Pointers in Special Proceedings by Prof. Manuel Riguera for JBRC

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

30 May 2015

RULE 72. SUBJECT MATTER & APPLICABILITY OF GENERAL RULES A special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact. (S3 R1). S1 R72 not exclusive enumeration of special proceedings. A petition for declaration of presumptive death is not a special proceeding. (Republic v. Madrona, G.R. 163604, 6 May 2005). 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). Petition for liquidation of an insolvent corporation is classified as a special proceeding. (Ong v PDIC, 18 August 2010). An order approving or disapproving a rehabilitation plan can only be reviewed thru a petition for certiorari to the CA under R65 within 15 days from notice of the decision or order. (S2 R6, 2013 Financial Rehabilitation Rules of Procedure).

SETTLEMENT OF ESTATE OF DECEASED PERSONS RULE 73. VENUE AND PROCESS Jurisdiction: Subject matter jurisdiction depends on the gross value of the estate. P300K outside Metro Manila and P400K if within Metro Manila. Venue: The RTC/MTC where the decedent resided at the time of his demise. If the decedent is a non-resident of the Phils, venue is RTC/MTC of any place where he had estate. Rule of preferential jurisdiction (venue) where court first taking cognizance shall exercise jurisdiction to the exclusion of all other courts. Rule of preferential jurisdiction does not apply if the decedent is a resident. 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, L31979, 6 August 1980). Declaration of heirship must be made in the proper probate court in a special proceeding instituted precisely for the purpose of determining the heirs and not in an ordinary suit for recovery of ownership and possession of property. (Gabatan v. Court of Appeals, G.R. No. 150206, 13 March 2009). 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). Donata Lardizabal is the original owner of a parcel of registered land. Her heirs sold the land to plaintiffs. Plaintiffs sued defendants for annulment of title. Defendants contend that status of heirs of D.L. must first be established in a special proceeding. Held: No prior requirement that status of heirs of D.L. be first established in a special proceeding if plaintiffs base their right of action not on the fact of heirship to D.L. but on their rights as innocent purchasers for value. (Limos v. Odones, 11 August 2010). Jurists Spec Pro Pointers 2015. All rights reserved 2015 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. Pointers in Special Proceedings by Prof. Manuel R. Riguera for Jurists Bar Review Center

1

RULE 74. SUMMARY SETTLEMENT OF ESTATES Summary settlement of estates of small value: estate (whether testate or intestate) whose gross value does not exceed P10,000. The MTC has jurisdiction over a petition for summary settlement. The court may proceed summarily without the appointment of an executor or administrator to grant if proper the allowance of the will, the determination of the heirs and the persons legally entitled to participate in the estate, and, after the payment of debts, to divide and distribute the estate. (S2 R74). Extrajudicial settlement of estates Requirements in order that the heirs may extrajudicially settle the estate/ 1. The decedent left no will and no debts. 2. The heirs are all of age or the minors are represented by their judicial or legal representatives duly authorized for the purpose. Q May the distributees and the estate be held liable after the settlement and the distribution of the estate? A Yes. If within 2 years after an extrajudicial settlement or summary settlement, it shall appear than an heir or other person has been unduly deprived of his lawful participation in the estate, such heir or person may compel the settlement of the estate in the courts for the purpose of satisfying such lawful participation. (S4 R74). This involves the cancellation of the partition and the making of a new division, unless the deprived heir or other person agrees to be paid the value of his participation with interest. (3 MANUEL V. MORAN, COMMENTS ON THE RULES OF COURT 400 [1980 ed.]). If within the same 2-year period, it shall appear that there are debts outstanding against the estate or that an heir or other person has been unduly deprived of his lawful participation payable in money, the court having jurisdiction of the estate may after hearing settle the amount of such debts or lawful participation and order how much and in what manner each distributee shall contribute in the payment thereof, and may issue execution against the bond or the real estate belonging to the deceased or both. (S4 R74). Here the procedure is not to cancel the partition but for the court to fix the amount of the lawful participation in money. (Id. 400-401). The bond and real estate shall remain charged with a liability to creditors, heirs, or other persons for the 2-year period after such distribution, notwithstanding any transfers of real estate that may have been made. (S4 R74). If on the date of the expiration of the 2-year period the person authorized to file a claim is a minor or mentally incapacitated, or is in prison or outside of the Philippines (MIPO), he may present his claim within 1 year after such disability is removed. (S5 R74). For the purpose of invoking the 2-year lien within which to file claims against the estate, the period is deemed to commence not from the date of the execution of the instrument but from the date of registration thereof, since it is the registration that gives constructive notice to third persons of the existing settlement of estate. 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 Q Outline in brief the judicial proceedings for the settlement of the estate of a deceased person. (FNA LC PDC) A 1. FILING OF THE INITIATORY PLEADING; i.e., petition for allowance of will or petition for letters of administration. 2. NOTICE OF HEARING. The court shall issue a notice of hearing. Publication 1 X 3 and notice to heirs, legatees, devisees, and interested persons. 3. ALLOWANCE OF WILL (PROBATE). Proof of will. Necessary quantum of evidence if uncontested or contested and in cases of lost or destroyed will. 4. ISSUANCE OF LETTERS TESTAMENTARY/OF ADMINISTRATION. When the will has been proved and allowed, the court shall issue letters testamentary to the person named as executor Jurists Spec Pro Pointers 2015. All rights reserved 2015 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. Pointers in Special Proceedings by Prof. Manuel R. Riguera for Jurists Bar Review Center

2

in the will. In intestate proceedings, after the publication of the notice of the hearing and after the hearing, the court shall issue letters of administration to the person it finds competent. 5. FILING AND APPROVAL OF CLAIMS AGAINST ESTATE. Money claims filed v the estate. (R86). Non-money claims filed v executor or administrator in ordinary action. (R87). 6. PAYMENT OF DEBTS, ETC. Payment of debts, estate tax, administration expenses, allowance to the widow and minor or incapacitated children. 7. DETERMINATION OF HEIRS AND DISTRIBUTION. Court issues order determining the heirs and distributing the remainder of the estate. 8. CLOSURE. Proceedings deemed terminated only after payment of all debts and delivery of the remaining estate to the heirs. 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. Subject to the right of appeal, the allowance of the shall be conclusive as to its due execution. (S1 R75). Husband cannot be charged with forging his wife’s signature in will where the allowance of the same had become final. 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 Q Who may petition for the allowance of a will? A Any executor, devisee, or legatee named in a will, or any other person interested in the estate, may, at any time after the death of the testator, petition the court having jurisdiction to have the will allowed. (S1 R76). An interested person may petition for the allowance of the will even if he does not have possession of the will or even if the will is lost or destroyed. Q A

Outline in brief the procedure for the allowance of the will. 1. Filing of petition for allowance of will. 2. Court issues notice of hearing. 3. Notice of hearing published 3 weeks consecutively and notice sent to known heirs, legatees, devisees, and executor (if not petitioner). 4. Jurisdictional facts: Jurisdiction, venue, filing of petition, publication, and notice. 5. Hearing for allowance: Probate court tackles only extrinsic validity. Required proof. 6. Court issues order allowing/disallowing will. If allowing, court issues letters testamentary; if disallowing, letters of administration. Notice of hearing, publication The court shall fix a time and place for proving the will when all concerned may appear to contest the allowance thereof, and shall cause notice of such time and place to be published 3 weeks successively, previous to the time appointed, in a newspaper of general circulation in the province. (S3 R76). No newspaper publication shall be made where the petition for probate has been filed by the testator himself. (S3 R76). If the testator asks for the allowance of his own will, notice shall be sent only to the compulsory heirs. (S4 R76). No newspaper publication shall be made. (S3 R76).

