son. Republic of the Philippines vs. Capote, G.R. No. 157043, February 2, 2007

The court shall grant the petition under Rule 103 only when satisfactory proof has been presented in open court that the order had been published as directed, the allegations in the petition are true, and proper and reasonable causes appear for changing the name of the petitioner. RE: FINAL REPORT ON THE JUDICIAL AUDIT CONDUCTED AT THE RTC, BR. 67, PANIQUI, TARLAC, A.M. No. 06-7-414-RTC, October 19, 2007

As for respondent’s change of name under Rule 103, this Court has held that a change of name is not a matter of right but of judicial discretion, to be exercised in the light of the reasons adduced and the consequences that will follow. The trial court’s grant of respondent’s change of name from Jennifer to Jeff implies a change of a feminine name to a masculine name. Considering the consequence that respondent’s change of name merely recognizes his preferred gender, we find merit in respondent’s change of name. Such a change will conform with the change of the entry in his birth certificate from female to male. Republic vs. Cagandahan, G.R. No. 166676, September 12, 2008

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Absentees Rule 107

Who may file; when to file

Appointment of representative – Sec. 1

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

Declaration of absence; who may petition (appointment of trustee or administrator) – Sec. 2 After 2 years without any news or after 5 years if an agent was left to administer the

absentee’s property, a petition for declaration of absence and appointment of a trustee or administrator may be filed.by any of the following:

1. spouse present2, heirs instituted in a will, who may present an authentic copy thereof3. relatives who would succeed by the law of intestacy4. those who have over the property of the absentee some right subordinated to the condition of his death

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

Proof at hearing; order – Sec. 6

1. Show compliance with Sec. 42. Upon satisfactory proof of allegations in the petition, court shall issue an order granting the same and appointing the representative, trustee or administrator for the absentee3. In case of declaration of absence, the same shall take not effect until six (6) months after its publication in a newspaper of general circulation designated by the court and in the Offical Gazette.

Who may be appointed – Sec. 7

1. Appointment of representative a. spouse present shall be preferred when there is no legal separation b. if absentee left no spouse, or spouse present is a minor or otherwise incompetent - any competent person may be appointed by the court2. Declaration of absence – trustee or administrator of absentee’s property shall be appointed in accordance with the preceding paragraph.

Declaration of presumptive death

No independent action for declaration of presumption of death – presumption may arise and be invoked in an action or special proceeding

Exception

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Under Art. 41 of Family Code, for purpose of present spouse contracting a second marriage, he must file summary proceeding for declaration of presumptive death of the absentee, without prejudice to the latter’s reappearance. This is intended to protect present spouse from criminal prosecution for bigamy under Art. 349 of RPC. With judicial declaration that missing spouse is presumptively dead, good faith of present spouse in contracting marriage is established.

Marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage unless absent spouse was absent for: 4 consecutive years – spouse present had a well founded belief that absent spouse was already dead 2 years – danger of death under circumstances set forth in Art. 391 of Civil Code

Cancellation or Correction of Entries in the Civil Registry

Rule 108

Who may file petition – Sec. 11. Any person interested in any

- act - event - decree

2. concerning the civil status of persons 3. which has been recorded in the civil registry

4. with the Regional Trial Court of place where corresponding civil registry is located

Parties – Sec. 2 1. When cancellation or correction of an entry in the civil registry is sought, a. the. civil registrar and b. all persons who have or claim any interest which would be affected thereby 2. shall be made parties to the proceeding

Notice and publication – Sec. 3 1. Upon the filing of the petition 2. the court shall a. by an order fix the time and place of hearing, b. cause reasonable notice to be given to the persons named in the petition, and c. cause the order to be published once a week for 3 consecutive weeks in a newspaper of general circulation in the province

Opposition - Sec. 4 1. The civil registrar and 2. any person having or claiming any interest under the entry whose cancellation or correction is sought may 3. within 15 days from a. notice of the petition, or . b. last date of publication of such notice 4. file his opposition thereto

Expediting proceedings – Sec. 5 . The court in which the proceeding is brought may a. make orders expediting the proceedings and b. grant preliminary injunction for the preservation of the rights of the parties pending such proceedings

