Brondial Notes - SPECIAL PROCEEDING

REMEDIAL LAW REVIEW 2007
SPECIAL PROCEEDING
NOTE: Declaration of absence and death: There is no such thing as declaration
of death…it should be absence leading to the declaration of death.
These are the only things which we will be discussing in Special Proceedings (I
will state them in the order of importance, procedurally speaking):
1. Settlement of Estates- states the meat of special proceedings
2. Adoption- although this is already studied in civil law; it is important because
of the new rule on adoption, not the laws on adoption (R.A. 3552, the
Domestic Adoption Act of 1998 as well as R.A. 8043, the Inter Country
Adoption Law of 1995)…not that because that is substantive. I am talking of
the new rule on adoption which took effect sometime in August 2004. I that’s
why I think it’s the second most important thing to discuss here.
3. Rule 103 in relation to Rule 108, Change of Name and Correction of
Entry..again, because of the new law. So the possibility of being asked in the
BAR is great. (Read also R.A. 9048)
4. Guardianship- practically the same rules of procedure as settlement of
estate..only that in settlement of estate, the subject is dead unlike in
guardianship, the subject is still alive. Physically alive, but mentally dead or a
minor. That is the difference between the two.
5. Habeas Corpus- a peculiar kind of special proceeding
6. Escheat
7. Trust (not the trust you buy in Mercury, but relation…trust relation)
All the rest, we will not discuss anymore. Voluntary Dissolution of Corporations;
Declaration of Absence & Death; Hospitalization of Insane Persons…(but, I still
advise you to read), even the Constitution of the Family Home.
If I were an examiner, I would definitely ask in Special Proceedings, Settlement

of Estate and next to Settlement of Estate would be Adoption and next to that
would be Habeas Corpus.
Note that even in last year’s BAR examination there was no question on special
proceedings because utmost you get only one question for BAR purposes, one
question in Special Proceedings. Very seldom if you find two questions in Special
Proceedings. If, perhaps, the examiner is teaching special proceedings, then
perhaps he will ask you more questions in the BAR, but ordinarily no…not that
I’m demeaning its importance.
My other consolation is that you are well-versed in Special Proceedings, that
remains to be seen starting this afternoon.
Remember, Special Proceedings is different from all other actions, including

Special Civil Actions. If you are asked to define what a Special Proceeding is, A
Special Proceeding is an action other than an ordinary action, a special
civil action, or a criminal action. That is a correct definition by exclusion. To be
ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.
more specific, Special Proceedings are actions geared or directed towards

the establishment of a right, status, or a particular fact. The ordinary rules
apply here and more so because there are specific provisions that distinguishes
it from special civil actions where it has a special rule. Here, no. It has its own
uniqueness. Every Special Proceeding has its own nuances. For example,
because the objective is the establishment of a right, status, or a particular fact,
summons, here, is ordinarily not needed. In special proceedings, there is no
defendant, so there is no need for summons. Summons, as we have studied is
the way by which a court acquires jurisdiction over the person of the defendant
(Rule 14). The only exception is, of course, Habeas Corpus Proceedings
wherein you name a respondent but the respondent here is different from a
defendant because summons is not necessary.
Q: So, how does a court acquire jurisdiction over the case?

A: There is no need for the court to acquire jurisdiction over the person of the
defendant because there is no defendant. Therefore, the court should acquire
jurisdiction of the case, over the subject matter. How? Because it is an action in
rem, ordinarily publication. So that is the uniqueness of Special Proceedings.
Publication is the means by which the court acquires jurisdiction over the subject
matter. It is ordinarily not initiated by Complaint, but by Petition.
NOTE: Again, unlike other actions, as a general rule, Special Proceedings do not
prescribe. There might be limitations of such periods in some instances, but
ordinarily, they do not prescribe.
Q: What are the Special Proceedings?

A: Name them according to the Rules starting from Rule 73-90 Settlement of
Estate; Rule 91 Escheat; Rules 92-97 General Guardians & Guardianship; Rule
98 Trustees; Rules 99-100 are no longer applied because they are deemed
repealed by the new rules on adoption, including Rescission & Custody of
Children, these Rules are no longer applied because of the adoption of the Child
& Youth Welfare Code.