Jurists Spec Pro Pointers 2015. All rights reserved 2015 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. Pointers in Special Proceedings by Prof. Manuel R. Riguera for Jurists Bar Review Center

3

Where the addresses of the heirs, legatees, and devisees are known, personal and individual notice to them is mandatory. (De Aranz v. Galing, 161 SCRA 628). Publication is sufficient and notice is not necessary when the addressees are not known or the address given in the petition is wrong. (De Aranz v. Galing, 161 S 628). Proof for the allowance of a will Q Where the will in uncontested, what is the required proof? A NOTARIAL WILL. If no person appears to contest the allowance of the will, the court may grant allowance on the testimony of one of the subscribing witnesses only, if such witness testify that the will was executed as is required by law. (S5 R76). If the subscribing witness does not reside in the province, the court may authorize the taking of his deposition and that a photocopy be presented to the witness on examination. (S7 R76). If the subscribing witnesses are dead, insane, or do not reside in the Philippines, the court may admit the testimony of other witnesses to prove the sanity of the testator and the due execution of the will. As evidence of the execution of the will, it may admit proof of the testator’s handwriting and of the subscribing witnesses or any of them. (S8 R76). HOLOGRAPHIC WILL. Testimony of one witness who knows the handwriting and signature of the testator and who explicitly declares that the will and the signature are in the testator’s handwriting. In the absence of such and if the court deems it necessary, expert testimony may be resorted to. (S5 R76). Where the testator himself petitions for the probate of his holographic will, the fact that he affirms that the holographic will and the signature are in his own handwriting shall be sufficient evidence of the genuineness and due execution thereof. (S12 R76). Q Where the will is contested, what is the required proof? A NOTARIAL WILL. All the subscribing witnesses and the notary public if present in the Philippines and not insane must be produced and examined and the death, absence, or incapacity of any of them must be satisfactorily shown to the court. If all or some of such witnesses are present in the Philippines but outside the province where the will has been filed, their deposition must be taken. If any or all of them testify against the due execution of the will, or do not remember having attested to it, or are otherwise of doubtful credibility, the will may nevertheless be allowed if the court is satisfied from the testimony of other witnesses and from all the evidence presented that the will was executed and attested in the manner required by law. (S11 R76). HOLOGRAPHIC WILL. The will shall be allowed if at least 3 witnesses who know the handwriting of the testator explicitly declare that the will and the signature are in the testator’s handwriting. In the absence of any competent witness, and if the court deem it necessary, expert testimony may be resorted to. (S11 R76). Where the testator himself petitions for the probate of his holographic will, the fact that he affirms that the holographic will and the signature thereon are in his own handwriting shall be sufficient evidence of the genuiness and the due execution thereof. The burden of disproving the genuineness and due execution shall be on the contestant. The testator may, in his turn, present such additional proof as may be necessary to rebut the contestant’s evidence. (S12 R76). 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). 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). Proof in case of lost or destroyed will

Jurists Spec Pro Pointers 2015. All rights reserved 2015 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. Pointers in Special Proceedings by Prof. Manuel R. Riguera for Jurists Bar Review Center

4

Q A

What is the proof of a lost or destroyed will? NOTARIAL WILL. Foundational evidence on: 1. The execution and validity of the will, and 2. The existence of the will at the time of the testator’s death, or that the same was fraudulently or accidentally destroyed during the testator’s lifetime without his knowledge. Secondary evidence. At least two credible witnesses by which the provisions of the will are clearly and distinctly proved. (S6 R76). A photocopy of the will is admissible. HOLOGRAPHIC WILL. Foundational evidence: Same as for notarial will (by analogy from S6 R76). Secondary evidence: A photocopy is admissible to prove a lost or destroyed holographic will. Testimonial evidence is however not admissible as secondary evidence because of the great risk of fraud or mistake. (Gan v. Yap, 104 Phil 509; Rodelas v. Aranza, 119 SCRA 16).

Disallowance of will Q A

What are the grounds for the disallowance of a will? The will shall be disallowed in any of the following cases: (EDIFUMI) 1. If not executed and attested as required by law; 2. If the testator was insane or otherwise mentally incapable to make a will at the time of its execution; 3. If it was executed under duress, or the influence of fear, or threats; 4. If it was procured by undue and improper pressure and influence, on the part of the beneficiary, or of some other person for his benefit; 5. If the signature of the testator was procured by fraud; or 6. If the testator acted by mistake or did not intend that the instrument he singed should be his will at the time of affixing his signature thereto. (S9 R76; Article 839, Civil Code).

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). Q If a will is proved and allowed in a foreign country, would that be sufficient for the distribution of the testator’s property located in the Philippines? A No. The will must be reprobated in the Philippines in accordance with R77. This is because the powers and processes of a probate court cannot ex proprio vigore have any effect beyond the limits of the state in which it was granted. (Collector of Internal Revenue v. Fischer, 1 SCRA 93). At the proceedings for reprobate, the proponent must prove: (DA JPE) a) That the testator was domiciled in the foreign country, b) That the will was admitted to probate in such country, c) That the foreign court was, under the laws of said foreign country, a probate court with jurisdiction over the proceedings, d) The law on probate procedure in said foreign country and proof of compliance therewith, and

Jurists Spec Pro Pointers 2015. All rights reserved 2015 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. Pointers in Special Proceedings by Prof. Manuel R. Riguera for Jurists Bar Review Center

5

e) The legal requirement is said foreign country for the valid execution of the will. (2 FLORENZ D. REGALADO, REMEDIAL LAW COMPENDIUM 32 [6th rev. ed., 2nd printing]). 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. ISSUED

LETTERS TESTAMENTARY AND OF ADMINISTRATION, WHEN AND TO WHOM

Q A

What is the initiatory pleading in probate proceedings? If a person dies testate, the initiatory pleading is a: 1. Petition for allowance of will and for letters testamentary if there is an executor named in the will, or 2. Petition for allowance of will and for letters of administration with the will annexed, in case there is a will but there is no executor named in the will or the executor named in the will is incompetent, refuses the appointment, or fails to give a bond. If a person dies intestate, the initiatory pleading is a petition for letters of administration. An executor is the person named in the will to administer the decedent’s estate and carry out the provisions thereof. An administrator is the person appointed by the court to administer the estate where the decedent died intestate, or where the will was void and disallowed, or where no executor was named in the will or the executor named therein is incompetent, refuses the trust, or fails to give a bond. (BIRNID) 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). When the will has been proved and allowed, the court shall issue letters testamentary to the person named as executor therein, if he is competent, accepts the trust, and gives bond as required under R81. (CAB) Q A

To whom shall letters of administration be granted? The rules lay down the following order of preference: (SNB RPC) 1. Surviving spouse. 2. Next of kin. 3. Surviving spouse and next of kin (both). 4. Person who the surviving spouse or next of kin requests to have appointed. 5. Principal creditor/s if the above neglect for 30 days after the person’s death to apply for administration or to request that administration be granted to some other person. 6. Person as the court may select, if no principal creditor competent and willing to serve. (S6 R78). The probate court may for valid cause disregard such order of preference.

Jurists Spec Pro Pointers 2015. All rights reserved 2015 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. Pointers in Special Proceedings by Prof. Manuel R. Riguera for Jurists Bar Review Center

6

Estate of Cristina Aguinaldo-Suntay. Legitimate grandchild Isabel Cojuangco-Suntay and illegitimate grandchild Emilio Cojuangco-Suntay appointed as co-administrators by SC. The SC reconsidered its earlier order and upheld the appointment only of Isabel as taking into account her “unassailable status” as the next of kin.1 The SC also took into account the animosity between Isabel and Emilio and Emilio’s failure to return a true and complete inventory. (Suntay v. Cojuangco-Suntay, 10 October 2012). RULE 79. OPPOSING ISSUANCE OF LETTERS TESTAMENTARY. PETITION AND CONTEST FOR LETTERS OF ADMINISTRATION. Any person interested in the will may state in writing the grounds why letters testamentary should not issue to the persons named therein as executors, or any of them. A petition may at the same time be filed for letters of administration with the will annexed. A petition for letters of administration must be filed by an interested person and must show so far as known to the petitioner: (JNVA) 1. The jurisdictional facts; 2. The names, ages, and residences of the heirs, and the names and residences of the creditors; 3. The probable value and character of the property of the estate; and 4. The name of the person for whom letters of administration are prayed. (S2 R79). 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). An interested person is one who stands to benefit from the distribution of the estate as in the case of an heir or one who has a claim against the estate, as in the case of a creditor of the deceased. The interest must be material and direct and not merely indirect or contingent. (San Luis v. San Luis, G.R. No. 133743, 6 February 2007). The Supreme Court has held that a person who has cohabited with another is a co-owner of the properties acquired through their joint efforts during the cohabitation pursuant to Articles 147 and 148 of the Family Code and that such co-ownership would qualify her as an interested person within the purview of S2 R79. (San Luis v. San Luis, G.R. No. 133743, 6 February 2007). Any interested person may, by filing a written opposition, contest the petition on the ground of the incompetency of the person for whom letters are prayed therein, on the ground of the contestant’s own right to the administration, and may pray that letters issue to himself, or to any competent person or persons named in the opposition. (S4 R79). 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).