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Order – Sec. 6 1. After hearing, the court may either a. dismiss the petition b. issue an order granting the cancellation or correction prayed for 2. In either case, a certified copy of the judgment shall be served upon the civil registrar concerned who shall annotate the same in the record

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

Substantial corrections or cancellations of entries in civil registry records affecting the status

or legitimacy of a person may be effected through the institution of a petition under Rule 108 of the Revised Rules of Court, with the proper Regional Trial Court. Being a proceeding in rem, acquisition of jurisdiction over the person of petitioner is therefore not required in the present case. It is enough that the trial court is vested with jurisdiction over the subject matter. The service of the order at No. 418 Arquiza St., Ermita, Manila and the publication thereof in a newspaper of general circulation in Manila, sufficiently complied with the requirement of due process, the essence of which is an opportunity to be heard. The publication of the order is a notice to all indispensable parties, including Armi and petitioner minor, which binds the whole world to the judgment that may be rendered in the petition. Alba vs. CA, G.R. No. 164041, July 29, 2005 What surfaces as an issue is whether the failure to implead Marivel and Carlito’s parents rendered the trial short of the required adversary proceeding and the trial court’s judgment void. A similar issue was earlier raised in Barco v. Court of Appeals. That case stemmed from a petition for correction of entries in the birth certificate of a minor, June Salvacion Maravilla, to reflect the name of her real father (Armando Gustilo) and to correspondingly change her surname. The petition was granted by the trial court. Barco, whose minor daughter was allegedly fathered also by Gustilo, however, sought to annul the trial court’s decision, claiming that she should have been made a party to the petition for correction. Failure to implead her deprived the RTC of jurisdiction, she contended. In dismissing Barco’s petition, this Court held that the publication of the order of hearing under Section 4 of Rule 108 cured the failure to implead an indispensable party. Given the above ruling, it becomes unnecessary to rule on whether Marivel or respondents’ parents should have been impleaded as parties to the proceeding. It may not be amiss to mention, however, that during the hearing on January 31, 2002, the city prosecutor who was acting as representative of the OSG did not raise any objection to the non-inclusion of Marivel and Carlito’s parents as parties to the proceeding. Parenthetically, it seems highly improbable that Marivel was unaware of the proceedings to correct the entries in her children’s birth certificates, especially since the notices, orders and decision of the trial court were all sent to the residence she shared with Carlito and the children. Republic vs. Kho, G.R. No. 170340, June 29, 2007

Substantial corrections – strict compliance with Rule 108

The change being sought in respondent's petition goes so far as to affect his legal status in relation to his parents.  It seeks to change his legitimacy to that of illegitimacy.  Rule 103 then would not suffice to grant respondent's supplication. Labayo-Rowe v. Republic categorically holds that "changes which may affect the civil status from legitimate to illegitimate . . . are substantial and controversial alterations which can only be allowed after appropriate adversary proceedings . . ." Since respondent's desired change affects his civil status from legitimate to illegitimate, Rule 108 applies. Rule 108 clearly directs that a petition which concerns one's civil status  should be filed in the civil registry in which the entry is sought to be cancelled or corrected - that of Makati in the present case, and "all persons who have or claim any interest which would be affected thereby" should be made parties to the proceeding. As earlier stated, however, the petition of respondent was filed not in Makati where his birth certificate was registered but in Quezon City. And as the above-mentioned title of the petition

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filed by respondent before the RTC shows, neither the civil registrar of Makati nor his father and mother were made parties thereto. A reading of Sections 4 and 5 readily shows that Rule 108 clearly mandates two sets of notices to different "potential oppositors." The first notice is that given to the "persons named in the petition" and the second (which is through publication) is that given to other persons who are not named in the petition but nonetheless may be considered interested or affected parties, such as creditors.  That two sets of notices are mandated under the above-quoted Section 4 is validated by the subsequent Section 5, also above-quoted, which provides for two periods (for the two types of "potential oppositors") within which to file an opposition (15 days from notice or from the last date of publication). What is clear then in Barco and Kho is the mandatory directive under Section 3 of Rule 108 to implead the civil registrar and the parties who would naturally and legally be affected by the grant of a petition for correction or cancellation of entries.  Non-impleading, however, as party-respondent of one who is inadvertently left out or is not established to be known by the petitioner to be affected by the grant of the petition or actually participates in the proceeding is notified through publication.