SETTLEMENT OF ESTATE OF DECEASED PERSONS

When you speak of Settlement of Estate, immediately what comes to your mind
is that someone died (and that’s the beauty in law…men live forever in law…they
continue in their estate…There are those who want someone dead because of
his estate. there are also those who want somebody alive because he has no
estate…but actually, even if you are a pauper or a millionaire, you always have
an estate. So you live forever through your estate. That estate must be settled).
Q: There are two ways to Settle an Estate:

A: Extrajudicial Settlement and Judicial Settlement of Estate. In, extrajudicial
settlement, the rules speak of settlement through Affidavit of Self Adjudication
and the other way to settle it is by extrajudicial partition. Those are the
extrajudicial manner of settling the estate. Extrajudicial settlement proper is by
agreement of the parties.. extrajudicial settlement is distinct from partition. When
you go to judicial settlement, you have the first which is Summary Settlement
Sec. 2, Rule 74, which is very practical and then judicial partition under Rule 61,
that is a mode of settlement and then you have the conventional mode of
settlement of estate. We can even add a fourth kind, whish is also a mode of
settlement of estate…Escheat proceedings under Rule 91.
The conventional mode settlement is either testate or intestate. The testate can
either be with the will annexed or without the will annexed. The intestate, of
course, there is no will. But both testate and intestate may also be done either in
the Philippines or outside the Philippines.
Q: What are the requirements for an Affidavit of Self Adjudication?

A:
1. There is a will
2. No debts;
3. Only one heir.
Q: Suppose Mr. X, who died, was known to everyone to have one child but later
on, it was found out that he had other illegitimate children. What will happen to
the affidavit of self adjudication? Is there any finality?
A: NO. Even if the properties have already been distributed, they aer still
subject to claims.
Q: How do you go about in making an Affidavit of Self Adjudication?

A: The word suggests already that it is an affidavit…so, how do you formulate
an affidavit? You simply state in your affidavit that your father or your mother
died; and that he/she left the following properties; and that you are the only heir
of your parent; and that the estate are such and such, valued accordingly; and
that they are found there (location of property)..you simply submit that to the
Register of Deeds and the Register of Deeds will act on it only after you comply
with the requirement of publication and if there are personal properties belonging
to the estate, put up a bond according to the value or upon the discretion of the

register of Deeds. (extrajudicial ha…the court has no participation whatsoever

here) You simply submit to the Register of Deeds, the Register of Deeds acts on
it and if there is already publication, once a week for 3 consecutive weeks in a
newspaper of general circulation, the Register of Deeds will simply transfer the
title in favor of the affiant.
The other mode of extrajudicial settlement is extrajudicial partition...that is not

under Rule 69 because under Rule 69 is judicial partition…here, the parties
agreed, but take note that there is also no will and there are also no debts and
even if there are debts, there is sufficient money to answer for those debts which
are reserved…the money is reserved to answer for debts…so you can partition
among and between yourselves these properties, provided all of you are of age.
If one is a minor, he is duly represented…ordinarily, you ask the court for the
appointment of a guardian ad litem. This form of extrajudicial settlement is
similar to Partition…there is really no distinguishing feature between extrajudicial
partition and extrajudicial settlement. Jurisprudence tells us that any act between
and among persons that would lead to the division of property is a form of
partition or settlement…any act that would terminate indivision would be division.
In affidavit of self adjudication, of course you have to support your allegations

with documentary evidence (like for example, that you are the only heir, this can
be proven through your birth certificate and also the marriage contract and the
properties you wish to adjudicate unto yourself should be established by Titles or
muniments of titles).
Judicial Settlement refers to Conventional: Rules 73-90. Summary

Settlement of Estate is very impractical because up to now the value of the
estate is still P10T (P10,000) but you will note that there is still a requirement for
publication (so if you have it published once a week for 3 consecutive weeks,
ubos na yung ten thousand mo).
RULE 91 ESCHEAT
Is another form of Judicial Settlement, Escheat tells us that if a person dies
without a will, without an heir, and no debts, then the Office of the Solicitor
General will file, under the directive of the President of the Philippines, will file an
Escheat Proceeding. But if it happens that during the pendency of the
proceeding, a will pops up, then the proceeding is discontinued. If an heir pops
up, then the proceeding may be suspended and establish your right…otherwise,
after the hearing, the property will go to the government. This escheat
proceeding is founded on the theory that all lands belong to the State…the
Regalian Doctrine that you studied under LTD (Land Titles & Deeds)… all
lands belong to the State and he who claims otherwise has the burden of proof
so after the escheat proceedings, the property belonging to the estate will go to
the city or municipality where it is found.

So if the proceeding is in Manila, but the property escheated is in Calamba, the

property escheated located in Calamba will go to the City of Calamba and not to
the City of Manila. The same thing with personal property…where it may be
found and the Rule is very specific that the property will be spent for charitable
purposes, for educational purposes, so on and so forth. So that is Rule 91.
Under Rule 91, Sec.5 is another form of escheat because that was given in the
BAR 5 years ago (sa dami daming pwedeng ibigay sa Special Proceedings, yun
lang ang binigay). This speaks of REVERSION. In other words, the property
was acquired by an individual in violation of the Constitution. Under the
Constitution, any person, even foreigners who were former Filipinos, can now
acquire property in the Philippines and that was given more strength because of
the Dual Citizenship Law.
Q: Which court has jurisdiction over Petitions for Settlement of Estate?

