2016 Preweek Pointers in Special Proceedings by Prof. Manuel Riguera

JURISTS BAR REVIEW CENTER™ PREWEEK POINTERS IN SPECIAL PROCEEDINGS Prof. Manuel R. Riguera

23 November 2016 8 am to 12 noon

RULE 72. SUBJECT MATTER & APPLICABILITY OF GENERAL RULES Article 151 of the Family Code not applicable to special proceedings. (Manalo v. Court of Appeals, 16 January 2001). S6 R39 not applicable to special proceedings. (Ting v. Heirs of Lirio, 14 March 2007). A petition for issuance of a writ of Amparo is a special proceeding. It is a remedy by which a party seeks to establish a status, a right or particular fact. It is not a civil nor a criminal action, hence, the application of the Rule on Summary Procedure is misplaced. (De Lima v Gatdula, 19 Feb 2013) SETTLEMENT OF ESTATE OF DECEASED PERSONS RULE 73. VENUE AND PROCESS Limited jurisdiction of probate court; questions within its competence The Supreme Court has held that a probate court has no jurisdiction over the question of title to properties. Such question should be resolved in a separate action. (Pizarro v. Court of Appeals, L-31979, 6 August 1980). SC upheld dismissal of an action to annul an affidavit of self-adjudication by plaintiffs who are alleged heirs where their heirship had not been determined in the proper heirship proceedings. (Heirs of Ypon v Ricaforte, 8 July 2013). RULE 74. SUMMARY SETTLEMENT OF ESTATES Extrajudicial settlement of estates Remedy after 2-year prescriptive period: action for reconveyance based on implied trust (Art. 1456 Civil Code). Prescriptive period: 10 years except where one of the co-heirs is in possession. RULE 75. PRODUCTION OF WILL; ALLOWANCE OF WILL NECESSARY PROBATE OF WILL MANDATORY: No will shall pass either real or personal estate unless it is proved and allowed in the proper court. (S1 R75). Heirs cannot partition estate without probating will, even if partition will be in accordance with terms of will. Mandamus not proper to compel a mother to produce the father’s holographic will. This is because there is a plain, speedy, and adequate remedy in the ordinary course of law, that is, the filing of a petition for probate under S1 R76 and then moving for the production of the will under S2-5 R75. Under S1 R76, an interested person may petition the court having jurisdiction to have the will allowed, whether the same be in his possession or not, or is lost or destroyed. (Uy v. Lee, 15 January 2010). RULE 76. ALLOWANCE OR DISALLOWANCE OF WILL Proof for the allowance of a will The Supreme Court has held that to contest a will means to challenge the authenticity thereof. Since the challenge was based on undue influence and lack of testamentary intent but did not otherwise attack the will’s authenticity, the testimony of one competent witness was sufficient. (See Azaola v. Singson, 109 Phil. 102). 2016 Preweek Pointers in Special Proceedings by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court. Page 1 of 22

Since the will was contested (it being alleged that the testatrix’s signature was a forgery), the presentation of 3 competent witnesses is mandatory. The presentation of only two competent witnesses is not enough; the proponent should have resorted to expert testimony. (Codoy v. Calugay, 312 SCRA 333). RULE 77. ALLOWANCE OF WILL PROVED OUTSIDE OF THE PHILIPPINES AND ADMINISTRATION OF ESTATE THEREUNDER Q May a will proved and allowed in a foreign country be allowed in our courts? A Yes. A will proved and allowed in a foreign country, according to the laws of such country, may be allowed, filed, and recorded by the proper Regional Trial Court in the Philippines. (S1 R77). A will executed abroad may be probated in the Philippines even if it had not been probated in it place of execution. In insisting that Ruperta’s will should have been first probated and allowed by the court of California, petitioners obviously have in mind the procedure for the reprobate of will before admitting it here. But, reprobate or re-authentication of a will already probated and allowed in a foreign country is different from that probate where the will is presented for the first time before a competent court. (Palaganas v. Palaganas, 26 January 2011). RULE 78. LETTERS TESTAMENTARY AND OF ADMINISTRATION, WHEN AND TO WHOM ISSUED The following are incompetent to serve as executors or administrators (MNC): 1. Minor. 2. Non-resident. 3. In the court’s opinion unfit to execute the duties of the trust by reason of: drunkenness, improvidence, want of understanding or integrity, or by reason of conviction of an offense involving moral turpitude. (CWID) Failure to file income tax return is not an offense involving moral turpitude which would make a person incompetent to serve as executor or administrator. Moreover the conviction was not yet final as Bongbong Marcos had appealed therefrom. (Republic v. Marcos, 4 August 2009, Peralta,J.). RULE 79. OPPOSING ISSUANCE OF LETTERS TESTAMENTARY. PETITION AND CONTEST FOR LETTERS OF ADMINISTRATION. Unlike that of a special administrator, the appointment of a regular administrator cannot be procured by a mere motion. A petition must be filed pursuant to S2 R79. (Ocampo v. Ocampo, 5 July 2010). Only an heir or creditor can oppose the issuance of letters of administration as they are the only ones who would be benefited by the estate. (Chua v. Court of Appeals, 287 SCRA 33). Hence an heir who has assigned his hereditary rights before settlement proceedings were commenced, is no longer an interested person qualified to file or oppose a petition for letters of administration. RULE 80. SPECIAL ADMINISTRATOR The court may appoint a special administrator to take possession and charge of the estate: (DC) a) When there is a delay in granting letters testamentary or of administration by any cause including an appeal from the allowance or disallowance of a will. (S1 R80). b) If the executor or administrator has a claim against the estate he represents, the court shall appoint a special administrator for the adjustment of the claim. (S8 R86). The statutory preferences in the appointment of a regular administrator do not apply to the appointment of a special administrator. The court should not however exercise its discretion whimsically.

2016 Preweek Pointers in Special Proceedings by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court. Page 2 of 22

The appointment of a special administrator is interlocutory and discretionary on the part of the RTC and non-appealable. (S1[e] R109). However, it can be subject to certiorari if it can be shown that the appointment was made with grave abuse of discretion. (Jamero vs. Melicor, 26 May 2005) RULE 81. BONDS OF EXECUTORS AND ADMINISTRATORS A probate court cannot include in the inventory realty covered by Torrens title in the name of persons other than the decedent because of the incontestability of Torrens titles. (Lim v CA, 24 January 2000). RULE 82. REVOCATION OF ADMINISTRATION, DEATH, RESIGNATION, AND REMOVAL OF EXECUTORS AND ADMINISTRATORS Contingent creditor has the personality to seek the removal of an executor or administrator. The interest of the creditor in the estate relates to the preservation of sufficient assets to answer for the debt, and the general competence or good faith of the executor or administrator is necessary to fulfill such promise. (Hilado v. Court of Appeals, G.R. No. 164108, 8 May 2009). RULE 86. CLAIMS AGAINST THE ESTATE The Supreme Court has held that contractual money claims under S5 R86 refers to all money claims arising out of contract, quasi-contract, or law but do not refer to those arising from crime or quasi-delict. (Aguas v. Llemos, 5 SCRA 959). Claims for money which are founded on tort or crime are not money claims and should thus be filed against the executor/administrator or against the heirs. Maclan incurred necessary expenses as a possessor of a land owned by Mariano. Mariano died and Garcia inherited the land after the closure of the estate proceedings. Maclan filed a civil case vs Garcia to recover the necessary expenses. Garcia filed a motion to dismiss on the ground that the claim was barred by the SNC. Maclan opposed the motion contending that his claim did not arise from a contract, express or implied. Should the motion to dismiss be granted? Held: Yes. Action by possessor to recover necessary and useful improvements a quasi-contract under Article 2172 in relation to Article 546 of the Civil Code. A quasi-contract is considered as an implied contract within the purview of S5 R86. (Maclan v Garcia, 97 Phil. 119). Q Absolute Management Corporation (AMC) filed with the RTC a complaint for damages against Metrobank for allowing AMC’s general manager Chua to deposit checks payable to AMC to Chua’s personal account in Metrobank. At the time AMC filed its complaint, Chua had already died. In its answer Metrobank alleged that Chua represented that the arrangement for the handling of checks was with AMC’s consent and that AMC was estopped from questioning the deposit of the checks to Chua’s account. Metrobank filed a motion for leave to file third-party complaint against the estate of Chua for reimbursement of what it may be ordered to pay AMC. Should the RTC grant leave? A No. The third-party complaint of Metrobank against the estate of Chua for reimbursement of what it may be ordered to pay AMC is in the nature of a contingent claim based on solutio indebiti under Art. 2154 of the Civil Code (payment by mistake) and hence based on quasi-contract and thus a money claim. It should be filed in the pending probate proceedings for the settlement of the estate of Chua. RTC has no authority to adjudicate on the same. (Metrobank v. Absolute Management Corp., 9 January 2013). If a claim against the decedent is not among those referred to in S5 R86, such claim should be filed in an action against the executor or administrator or against the heirs. Hence actions to recover real or personal property from the estate, or to enforce a lien thereon, and actions to recover damages for an injury to person or property shall be brought against the executor or administrator. (S1 R87). STATUTE OF NON-CLAIMS: A money claim should be filed before the probate court and within the time stated in the notice which the probate court shall issue after granting letters testamentary or of administration. The notice shall require all persons having money claims against the decedent to file them in the office of the clerk of said court. (S1 R86). Such time shall not be less 2016 Preweek Pointers in Special Proceedings by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court. Page 3 of 22