When a petition for cancellation or correction of an entry in the civil register involves substantial and controversial alterations including those on citizenship, legitimacy of paternity or filiation, or legitimacy of marriage, a strict compliance with the requirements of Rule 108 is mandated. Republic vs. Coseteng-Magpayo, G.R. No. 189476, February 2, 2011

Indispensable parties must be notified

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

Correction of clerical error in one’s name under Rule 108 The OSG posits that the conversion from "MARILYN" to "MERLYN" is not a correction of an innocuous error but a material correction tantamount to a change of name which entails a modification or increase in substantive rights.  For the OSG, this is a substantial error that requires compliance with the procedure under Rule 103, and not Rule 108. The petition filed by Mercadera before the RTC correctly falls under Rule 108 as it simply sought a correction of a misspelled given name.  To correct simply means "to make or set aright; to remove the faults or error from." To change means "to replace something with something else of the same kind or with something that serves as a substitute." From the allegations in her petition, Mercadera clearly prayed for the lower court "to remove the faults or error" from her registered given name "MARILYN," and "to make or set aright" the same to conform to the one she grew up to, "MERLYN."  It does not take a complex assessment of said petition to learn of its intention to simply correct the clerical error in spelling.  Mercadera even attempted to avail of the remedy allowed by R.A. No. 9048 but she unfortunately failed to enjoy the expediency which the law provides and was constrained to take court action to obtain

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Besides, granting that Rule 103 applies to this case and that compliance with the procedural requirements under Rule 108 falls short of what is mandated, it still cannot be denied that Mercadera complied with the requirement for an adversarial proceeding before the lower court.  The publication and posting of the notice of hearing in a newspaper of general circulation and the notices sent to the OSG and the Local Civil Registry are sufficient indicia of an adverse proceeding.  The fact that no one opposed the petition, including the OSG, did not deprive the court of its jurisdiction to hear the same and did not make the proceeding less adversarial in nature.  Considering that the OSG did not oppose the petition and the motion to present its evidence ex parte when it had the opportunity to do so, it cannot now complain

that the proceedings in the lower court were procedurally defective. Republic vs. Mercadera, G.R. No. 186027, December 8, 2010

In a special proceeding for correction of entry under Rule 108, the trial court has no jurisdiction to nullify marriages and rule on legitimacy and filiation.

Rule 108 of the Rules of Court vis a vis Article 412 of the Civil Code charts the procedure by which an entry in the civil registry may be cancelled or corrected. The proceeding contemplated therein may generally be used only to correct clerical, spelling, typographical and other innocuous errors in the civil registry. A clerical error is one which is visible to the eyes or obvious to the understanding; an error made by a clerk or a transcriber; a mistake in copying or writing, or a harmless change such as a correction of name that is clearly misspelled or of a misstatement of the occupation of the parent. Substantial or contentious alterations may be allowed only in adversarial proceedings, in which all interested parties are impleaded and due process is properly observed. The allegations of the petition filed before the trial court clearly show that petitioners seek to nullify the marriage between Pablo and Lucille on the ground that it is bigamous and impugn Patrick's filiation in connection with which they ask the court to order Patrick to be subjected to a DNA test.

Petitioners insist, however, that the main cause of action is for the correction of Patrick's birth records and that the rest of the prayers are merely incidental thereto.

Petitioners' position does not lie. Their cause of action is actually to seek the declaration of Pablo and Lucille's marriage as void for being bigamous and impugn Patrick's legitimacy, which causes of action are governed not by Rule 108 but by A.M. No. 02-11-10-SC which took effect on March 15, 2003, and Art. 171 of the Family Code, respectively, hence, the petition should be filed in a Family Court as expressly provided in said Code. Braza vs. City Civil Registrar of Himamaylan City, Negros Occidental, G.R. No. 181174,

December 4, 2009

Entries subject to cancellation or correction under Rule 108, in relation to RA 9048