A: Under RA 7691, inferior courts now have jurisdiction over settlement of estate,
whether testate or intestate. So it is not under the provision which speaks of
actions involving title to or any interest in property but it is a direct provision of the
law that settlement of estate, whether testate or intestate, may be taken
cognizance of by inferior courts, depending on the gross value (hindi assessed).
Remember, there is another provision under BP 129, the basis of which is the
“assessed value”…dito, gross value of the estate and the location is
determinative somehow of jurisdiction because if it is outside Metro Manila, less
that P300T and within Metro Manila, P400T…so suppletory character lang yun.
The old books speak of Courts of First Instance (RTC), exclusively…hindi na

yun.

RULE 73 VENUE AND PROCESS.
Q: Is settlement of estate limited to the estate of Filipino Citizen?

A: No.
Q: If an American was in the Philippines because he was a member of the

Armed Forces, who joined the Balikatan Forces in Mindanao and he died here,
where should the settlement of estate be done? Is it the place of one’s death
which is determinative of the venue? Suppose one had 5 residences because he
had 5 wives?
A: This is a very confusing provision because the title is “Venue & Process” but
the word ‘venue’ is never mentioned. On the other hand, the word jurisdiction is
mentioned three (3) times.
Q: So, is the last residence of the decedent a matter of jurisdiction or a matter of

venue?
A: It is a matter of venue so you cannot question it.
Q: Suppose Mr. X, a Filipino citizen residing in Cebu City died at St. Luke’s
Hospital, Quezon City, where should his estate be settled?
A: In Cebu because it is the place of the final residence of the decedent.
Q: Suppose the heirs filed a petition for settlement of the estate in Quezon City,
is the venue properly laid?
A: No.
Q: So, what happens to the case?

A: The settlement must continue because venue is not jurisdictional.
Let me emphasize to you that in civil cases, including special proceedings,

venue is not jurisdictional, unlike in criminal cases, venue is jurisdictional and
from what we have learned under Rule 4 of the Rules of Court, venue may be
waived.
So, if there is no opposition, there is no question as to the petition filed by

anybody for the settlement of the estate of Mr. X who is a resident of Cebu, the
petition is filed in Quezon City, the issue is not jurisdiction but only of venue. But
considering that there was no opposition, then the petition for settlement must
continue.
Sec. 1 there does not speak of jurisdiction. Jurisdiction here is conferred

by law and RA 7691 confers that depending on the value of the gross
estate, which can either be the MTC or the RTC.

Q: What is Residence?
(You must have come across the leading case, Cuenco, et. al vs. Cuenco, cited
in your book (it has to cited in your book) because that is a very leading case,
also the case of Fule, et al. vs. CA, these are the cases about venue and
jurisdiction…emphasizes these cases cited in all books. Eusebio vs. Eusebio,
that is also cited in your book… These are questions about the conflicting rules
on venue and jurisdiction.)
A: It is now settled (because of there cases) that residence is only a matter of
venue. It is not a matter of jurisdiction.
This case of Cuenco is about Senator Cuenco. That Cuenco Street in Quezin
City, parallel to España or Quezon Blvd. He was a resident of Cebu but also had
a house in Qezon City because he was a member the Senate. When he died in
Quezon City, his residence was in Cebu. When he died, he was already a
widower at the time, so he had two families. The first family with his first wife,
and the second family with his second wife. His second wife, staying with him in
Quezon City, filed a petition for the settlement of his estate in the RTC (Then
CFI) of Q.C. After the 9- day novena for his demise, the heirs of Senator
Cuenco, filed a petition for settlement of his estate in Cebu. This reached the
SC. The issue was in fact wrong: Which court has jurisdiction? Mali. It is not a
matter of jurisdiction but only of venue. But the greater error here is not the error
of the petitioners but the error of the Court. Why? Because the Q.C. Court on its
own (motu propio) said “we are going to give way to the court in Cebu to settle
the estate.” That cannot be done because under the Rule, the court which first
takes cognizance of a petition for settlement of estate, takes it to the exclusion of
all other courts. And so, which court has jurisdiction? Both courts have
jurisdiction actually, but because of the Rule, since it was first filed with the Q.C.
Court, it was already taken cognizance of by said court in Q.C. to the exclusion of
all other courts, including the Cebu Court. That is why if ever the court cedes its
authority in favor of the Cebu Court, that is wrong. It should have been correct if
anybody interested in the petition files a motion to dismiss on the ground of
improper venue but there was none.
In one of the Bar Exams using Cuenco vs. Cuenco, way back in 1992, this was
treated by the examiner saying that a motion to dismiss was filed with the Cebu
Court and the Cebu Court granted it. Wrong. Why? Because the Cebu court did
not acquire jurisdiction because the petition was first filed in Q. C. and there can
be no dual jurisdiction here because the Rule says: the court acquires
jurisdiction to the exclusion of all other courts.
This case was followed by the case of Eusebio vs. Eusebio and finally settled in
the case of Fule vs. CA, a 1975 case. Philippine reports pa ito. If you want to
read it, you can find it in the Philippine Reports. But Fule, you find it already in
the SCRA. Is that clear? Take note of that doctrine because that is very basic in
Settlement of Estate. Sec. 1 of the Rule there does not speak of jurisdiction but