than 6 months nor more than 12 months after the date of the first publication of the notice. period is also known as the statute of non-claims.

This

Money claims not filed within the statute of non-claims are barred forever. However they may be set forth as counterclaims in any action that the executor or administrator may bring against the claimants. TARDY CLAIM. At any time before an order of distribution is entered, on application of a creditor who has failed to file his claim within the statute of non-claims, the court, may, for cause shown and on such terms as are equitable, allow such claim to be filed within a time not exceeding one month from the order of the court allowing the filing of such particular claim. (S2 R86). Claimant must show good cause for the delayed filing. A tardy claim involves a two-step process. First the claimant files a motion for leave to file a tardy claim with the probate court at any time before an order of distribution is entered. The motion must show good cause for the delay in the filing. Second if the motion for leave is granted, the claimant then files the tardy claim within a period of one month from notice of the order of the court granting leave to file the tardy claim. (2 FLORENZ D. REGALADO, REMEDIAL LAW COMPENDIUM 63 [9th rev. ed., 3rd printing]). The fact that the claimant was unaware of the estate proceedings or that he was negotiating with one of the heirs for payment is not a good cause to allow filing of a tardy claim. Nor will the fact that the decedent mentioned a creditor’s claim in his will exempt the creditor from the requirement of filing his claim within the statute of non-claims. Examples of a good cause for allowing the filing of a tardy claim. 1. Where a claim of P31,000 was not presented because the administrator made it appear that the value of the estate did not exceed P1,300. (In re Estate of Reyes, 17 Phil. 188). 2. Fraudulent omission of certain assets in the inventory. (Barredo v. CA, 6 SCRA 620). 3. Where the judgment in favor of claimant was rendered by the CA on appeal after the expiration of the statute of non-claim, claimant arguing that she could not have filed a money claim before since the trial court did not award damages in her favor. (De Rama v. Palileo, 26 February 1965). Under Section 20 of Rule 3, a favorable judgment in a contractual money claim shall be enforced in the manner especially provided in the Rules for prosecuting claims against the estate of a deceased person. Under Rule 86 of the Rules of Court, a judgment for money should be filed as a money claim with the probate court. The Supreme Court has held that a money claim cannot be enforced by a writ of execution but should instead be filed as a money claim. A contractual money claim, whether due or not, or contingent, should be filed within the statute of non-claims otherwise the same would be barred. (S5 R86). Non-payment of the docket fee for a money claim is not a ground for its dismissal. The probate court should just order the payment of the docket fees within a reasonable time. (Sheker v. Estate of Sheker, G.R. No. 157912, 13 December 2007). A certificate against forum shopping is not required of a money claim since it is not an initiatory pleading. (Id.). Spouses were solidarily indebted to creditor. Husband died. No compulsion for creditor to file his money claim with the probate court as he can opt to go against the surviving spouse in an ordinary civil action. S6 R86 cannot prevail over Article 1216 of the Civil Code. (Boston Equity Resources v. Toledo, 9 June 2013). RULE 87. ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS Actions that may be brought against the executor or administrator: 1. Actions to recover real or personal property from the estate; 2. Actions to enforce a lien on real or personal property; and 3. Actions to recover damages for an injury to person or property. (RIL) 2016 Preweek Pointers in Special Proceedings by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court. Page 4 of 22

In the action for reconveyance brought by the Republic against the Marcoses, Imelda and Bongbong, the executors are indispensable parties under S1 R87 and hence may not be dropped from the complaint. (Republic v. Marcos-Manotoc, 8 February 2012). It is the executor or administrator who has the standing to sue for the recovery or protection of the property or rights of the deceased. (S2 R87). Instances when the heirs may sue for the recovery of estate property during the pendency of probate proceedings: 1. If the executor/administrator is unwilling or refuses to bring suit. 2. When the executor/administrator is alleged to have participated in the act complained of and he is made a party-defendant. 3. When letters testamentary or of administration have not yet been issued. (Into v. Valle, 9 December 2005). RULE 90. DISTRIBUTION AND PARTITION OF THE ESTATE Partition and Distribution Court may issue an order of distribution only after the payment of debts, estate taxes, administration expenses, funeral charges, and the allowance to the widow have been paid (DEAF Widow). (S1 R90). Order of distribution: The order shall assign the residue of the estate to the persons entitled to the same, naming them and the proportions or parts to which each is entitled. (S1 R90). The order of distribution must also be at the same time a declaration of heirs since a separate action for the declaration of heirship is not proper. (Pimentel v. Palanca, 5 Phil. 436). The issue of heirship is not to be determined until the distribution stage of the proceedings. The exception would be to determine entitlement or preference in the appointment of the administrator in accordance with the statutory order of preference. (Ngo The Hua v. Chung Kiat Hua, 9 SCRA 113). The persons named as distributees in the order of distribution may demand and recover their respective shares from the executor or administrator, or any other person having the same in his possession. (S1 R90). An order of distribution is appealable within 30 days from notice by filing both a notice of appeal and a record on appeal with the probate court. This is because the order of distribution involves multiple or separate appeals. The probate court still needs to hold on to the original records since motions for leave to file tardy claims may still be filed before the order of distribution becomes final and executory. (See S2 R86). An order approving the project of partition which had already become final may no longer be amended by the probate court even if erroneous. (Imperial v. Munoz, 58 SCRA 678 [1974]). The general rule is that a probate court cannot issue writs of execution because its orders as a rule refer to the adjudication of claims against the estate which the executor or administrator may satisfy without the need of executory process. There are however 4 instances wherein a probate court may issue a writ of execution. (PECS) 1. CONTRIBUTIVE SHARES. Where devisees, legatees, or heirs have entered into possession of portions of the estate before the debts and expenses have been settled and paid, and have become liable to contribute for the payments of such debts and expenses, the probate court may issue writs of execution to satisfy the contributive shares of such devisees, legatees, or heirs. (S6 R88). Where the heirs had already received their shares in the estate, the probate court may issue a writ of execution to compel them to pay their respective shares to satisfy unpaid debts of the estate. (Ignacio v. Elchico, G.R. No. L18937, 16 May 1967).