While not explicitly stated by the SC, it appears that Emilio’s status as an illegitimate grandchild and the iron curtain under Article 992 of the Civil Code weighed against Emilio’s chances. 1

Jurists Spec Pro Pointers 2015. All rights reserved 2015 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. Pointers in Special Proceedings by Prof. Manuel R. Riguera for Jurists Bar Review Center

7

Pending appeal from the appointment of a regular administrator, the court may not appoint a special administrator because the administrator-appointee should be the administrator pending appeal from his appointment. (Relucio v. San Jose, 81 Phil. 365). The special administrator shall take possession and charge of the estate and preserve the same for the executor or administrator afterwards appointed. For this purpose he may commence and maintain suits. (S2 R80). Restrictions on the powers and duties of the special administrator: He may sell only such perishable and other property as the court orders sold. He shall not be liable to pay any debts of the deceased unless so ordered by the court. (S2 R80). 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. 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 The executor or administrator is required to give a bond before he enters upon the execution of his trust and before letters testamentary or of administration shall issue. The bond shall be in such sum as the court directs. (S1 R81). The bond is conditioned as follows: (APIA) 1. INVENTORY. The executor/administrator shall submit to the court within 3 months after receipt of letters an inventory and appraisal of all the estate of the deceased which shall come to his possession or knowledge. 2. ADMINISTRATION. The executor/administrator shall administer the estate and from the proceeds to pay and discharge all debts, legacies, and charges on the same, or such dividends thereon as shall be decreed by the court, and to distribute the residue. (apd) 3. ACCOUNTING. The executor/administrator shall render a true and just account of his administration to the court within 1 year from receipt of letters testamentary or of administration, and at any other time when required by the court. 4. PERFORMANCE OF COURT ORDERS. The executor/administrator shall perform all court orders. (S1 R81). If the testator in his will directs that the executor serve without bond or with only his individual bond, the executor is still required to give bond. The executor may be allowed by the court to give bond in such sum and with such surety as the court approves conditioned only to pay the debts of the testator. (S2 R82). The 3-month period for the executor/administrator to file the inventory is not mandatory tor jurisdictional. However The executor’s/administrator’s unexplained delay in filing the inventory may be a ground for his removal. (Cuizon v. Ramolete, 129 SCRA 495). While the probate court has jurisdiction to determine whether or not the properties included in the inventory or excluded therefrom belong prima facie to the deceased, such a determination is not final and without prejudice to the right of the interested party to raise in a proper action the question of ownership. (Reyes v. Mosqueda, 187 SCRA 661). The making of the inventory is therefore of a preliminary and provisional nature and is not absolutely decisive of the rights of all persons in interest. The duty of an administrator to render an accounting is not a mere incident of an administration proceeding which can be waived or disregarded when the same is terminated. It is a duty that has to be performed and duly acted upon by the court before the administration is finally closed and terminated. (Joson v. Joson, 2 SCRA 82). Jurists Spec Pro Pointers 2015. All rights reserved 2015 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. Pointers in Special Proceedings by Prof. Manuel R. Riguera for Jurists Bar Review Center

8

The sureties on the bond are not entitled to notice of the settlement of the account of an executor/administrator but may intervene in such settlement. Under S11 R85 upon the settlement of the account of an executor/administrator, a person liable as surety on such account may, upon application, be admitted as party to such accounting. The administrator has the power to administer the estate for purposes of liquidation and distribution; he may therefore exercise all acts of administration without special court authority and this includes leasing the property since leasing is an act of administration. If the lease however exceeds one year it is no longer an act of administration and prior leave of court is required. (Art. 1878(8), Civil Code). It would be improper for the administrator to appoint himself as agent to sell estate property even if he proves benefit to be derived by the estate. A contrary rule would open the door to fraud and mismanagement. (Jaroda v. Cusi, 28 SCRA 108). An administrator has no authority without prior court approval to borrow money in behalf of the estate. He is not authorized to contract debts and establish obligations to the injury and prejudice of the heirs, and in case the administrator has so acted, he alone will be responsible with his own property for the debts contracted by him. (Fabie v. Yulo, 24 Phil. 240). Liability under the bond may be enforced either in an ordinary civil action or in the same administration proceedings. The surety may not raise the defense that the bond was not renewed or that the premiums thereon have not been paid. The surety’s liability under the bond is continuing for as long as the executor or administrator has duties to perform as such. (Luzon Surety Co. v. Quebral, 127 SCRA 295). Furthermore under Section 177 of the Insurance Code, the suretyship shall be binding notwithstanding nonpayment of the premium where the obligee has accepted the bond. RULE 82. REVOCATION OF ADMINISTRATION, DEATH, RESIGNATION, AND REMOVAL OF EXECUTORS AND ADMINISTRATORS If after letters of administration have been granted on the estate of a decedent as if he had died intestate, his will is proved and allowed by the court, the letters of administration shall be revoked and all powers thereunder cease, and the administrator shall forthwith surrender the letters to the court, and render his account within such time as the court directs. Proceedings for the issuance of letters testamentary or of administration under the will shall then commence. (S1 R82). Note that it is only when the newly discovered will has been admitted to probate that the letters of administration shall be revoked by the probate court. The court may remove an executor or administrator if he: (PARIU) a) Neglects to perform an order or judgment of the court; b) Absconds; c) Neglects to render his account and settle the estate; d) Becomes insane; e) Becomes unsuitable to discharge the trust. The court may in its discretion permit the executor/administrator to resign. (S2 R82). 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). That an administratrix was later held to be without the right to intervene in the settlement of the estate as an heir is not a ground for her removal, since even a stranger can be appointed as an administrator. (Parreno v. Aranzado, L-27657, 30 August 1982).

Jurists Spec Pro Pointers 2015. All rights reserved 2015 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. Pointers in Special Proceedings by Prof. Manuel R. Riguera for Jurists Bar Review Center

9

The temporary residence outside the country, maintained for the benefit of the health of the administrator’s family, is not a ground for his removal. An executor who claimed as his own certain shares in the deceased’s name in a gas company on the ground that the deceased was merely his dummy was properly removed on the ground of unsuitability. (Borromeo v. Borromeo, 97 Phil. 549). RULE 85. ACCOUNTABILITY AND COMPENSATION OF EXECUTORS AND ADMINISTRATORS When the executor or administrator is an attorney, he shall not charge against the estate any professional fees for legal services rendered by him. (S7 R85). Q Atty. Bermudo filed a petition for his appointment as administrator of the estate of Artemio Hilario and for the allowance and probate of the latter’s will before the RTC of Angeles City. The testator instituted Roxas as his only heir but several persons, who claimed to be Hilario’s relatives, opposed the petition. The RTC rendered a decision, allowing the will and recognizing Roxas as Hilario’s sole heir. On appeal, the CA affirmed the RTC decision. The SC sustained the CA decision. When the decision constituting Roxas as the sole heir became final, Atty. Bermudo who also served as counsel for her in the actions concerning her inheritance filed a motion to fix his legal fees and to constitute a charging lien against the estate for the legal services he rendered. Roxas contends that under S7 R85 when the executor or administrator is an attorney, he shall not charge against the estate any professional fees for legal services rendered by him. Is Roxas’ contention correct? A No. Atty. Bermudo did not only serve as administrator of the estate. He also served as Roxas’ counsel in the suit that assailed her right as sole heir. Atty. Bermudo brought the contest all the way up to this Court to defend her rights to her uncle’s estate. And Atty. Bermudo succeeded. Acting as counsel in that suit for Roxas was not part of his duties as administrator of the estate. Consequently, it was but just that he is paid his attorney’s fees. (Bermudo v. Tayag-Roxas, 2 February 2011). The Supreme Court has held that the lawyer should first seek payment from the executor or administrator who is primarily liable. However if the executor or administrator refuses to pay the lawyer, the latter has two alternatives in collecting fees for legal services rendered in settling an estate. First the lawyer may file a separate suit against the executor or administrator in the latter’s personal capacity. Second the lawyer may file a direct claim against the estate itself for recovery of the fees as administration expenses. When a lawyer files a direct claim against the estate, there should be notice to all interested persons so that they may have the opportunity to challenge the propriety or the reasonableness of the fees. (Salonga Hernandez & Allado v. Pascual, G.R. 127165, 2 May 2006.). RULE 86. CLAIMS AGAINST THE ESTATE The following are money claims: (CFSJ) 1. All claims for money against the decedent, arising from contract, express or implied, whether the same be due, not due, or contingent; 2. All claims for funeral expenses; 3. All claims for expenses for the last sickness of the decedent; and 4. Judgment for money against the decedent. (S5 R86). 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 quasidelict. (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.