only of venue. In Fule it has been settled that the residence is the actual
place of habitation.
So that if a person has two (well nagayon, hindi lang two, marami, apat, lima,
anim..tingnan nyo si Pacquiao, hindi na malaman kung saan sya resident,
Manila, Gensan.. hindi na malaman.. But if only Pacquiao studied law, he would
not have run for any position in the first place… had he studied law, he would not
be a millionaire in the first place.) Fule settled that residence is the place of
actual habitation or it may not be the place of actual habitation, provided there is
animus manendi (intent to remain) and animus revertendi (intent to return). Kaya
pag yung isang lalaki, mayron legal na asawa, mayron pang kerida, mayron pang
kabit, at mayron ding scholar, in different houses, the residence is that of the
original. Why? Because there is animus manendi and animus revertendi. In all
other residences, there is only animus amare (intent to love)… so that is
regarding this Section 1.
Let us go now regarding these two: It can be testate or intestate. You know
testate, in other words, there is a will. Intestate, there is no will. The distinction,
regarding these two will give you also the distinction between an executor and an
administrator.
Q: What is the distinction between an executor and an administrator?

A: The executor is the one appointed by the decedent as embodied in the will.
The administrator is the one appointed by the court if there in no will, or if there is
a will but does not designate an executor, or even if there is an executor, the
executor refuses to accept the trust or fails to put up a bond… These are the
requirements: He is either not qualified; he fails to accept the trust; or he fails to
put up a bond so an administrator may be appointed.
Q: An administrator is of two kinds, what are they?

A: Rule 80
1. Special Administrator ( also of two kinds): With the will or Without a will
annexed;
2. Regular Administrator
Q: In what instances may the court appoint a special administrator?

A:
1. Delay in granting of Letters of Administration;
2. Sec. 8, Rule 86: The executor is a claimant of the estate he represents.
Q: So, when you go to testate, why is it here that they are of two kinds: with the
will or without a will annexed? How would you explain that? Kailan nangyayari
ito? If you are a custodian of a will of the decedent, what is your obligation?
A: To deliver to the court the will within 20 days after the death. (Sec. 2, Rule
75)

Q: Are you bound to file a petition?

A: No. The obligation there is only to deliver the will. But if you do file a petition,
because you are the custodian of the will, you must have an interest in the
estate. You may either be the named administrator, a devisee, a legatee, or a
creditor, and with more reason, if you are an heir, you have an interest. If you
are in the custody of the will, and you filed a petition for settlement of estate, you
have to attach the will in your petition.. But if you are not in custody of the will and
you are interested in the settlement of the estate, you simply file a petition
without the will annexed.
In many instances, I was telling you that settlement of estate is the best example
of multiple appeals, diba? Because in the settlement of estate there are several
stages.
Q: If it is a testate proceeding, what is the first stage?

A: Probate of a will.
Under this lesson on a probate of a will, there is this general proposition that the
probate court (the court probating a will) either the MTC or the RTC, is a court of
limited jurisdiction.
Q: What does it mean when the Rule says that a probate court is a court of
limited jurisdiction?
A: A probate court can only rule on the due execution of the will and not as to its
intrinsic validity.
This is what you have to understand. Even lawyers do not realize this. Sabi nila
probate court yan so you cannot question, you cannot raise the issue of
ownership. The probate court ceases to be a probate court upon allowance or
disallowance of a will but it remains to be a court no longer of limited jurisdiction.
That is why I was emphasizing on the petition as settlement of estate and not as
a petition for the probate of a will. Why? Once a will has been probated, that’s
the end of it? No. It is only the first stage in the testate proceedings. So when
the Rule says that the probate court is a court of limited jurisdiction, only as far as
the probate of a will is concerned. Pagkatapos nun, the court is no longer of
limited jurisdiction because it has to go…appointment of the administrator or
executor, approval of the accounting, approval of the inventory, then payment of
debts..papaano limited pa yun? No longer.
So as a probate court, the court is limited to the issue of authenticity and due
execution, but you do not transfer courts after the will has been probated, after
the will has been allowed or disallowed which is a final resolution which is a final
order or resolution of the court which is appealable. But the appeal here is by
record on appeal because it is multiple appeal. The court now is no longer of
limited jurisdiction because it is no longer a probate court.