2016 Preweek Pointers in Special Proceedings by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court. Page 5 of 22

2. EXAMINATION COSTS. To satisfy the costs when a person is cited for examination in probate proceedings. (S13 R142). 3. PARTITION EXPENSES. To satisfy the expenses of partition which the parties may become liable in proportion to their respective shares and interest. (S3 R90). (2 REGALADO 12). 4. SURETY’S LIABILITY ON BONDS. To enforce liability of sureties under bonds filed with the probate court. (Cosme de Mendoza v. Pacheco, 64 Phil. 134). Closure ORDER OF CLOSURE: Issued by the probate court after the payment of all debts and the delivery of the estate to the heirs. This is because the probate court loses jurisdiction of an estate under administration only after such payment and delivery. The finality of the order of distribution or of the approval of the project of partition does not yet terminate the proceedings. (Siguion v. Tecson, 89 Phil. 28). The order of closure may be appealed since it is a final order which affects the substantial rights of the person appealing. (S1[f] R109). The appeal shall be taken within 15 days by filing a notice of appeal. A record on appeal is not required since it does not involve a multiple or separate appeals as there is nothing more left to be done by the probate court. OTHER SPECIAL PROCEEDINGS RULE 92. GUARDIANSHIP (VENUE) There are three kinds of guardians under the law: 1. The legal guardian. One who is such by provision of law without the need of a court appointment. The father and mother shall jointly exercise legal guardianship over the person and the property of their unemancipated common child without the need of a court appointment. (S1 Rule on Guardianship of Minors). 2. The guardian ad litem. One who is appointed by the court for purposes of a particular action or proceeding involving a minor. 3. The general guardian. One who is appointed by the court over the person and/or property of the ward to represent the latter in all his civil acts and transactions. Two kinds of persons may be put under guardianship: minors and incompetents. The guardianship may be over their (a) persons, (b) property, or (c) both persons and property. If the minor or ward is a non-resident, the guardianship may be with respect only to the minor’s or ward’s property. (See S6 R93, S3 RGM). Incompetent includes persons suffering civil interdiction, hospitalized lepers, prodigals, deaf and dumb who are unable to read and write, and those who are of unsound mind (even though with lucid intervals). (CLIP D) Also persons not being of unsound mind but by reason of weak mind, age, disease, or other similar causes (WADO) cannot, without outside aid, take care of themselves and manage their property, becoming thereby an easy prey for deceit and exploitation. (S2 R92). RULE 98. TRUSTEES TRUST: It is a fiduciary relationship concerning property whereby confidence is reposed upon a person who hold legal title over the property and deals with it for the benefit of another. TRUSTEE: The person in whom confidence is reposed as regards property for the benefit of another person. (Article 1440, Civil Code). R98 provides for the procedure for the appointment of a trustee. Distinguish a trustee from an executor/administrator. TRUSTEE EXECUTOR/ADMINISTRATOR Has legal title over property subject of trust Does not have legal title over estate May be exempted from bond if directed in Not exempted from bond even if directed in 2016 Preweek Pointers in Special Proceedings by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court. Page 6 of 22

will or if all beneficiaries request so will Account must be under oath and filed Account need not be under oath and annually except for initial and final submission, shall be filed only at such times as required by the court Appointment required only if necessary to Issuance of letters testamentary or carry into effect the provisions of the will appointment of administrator mandatory in probate proceeding except in summary settlement of estates The appointment of a trustee under R98 is necessary if a testator has omitted in his will to appoint a trustee in the Philippines, and if such appointment is necessary to carry into effect the provisions of the will (S2 R98) as where the testator has provided therein that certain portions of his property be placed in trust. ADOPTION Adoption is a juridical act which creates between two persons a relationship similar to that which results from legitimate paternity and filiation. (4 Valverde 473 cited in 1 ARTURO TOLENTINO, CIVIL CODE OF THE PHILIPPINES 649 [1985 ed.]). Supreme Court Rule on Adoption (A.M. No. 02-6-02-SC) effective 22 August 2002. This rule covers both domestic adoption and inter-country adoption. Give the basic distinctions between domestic adoption and inter-country adoption. AS TO Governing law

Procedure Coverage

Who may adopt

DOMESTIC ADOPTION Domestic Adoption Act of 1998 (DAA); SC Rule on Adoption (ROA) Judicial adoption Filipinos (w some exceptions) adopting other Filipinos S4 ROA

INTERCOUNTRY ADOPTION Inter-Country Adoption Act of 1995 (ICAA); ROA Extrajudicial adoption Aliens or Filipinos permanently residing abroad adopting Filipinos Alien or Filipino permanently residing abroad may file an application for intercountry adoption Legally free child (S8 ICAA)

Who may be S5 ROA adopted Where petition FC where adopter resides. If FC where child resides or may adopter non-resident, with FC be found/ICAB in the country of where child resides or may be prospective adopters. found If filed w FC and finds petition to be proper, it shall transmit pet to ICAB Change of name May be included in petition Not included in petition to adopt JURISDICTION & VENUE: The petition for adoption shall be filed with the Family Court of the province or city where the prospective adoptive parents reside. (S6 ROA). The ROA however does not provide for the venue if the prospective adoptive parents are non-residents. It is submitted that in such a case, venue is laid with the Family Court of the province or city where the prospective adoptee resides or may be found since it may be said that the res is localized therein. A guardian may adopt his ward provided it is done after the termination of the guardianship and clearance of his financial accountabilities. (S4 ROA).

2016 Preweek Pointers in Special Proceedings by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court. Page 7 of 22

Domestic Adoption The following are the effects of the adoption: (PLS) 1. PARENTAL AUTHORITY. All legal ties between the biological parent(s) and the adoptee shall be severed and the same shall vest in the adopters. Exception: Where the biological parent is the spouse of the adopter. 2. LEGITIMACY. The adoptee shall be deemed the legitimate child of the adopter(s). 3. SUCCESSION. The adopter(s) and the adoptee shall have reciprocal rights of succession w/out distinction from legitimate filiation. (S16-18, DAA) A prayer for change of name may be incorporated in the petition for adoption. The change of name is not limited only to the adoptee’s surname. There are no restrictions in this regard under S10 of the ROA. In fact S10(c) states that in case the petition also prays for change of name, the title or caption must contain the registered name of the child and the full name by which the child is to be known. RELATION BACK: Under S16 of the ROA, a decree of adoption shall take effect as of the date the original petition was filed even if the petitioner(s) die before its issuance. Adopter may not rescind the adoption. However, the adopter may disinherit the adoptee for causes provided in Article 919 of the Civil Code. (S19 ROA). ADOPTEE MAY RESCIND ADOPTION: Upon verified petition filed by the adoptee who is over 18 years of age, or with the assistance of the Department of Social Welfare and Development, or by his guardian or counsel, if over 18 but is incapacitated, the rescission may be rescinded based on any of the following grounds committed by the adopter: (MASA) 1. Repeated physical and verbal maltreatment by the adopter despite having undergone counseling; 2. Attempt on the life of the adoptee; 3. Sexual abuse or violence; or 4. Abandonment or failure to comply with parental obligations. (S19 ROA). Intercountry Adoption INTERCOUNTRY ADOPTION: It is the procedure whereby a foreigner or a Filipino permanently residing abroad can adopt a Filipino child who cannot be placed in a foster or an adoptive family or cannot, in any suitable manner, be cared for in the Philippines. (S27 ROA). WHERE PETITION FILED: Family Court where child resides or may be found. The petition may be filed directly with the Inter-Country Adoption Board (ICAB) in the country of the prospective adopters. (S28 ROA). DUTY OF COURT: The court, after finding that the petition is sufficient in form and substance and a proper case for inter-country adoption, shall immediately transmit the petition to the ICAB for appropriate action. (S32 ROA). “BEST INTEREST OF THE MINOR” STANDARD. The standard to be observed is the “best interest of the minor” or “best interest of the child” standard. This is shown by the declaration of policy of the ICAA (S2) which provides that the State shall take measures to ensure that intercountry adoptions are allowed when the same shall prove beneficial to the child’s best interests, and shall protect his/her fundamental rights. The Philippine contingent to the September 2005 Hague convention stressed that intercountry adoption was one that should operate as a childcentered measure, and not with a focus on the needs of the prospective adoptive parents. RULE 102. HABEAS CORPUS Writ of habeas corpus: It is a writ available in cases of illegal confinement or detention or in cases where the rightful custody of any person is withheld from the person entitled thereto.