Jurists Spec Pro Pointers 2015. All rights reserved 2015 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. Pointers in Special Proceedings by Prof. Manuel R. Riguera for Jurists Bar Review Center

10

Claims for unpaid taxes by the government are not money claims. In fact they must be paid first before the estate is distributed and where the estate is distributed without the taxes being paid, the taxes may be enforced against the distributees in proportion to their shares in the inheritance. (Gov’t v. Pamintuan, 55 Phil. 13). 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 than 6 months nor more than 12 months after the date of the first publication of the notice. This period is also known as the statute of non-claims. 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 [9 th 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). Where the deceased was substituted by the administrator in the civil action involving a money claim, the estate is deemed to have notice of such claim. The substitution of the deceased in the civil action by the administrator or the decedent’s representative is generally considered as equivalent to the presentation of the claim with the probate court. Under the circumstances, the filing of the contingent claim ad abundantiorem cautelam was a mere formality. (Ignacio v. Pampanga Bus Co., G.R. No. L18936, 23 May 1967). 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 Jurists Spec Pro Pointers 2015. All rights reserved 2015 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. Pointers in Special Proceedings by Prof. Manuel R. Riguera for Jurists Bar Review Center

11

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 nonclaims 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.). The possibility of recovering on a deficiency judgment is a contingent claim which should be filed within the statute of non-claims. What the bank should have done was to file a contingent claim for the probable deficiency with the probate court within the 6-month period. (PNB v. CA, 360 SCRA 370). 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) 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). The executor or administrator may, for the benefit of the creditors, file an action to recover property fraudulently conveyed by the deceased in order to defraud his creditors if the estate is not sufficient to pay the debts and expenses of administration. But he shall not be bound to commence such action unless on application of the creditors, nor 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. (S9 R87). A creditor may himself file such action in the name of the executor or administrator subject to the following requisites: (PNB) (1) The action should be with the court’s permission; (2) if the executor or administrator has not commenced such action; (3) and provided the creditor has filed in court 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. Where the conveyance or attempted conveyance has been made by the deceased in favor of the executor or administrator, the action which the creditor may bring shall be in the name of all the creditors, and court permission and the filing of the bond are not necessary. (S10 R87). RULE 88. PAYMENT OF THE DEBTS OF THE ESTATE Jurists Spec Pro Pointers 2015. All rights reserved 2015 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. Pointers in Special Proceedings by Prof. Manuel R. Riguera for Jurists Bar Review Center

12

The testator may in his will designate the part of the estate from which the debts shall be paid or make provision for the payment of debts. But if the provision made by the will or the estate appropriated is not sufficient, such part of the estate, real or personal, as is not disposed of by will shall be appropriated for that purpose. (S2 R88). Order in which estate property is charged for the payment of debts and expenses: First the part of the estate designated in the will shall be charged for such payments. Second, the personal estate of the deceased no disposed of by will shall be chargeable with the payment of debts and expenses. Third, if said personal estate is not sufficient for that purpose, or its sale would be detrimental to the participants of the estate, the whole of the real estate not disposed of by will, or so much thereof as is necessary, may be sold, mortgaged, or otherwise encumbered for that purpose by the executor or administrator, after obtaining the court’s authority. Any deficiency shall be met by contributions from devisees, legatees, or heirs who have entered into possession of portions of the estate before the payment of debts and expenses. (S3 R88). (DPRC) Devisees, legatees, or heirs who enter into the possession of portions of the estate before the debts and expenses have been settled and paid become liable to contribute for the payment of such debts and expenses. The probate court may after hearing issue an order settling the amounts of their liabilities and order how much and in what manner each person shall contribute, and may issue a writ of execution to satisfy the contributive shares. (S6 R88). RULE 90. DISTRIBUTION AND PARTITION OF THE ESTATE Liquidation of community property or conjugal partnership upon death of spouse Liquidation is the process undertaken upon the dissolution of the absolute community property or the conjugal partnership of gains. Basically it involves taking an inventory of the community property or conjugal partnership property, paying the debts of the absolute community or the conjugal partnership, delivering the exclusive property of the spouses, and dividing the net remainder equally between the spouses. (Articles 102 and 129, Family Code). When the marriage is dissolved by the death of the husband or wife, the community property or the conjugal partnership shall be liquidated in the same proceedings for the settlement of the estate of the deceased spouse. If both spouses have died, the liquidation may be effected in the estate proceedings of either. (S2 R73; Articles 103 and 130, Family Code). 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). PROJECT OF PARTITION: The heirs may by agreement submit a project of partition to serve as the basis of the order of distribution. The heirs who do not agree thereto may submit a counter-project of Jurists Spec Pro Pointers 2015. All rights reserved 2015 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. Pointers in Special Proceedings by Prof. Manuel R. Riguera for Jurists Bar Review Center

13

partition. If approved by the court, the same will serve as the basis of the order of distribution. The court order approving the project may at the same time serve as the order of distribution. (2 FLORENZ D. REGALADO, REMEDIAL LAW COMPENDIUM 100 [9th rev. ed., 3rd printing]). 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. L-18937, 16 May 1967). 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. Remedy of an heir entitled to the residue of the estate but not given his share: 1. Where an heir who has been duly notified of the proceedings is not included or not given any share in the order of distribution, he must move for reconsideration or appeal therefrom within 30 days from notice, otherwise the order becomes final. 2. Where the heir and his address is known to the petitioner, but no notice was given to him, the heir can file an action to annul the judgment. The failure to notify him deprives the probate court of jurisdiction to render a valid judgment. 3. Where the heir or his address is unknown and no notice was given to him, he can file a motion with the probate court for the delivery of his share or to re-open the proceedings if the order of closure is not yet final. If the order of closure has become final, the remedy of the heir is to file an action for reconveyance against the distributees, subject to acquisitive prescription. Jurists Spec Pro Pointers 2015. All rights reserved 2015 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. Pointers in Special Proceedings by Prof. Manuel R. Riguera for Jurists Bar Review Center

14

4. Where the heir is given a share in the order of distribution, he may move for the delivery of the same to him, even after the closure of the proceedings. The provisions of S6 R39 do not apply to special proceedings. (Rodil v. Benedicto, 95 SCRA 137 [1980]). OTHER SPECIAL PROCEEDINGS RULE 91. ESCHEATS ESCHEAT. It is the special proceeding instituted by the Solicitor General or his representative in behalf of the Republic to obtain title over the personal or real estate of a person who dies intestate leaving no heir or person entitled to the same. (S1 R91). In an intestate estate proceeding, the probate court found that the decedent left no heirs or persons entitled to his estate. The probate court could not then and there decree that the estate be awarded to the State. The requirements for bringing an escheat proceeding (like publication once a week for 6 consecutive weeks) under R91 should be complied with. (De Guzman v. Sevilla, 47 Phil. 891 [1974]). Outline of procedure in an escheat proceeding. 1. When a person dies intestate leaving real or personal estate but with no heir or person entitled to the same, the Solicitor General or his representative in behalf of the Republic may file a petition with the RTC/MTC of the place where the deceased last resided or in which he had estate, if the deceased is a non-resident. 2. The court shall fix a date and place for the hearing which shall not be more than 6 months from the entry of the order and shall direct that a copy of the order be published at least once a week for 6 consecutive weeks in a newspaper of general circulation. 3. The court shall adjudge that the estate of the deceased in the Philippines, after the payment of debts and charges, shall be escheated. An heir or person entitled to the estate may recover the same after its escheat provided the claim is filed within 5 years from the date of the judgment. In such a case the claimant shall have title to and possession of the property. If the property had been sold, the city or municipality shall be accountable to the claimant for the proceeds, after deducting reasonable charges for the care of the estate. A claim not made within the 5-year period shall be forever barred. REVERSION. An action brought by the Republic to recover properties alienated in violation of the Constitution or of any statute. (S5 R91). Lands of the public domain and real rights thereto which were acquired in violation of the Constitution or the public land laws shall also be reverted to the State. (Sec. 21, Article XVIII, Constitution). The action at bottom seeks to nullify the judgment of the CFI, acting as a land registration court, on the ground that a land registration court cannot issue a title over property of the public domain. Hence it is the Court of Appeals which has jurisdiction pursuant to B.P. Blg. 129 and R47 of the Rules of Court. (Yujuico v. Republic, G.R. No. 168861, 26 October 2007). Adjoining land owners are not the real parties in interest to file a reversion suit over land alleged to be foreshore. In all actions for the reversion to the State of lands of the public domain or improvements thereon, it is the Republic which is the real party in interest. The action must be instituted by the Solicitor General or the officer acting in his stead in behalf of the Republic. The action for the annulment of the homestead patent was thus dismissed. (Manese v. Sps. Velasco, 29 Jan 09). It should also be pointed out that the petitioner was not the proper party to challenge Ramona’s qualifications to acquire land. Under Section 7, Batas Pambansa Blg. 185, the Solicitor General or his representative shall institute escheat proceedings against its violators. Only the Government, through the Solicitor General, has the personality to file a case challenging the capacity of a person to acquire or to own land based on non-citizenship. This limitation is based on the fact that the violation is committed against the State, not against any individual; and that in the event that the transferee is

Jurists Spec Pro Pointers 2015. All rights reserved 2015 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. Pointers in Special Proceedings by Prof. Manuel R. Riguera for Jurists Bar Review Center