Q: Ano ba ang end of settlement of estate?

A: Distribution under Rule 90. The first stage of settlement of estate, if it is a
testate proceeding is the probate of the will. That is where the court has limited
jurisdiction.
Q: Why is this so? Why does this issue pop up here?

A: This is because during probate of the will, in the very petition, the jurisdictional
requirement is that you have to state what constitutes the estate and the value of
the estate. Jurisdictional facts.
Q: If an oppositor enters the picture, the oppositor says mali yan because what
constitutes the estate are these properties, but what is stated in the petition do
not belong to the estate, now, can the court decide the ownership of those
properties?
A: No. That is where the limited jurisdiction comes into the picture. It cannot
because the court has only the duty of discussing whether the will has been duly
executed so this is only as to the extrinsic validity of a will. The intrinsic will come
much, much later, the disposition of the will.
The issue of ownership is outside the jurisdiction of the probate court. But if the
probate court cannot continue without deciding the issue of ownership, the issue
of ownership being incidental (intimately related to the issue of probate) to the
probate of the will, must be decided, but the decision here is not final. It is only
provisional and it can be contested in other proceedings and the rule on res
judicata will not apply.
In the case of Balaraw which was assigned to you, that was also the issue
involved.
In the beginning, there is no defendant. The equivalent of a defendant in a

probate proceeding is the oppositor. The oppositor is not only opposing the
probate of the will, but also settlement of the estate, for one reason or another.
The objective of the settlement of the estate is the distribution of the estate
among the heirs or those entitled thereto, although not heirs (those persons
named in the will).
Once the court allows or disallows a will, as the case may be, the nature of the
court as a probate court ceases. Therefore, the issue of limited jurisdiction no
longer applies. Limited jurisdiction applies only to the authenticity and due
execution of the will.
Q: Once the will is allowed, What does it mean?

A: Rule 76: Allowance of the Will

If Mr. A is accused of a crime of falsification of documents by forging the

signature allegedly of a testator and during the pendency of the criminal action,
the will allegedly forged by Mr. A was probated and allowed, the criminal case
should be dismissed because the probate of the court is final and if not appealed
becomes conclusive. Wala na yung forgery because the probate of a will only
avows the fact that the signature there is authentic; that there was due execution
of the will. The case against A for falsification should be dismissed. Suppose he
has been convicted, he shall be released. Supposing he is not released, your
remedy is to file a petition for habeas corpus because the basis .for restraining
his liberty no longer exists. (So kita nyo ang correlations.)
We are talking here of allowance of the will within the Philippines.
Q: Suppose a will was executed and allowed (probated) outside the Philippines,
what happens?
A: Go to the next Rule, Rule 77: Allowance of Will proved Outside of the
Philippines and Administration of Estate thereunder.
Q: An American citizen residing in California died in California, his will was

probated in the county state of San Bernardino. That will has been allowed in the
U.S. Should that will be also allowed in the Philippines?
A: No.
Q: What should anyone interested in the allowance of the will in the Philippines
do because the deceased had property in the Philippines?
A: It should be re-probated here and the venue is in the proper court of any
province where the decedent had property.
This rule shall be read in conjunction with Sec. 48, Rule 39: Foreign Judgment.
Q: What are you supposed to establish or prove in the re-probate of a will?

A:
1. The due execution of the will in accordance with the foreign law;
2. That the testator had his domicile in the foreign country and not in the
Philippines;
3. That the will has been admitted to probate in such country;
4. The fat that the foreign tribunal is a probate court;
5. That the laws of a foreign country on procedure and allowance of wills.
6. The fact of death (jurisdictional fact) of the testator in a place within
the territorial jurisdiction of the court.
These are mandatory requirements. These must all be established in the

Philippine courts. That is how to re-probate a will which has already been
allowed. Thereafter, the court should appoint an administrator. The foreign
allowance of a will leads to the appointment of a domiciliary administrator. Once
it is probated in the Philippines, the court appoints an ancillary administrator.