2016 Preweek Pointers in Special Proceedings by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court. Page 8 of 22

Habeas corpus is the proper remedy for a person deprived of liberty due to mistaken identity. In such cases, the person is not under any lawful process and is continuously being illegally detained. (In re Datukan Malang Salibo, 8 April 2015). JURISDICTION & VENUE: There is concurrent jurisdiction among the Supreme Court, Court of Appeals, Sandiganbayan (in aid of appellate jurisdiction), and the Regional Trial Court. If filed with the RTC, the venue is with the RTC in the judicial region where the writ is sought to be enforced. (2 FLORENZ D. REGALADO 156-57 [9th rev. ed., 3rd printing]). The Municipal Trial Court has special jurisdiction in the absence of all the RTC judges in the province or city. (S35 B.P. Blg. 129). Even though the writ of habeas corpus was issued by the CA but it designated the RTC as the court to which the writ is made returnable, the decision of the RTC is its own and not that of the CA. (In re Datukan Malang Salibo, 8 April 2015). Writs issued by the Supreme Court, the Court of Appeals, and the Sandiganbayan are enforceable anywhere in the Philippines. Those issued by the RTC and MTC are enforceable only within the judicial region to which they belong. Strict compliance with the technical requirements for a habeas corpus petition as provided in the Rules of Court may be dispensed with where the allegations in the application are sufficient to make out a case for habeas corpus. Indeed, in the landmark case of Villavicencio v. Lukban, 39 Phil. 778, the Supreme Court declared that it is the duty of a court to issue the writ if there is evidence that a person is unjustly restrained of his liberty within its jurisdiction even if there is no application therefor. A petition which is deficient in form, such as a petition-letter, may be entertained so long as its allegations sufficiently make out a case for habeas corpus. (Fletcher v. Director of BuCor, UDK-14071, 17 July 2009). Service of summons is not required in a habeas corpus petition, be it under R102 or A.M. No. 0304-04-SC. A writ of habeas corpus plays a role comparable to a summons in ordinary civil actions, in that the court acquires jurisdiction over the person of the respondent upon service of the writ. (Tujan-Militante v. Cada-Deapera, 28 July 2014). If it appears that the person to be restrained of his liberty is in the custody of an officer under process issued by a court or judge; or by virtue of a judgment or order of a court of record, and that court or judge had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed. If the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment, or order. (S4 R102). Dimagiba’s contention that the principle of retroactivity of penal laws would benefit him is not correct since Adm. Cir. 12-2000 is not a law which deleted the penalty of imprisonment but a circular which merely established a rule of preference, subject to the judge’s discretion, in imposing penalties under B.P. Blg. 22. The SC cannot delete the penalty of imprisonment for that would in effect be a law which only Congress may enact. Nor would the plea of equal protection of laws be appropriate. This is because SC A.C. No. 12-2000 as aforestated is not a law. Hence we apply the general rule that habeas corpus is unavailing if a person is under custody by virtue of legal process or a valid judgment. (Go v. Dimagiba, G.R. No. 151876. June 21, 2005). Adm. Cir. 08-2008 (Rule of preference in the imposition of penalties in libel) not a ground for the release on habeas corpus of reporter. The circular cannot be given retroactive effect where judgment in criminal case already final and executory. (Adonis v Tesoro, 5 June 2013). The convict may file a petition for a writ of habeas corpus in the court of origin if the results of the post-conviction DNA testing are favorable to the convict. If the court, after due hearing finds the petition to be meritorious, it shall reverse or modify the judgment of conviction and order the release of the convict. A similar petition may be filed either in the CA or in the SC, or with any member of said courts, which may conduct a hearing thereon or remand the petition to the court of origin and issue appropriate orders. (S10 Rule on DNA Evidence). Take note that such petition for habeas corpus may even be filed by the prosecution. (Id.).

2016 Preweek Pointers in Special Proceedings by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court. Page 9 of 22

PRELIMINARY CITATION cf PEREMPTORY WRIT. Where the person is detained under governmental authority and the illegality of his detention is not patent from the petition for the writ, the court may issue a preliminary citation to the government officer having custody to show cause why the writ should not issue. When the cause of the detention appears to be patently illegal, the court may issue a peremptory writ requiring the unconditional production before the court of the body of the person detained at the date and time specified. (Lee Yick Hon v. Insular Collector of Customs, 41 Phil. 548, 30 March 21). Withholding of rightful custody Sec. 3 of A.M. No. 03-04-04-SC, which states that “the petition for custody of minors shall be filed with the Family Court of the province or city where the petitioner resided or where the minor may be found,” is not applicable because it refers to a petition for custody of minors. What applies is Sec. 20 which covers petition for a writ of habeas corpus involving custody of minors. Such a petition may be filed with any of the proper RTCs within the judicial region where enforcement thereof is sought. (Tujan-Militante v. Cada-Deapera, 28 July 2014). Examples where the writ of habeas corpus is available where the rightful custody of any person is withheld from the person entitled thereto. 1. Parents may avail of the writ to obtain custody of their child as against the grandparent. 2. Wife may avail of the writ to obtain custody of her child under 7 years of age as against her husband. (See Article 213, Family Code). 3. A judicial guardian who was unduly deprived of custody of her ward is entitled to a writ of habeas corpus in order to regain custody. (Hernandez v. San Juan-Santos, 7 August 2009). Where both parents have joint custody of a child, the writ may be availed of if a father is deprived of his right to see his child. (Salientes v. Abanilla, G.R. 162734, 29 August 2006). A habeas corpus case involving a minor is not limited to the production of the minor before the court. The main purpose of the proceeding is to determine who has rightful custody over the child. The court should still proceed to determine who should have the rightful custody of the child. (Bagtas v. Santos, G.R. No. 166682, 27 November 2009). S6 R99 expressly acknowledges and authorizes that the matter of care and custody of the children may be raised and adjudicated as an incident to any proceeding, such as a case for habeas corpus. (Sy v. CA, 27 December 2007). The court could also award support even if not prayed for if the respondent failed to object to evidence on support, based on S5 R10. RULE ON THE WRIT OF AMPARO (eff. 24 October 2007) WRIT OF AMPARO: A remedy available to any person whose right to life, liberty, and security has been violated or is threatened with violation by a public official or employee or a private individual or a private individual or entity. The writ covers extralegal killings and enforced disappearances or threats thereof. (S1, Rule on the Writ of Amparo [RWA]). Distinguish a petition for writ of amparo from an application for a search warrant. AS TO Purpose

WRIT OF AMPARO Protective: To protect a person’s right to life, liberty, or security. SC CA SB; RTC where threat or act committed.

SEARCH WARRANT Criminal prosecution: To discover and seize personal property in furtherance of criminal prosecution. Where filed RTC/MTC within whose territorial jurisdiction/judicial region a crime was committed. Person initiating Private/public person. Peace officer or law enforcement agency only. Seizure of Under the IO and PO, Personal property is seized under personalty personalty is not seized but is S3 R126. merely inspected or copied.

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The coverage of the Writ of Amparo is confined to cases of extralegal killings and enforced disappearances. Hence the writ cannot be availed of by an alien detained by the Bureau of Immigration by virtue of legal process. (Mison v. Gallegos, 23 June 2015, e.b.). The threatened demolition of a dwelling by virtue of a final and executory judgment is not included among the enumeration of rights in S1 RWA. (Canlas v. Napico Homeowners Association, 5 June 2008, en banc). The inclusion of petitioners' names in the Order of Battle List does not, by itself, constitute an actual threat to their rights to life, liberty and security as to warrant the issuance of a writ of amparo. (Ladaga v. Mapagu, 13 November 2012) Writ of amparo not available against Brgy. Captain’s alleged trespass of Petitioner’s property since merely a violation of Petitioner’s property rights. (Sps. Pador v. Arcayan, 12 March 2013). A petition for a writ of amparo is not available in order for a biological mother to recover custody of child from the DWSD since there is no enforced disappearance. Since what is involved is the issue of child custody and the exercise of parental rights over a child, who has been legally considered a ward of the State, the Amparo rule cannot be properly applied. (Caram v. Segui, 5 August 2014). WHERE FILED: It may be filed with the RTC of the place where the threat, act or omission was committed or any of its elements occurred, or the Sandiganbayan, Court of Appeals, Supreme Court or any justice thereof. The petition may be filed by the aggrieved party or by any qualified person or entity in the following order: (IRC) (1) Immediate family of aggrieved party: spouse, children and parents. (2) Ascendant, descendant, or relative within 4th degree. (3) Concerned citizen or organization if no known immediate family member or relative of the aggrieved party. (S2 RWA). Before a concerned citizen may file a petition for writ of amparo in behalf of a non-relative, the petitioner must allege that there were no known members of the immediate family or relatives of the aggrieved party in line with Sec. 2(c) of the RWA. Compare with a habeas corpus proceeding, any person may apply for the writ on behalf of the aggrieved party. (Boac v Cadapan, 31 May 2011). President may not be impleaded as respondent because of presidential immunity from suit. (Rubrico v. Macapagal-Arroyo, G.R. No. 183871, 18 February 2010; Burgos v. Macapagal-Arroyo, 22 June 2010). May the AFP Chief of Staff and the PNP director be included as respondents in a writ of amparo case solely on the basis of command responsibility? Yes but not for the purpose of attaching accountability and responsibility to them for the enforced disappearance of Lourdes but only to determine the author who, at the first instance, is accountable for and has the duty to address the disappearance and harassments complaint of in order to enable the court to devise remedial measures. (Rubrico v. Macapagal-Arroyo, G.R. No. 183871, 18 February 2010). RETURN: The respondent shall file a verified return within 5 working days after service of the writ. The period to file a return cannot be extended except on highly meritorious grounds. The RTC judge acted with grave abuse of discretion in ordering the Respondents De Lima et al., to file an answer rather than a return. A return is different from and serves a different function from an answer. (De Lima v. Gatdula, 19 February 2013). INTERIM RELIEFS: Upon the filing of the petition or at anytime before final judgment, the court may grant any of the following reliefs: (a) TEMPORARY PROTECTION ORDER (TPO). Upon motion or motu proprio, the court may order the aggrieved party and any member of the immediate family be protected in a