15

adjudged to be not a Filipino citizen, the affected property reverts to the State, not to the previous owner or any other individual. (Balais-Mabanag v. Register of Deeds, 29 March 2010). The CA committed reversible error when it ruled that the issuance of individual notices upon respondents was a jurisdictional requirement, and that failure to effect personal service on them rendered the Decision and the Order of the RTC void for want of jurisdiction. Escheat proceedings are actions in rem, whereby an action is brought against the thing itself instead of the person. Thus, an action may be instituted and carried to judgment without personal service upon the depositors or other claimants. Jurisdiction is secured by the power of the court over the res. Consequently, a judgment of escheat is conclusive upon persons notified by advertisement, as publication is considered a general and constructive notice to all persons interested. (RCBC v. Hi-Tri Development Corp., 13 June 2012). Where the purchaser of a manager’s check (Hi-Tri Dev’t Corp) payable to Rosmil Corp., retained the manager’s check and did not deliver it to the payee, the money allocated to the manager’s check remained as the bank deposit of the purchaser rather than the payee. Hence it was wrong for the bank to treat the money as the deposit of the payee. Before the bank should have reported the money as an unclaimed balance, it should have first notified Hi-Tri Dev’t Corp. (Id.). 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). Jurisdiction and venue of a guardianship proceeding: Guardianship over incompetents: RTC of the place where the incompetent resides. If a non-resident, with the RTC of the place where the incompetent’s property or part thereof is situated. Guardianship over minors. Family Court of the place where the minor resides. If a non-resident, with the Family Court of the place where the minor’s property or part thereof is situated. (S3 RGM). RULE 93. APPOINTMENT OF GUARDIANS Who may petition for the appointment of a guardian over an incompetent or a minor? Any relative, friend, or other person on behalf of an incompetent who has no parent or lawful guardian. (S1 R93). In the case of a minor: 1. Any relative or other person on behalf of a minor. 2. The minor himself, if fourteen years of age or above. Jurists Spec Pro Pointers 2015. All rights reserved 2015 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. Pointers in Special Proceedings by Prof. Manuel R. Riguera for Jurists Bar Review Center

16

3. Secretary of Social Welfare and Development and by the Secretary of Health in the case of an insane minor who needs to be hospitalized. (S2 RGM). When the minor resides outside the Philippines but has property in the Philippines, any relative or friend of such minor, or any one interested in his property, in expectancy or otherwise, may petition for the appointment of a guardian over the property. (S12 RGM). The grounds for the appointment of a guardian over the person or property, or both, of a minor are the following: (BRP²) (a) Death, continued absence, or incapacity of his parents. (b) Suspension, deprivation or termination of parental authority. (c) Remarriage of his surviving parent, if the latter is found unsuitable to exercise parental authority. (d) When the best interests of the minor so requires. (S4 RGM). Who may be appointed a guardian of an incompetent? In the appointment of a guardian for an incompetent, the choice of a suitable guardian is left to the sound discretion of the guardianship court. (Goyena v. Gustilo, G.R. No. 147148, 13 January 2003). A non-resident should not be appointed as a guardian because it would be difficult for him to fulfill his duties. (Vansil v. Balmes, 358 SCRA 707 [2001]). There is no rule of preference regarding the appointment of a guardian over an incompetent. (Compare with the rule on the appointment of a guardian over a minor under S6 RGM). Q Who may be appointed guardian of the person or property, or both, of a minor? A In default of parents or a court-appointed guardian, the court may appoint a guardian of the person or property, or both, of a minor, observing as far as practicable, the following order of preference: a) The surviving grandparent and in case several grandparents survive, the court shall select any of them taking into account all relevant considerations. b) The oldest brother or sister of the minor over 21, unless fit or disqualified. c) The actual custodian of the minor over 21, unless unfit or disqualified; and d) Any other person, who in the sound discretion of the court, would serve the best interests of the minor. Q Will any defect in the petition or verification render void the issuance of letters of guardianship? A No. (S2 R93, S7 RGM). After the filing of the petition, the court shall fix a time and place for hearing the same. Reasonable notice of the hearing of the petition shall be given to the persons mentioned in the petition including the incompetent himself. The court may direct other general or special notice to be given. (S3 R93). Where the person liable to be put under guardianship resides abroad but has estate in the Philippines, the court may direct that notice be given by publication or otherwise. (S6 R93). The rule is substantially the same with respect to guardianship over minor with the special requirement that notice of the hearing shall be given the minor if 14 years of age or over. (S8 RGM). No case study report is required in proceedings for guardianship of incompetents. In the case of guardianship over a minor, a case study report is required. (S9 RGM). The social worker may intervene on behalf of the minor if he finds that the petition for guardianship should be denied. (S9 RGM). Any interested person may, by filing a written opposition, contest the petition on the ground of majority of the alleged minor, competency of the alleged incompetent, or the unsuitability of the person for whom letters are prayed (MCU), and may pray that the petition be dismissed, or that the letters of guardianship issue to himself, or to any suitable person named in the opposition. (S4 R93, S10 RGM).

Jurists Spec Pro Pointers 2015. All rights reserved 2015 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. Pointers in Special Proceedings by Prof. Manuel R. Riguera for Jurists Bar Review Center

17

At the hearing, the alleged incompetent must be present if able to attend, and it must be shown that the required notice has been given. The court shall then hear the evidence of the parties and if the person is proved to be incompetent or if the grounds for the appointment of a guardian over a minor are proved, the court shall appoint a suitable guardian of his person or property, or both. In guardianship over minors, the prospective ward shall be presented to the court. (S11 RGM). In guardianship over the property of a non-resident minor, the court may dispense with the presence of the non-resident minor. (S12 RGM). RULE 94. BONDS OF GUARDIANS Before a guardian enters upon the execution of his trust or before letters of guardianship shall issue, the guardian shall post a bond in the amount fixed by the court for the faithful performance of his duties. (S1 R94, S14 RGM). In the case of guardianship over the person of the minor child, the parents are not required to furnish a bond. In the case of guardianship over the property of the minor child, the parents are required to furnish a bond if the market value of the property or the annual income of the child exceeds P50,000. 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 the annual income, to guarantee the performance of the obligations prescribed for general guardians. (S16 RGM; Art. 225, Family Code). A verified petition for approval of the bond shall be filed in the Family Court of the place where the child resides or, if the child resides in a foreign country, in the Family Court of the place where the property or any part thereof shall be situated. The petition shall be docketed as a summary judicial proceeding. (Id.) Hence the judgment therein shall be immediately final and executory. (Art. 247, Family Code). The conditions of the bond of the guardian are as follows: (IDAP) 1. INVENTORY. To submit to the court within 3 months after the issuance of the letters of guardianship an inventory of the ward’s property. 2. DUTY, MANAGEMENT & CARE. To faithfully execute the duties of his trust, manage the estate, and provide for the care and education of the ward. 3. ACCOUNT. To render an account of the ward’s property one year from his appointment (and every year thereafter in the case of a minor) or as so often as may be required. 4. PERFORM COURT ORDERS. To perform all orders of the court. (S1 R94, S14 RGM). RULE 95. SELLING AND ENCUMBERING PROPERTY OF THE WARD A guardian may sell or encumber the ward’s property provided that the guardian presents a verified petition to the court by which he was appointed praying for such an order and provided there are valid grounds for the grant of such authority. (S1 R95). A mere motion will not suffice. A sale w/out court authority is unenforceable. Grounds for the grant of authority to the guardian to sell or encumber the estate of the incompetent: 1. When the income of the estate under guardianship is insufficient to maintain the ward and his family; or 2. When it appears that it is for the benefit of the ward that his real estate or some part thereof be sold or mortgaged or otherwise encumbered, and the proceeds thereof put out at interest, or invested in some productive security, or in the improvement of security of other real estate of the ward. (S1 R95). It is not necessary for the grant of authority to sell that the ward’s income be insufficient to maintain and educate him, it being enough that the sale is for the ward’s benefit. (Tavera v. El Hogar, 98 Phil. 481).

Jurists Spec Pro Pointers 2015. All rights reserved 2015 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. Pointers in Special Proceedings by Prof. Manuel R. Riguera for Jurists Bar Review Center

18

When the court authorizes the sale of the ward’s property, may this be done in a private sale or public sale. (S4 R95). The sale of a minor’s property may be had only in a public sale. (S22 RGM). RULE 96. GENERAL POWERS AND DUTIES OF GUARDIANS In general, a guardian has full authority to take possession of the property of the ward and to perform all acts necessary for its management, and to bring and defend such actions as may be needed for this purpose. (Caniza v. Court of Appeals, 268 SCRA 640). Every guardian must pay the ward’s just debts out of his personal estate and the income of his real estate. In case of insufficiency, the guardian may pay out of the ward’s real estate after obtaining a court order for its sale or encumbrance. (S2 R96; S17[a] RGM). RULE 97. TERMINATION OF GUARDIANSHIP If upon petition by the person declared incompetent, or his guardian, relative, or friend, and after trial, it is judicially determined that the person is no longer incompetent, his competency shall be adjudged and the guardianship shall cease. (S1 R97). The guardianship may also be terminated when it appears that the guardianship is no longer necessary. (S3 R97). The court motu proprio or upon verified motion of any person allowed to file a petition for guardianship may terminate the guardianship on the ground that the ward has come of age or has died. (S25 RGM). 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 Has legal title over property subject of trust May be exempted from bond if directed in will or if all beneficiaries request so Account must be under oath and filed annually

EXECUTOR/ADMINISTRATOR Does not have legal title over estate Not exempted from bond even if directed in will Account need not be under oath and 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. Court which appoints the trustee: The court in which the will was allowed, in the case of a will allowed in the Philippines. If the will was allowed in a foreign country, then the court of the place in which the property, or some portion thereof, affected by the trust is situated. (S1 R98). Before entering on the duties of his trust, the trustee shall file a bond with the court having jurisdiction over the trust. The court may exempt a trustee appointed in the will from posting a bond if the testator Jurists Spec Pro Pointers 2015. All rights reserved 2015 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. Pointers in Special Proceedings by Prof. Manuel R. Riguera for Jurists Bar Review Center

19

has directed or requested such exemption. The court may exempt any trustee (whether appointed in the will or not) when all persons beneficially interested in the trust, being of legal age, request such exemption. (S5 R98). Compare with an executor who may not be exempted from posting a bond even if such exemption is directed in the will. (S2 R81). The following conditions shall be deemed a part of the bond whether written therein or not: (IMAS) 1. INVENTORY. The trustee shall submit to the court an inventory of the personal and real estate belonging to him as trustee which shall have come to his possession or knowledge. 2. MANAGEMENT AND DISPOSITION. The trustee shall manage and dispose of such estate and faithfully discharge his trust in relation thereto. 3. ACCOUNT. The trustee shall render under oath at least once a year until his trust is fulfilled an account of the property in his hands and of the management and disposition thereof. 4. SETTLEMENT OF ACCOUNTS. The trustee shall settle his accounts and deliver the remaining estate in his hands to those entitled thereto. (S6 R98). 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).