Q: Who may petition for the allowance of the will or who may oppose thereto?
A: Anybody who has an interest in the estate or in the disposition of the estate of
the decedent
Q: What are the qualifications for one to be appointed as administrator of the

estate?
A: Any competent person may serve as executor or administrator. He is
incompetent if:
1. a minor
2. a non-resident
3. one who in the opinion of the court is unfit to exercise the duties of the trust
by reason of :
a. drunkenness
b. improvidence
c. want of understanding and integrity
d. conviction for an offense involving moral turpitude.
Q: If a man cannot sleep without drinking at least 3 beers before he goes to

sleep, can he be appointed as administrator?
A: Yes. He is not a drunkard.
Q: Suppose in the very will, the testator named an executor of his estate, may
the court appoint another one other than the one named in the will?
A: Yes, when such person:
1. refuses to accept the trust ( ang gusto nya kasi is he would accept the
trust if it is candy flavored);
2. fails to give a bond; and
3. is incompetent.
Q: In the course of the administratorship, when one has already be appointed,

can he be removed? On what grounds?
A: Yes. Rule 82: Revocation of Administration, Death, Resignation and
Removal of Executor or Administrator.
Sec. 2. Grounds:
1. neglect to render accounts within 1 year or when the court directs;
2. neglect to settle the estate according to the Rules;
3. neglect to perform an order or judgment of the court or a duty expressly
provided by these rule;
4. absconding; or
5. insanity or incapability or unsuitability to discharge the trust.
Q: If a special administrator is appointed because the regular administrator has

a claim against the estate, what happens to the regular administrator?
A: The regular administrator is not removed by the appointment of the special
administrator because the regular administrator has a claim under Sec. 8 of Rule

86. The special administrator only has a specific function which is only to work
on the claim of the regular administrator.
The executor of an executor cannot be appointed as executor of the principal

testator.
Example: Richard is the testator. He appointed Piolo as his executor. Later on

Piolo died. In the will of Piolo, he appointed Sam as his executor. Sam cannot
be the executor of the estate of Richard.
Reason: An executor takes charge of the estate. If you are an executor and you
died and you have an own estate and the executor of your own estate will now
execute the estate of your testator that appointed you, there will be conflict of
interest (Magkakaroon ng sama sama yung estate. Magkaka halo halo). To
avoid possible corruption in the administration of one’s estate.
Q: What are the duties of a special administrator?

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

A: It depends. If the lease is not for more than one (1) year, he can because it
would fall under acts of administration. Beyond that, it is already an act of
disposition
Q: If the court appoints Mr. X as special administrator, is the order final and
appealable?
A: No. It is only interlocutory and unappealable because if you appeal the
appointment of a special administrator, there will be no end to the settlement of
the estate.
The special administrator is likewise required to put up a bond.
Q: Suppose the testator in naming an executor of his estate specifically states

there that he should serve as administrator without a bond. Can the court
nonetheless require a bond?
A: Yes. The court has a very wide discretion.

Once a regular administrator is appointed, the continuation of the duties and

functions of a special administrator will now reside in the special administrator.
But always remember that if it is an act of disposition or conveyance, which
cannot be done by an appointed executor or administrator without permission of
the court. You always file a motion for leave of court to sell a specific property
and this is part of your accounting one year after.
Accounting is one of the principal duties of an administrator. His first duty is to

prepare an inventory within three (3) months from appointment and within one (1)
year, prepare an accounting of his administratorship and the bond that he put up
is precisely to answer for the misadministration .

RULE 83 INVENTORY AND APPRAISAL PROVISION FOR SUPPORT OF

FAMILY
Q: Who are entitled to allowance during proceedings?

A:
1. legitimate surviving spouse; and
2. children of the decedent (legitimate & illegitimate children)
Relate to Art. 194, Family Code: Children, even if 18 years of age are still
entitled to support from the estate.
Read Ruiz Case

RULE 86 CLAIMS AGAINST ESTATE
Q: What may be claimed against the estate?

A:
1. Contractual money claims;
2. funeral expenses;
3. expenses for the last illness; and
4. judgments for money.
Q: Suppose they are not due yet, can they be filed against the estate?
A: Yes.
Q: Suppose they are not yet due?

A: Yes…whether due, not yet due, or contingent, you can file against the estate.
Q: When do you file it?

A: Not more than 12 months nor less than 6 months after the date of first
publication. Otherwise it is deemed waived. (STATUTE OF NON- CLAIMS)
STATUTE OF LIMITATIONS: prescriptive period in the Civil Code.
FCC vs Santibanez
Q: What were the issues assigned as errors before the CA?

A: Issues
1. Whether or not estoppel applies
2. Whether or not the extra judicial partition bet among the heirs were valid
3. Whether or not it is necessary for a partition to be approved by the probate
court
4. Whether or not the respondent could be held jointly liable with Santibanez.
Testate Proceeding.
Provisions on a holographic will. It wasn’t clearly stated in this case.
The parties entered into an agreement.
Q. Can prospective heirs whether under the testate or intestate enter into a
partition over the properties belonging to the estate?
A. There can be no partition until and unless the will is allowed or probated.
Q. Was it really a partition?

A: According to the SC they may act to put an end in any indivision is considered
and deemed to be a partition.
There can be no partition in a testate proceeding before the will is allowed.

Q: What is the rationale behind that?