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government agency or by an accredited person or private institution capable of securing their safety. (b) INSPECTION ORDER (IO). Upon verified motion and after due hearing, the court may order the inspection or photographing of property or relevant object or operation thereon. If the motion is opposed on the ground of national security or evidentiary privilege, the court may conduct an in camera hearing. (c) PRODUCTION ORDER (PO). Upon verified motion and after due hearing, the court may order production of designated objects for inspection or copying. If the motion is opposed on the ground of national security or evidentiary privilege, the court may conduct an in camera hearing. (d) WITNESS PROTECTION ORDER (WPO). Upon motion or motu proprio, the court may refer witnesses to the DOJ for admission to the witness protection program. Witnesses may also be referred to other government agencies or accredited persons or private institutions for safekeeping. While the RWA provides for the interim reliefs of TPO IO, and PO, these provisional reliefs are intended to assist the court before it arrives at a judicious determination of the amparo petition. For the appellate court to, in the present case, still order the inspection of the military camps and order the army units to conduct an investigation into the disappearance of Nicolas and Heherson after it absolved petitioners is thus not in order. The reliefs granted by the appellate court to respondents are not in sync with a finding that petitioners could not be held accountable for the disappearance of the victims. (Yano v. Sanchez, G.R. No. 186640, 11 February 2010 [e.b.]). Interim reliefs can only be granted before a final adjudication of the case is made. In any case, it must be underscored that the privilege of the writ of amparo, once granted, necessarily entails the protection of the aggrieved party. Thus, since petitioner was granted the privilege of the writ of amparo, there is no need to issue a temporary protection order independently of the former. The order restricting respondents from going near Rodriguez is subsumed under the privilege of the writ. (Rodriguez v. Macapagal-Arroyo, 15 November 2011). SUMMARY HEARING: The hearing on the petition shall be summary. The court may, however, hold a preliminary conference to simply issues and obtain stipulations and admissions from the parties. The hearing shall be from day to day until completed and shall be given the same priority as petitions for habeas corpus. (S13 RWA). Fr. Reyes’ petition for writ of amparo to set aside his inclusion in the HDO list was denied since he should have filed the appropriate motion in the RTC where the rebellion case filed against him was pending. (Reyes v. Gonzalez, 3 December 2009). When a criminal action is filed after the filing of the petition for the writ, the latter shall be consolidated with the criminal action. When a criminal action and a separate civil action are filed subsequent to a petition for a writ of amparo, the latter shall be consolidated with the criminal action. (S23 RWA). Any party may appeal from the final judgment or order to the Supreme Court under R45. The period of appeal shall be 5 working days from notice of the adverse judgment. (S19 RWA) While not expressly provided for in the Rules, in case a motion for reconsideration is filed and denied, the 5-working-day period should be computed from notice of the order denying the motion for reconsideration. (See S25 RWA). The appeal may raise questions of fact or law or both. (S19 RWA). Quantum of proof needed for the parties to establish their claims: Substantial evidence or that amount of relevant evidence which a reasonable mind might accept as adequate to support a conclusion. (S17 RWA; S5 R133). Technical rules of evidence not strictly observed in writ of amparo case. The fair and proper rule 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 2016 Preweek Pointers in Special Proceedings by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court. Page 12 of 22

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. The courts should exercise of flexibility in the consideration of evidence, including hearsay evidence, in extrajudicial killings and enforced disappearance cases. (Razon v. Tagitis, 3 December 2009, Brion, J.) Standard of diligence required of the respondent in the performance of a duty: Ordinary diligence if the respondent is a private individual or entity and extraordinary diligence if the respondent is a public official or employee. The respondent public official or employee cannot invoke the presumption that official duty has been regularly performed to evade responsibility or liability. (S17 RWA). The failure to establish that the public official observed extraordinary diligence in the performance of duty does not result in the automatic grant of the privilege of the amparo writ. It does not relieve the petitioner from establishing his or her claim by substantial evidence. The omission or inaction on the part of the public official provides, however, some basis for the petitioner to move and for the court to grant certain interim reliefs. (Yano v. Sanchez, G.R. No. 186640, 11 February 2010 [e.b.]). Contrary to the ruling of the appellate court, there is no need to file a motion for execution for an amparo or habeas corpus decision. The appellate court erred in ruling that its directive to immediately release Sherlyn, Karen and Merino was not automatically executory. That would defeat the very purpose of having summary proceedings in amparo petitions. Summary proceedings, it bears emphasis, are immediately executory without prejudice to further appeals that may be taken therefrom. (Boac v Cadapan, 31 May 2011). RULE ON THE WRIT OF HABEAS DATA (eff. 2 February 2008) Writ of habeas data: A remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering or storing of data or information regarding the person, family, home, and correspondence of the aggrieved party. (S1, Rule on the Writ of Habeas Data [RHD]). 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 v. Chan, 24 July 2012). Nothing in the Rule would suggest that the habeas data protection shall be available only against abuses of a person or entity engaged in the business of gathering, storing, and collecting of data. It is enough that the person or entity is engaged in the gathering or storing or collecting of data. To “engage” in something is different from undertaking a business endeavour. To “engage” means “to do or take part in something.” It does not necessarily mean that the activity must be done in pursuit of a business. The element of regularity is not essential. (Vivares v. St. Theresa’s College, 29 September 2014). The writ of habeas data not available to employee who wanted to get details on the reason for her transfer from Pampanga to Alabang. The issue essentially is one of labor law not properly the subject of the writ. (Manila Electric Co. v. Gopez-Lim, 5 October 2010, e.b.) Contending that her right to privacy was violated and her reputation maligned and destroyed, Mayor Gamboa filed a petition dated for the issuance of a writ of habeas data against respondents officials of the PNP-Ilocos Norte for including her in the list of persons maintaining private armed groups (PAGs) and for forwarding such list and related reports to the Zenarosa Commission. The SC upheld the dismissal of the petition. The right to informational privacy, as a specific component 2016 Preweek Pointers in Special Proceedings by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court. Page 13 of 22