Jurists Spec Pro Pointers 2015. All rights reserved 2015 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. Pointers in Special Proceedings by Prof. Manuel R. Riguera for Jurists Bar Review Center

20

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. It is not required that a copy of the order of hearing be furnished to the Office of the Solicitor General. The trial court however at its discretion may order the service of a copy of the order of hearing to the OSG through the provincial or city prosecutor. (S12 ROA). 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). JURISDICTION & VENUE: The petition shall be filed with the Family Court of the city or province where the adoptee resides. (S20 ROA). The following are the effects of the rescission of adoption: (PS NB) 1. PARENTAL AUTHORITY. Parental authority of the biological parent, if known, or legal custody of the DWSD shall be restored, if adoptee is still a minor or incapacitated. 2. SUCCESSIONAL RIGHTS shall revert to its status prior to adoption as of the date of judgment of rescission. Vested rights shall be respected. 3. NAME. Court shall order the adoptee to use the name stated in the original birth or foundling certificate. 4. BIRTH CERTIFICATE. The court shall order the LCR to cancel the new birth certificate of adoptee and reinstate his original birth or foundling certificate. 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).

Jurists Spec Pro Pointers 2015. All rights reserved 2015 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. Pointers in Special Proceedings by Prof. Manuel R. Riguera for Jurists Bar Review Center

21

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 inter-country 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 child-centered 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. 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). 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. Application for the writ shall be by a petition signed and verified by the party for whose relief it is intended or by some other person on his behalf, and shall set forth: (PICO) (a) The person subject of the application is imprisoned or restrained of his liberty; (b) The officer or name of the person by whom he is imprisoned or restrained; or if both are unknown or uncertain, such officer or person may be described by an assumed name; (c) The place where he is imprisoned or restrained, if known; and (d) A copy of the commitment or detention order if it can be procured without impairing the efficiency of the remedy; or if the imprisonment or restraint is without any legal authority, such fact shall be stated. (S3 R102). 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, UDK14071, 17 July 2009). The writ of habeas corpus is not available to one who was released on bail, because actual physical restraint is required. 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). While S4 R102 refers to restraint of a person under process of a court of record, such process may also be issued by a governmental agency authorized to order a person’s confinement, such as the Bureau of Immigration. Jurists Spec Pro Pointers 2015. All rights reserved 2015 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. Pointers in Special Proceedings by Prof. Manuel R. Riguera for Jurists Bar Review Center

22

The writ of habeas corpus will not issue where the person alleged to be restrained of liberty is in the custody of an officer under a process issued by a court which has jurisdiction to do so. Since Major Aquino stands charged in court martial proceedings for alleged violations of Article 67 (attempting to begin or create a mutiny) and Article 96 (conduct unbecoming an officer and a gentleman), the legality of his arrest is settled and the writ is unavailing. Furthermore, the writ of habeas corpus is not the proper mode to question conditions of confinement, the writ will only lie if what is questioned is the fact or duration of confinement. (Aquino v. Esperon, 174994, 31 August 2007). The restrictive custody and monitoring of movements or whereabouts of police officers under investigation by their superiors is not a form of illegal detention or restraint of liberty. This is sanctioned by Sec. 52.4 of R.A. No. 8551 (New DILG Act of 1990). Even assuming that there initially was no administrative investigation when placed in custody, the subsequent investigation would legalize his restrictive custody. (Ampatuan v. Macaraig, 29 June 2010). The writ of habeas corpus cannot be availed of in cases of detention by virtue of a judicial process or valid judgment. Exceptions where the writ may be availed of as a post-conviction remedy: (JEC) (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. (Harden v. Director of Prisons, 81 Phil. 741; Go v. Dimagiba, G.R. No. 151876, 21 June 2005). 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). If what is alleged is forcible taking and disappearance, not arrest and detention, the proper remedy is not habeas corpus but criminal investigation and proceeding. Here the respondents denied having custody of the missing person and there was no adequate proof that respondents had such custody. (Martinez v. Mendoza, G.R. 153795, 17 August 2006). Take note however that effective 27 October 2007 the writ of amparo is available in cases of enforced disappearance. 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.). 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

Jurists Spec Pro Pointers 2015. All rights reserved 2015 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. Pointers in Special Proceedings by Prof. Manuel R. Riguera for Jurists Bar Review Center

23

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). Q A verified petition for a writ of habeas corpus involving custody of minors shall be filed with the Family Court. However the petition may be filed with the regular court in the absence of the presiding judge of the Family Court, provided, however, that the regular court shall refer the case to the Family Court as soon as its presiding judge returns to duty. The petition may also be filed with the appropriate regular courts in places where there are no Family Courts. The petition may likewise be filed with the Supreme Court, Court of Appeals, or with any of its members. The writ may be made returnable to a Family Court or to any regular court within the region where the petitioner resides or where the minor may be found for hearing and decision on the merits. (S20, Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors). Respondent filed a petition for habeas corpus before the RTC of Caloocan City seeking to compel Petitioner to produce before the court the Respondent’s biological daughter and to return custody over the child to Respondent. Petitioner and the child reside in Quezon City. The RTC issued the writ of habeas corpus and the writ was served upon the Petitioner while she was attending a preliminary investigation in Quezon City. By way of special appearance, Petitioner moved for the quashal of the writ and the dismissal of the habeas corpus case. Arguing that the RTC-Caloocan lacked jurisdiction over the case, Petitioner relies on Section 3 of A.M. No. 03-04-04-SC and maintains that the habeas corpus petition should have been filed before the family court that has jurisdiction over her place of residence or that of the minor or wherever the minor may be found. Petitioner argues also that the RTC did not acquire jurisdiction over her person as she was not served with summons. Rule on the Petitioner’s motion to quash writ and to dismiss case. A Motion to quash writ and to dismiss case denied. The petition for habeas corpus was properly filed in the RTC of Caloocan. Section 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 is applicable is Section 20 which covers petition for a writ of habeas corpus involving custody of minors. Considering that the writ is made enforceable within a judicial region, petitions for the issuance of the writ of habeas corpus, whether they be filed under R102 of the Rules of Court or pursuant to Section 20 of A.M. No. 03-04-04-SC, may be filed with any of the proper RTCs within the judicial region where enforcement thereof is sought. As regards Petitioner’s assertion that the summons was improperly served, service of summons is not required in a habeas corpus petition, be it under R102 or A.M. No. 03-04-04-SC. A writ of habeas corpus plays a role somewhat comparable to a summons, in ordinary civil actions, in that, by service of said writ, the court acquires jurisdiction over the person of the respondent. (Tujan-Militante v. Cada-Deapera, 28 July 2014). The Family Courts Act of 1997 did not revoke the jurisdiction of the Supreme Court and the Court of Appeals to issue writs of habeas corpus relating to the custody of minors. (S20 SC Rule on Custody of Minors and Writ of Habeas Corpus in Relation thereto; Thornton v. Thornton, 16 August 2004). 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). Writ of habeas corpus not available to compel a husband to live with his wife. (Ilusorio v. Bildner, 332 SCRA 169). The law that governs the writ of habeas corpus in relation to custody of minors is the Supreme Court Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors effective 15 May 2003.

Jurists Spec Pro Pointers 2015. All rights reserved 2015 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. Pointers in Special Proceedings by Prof. Manuel R. Riguera for Jurists Bar Review Center

24

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. 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). 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. There is no enforced disappearance within the context of the Rules on the Writ of Amparo. Christina's directly accusing the respondents of forcibly separating her from her child and placing the latter up for adoption, supposedly without complying with the necessary legal requisites to qualify the child for adoption, clearly indicates that she is not searching for a lost child but asserting her parental authority over the child and contesting custody over him. Since it is extant from the pleadings filed that what is involved is the issue of child custody and the exercise of parental rights over a child, who, for all intents and purposes, has been legally considered a ward of the State, the Amparo rule cannot be properly applied. (Caram v. Segui, 5 August 2014).