A: Because the SC said if it is allowed then you are divesting the court of its
jurisdiction over the property partition. Bec it is partition, it amounts to distribution.
Distribution is the final stage in a settlement proceeding and there will be no
distribution of the estate until and unless all debts has been paid. The court looks
into it as an act of divesting of its jurisdiction.
Q: Can principle of estoppel be applied?

A: The SC said the principle of estoppel will not apply because the basis which is
the extra judicial partition is in fact void, a void act of declaration or omission of a
party cannot be used as evidence against the party. If the act is null and void,
estoppel will not arise therefrom.
Q: Are the heirs liable?

A: The SC said he did not even established the fact that you are the proper party
in interest because Union Bank did not show any evidence to prove that you are
really the affiny.
Settlement of Estate
Sec 7. Mortgage debt due from estate
Remedy
1. Claim against the estate
- after all the debts has been paid; upon distribution
2. Foreclose the mortgage - judicial

- deficiency judgement – by motion only in the same action
3. Extrajudicial foreclosure
- you solely rely on his mortgage, you don’t get any deficiency judgement
Q: Sec 9 How to file a claim

A: In form of a simple application form
1. Deliver the claim to the clerk of court
2. Serve a copy on the executor or administrator
3. if the claim is due, it must be supported by affidavit stating the amount due
and the fact that there has been no effects.
4. if the claim is not due or contingent, it must be accompanied by affidavit
stating the particulars
Sec 10 Answer of executor or administrator

1. Executor may file answer within 15 days from the service of claim
2. Answer must set forth claims which decedent has against claimant or else it
will be barred forever.

Q. What is a statute of non-claims?

A. A claim against the estate shall be filed within a period of not less than 6 mos
and not more than 12mos from the date of first publication.
Q. What is the relationship bet a statute of non-claims and limitations?

A. A statute of non claims supersedes a statute of limitations. The statute of
limitation is a period provided for in the Civil Code where actions prescribe. An
ordinary prescriptive period in a civil case is 10 years from accrual.
Q: Mr. A took the bus, Philippine Rabbit, owned by Mr. B to Baguio. He never
reached his destination because the bus fell over a ravine on January 5, 1990.
That is the date of the accrual of the cause of action (Jan. 5, 1990). Can Mr. A
file a case against Mr. B on March 2001?
A: No because the action is barred by the statute of limitations.
Q: Suppose Mr. B died in 1995. (yung owner ng bus, Mr. B, not Mr. Bean) What
should A do?
A: File a claim against the estate within a period of not less than 6 mos. and not
more than 12mos from the date of first publication. So, the presumption here is
that there is a settlement of the estate of B. Otherwise the statute of non-claims
will not apply.
Q: Suppose notice was given on March 1, 1995. So you have 6 months and it
was published March 20, you have not less than 6 months from March 20, nor
more than up to the 19th of March 1996. Can you file it in 1998?
A: No because it is beyond the statute of non-claims. Even if it is within the
statute of limitations, you can no longer file it because it is beyond the statute of
non-claims.
That is the meaning of the “statute of non-claims supersedes the statute of
limitations.”
On the other hand, if B died in 1999 of December, you have only have up to
January of 2000 because the action has already prescribed, the ordinary action.
The statute of non-claims prevails over the statute of limitations. However, the
statute of non- claims will not apply if there is no settlement proceedings.

RULE 87 ACTIONS BY AND AGAINST EXECUTORS AND

ADMINISTRATORS
We have limited claims against the estate to the following:

1. Contractual money claims;
2. funeral expenses;
3. expenses for the last illness; and
4. judgments for money.
These are considered as contractual money claims under Rule 86. When you go
to Rule 87, you will note that you cannot file a claim against the estate if it is
claimable under Rule 86. So contractual money claims, hindi. That is why in
Rule 87, you are also limited to the following claims or actions:
1. Recovery of real or personal property;
2. Recovery of interest or lien therein;
3. Judgment arising from injuries
Q: In actions by and against executors and administrators, where will the

executor or administrator get his money to satisfy your prayer in your action?
Hindi ba from the estate? So why not against the estate, bakit against the
executor or administrator?
A: Rule 86 is not an action… tapos na dyan yung action, it is already through. In
87, it is a separate and distinct action, so that if it is a complaint, you always file it
against the executor or administrator. Pero dito, tapos na yan. Hence, dahil
tapos na, it is urgent… urgency of the subject matter… so the presumption in 86,
that there must an estate proceeding, whether testate or intestate… without that ,
you cannot file any claim. Suppose wala, ano gagawin mo? Iinitiate the testate
or intestate proceeding so that you file a claim. It is not an independent action
here.
But in 87, it is an independent action. Meron bang testate or intestate

proceeding? Not necessarily. You might say, bakit executor, administrator?
Kaya nga ‘or’ because when you say executor, meron yan. Kung walang
executor, administrator. You mean to say that there can be no administrator
without an estate proceeding? No. There can be an administrator even if there
is no estate proceeding because you can even undertake extrajudicial settlement
of the estate. In extrajudicial settlement there can be an agreement by and
between the parties as to the administrator of the estate. The estate does not
have a separate and distinct personality. It is only an entity authorized by law in
special cases.
As a general rule, the estate cannot sue and be sued. It can only be sued in
certain instances. It cannot be sued because under Sec.1, Rule 3 (Who may be
parties), it is only an entity authorized by law. That is why you file against the
executor or administrator. Remember that an executor or administrator is a
natural person. Iba yun sa Guardian ha? A guardian can be a juridical person..