of the right to privacy, may yield to an overriding legitimate state interest. 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. (Gamboa v. Chan, 24 July 2012, e.b.). There is no right to informational privacy on photos posted on Facebook. That the photos are viewable by “friends only” does not necessarily bolster the petitioners’ contention. Digital images under this setting still remain to be outside the confines of the zones of privacy in view of the sheer number of Facebook “friends” and the facility in which photos can be shared even to those who are not “friends.” (Vivares v. St. Theresa’s College, 29 September 2014). WHERE FILED: It may be filed with the RTC where petitioner or respondent resides or that which has jurisdiction over the place where the data or information is gathered or stored, at petitioner’s option. May also be filed with the Sandiganbayan, Court of Appeals, and the Supreme Court if the petition concerns public data files of government offices. (S3 RHD) Who may file a petition for a writ of habeas data? The aggrieved party. However, in cases of extralegal killings and enforced disappearances may be filed by a member of the aggrieved party’s immediate family (SPC) or in default thereof by a relative within the 4th civil degree. (S2 RHD). RETURN: The respondent shall file a verified return together with supporting affidavits within 5 working days after service of the writ. The period to file a return may be reasonably extended by the court for justifiable reasons. (S10 RHD). The effects of the failure to file the return are the following: (EC) (1) The court shall proceed to hear the petition ex parte granting the petitioner such relief as the petition may warrant unless the court in its discretion requires the petitioner to submit evidence. (S14 RHD). (2) The court may cite for contempt a respondent who refuses to make a return. (S11 RHD). The hearing on the petition shall be summary. The court may, however, hold a preliminary conference to simply issues and obtain stipulations and admissions from the parties. (S15 RHD). HEARING IN CHAMBERS: A hearing in chambers (in camera) may be conducted where the respondent invokes the defense that the release of the data or information in question shall compromise national security or state secrets, or when the data or information cannot be divulged to the public due to its nature or privileged character. (S12 RHD). 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. (S22 RHD). Any party may appeal from the final judgment or order to the Supreme Court under R45. The period of appeal shall be 5 working days from notice of the adverse judgment. (S19 RHD) While not expressly provided for in the Rules, in case a motion for reconsideration is filed and denied, the 5-working-day period should be computed from notice of the order denying the motion for reconsideration. (S24 RHD). The appeal may raise questions of fact or law or both. (S19 RHD). Quantum of proof of the allegations in a writ of habeas data case: Substantial evidence or that amount of relevant evidence which a reasonable mind might accept as adequate to support a conclusion. (S16 RHD; S5 R133). DISTINGUISH THE PETITIONS FOR WRIT OF HABEAS CORPUS, WRIT OF AMPARO, AND WRIT OF HABEAS DATA: AMPARO Rule on the Writ of Amparo to Person illegal Person whose right to deprived of liberty or life, liberty, and

Governing rule Available whom

HABEAS CORPUS Rule 102

HABEAS DATA Rule on the Writ of Habeas Data Person whose right to privacy in life,

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from whom rightful security has been custody of any violated or threatened person is withheld with violation by public or private individual or entity. Extends to extralegal killings or enforced disappearances or threats thereof.

Jurisdiction/ where filed

SC, CA, SB RTC in the judicial region where writ sought to be enforced. MTC (in the absence of all RTC judges in the province or city)

Docket fees

P500 (S7[g] R141)

Extent of SC CA SB: Anywhere enforceability RTC/MTC: w/in judicial region Interim reliefs N.A. Filing of return Return to be made on date and time specified in writ (S6 & 8 R102)

liberty or security is violated or threatened by an unlawful act or omission of a public or private individual or entity engaged in the gathering or storing of data or information (egsid) regarding the person, family, home, and correspondence of the aggrieved party. SC, CA, SB SC, CA, SB (public data files of govt RTC where threat, act offices) or omission committed RTC where petitioner or respondent resides or that which has jurisdiction over the place where the data or information is gathered or stored, at petitioner’s option. Exempt

Anywhere

Available (TIP W) Return must be filed within 5 working days from service of the writ. No extension except on highly meritorious grounds. Appeal Notice of appeal R45 w/in 5 working within 48 hours from days from notice notice Primacy of Not subject to Subject to primacy of criminal action primacy of criminal criminal action (S22 & action 23 RWA) Quantum of Preponderance of Substantial evidence proof evidence (S1 R133) (S17 RWA) Prohibited None S11 RWA papers

P500 (S7[g] R141), indigent petitioner exempt Anywhere

N.A. Return must be filed within 5 working days from service of the writ. Reasonable extension for justifiable reason R45 w/in 5 working days from notice Subject to primacy of criminal action (S21 & 22 RHD) Substantial evidence (S16 RHD) S13 RHD

RULE 103. CHANGE OF NAME STATUTORY BASIS: Article 376 of the Civil Code which provides that “[n]o person can change his name and surname without judicial authority.” JURISDICTION & VENUE: With the Regional Trial Court of the place where the petitioner resides. 2016 Preweek Pointers in Special Proceedings by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court. Page 15 of 22

NAME THAT MAY BE CHANGED UNDER R103. R103 covers principally the change of surname and middle name. For change of first name and/or nickname, the governing law is R.A. No. 9048 which authorizes the local civil registrar or the consul general to effect such change. ADMINISTRATIVE CHANGE OF FIRST NAME/NICKNAME: The general rule is that a change of name may only be effected by a judicial order. (Article 412, Civil Code). However under R.A. No. 9048 (approved 22 March 2001), a change of first name or nickname may be done administratively under the procedure set forth therein. CHANGE OF NAME CF. CORRECTION OF ENTRY OF NAME: In order to differentiate change of name from correction of entry of name, it must be understood that the real or official name of a person is that which is given in the civil register, not the name by which he was baptized in his church or by which he has been known in the community. (San Roque v. Republic, G.R. L-22035, 30 April 1968). Hence any petition which seeks to change the name recorded in the civil registry is a petition for change of name governed by R103. However mere correction of typographical or clerical errors in the entry of the name which are obvious to the understanding are governed by R108. If what a petitioner seeks to do is simply to correct a typographical or clerical error in the entry of her name, then the procedure to be followed is Rule 108 and not Rule 103. On the other hand, Rule 103 is based on change of name which is not simply a correction of a typographical or clerical error, as where the name is dishonorable or is indicative of former alienage. Here the correction of a patently misspelled name (Marilyn to Merlyn) is proper under Rule 108. The RTC did not allow Mercadera to change her name. What it did allow was the correction of her misspelled given name which she has been using ever since she could remember. (Republic v. Mercadera, G.R. No. 186027, 8 December 2010). The following are valid grounds for a change of name (DR DACUL): a) When the name is ridiculous, dishonorable, or extremely difficult to write or pronounce; b) When the change results as a legal consequence, as in legitimation; c) When the change will avoid confusion; d) When the petitioner has been using a name for school purposes and his school records are in such name, then his name in the civil registry may be changed to the name that he has been using in school; e) A sincere desire to adopt a Filipino name to erase signs of former alienage. The above grounds are not exclusive. The matter of whether to grant a petition for change of name is left to the sound discretion of the court. The petition should be granted where there is proper and reasonable cause and where there is no showing that the petition was motivated by fraudulent intent or that the change of surname will prejudice public interest. (Oshita v. Republic, G.R. No. L-21180, 31 March 1967). Q Is the Singaporean practice of not carrying a middle name enough to justify a child born of a Singaporean father and a Filipino mother, but whose birth was registered in the Philippines, to change his name by dropping the middle name (surname of the mother)? A No. To justify a change of middle name, the petitioner must not only show proper and compelling reason therefor but also that he will be prejudiced by the use of his true name. Convenience for the child shall not suffice. (In Re Petition for Change of Name and/or Correction of Entry in the Civil Registry of Julian Lin Carulasan Wang, 30 March 2005) Unlike Rule 108, the local civil registrar need not be impleaded in a petition for change of name. However a copy of the judgment or order shall be furnished the civil registrar of the city or municipality where the court issuing the same is situated, who shall forthwith enter the same in the civil register. (S6 R103).