Under Section 1 of A.M. No. 07-9-12-SC a writ of amparo may lie against a private individual or entity. But even if the person sought to be held accountable or responsible in an amparo petition is a private individual or entity, still, government involvement in the disappearance remains an indispensable element. Here, petitioners are mere security guards at Grand Royale Subdivision in Brgy. Lugam, Malolos City and their principal, the Asian Land, is a private entity. They do not work for the government and nothing has been presented that would link or connect them to some covert police, military or governmental operation. As discussed above, to fall within the ambit of A.M. No. 07-9-12-SC in relation to RA No. 9851, the disappearance must be attended by

Jurists Spec Pro Pointers 2015. All rights reserved 2015 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. Pointers in Special Proceedings by Prof. Manuel R. Riguera for Jurists Bar Review Center

25

some governmental involvement. This hallmark of State participation differentiates an enforced disappearance case from an ordinary case of a missing person. (Navia v Pardico, 19 June 2012, e.b.). 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) 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). 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. CONTENTS OF THE RETURN: The return together with supporting affidavits shall, among other things, contain the following: (PAID) (a) Lawful defenses. (b) Action taken to determine the fate or whereabouts of aggrieved party and to determine the responsible persons. (c) All relevant information in respondent’s possession about the threat, act, or omission. (d) If the respondent is a public official or employee, the return shall further state the actions that have been taken or will be taken: (i) to verify the identity of the aggrieved party; (ii) to recover and preserve evidence (iii) to identify witnesses and obtain their statements. (iv) to determine the cause and circumstances of the death or disappearance. (v) to identify and arrest responsible persons. (vi) to hale suspected offenders before court. A general denial of the allegations of the petition shall not be allowed. 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). The effects of the failure to file the return are the following: (WEC) (1) The respondent waives any defense that he may have had. Under S10 RWA, all defenses shall be raised in the return; otherwise they shall be deemed waived. (2) The court shall proceed to hear the petition ex parte. (S12 RWA). (3) The court may cite for contempt a respondent who refuses to make a return. (S16 RWA).

Jurists Spec Pro Pointers 2015. All rights reserved 2015 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. Pointers in Special Proceedings by Prof. Manuel R. Riguera for Jurists Bar Review Center

26

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 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). Where there is an ongoing civil process dealing directly with the possessory dispute and the reported acts of violence and harassment, we see no point in separately and directly intervening through a writ of amparo in the absence of any clear prima facie showing that the right to life, liberty or security – the personal concern that the writ is intended to protect - is immediately in danger or threatened, or that the danger or threat is continuing. We see no legal bar, however, to an application for the issuance of the writ, in a proper case, by motion in a pending case on appeal or on certiorari, applying by analogy the provisions on the co-existence of the writ with a separately filed criminal case. (Tapuz v Del Rosario, 17 June 2008, e.b., Brion, J.) 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). Re prohibited papers and pleadings:  Unlike in the Rule on Summary Procedure, motions to dismiss on whatever ground are prohibited. Jurists Spec Pro Pointers 2015. All rights reserved 2015 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. Pointers in Special Proceedings by Prof. Manuel R. Riguera for Jurists Bar Review Center

27

 Counterclaims, even if compulsory, are prohibited. Under the Rule on Summary Procedure only permissive counterclaims are not allowed.  Apparently, a petition for relief is not prohibited. Under the Rule on Summary Procedure it is.  Motions for reconsideration of interlocutory orders are prohibited. Motions for Reconsideration of final orders or judgments are allowed. This is the reverse of what the Rules on Summary Procedure provide. 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 5working-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 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.]). 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). 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]). Jurists Spec Pro Pointers 2015. All rights reserved 2015 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. Pointers in Special Proceedings by Prof. Manuel R. Riguera for Jurists Bar Review Center

28

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). 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 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.). Section 1 of the Rule on the Writ of Habeas Data, when taken in its proper context, as a whole, irresistibly conveys the idea that habeas data is a protection against unlawful acts or omissions of public officials and of private individuals or entities engaged in gathering, collecting, or storing data about the aggrieved party and his or her correspondences, or about his or her family. Such individual or entity need not be in the business of collecting or storing data. (Vivares v. St. Theresa’s College, 29 September 2014, Velasco, J.). Nonetheless, there is no right to informational privacy on photos posted on Facebook. Considering that the default setting for Facebook posts is “Public,” it can be surmised that the photographs in question were viewable to everyone on Facebook, absent any proof that petitioners’ children positively limited the disclosure of the photograph. If such were the case, they cannot invoke the protection attached to the right to informational privacy. (Id.).

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). A verified petition for a writ of habeas data should contain the: (PeVALRO) (a) Personal circumstances of the petitioner and respondent; (b) Manner of violation of the right to privacy and how it affects the right to life, liberty or security of the aggrieved party; (c) Actions and recourses taken by petitioner to secure the data or information; (d) Location of the files, the government office, and the person in charge 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; or in case of threats, an order enjoining the act complained of; and (f) Other relevant reliefs as may be just and equitable. (S6 RHD).

Jurists Spec Pro Pointers 2015. All rights reserved 2015 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. Pointers in Special Proceedings by Prof. Manuel R. Riguera for Jurists Bar Review Center

29

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). CONTENTS OF RETURN: The return together with supporting affidavits shall, among other things, contain the following: (a) Lawful defenses. (b) In case of a respondent in charge or in control of the data or information subject of the petition: (i) disclosure of the data, the nature of such data, and the purpose for its collection; (ii) the steps taken by the respondent to ensure the security and confidentiality of the data; (iii) the currency and accuracy of the data 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. (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 5working-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:

Governing rule Available whom

HABEAS CORPUS Rule 102

to Person illegal deprived of liberty or from whom rightful custody of any person is withheld

AMPARO Rule on the Writ of Amparo Person whose right to life, liberty, and security has been violated or threatened with violation by public or private individual or entity. Extends to extralegal killings or enforced

HABEAS DATA Rule on the Writ of Habeas Data Person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public or private individual or entity engaged in

Jurists Spec Pro Pointers 2015. All rights reserved 2015 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. Pointers in Special Proceedings by Prof. Manuel R. Riguera for Jurists Bar Review Center

30

disappearances 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)

or 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. An alien may file a petition for change of name provided he is domiciled in the Philippines. (Ong Huan Tin v. Republic, G.R. No. L-20997, 27 April 1967).

Jurists Spec Pro Pointers 2015. All rights reserved 2015 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. Pointers in Special Proceedings by Prof. Manuel R. Riguera for Jurists Bar Review Center

31

A mother cannot file a petition for change of name in behalf of her minor daughter. The petition should be filed by the daughter herself when she reaches the age of majority. The decision to change one’s name is a personal one. (Republic v. Marcos, G.R. No. 31065, 15 February 1990). 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). Examples of clerical or typographical errors in name whose correction is proper under R108. 1. To change first name of “Sincio” to “Sencio.” 2. “Beatriz Labayo/Beatriz Labayu” to “Emperatriz Labayo.” 3. “Midael C. Mazon” to “Michael C. Mazon.” (Republic v. Mercadera, supra). 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)

Jurists Spec Pro Pointers 2015. All rights reserved 2015 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. Pointers in Special Proceedings by Prof. Manuel R. Riguera for Jurists Bar Review Center

32

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). 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

Jurists Spec Pro Pointers 2015. All rights reserved 2015 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. Pointers in Special Proceedings by Prof. Manuel R. Riguera for Jurists Bar Review Center

33

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 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) In a petition under R108 to change Petitioner’s status from legitimate to illegitimate and from Chinese to Filipino, the Petitioner’s parents and siblings must be impleaded as they are indispensable parties under S3 R108. (Republic v Uy, 12 Aug 13) Q Can a petition be filed under R108 to correct the erroneous entry in birth certificate that petitioner’s parents were married? A Yes. Even substantial errors in a civil registry may be corrected and the true facts established under R108 provided the parties aggrieved by the error avail themselves of the appropriate adversary proceeding. A petition seeking a substantial correction of an entry in a civil register must implead as parties to the proceedings not only the local civil registrar, as petitioner did in the dismissed petition for correction of entries, but also all persons who have or claim any interest which would be affected by the correction. This is required by S3, R108. Thus, in his new petition, petitioner should at least implead his father and mother as parties since the substantial correction he is seeking will also affect them. (Onde v. Local Civil Registrar, 10 September 2014).