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

The local civil registrar has primary, not exclusive, jurisdiction over such petitions for correction of clerical errors and change of first name or nickname, with R.A. No. 9048 prescribing the procedure that the petitioner and local civil registrar should follow. Re: Final Report on the Judicial Audit Conducted at the RTC, BR. 67, Paniqui, Tarlac, A.M. No. 06-7-414-RTC, October 19, 2007

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

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It can thus be concluded that the local civil registrar has primary, not exclusive, jurisdiction over such petitions for correction of clerical errors and change of first name or nickname, with R.A. No. 9048 prescribing the procedure that the petitioner and local civil registrar should follow. Since R.A. No. 9048 refers specifically to the administrative summary proceeding before the local civil registrar it would be inappropriate to apply the same procedure to petitions for the correction of entries in the civil registry before the courts.

Re: Final Report on the Judicial Audit Conducted at the Regional Trial Court, Br. 67, Paniqui, Tarlac, A.M. No. 06-7-414-RTC, October 19, 2007.

Substantial corrections cannot be effected under RA 9048

Republic Act No. 9048 provides in Section 2 (3) that a summary administrative proceeding to correct clerical or typographical errors in a birth certificate cannot apply to a change in nationality. Substantial corrections to the nationality or citizenship of persons recorded in the civil registry should, therefore, be effected through a petition filed in court under Rule 108 of the Rules of Court. Kilosbayan Foundation vs. Ermita, G.R. No. 177721, July 3, 2007

An illegitimate child whose filiation is not recognized by the father bears only a given name and his mother’s surname, and does not have a middle name

The name of the unrecognized illegitimate child therefore identifies him as such. It is only when the illegitimate child is legitimated by the subsequent marriage of his parents or acknowledged by the father in a public document or private handwritten instrument that he bears both his mother’s surname as his middle name and his father’s surname as his surname, reflecting his status as a legitimated child or an acknowledged illegitimate child. Accordingly, the registration in the civil registry of the birth of such individuals requires that the middle name be indicated in the certificate. The registered name of a legitimate, legitimated and recognized illegitimate child thus contains a given or proper name, a middle name, and a surname. In Re: Petition for Change of Name and/or Correction/Cancellation of Entry in Civil Registry of Julian Lin Carulasan Wang, G.R. No. 159966, March 30, 2005

Change of first name is within the primary jurisdiction of the local civil registrar

RA 9048 now governs the change of first name. It vests the power and authority to entertain petitions for change of first name to the city or municipal civil registrar or consul general concerned. Under the law, therefore, jurisdiction over applications for change of first name is now primarily lodged with the aforementioned administrative officers. The intent and effect of the law is to exclude the change of first name from the coverage of Rules 103 (Change of Name) and 108 (Cancellation or Correction of Entries in the Civil Registry) of the Rules of Court, until and unless an administrative petition for change of name is first filed and subsequently denied. It likewise lays down the corresponding venue, form and procedure. In sum, the remedy and the proceedings regulating change of first name are primarily administrative in nature, not judicial Silverio vs Republic, G.R. No. 174689, October 22, 2007

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

The trial court ordered the correction of entries in the birth certificate of respondent to change her sex or gender, from female to male, on the ground of her medical condition known as Congenital Adrenal Hyerplasia (CAH), and her name from “Jennifer” to “Jeff,” under Rules 103 and 108 of the Rules of Court. xxx CAH is one of many conditions that involve intersex anatomy. The term “intersexuality” applies to human beings who cannot be classified as either male or female. We respect respondent’s congenital condition and his mature decision to be a male.

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As for respondent’s change of name under Rule 103, this Court has held that a change of name is not a matter of right but of judicial discretion, to be exercised in the light of the reasons adduced and the consequences that will follow. The trial court’s grant of respondent’s change of name from Jennifer to Jeff implies a change of a feminine name to a masculine name. Considering the consequence that respondent’s change of name merely recognizes his preferred gender, we find merit in respondent’s change of name. Such a change will conform with the change of the entry in his birth certificate from female to male

Republic vs. Jennifer Cagandahan, G.R. No. 166676, September 12, 2008.