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RULE 108. CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY STATUTORY BASIS: The statutory basis of Rule 108 is Article 412 of the Civil Code which provides that “[n]o entry in a civil register shall be changed or corrected, without a judicial order.” Who may file a petition for cancellation or correction of entries in the civil registry? Any person interested in an act, event, order or decree concerning the civil status of persons which has been recorded in the civil register, may file a verified petition for the cancellation or correction of any entry relating thereto. (S1 R108). COVERAGE OF R108: R108 covers principally correction of entries which are not merely clerical or typographical errors. For correction of clerical or typographical errors, the governing law is R.A. No. 9048 which authorizes the local civil registrar or the consul general to effect such corrections. In Republic v. Cagandahan, G.R. No. 166676, 12 September 2008, it was held that R.A. No. 9048 removed from the ambit of R108 correction of clerical or typographical errors and that R108 applies only to substantial changes or corrections of entries in the civil register. It is opined that it is more precise to state that R108 is still available for correction of clerical or typographical errors, albeit as a secondary recourse. Clerical or typographical errors may be corrected administratively by the city or municipal civil registrar or the consul general pursuant to the procedure set forth in R.A. No. 9048. JURISDICTION & VENUE: Jurisdiction is with the regional trial court and venue lies in the place where the corresponding civil registry is located. (S1 R108). PARTIES: When cancellation or correction of an entry in the civil register is sought, the civil registrar and all persons who have or claim any interest which would be affected thereby shall be made parties to the proceeding. (S3 R108). PUBLICATION & NOTICE: The court shall, by an order, fix the time and place for the hearing of the petition and cause reasonable notice thereof to be given to the persons named in the petition. The order shall be published once a week for 3 consecutive weeks (1 x 3) in a newspaper of general circulation in the province. TWO SETS OF NOTICES: A reading of S3 & 4 R108 readily shows that R108 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 not named in the petition but nonetheless may be considered interested or affected parties, such as creditors. (Republic v. Coseteng-Magpayo, G.R. No. 189476, 2 February 2011) The failure to implead the civil registrar and the parties who would naturally and legally be affected by the grant of the petition would render the proceedings and the judgment void. Non-impleading, however, as 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 would not nullify the proceedings and judgment as they are deemed notified through publication. (Republic v. Coseteng-Magpayo, G.R. No. 189476, 2 February 2011) Q Respondent Julian Edward Emerson Coseteng Magpayo is the son of Fulvio Magpayo and Anna Dominique Marquez-Lim Coseteng. Claiming that his parents were not legally married, Respondent filed with the RTC of Quezon City (where he resides) a petition to change his name to Julian Edward Emerson Marquez-Lim Coseteng. In support of his petition, Respondent submitted a certification from the NSO that his mother’s name does not appear in the national indices of marriage. The RTC granted the petition. Was the grant of the petition proper? A No. The change being sought in Respondent’s petition goes so far as to affect his legal status in relation to his parents. It has the effect of changing his status from legitimate to illegitimate. Hence R108 applies. Under R108 the petition must be filed in the RTC of the province where the corresponding civil registry is located which in this case is Makati. The petition was however filed in Quezon City where Respondent resides. Also neither the LCR or the Respondent’s father and mother were impleaded in violation of S3 R108 which requires that the 2016 Preweek Pointers in Special Proceedings by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court. Page 17 of 22

civil registrar and all persons who have or claim any interest which would be affected thereby shall be made parties to the proceeding. The service of a copy of the petition and its annexes upon the LCR did not cure the defect. (Republic v Coseteng-Magpayo, G.R. No. 189476, 2 February 2011) Q After the death of her husband Pablo Braza, Cristina came to know that Lucille Titular was introducing Patrick Alvin as her and Pablo’s son. Inquiry revealed that the child’s birth certificate states that he was legitimated by subsequent marriage between Pablo and Lucille and the birth certificate indicates his name as Patrick Alvin Titular Braza. Contending that Patrick could not have been legitimated by the supposed marriage between Lucille and Pablo, said marriage being bigamous on account of the valid and subsisting marriage between Ma. Cristina and Pablo, Cristina and her children filed with the RTC a petition to correct the entries in the birth record of Patrick. In their petition, they prayed for (1) the correction of the entries in Patrick's birth record with respect to his legitimation, the name of the father and his acknowledgment, and the use of the last name "Braza"; 2) a directive to Leon, Cecilia and Lucille, all surnamed Titular, as guardians of the minor Patrick, to submit Parick to DNA testing to determine his paternity and filiation; and 3) the declaration of nullity of the legitimation of Patrick as stated in his birth certificate and, for this purpose, the declaration of the marriage of Lucille and Pablo as bigamous. The respondents filed a motion to dismiss for lack of jurisdiction. Should the motion to dismiss be granted? A Yes. 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. Petitioners’ insistence 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 in untenable. The petitioners’ 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 v. City Civil Registrar of Himamaylan City, 4 December 2009). Q Gerbert is a former Filipino who acquired Canadian citizenship. He went to the Philippines and married Daisylyn in Pasig City. Due to work commitments, he had to return to Canada. Shocked by Daisylyn’s affair with another man, he divorced her in Canada. Later, Gerbert found another Filipina to love. Desirous of marrying her, he went to the Pasig City Civil Registry Office and registered the Canadian divorce decree. a) Was the recording of the Canadian divorce decree lawful? No. But while the law requires the entry of the divorce decree in the civil registry, the law and the submission of the decree by themselves do not ipso facto authorize the decree’s registration. The law should be read in relation with the requirement of a judicial recognition of the foreign judgment before it can be given res judicata effect. In the context of the present case, no judicial order as yet exists recognizing the foreign divorce decree. Thus, the Pasig City Civil Registry Office acted totally out of turn and without authority of law when it annotated the Canadian divorce decree on Gerbert and Daisylyn’s marriage certificate, on the strength alone of the foreign decree presented by Gerbert. b) Gerbert filed with the RTC of Laoag City a petition for judicial recognition of the foreign divorce decree. The RTC rendered decision dismissing the petition on the ground that only the Filipino spouse can invoke the provisions of the 2nd paragraph of Article 26 of the Family Code. Was the judge’s decision correct? No. While the judge was correct in saying that the 2nd paragraph of Article 26 bestows no rights upon an alien, that would not lead to the conclusion that a foreigner cannot file a petition for recognition of a foreign divorce decree. Direct involvement or being the subject of the foreign judgment is sufficient to clothe a party with the requisite interest to institute an action before our courts for the recognition of the foreign judgment. In a divorce situation the divorce obtained by an alien abroad may be recognized in the Philippines, provided the divorce is valid according to his or her national law c) Assuming that the RTC renders a decision recognizing the Canadian divorce decree, would that by itself already authorize the cancellation of entry in the Civil Registry? No. The recognition that an RTC may extend to the foreign divorce decree does not, by itself, authorize the cancellation of the entry in the civil registry. A petition for recognition of a foreign judgment is not the proper proceeding for the cancellation of entries in the civil registry. The proper proceeding is that provided for in R108. Rule 108 of the Rules of Court sets in detail

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the jurisdictional and procedural requirements that must be complied with before a judgment, authorizing the cancellation or correction, may be annotated in the civil registry.1 d) It is required that two separate proceedings for the registration of the Canadian divorce decree - - one for recognition of the foreign decree and another specifically for cancellation of entry under R108 be brought? No. The recognition of the foreign divorce decree may be made in a R108 proceeding itself, as the object of special proceedings is precisely to establish the status or right of a party or a particular fact. Moreover, R108 can serve as the appropriate adversarial proceeding by which the applicability of the foreign judgment can be measured and tested in terms of jurisdictional infirmities, want of notice to the party, collusion, fraud, or clear mistake of law or fact. (Corpuz v. Sto. Tomas, 11 August 2010, Brion, J.). R108 is available to correct the erroneous entry in birth certificate that petitioner’s parents were married. Even substantial errors in a civil registry may be corrected provided the parties avail themselves of the appropriate adversary proceeding. A petition seeking a substantial correction must implead not only the LCR but also all persons who have or claim any interest which would be affected by the correction. Petitioner should have impleaded his father and mother since the substantial correction he is seeking will also affect them. (Onde v. LCR, 10 September 2014). Sex-change cases Q Petitioner Rommel Jacinto Dantes Silverio filed with the RTC of Manila a petition for the change of his first name and sex in his birth certificate. The Petition alleges that Petitioner is a male transsexual, that is “anatomically male but feels, thinks, and acts as a female.” The Petitioner’s efforts to transform himself into a female culminated with a “sex reassignment surgery” in Thailand. Should the petition be granted? A No. The Petitioner’s basis for changing his name was his change of sex. Considering that there is no law recognizing sex reassignment, the determination of a person’s sex made at the time of his or her birth, if not attended by error, is immutable. Hence the petition to change his sex, and correlatively his name, must fail for lack of legal basis. (Silverio v. Republic, G.R. No. 174689, 22 October 2007). Q Respondent was born in 1981 and registered a female in her birth certificate. While growing up she developed secondary male characteristics and was diagnosed to have congenital adrenal hyperplasia (CAH) which is a condition where persons thus afflicted possess both female and male characteristics. At 13 tests revealed that her ovarian structures had minimized, she has stopped growing, and she has no breast or menstrual development. In 2003 Respondent filed a petition for correction of entries in the birth certificate with the RTC of Siniloan, Laguna. She prayed that her birth certificate be corrected such that her gender be changed from female to male and her first name be changed from Jennifer to Jeff. The RTC granted Respondent’s petition. On appeal the Republic contends that the petition did not comply with R103 and R108. The Republic contends that the LCR, who is an indispensable party under S3 R108 was not impleaded, and that CAH was not a valid ground for change of sex. Should the RTC’s decision be set aside? A No, the RTC’s decision should not be set aside. S6 R1 provides that the Rules of Court shall be liberally construed in order to promote their objective of securing a just, inexpensive, and speedy disposition of every action and proceeding. There was substantial compliance with S3 R108 when petitioner furnished a copy of the petition to the local civil registrar. Where a person is biologically or naturally intersex, the determining factor in his gender classification is what the individual, upon reaching the age of majority, with good reason thinks of his or her sex. Considering that the Respondent’s change of name from Jennifer to Jeff merely recognizes his preffered gender, such should be granted. Such change will conform to the change of the entry in birth certificate from female to male. (Republic v. Cagandahan, G.R. No. 166676, 12 September 2008).