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 Petitioner Fujiki is a Japanese national who married respondent Maria Paz Marinay in the Philippines in 2004. The marriage did not sit well with petitioner’s parents. Thus, Fujiki could not bring his wife to Japan where he resides. Eventually, they lost contact with each other. In 2008, Marinay met another Japanese, Maekara. Without the first marriage being dissolved, Marinay and Maekara were married in 2008 in Quezon City, Philippines. Maekara brought Marinay to Japan. However, Jurists Spec Pro Pointers 2015. All rights reserved 2015 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. Pointers in Special Proceedings by Prof. Manuel R. Riguera for Jurists Bar Review Center

34

Marinay allegedly suffered physical abuse from Maekara. She left Maekara and started to contact Fujiki. Fujiki and Marinay met in Japan and they were able to reestablish their relationship. In 2010, Fujiki helped Marinay obtain a judgment from a family court in Japan which declared the marriage between Marinay and Maekara void on the ground of bigamy. In 2011, Fujiki filed a petition in the RTC of Pasay City entitled: “Judicial Recognition of Foreign Judgment (or Decree of Absolute Nullity of Marriage).” Fujiki prayed that (1) the Japanese Family Court judgment be recognized; (2) that the bigamous marriage between Marinay and Maekara be declared void ab initio; and (3) for the RTC to direct the LCR of Quezon City to annotate the Japanese Family Court judgment on the Certificate of Marriage between Marinay and Maekara and to endorse such annotation to the Office of the Administrator and Civil Registrar General in the NSO. A few days after the filing of the petition, the RTC immediately issued an Order dismissing the petition based on Braza v. The City Civil Registrar of Himamaylan City, Negros Occidental (607 SCRA 638 [2009]) wherein the SC ruled that “[i]n a special proceeding for correction of entry under Rule 108, the trial court has no jurisdiction to nullify marriages x x x.” Was the Pasay City RTC’s dismissal of the petition correct? A Since the recognition of a foreign judgment only requires proof of fact of the judgment, it may be made in a special proceeding for cancellation or correction of entries in the civil registry under Rule 108 of the Rules of Court. In Corpuz v. Sto. Tomas (628 SCRA 266 [2010]) this Court declared that “[t]he recognition of the foreign divorce decree may be made in a R108 proceeding itself, as the object of special proceedings (such as that in Rule 108 of the Rules of Court) is precisely to establish the status or right of a party or a particular fact.” Braza is not applicable because Braza does not involve the recognition of a foreign judgment nullifying a bigamous marriage where one of the parties is a citizen of the foreign country. To be sure, a petition for correction or cancellation of an entry in the civil registry cannot substitute for an action to invalidate a marriage. A direct action is necessary to prevent circumvention of the substantive and procedural safeguards of marriage under the Family Code, However, this rule does not apply in a petition for correction or cancellation of a civil registry entry based on the recognition of a foreign judgment annulling a marriage where one of the parties is a citizen of the foreign country. There is no circumvention of the substantive and procedural safeguards of marriage under Philippine law. A recognition of a foreign judgment is not an action to nullify a marriage. It is an action for Philippine courts to recognize the effectivity of a foreign judgment, which presupposes a case which was already tried and decided under foreign law. (Fujiki v. Marinay, 20 June 2013). 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 Jurists Spec Pro Pointers 2015. All rights reserved 2015 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. Pointers in Special Proceedings by Prof. Manuel R. Riguera for Jurists Bar Review Center

35

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 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.2 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.). Rule 108 may be availed of to cancel a fake marriage certificate. No need to file a petition for declaration of nullity of marriage with the Family Court. (Republic v Olaybar, 10 February 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.

2

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. Jurists Spec Pro Pointers 2015. All rights reserved 2015 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. Pointers in Special Proceedings by Prof. Manuel R. Riguera for Jurists Bar Review Center

36

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). Q May a petition for change of name and correction of entries in the civil registry be joined in one proceeding? A It is submitted that a petition for change of name and correction of entry may be joined in one proceeding if the change of name and correction of entry are based on the same underlying facts or logically connected to each other and provided that all the requirements of R108 and R108 are complied with. (Republic v. Belmonte, G.R. No. L-32600, 26 February 1988). Thus in Republic v. Cagandahan, supra, the Supreme Court upheld the propriety of a petition which asks for the change of sex from female to male and the change of name from Jennifer to Jeff. As to the venue, it is submitted that venue should follow that for the principal proceeding. Thus in Cagandahan the principal proceeding is the change of sex (the change of name being merely incidental); hence the venue should be with the RTC of the place where the corresponding civil registry is located. If however there is no factual or legal connection between the change of name and the correction of entry, it is submitted that the two reliefs cannot be granted in one proceeding. Unlike causes of actions in civil actions which may be joined under S5 R2, change of name and correction of entry cannot be similarly joined since there is a public interest involved and the procedural safeguards designed for R103 and R108 would be undermined. (Republic v. Belmonte, supra). AS TO R103 R108 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

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 status, age, or nationality. (SAN) (S2[3], RA 9048). The term clerical or typographical errors has been extended to: 1. Change of the day and the month in the birthdate (note that year excluded), or 2. Change in the sex where it is patently clear that there was clerical or typographical error or mistake in the entry. The petition to correct entry of sex must be accompanied by a certification of an accredited govt physician that the petitioner has not undergone sex change or sex transplant. (R.A. 10172). 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 Jurists Spec Pro Pointers 2015. All rights reserved 2015 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. Pointers in Special Proceedings by Prof. Manuel R. Riguera for Jurists Bar Review Center

37

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. 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, unless the change involves day and month of birth date or sex. 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, with Filed with RTC where petitioner resides 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

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

Jurists Spec Pro Pointers 2015. All rights reserved 2015 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. Pointers in Special Proceedings by Prof. Manuel R. Riguera for Jurists Bar Review Center

38

A RA 9048 R108 Correction of clerical or typographical errors only Correction of substantial errors (and clerical or (excluding SAN) typographical errors but primary jurisdiction with LCR/CG) Filed with LCR where record kept; if migrant, with Filed with RTC where corresponding civil registry LCR of residence or domicile; if Filipino citizen is kept residing or domiciled abroad, with the nearest Phil. Consulate No publication except if correction of erroneous Publication 1 x 3 entry of day and month of birth date or sex in which case publication 1 x 2. Appeal to the CRG within 10 working days from Appeal to the CA within 15 days from notice notice RULE 107. ABSENTEES PURPOSE: The primordial purpose of R107 is to provide for an administrator of the property of the absentee. The general interest of society may require that property does not remain abandoned without someone representing it and without an owner. (Reyes v. Alejandro, G.R. No.L-32026, 16 January 1986). Petition for appointment of representative When a person disappears from his domicile, his whereabouts being unknown, and without having left an agent to administer his property, or the power conferred upon the agent has expired, any interested party, relative, or friend (fir) may petition the RTC of the place where the absentee resided before his disappearance for the appointment of a person to represent him provisionally in all that may be necessary. (S1 R107). Petition for declaration of absence and appointment of a trustee or administrator After the lapse of 2 years from a person’s disappearance and without any news about the absentee or since the receipt of the last news, or of 5 years in case the absentee has left a person in charge of the administration of his property, the declaration of his absence and the appointment of a trustee or administrator may be applied for by any of the following: (SHD) (a) The spouse present; (b) The heirs instituted in a will, who may present an authentic copy of the same; (c) The intestate heirs; and (d) Those who have over the property of the absentee some right subordinated to the condition of his death. The primordial purpose of R107 is to provide for an administrator of the property of the absentee. The general interest of society may require that property does not remain abandoned without someone representing it and without an owner. Since Roberto has no property, there is no point in declaring him an absentee. (Reyes v. Alejandro, G.R. No.L-32026, 16 January 1986). (Note: If the purpose of the spouse present is to contract a subsequent marriage, the proper remedy is the institution of a summary judicial proceeding for the declaration of presumptive death of the absentee spouse pursuant to Articles 41 and 253 of the Family Code. Note that the judgment of the court therein shall be final and executory pursuant to Article 247). RULE 109. APPEALS IN SPECIAL PROCEEDINGS Q A

What are the orders or judgments in special proceedings from which an appeal may be taken? 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. Jurists Spec Pro Pointers 2015. All rights reserved 2015 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. Pointers in Special Proceedings by Prof. Manuel R. Riguera for Jurists Bar Review Center

39

(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 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). 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). 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). 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). Q In estate proceedings, may the court pending a controversy or appeal, allow an advance distribution? A Yes the court may in its discretion and upon proper and just terms, allow advance distribution subject to the following requirements: 1. Advance distribution shall pertain only to such part of the estate as may not be affected by the controversy or appeal. 2. The debts, funeral charges, administration expenses, estate taxes, and allowance to the widow (DEAF Widow) must first have been paid, unless the distributees or any of them give a bond to secure such payment. (S2 R109). No judge shall authorize the executor or administrator to deliver a distributive share to any party interested in the estate unless a certification from the Commissioner that the estate tax has been paid is shown. (Sec. 94, NIRC). -oOo-

Jurists Spec Pro Pointers 2015. All rights reserved 2015 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. Pointers in Special Proceedings by Prof. Manuel R. Riguera for Jurists Bar Review Center

40