A person’s first name cannot be changed on the ground of sex reassignment

Petitioner sought to have his name in his birth certificate changed from “Rommel Jacinto” to “Mely,” and his sex from “male” to “female.” Petitioner’s basis in praying for the change of his first name was his sex reassignment. He intended to make his first name compatible with the sex he thought he transformed himself into through surgery. However, a change of name does not alter one’s legal capacity or civil status. RA 9048 does not sanction a change of first name on the ground of sex reassignment. Rather than avoiding confusion, changing petitioner’s first name for his declared purpose may only create grave complications in the civil registry and the public interest. Before a person can legally change his given name, he must present proper or reasonable cause or any compelling reason justifying such change. In addition, he must show that he will be prejudiced by the use of his true and official name. In this case, he failed to show, or even allege, any prejudice that he might suffer as a result of using his true and official name. Silverio vs Republic, G.R. No. 174689, October 22, 2007

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

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

Other Jurisprudence

Ty Kong Tin vs. Rep, G.R. No. L-5609,  February 5, 1954,: followed by Chua Wee vs. Rep., Wong vs. Rep., Rep. vs. Medina – Rule 108 should be limited solely to implementation of Art. 412, the substantive law on the matter of correcting errors in the civil register.

Art. 412 contemplates a summary procedure, involving correction of clerical errors, or a harmless, innocuous nature, not changes involving civil status, nationality or citizenship, which are substantial and/or controversial Rep. vs. Macli-ing – proceedings, although filed under Rule 108, not summary because published for 3 consecutive weeks; Solicitor General notified and filed opposition, etc.

Rep. vs. Valencia, G.R. No. L-32181, March 5, 1986. – turning point, paradigm shift: Rule 108 embodies two kinds of proceedings:

1. procedure summary in nature for correcting clerical or unsubstantial matters to make it less tedious and expensive

2. procedure adversary in nature to govern proceedings involving substantial changes

If all procedural requirements have been followed, petition for correction/or cancellation even if filed under Rule 108 no longer summary.

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

Appropriate proceeding:

a. where all relevant facts have been fully weighed and consideredb. where opposing counsel have been given opportunity to demolish the opposing

party’s casec. where evidence has been thoroughly weighed and considered

Procedure becomes ADVERSARY proceedings when opposition to petition is filed by LCR

or any person having or claiming interest in entries sought to be cancelled and/ or corrected and opposition is actively prosecuted.

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

Valencia ruling (en banc) reiterated in Chia Ben Lim vs. Zosa (en banc), Rep. vs. Bautista

and Zapanta vs. LCR of Davao

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

However, all doubts resolved in Lee vs. CA, G.R. No. 118387, October 11, 20011. Substantial corrections – Rule 1082. Clerical or typographical errors (including change of first name) – RA 9048

(administrative correction)

“Appropriate adversary proceeding” is “one having opposing parties; contested, as distinguished from an ex parte application, one of which the party seeking relief has given legal warning to the other party, and afforded the latter an opportunity to contest it.” When all the procedural requirements under Rule 108 are thus followed, the appropriate adversary proceeding necessary to effect substantial corrections to the entries of the civil register is satisfied. No substantial change or correction in an entry in a civil register can be made without a judicial order, and, under the law, a change in citizenship status is a substantial change. Republic vs. Kho, G.R. No. 170340, June 29, 2007

A change of name does not alter one’s legal capacity or civil status. RA 9048 does not sanction a change of first name on the ground of sex reassignment. Rather than avoiding confusion, changing petitioner’s first name for his declared purpose may only create grave complications in the civil registry and the public interest. Also, there is no such special law in the Philippines governing sex reassignment and its effects. In our system of government, it is for the legislature, should it choose to do so, to determine what guidelines should govern the recognition of the effects of sex reassignment. The need for legislative guidelines becomes particularly important in this case where the claims asserted are statute-based. Silverio vs. Republic, G.R. No. 174689, October 22, 2007

Where the person is biologically or naturally intersex the determining factor in his gender classification would be what the individual, like respondent, having reached the age of majority, with good reason thinks of his/her sex. Respondent here thinks of himself as a male and considering that his body produces high levels of male hormones (androgen) there is preponderant biological support for considering him as being male. Sexual development in cases of intersex persons makes the gender classification at birth inconclusive. It is at maturity that the gender of such persons, like respondent, is fixed. Republic vs. Cagandahan, G.R. No. 166676, September 12, 2008