1

Although not explicitly stated in the decision, the recording of the divorce decree would in effect result in the cancellation of the marriage between Gerbert and Daisylyn. 2016 Preweek Pointers in Special Proceedings by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court. Page 19 of 22

AS TO

R103

Venue

RTC where petitioner resides

Publication & Notice Impleading LCR

Publication only LCR need not be impleaded but a copy of the judgment or order shall be furnished the LCR

R108 RTC where corresponding civil registry is located Publication & Notice LCR must be impleaded

R.A. NO. 9048 (ADMINISTRATIVE CHANGE OF FIRST NAME OR NICKNAME AND CORRECTION OF CLERICAL/TYPOGRAPHICAL ERRORS) Q A

May an entry in a civil register be changed or corrected without a judicial order? As a general rule no, except for: 1) Clerical or typographical errors, and 2) Change of first name or nickname, which can be corrected or changed by the concerned city or municipal civil registrar (LCR) or consul general (CG). CLERICAL/TYPOGRAPHICAL ERROR: A harmless and innocuous error which is visible to the eyes or obvious to the understanding, and can be corrected or changed only by reference to other existing record or records; provided, however, that no correction must involve the change of sex, age, nationality, or status. (SANS) (S2[3], RA 9048). WHERE FILED: 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 in the civil register may file, in person, a verified petition with the local civil registry where the record being sought to be corrected or changed is kept. (S3 RA 9048). If the petitioner has already migrated to another place in the country and it would not be practical for such party, in terms of transportation expenses, time and effort to appear in person before the local civil registrar (LCR) keeping the documents to be corrected or changed, the petition may be filed, in person, with the LCR of the place where the interested party is presently residing or domiciled. The 2 LCRs concerned will then coordinate to facilitate the processing of the petition. (S3). Filipino citizens who are presently residing or domiciled in foreign countries may file their petition, in person, with the nearest Philippine Consulate. (S3). It appears that former Filipinos presently residing or domiciled abroad cannot avail of this provision. ONE-AVAILMENT RULE: Petitions for the correction of clerical or typographical errors and/or change of first name or nickname may only be availed of once. Q Which court or body would have jurisdiction over a petition for change of first name or nickname or for correction of clerical or typographical errors? A Primary jurisdiction would be with the Local Civil Registrar or the Consul General. However in case where the petition has been denied by the LCR or CG or where the petitioner is availing for the second time of the remedy, then jurisdiction is with the RTC. (Silverio v. Republic, G.R. No. 174689, 22 October 2007; S3 & 7, RA 9048). Change of first name or nickname The petition for change of first name or nickname may be allowed in any of the following cases: (RED HC) (1) The first name or nickname is 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 the petitioner and he has been publicly known by that first name or nickname in the community; or (3) The change will avoid confusion.

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Publication a requirement in a petition for change of first name or nickname. The petition shall be published at least once a week for 2 consecutive weeks (1x2) in a newspaper of general circulation. Publication is not required in a petition for correction of clerical or typographical errors. Remedy of a petitioner if his petition is denied by the LCR or the consul general: He may either appeal the decision to the civil registrar general or file the appropriate petition with the proper court. (S7). Under the Rules of the CRG, the petitioner should file a notice of appeal within 10 working days from notice. Q

Distinguish between change of name under R.A. No. 9048 and under R103.

A RA 9048 Change of first name or nickname only

R103 Change of name (including first name or nickname but primary jurisdiction with LCR/CG) Filed with LCR where record kept; if migrant, Filed with RTC where petitioner resides with LCR of residence or domicile; if Filipino citizen residing or domiciled abroad, with the nearest Phil. Consulate Publication 1 x 2 Publication 1 x 3 Appeal to the CRG within 10 working days from Appeal to the CA within 15 days from notice notice Q A

Distinguish between correction of entries under R.A. No. 9048 and under R108.

RA 9048 R108 Correction of clerical or typographical errors Correction of substantial errors (and clerical or only (excluding ANS) typographical errors but primary jurisdiction with LCR/CG) Filed with LCR where record kept; if migrant, Filed with RTC where corresponding civil with LCR of residence or domicile; if Filipino registry is kept citizen residing or domiciled abroad, with the nearest Phil. Consulate No publication except if change of day and Publication 1 x 3 month of birthdate. Appeal to the CRG within 10 working days from Appeal to the CA within 15 days from notice notice

RULE 109. APPEALS IN SPECIAL PROCEEDINGS Q What are the orders or judgments in special proceedings from which an appeal may be taken? A An appeal may be taken from an order or judgment: (HACAFF) (a) Allows or disallows a will. (b) Determines who are the lawful heirs or the distributive share of the estate to which such heir is entitled. (c) Allows or disallows any claim against the estate or any claim presented on behalf of the estate to offset a claim against it. (d) Settles the account of an executor, administrator, trustee, or guardian. (e) Constitutes in estate proceedings or those relating to the administration of a trustee or a guardian, a final determination in the lower court of the rights of the party appealing. (fdr) (f) Which is the final order or judgment rendered in the case, and affects the substantial rights of the person appealing. (fosur) (S1 R109). The order of the intestate court for Nelly to vacate a portion of the estate property is only an interlocutory order that may not be the subject of an appeal. It is not a final determination of the case or of the issue of distribution of the shares of the heirs in the estate or their rights therein. It must be borne in mind that until the estate is partitioned, each heir only has an inchoate right to the 2016 Preweek Pointers in Special Proceedings by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court. Page 21 of 22

properties of the estate, such that no heir may lay claim on a particular property. (Silverio v. Court of Appeals, G.R. No. 178933, 16 September 2009). Order of probate court that certain properties should be included in the inventory is interlocutory and cannot be appealed under S1 R109. Remedy is certiorari under R65. (Aranas v Mercado, 15 Jan 2014). From the probate court’s order allowing the will of Ferdinand Marcos and issuing letters testamentary to Imelda and Bongbong Marcos, the Republic should have appealed to the CA under S1(a) R109 instead of filing a petition for review on certiorari with the Supreme Court. (Republic v. Marcos, 4 August 2009, Peralta, J.). PERIOD OF APPEAL AND HOW APPEAL TAKEN: In special proceedings and other cases of separate or multiple appeals where a record on appeal is required, the appeal shall be taken within 30 days from notice by filing a notice of appeal and a record on appeal with the court from which the appeal is being taken. (S2[a] & 3 R41). The test for determining if a record on appeal is required is to ask if the court a quo notwithstanding the appeal still needs to hold on to the original record since it has not fully disposed of or decided the case. Appeal from the RTC’s order granting a petition for change of name is perfected by filing a notice of appeal only. A record on appeal is not required since the case does not involve multiple or separate appeals where the trial court needs to retain the original record. (Republic v. Nishina, 15 November 2010). -oOo-

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