only guardianship over the property of the ward. In guardianship over the ward,
the guardian cannot be an artificial being or corporation.
Q: Compare Sec. 7, Rule 86 ( Mortgage debt due from estate) with Sec. 5, Rule
87 (Mortgage due estate may be foreclosed).
A: The parties under Sec. 7, Rule 86 are the estate of the decedent and the
creditor. The creditors may have affirmative remedies as to their claims against
the decedent such as going after his estate. The estate is the debtor, the
mortgagor (‘mortgage due from the estate’). As compared to Sec. 5, Rule 87, the
estate is the mortgagee.
Q: Is the estate, under Sec. 5, Rule 87 allowed the alternative remedies in Sec
7, Rule 86?
A: NO. He is only allowed one remedy which is foreclosure.
After all these claims have been settled, all debts have been paid, you go now to
distribution. This is the last stage. But in the distribution of the estate, what Rule
should be followed? First, before distribution, there shall be payment of debts.
Q: What are these debts? There are only 5 specific kinds of debts.
A:
1. Debts of the decedent;
2. Funeral expenses;
3. Expenses for administration;
4. Allowance for the widow; and
5. Taxes.
Q: Under the rules on preference of credit, taxes are given priority. Is there an
exception? What did you Labor Law teacher teach you about that?
A: PNB vs. NLRC case (March 1990): In case of liquidation of the assets of the
corporation, even taxes give way to unpaid salaries and wages. But in all other
instances, palaging ang gobyerno ang uunahin. Sabi nga sa mga Reviewers,
pag wala ka na daw maisasagot sa question sa taxation, taxation is the lifeblood
of the government.
Pag hindi mo mabayaran avail of Rule 89: Sales, Mortgages, and other
Encumbrances of the Property of the Deceased. The fundamental reason for
sales, mortgages, and other encumbrances is to pay off debts.
Q: The estate is worth one million (P1M). After payment of debts, all that had
been paid amounted to P500T. How much is left for distribution?
A: Only P500T.

Q: If there are 5 compulsory heirs, devisees and legatees, A, B, C, D, E, and

under the will, A should receive P500T; B- P100T; C- P100T; D and E- P50T
each and what remains is only P500T, how will you distribute the estate?
A: Distribute the estate by ratio and proportion.
Q: Suppose the asset was P10M gross value and the obligation was only P1M.
You have P900T left but the will says to distribute only P500T; P100T; P100T
and P50T to the last two, may sobra ka, (that goes to the pocket of the lawyer?)
it should be distributed in accordance with intestate succession but also pro rata.
A: Remember we are talking here of the remainder, wala nang babayaran. We
have also studied the Rules on contingent claims, under Sec. 4, Rule 74
( Liability of Distributees and Etate), the two-year lien.
Q: Can the estate be distributed even before payment of debts?

A: General Rule: No.
Exception: Assets may be distributed even prior to payment of debts provided the
distributee first gives a bond.
The remedy is to give a bond. If the asset to be distributed is quite important,

such as real property, then you give the asset.

RULE 92 GUARDIANSHIP
Madali lang itong guardianship. You know why? Because the Rules are
practically the same. The fundamental difference is that in guardianship, the
subject is still alive. In settlement of estate, the subject matter is already dead.
Three Kinds of Guardians:

1. Judicial guardian – that appointed by the court in a judicial proceeding for
legal guardianship
2. Legal guardian— guardian by operation of law; not just appointed by any
court. (ex.: parents of minor children)
3. Guardian ad litem- that which is appointed by the court not necessarily in a
guardianship proceeding, because this guardian ad litem is only on a
temporary basis with a specific duty to perform.
Q: Which court has jurisdiction over a petition for guardianship?

A: Exclusively and originally cognizable by the Family Court (RTC specifically
designated as a Family Court because of RA 8369 ). There is no inferior court
here.
However, in settlement of estate, jurisdiction may be lodged in inferior courts

depending on the gross value of the estate.
The venue is the residence of the ward. If the ward has no residence and
the guardianship application is over the property of the ward, the venue is
where the property is situated/ located.
Take note that the venue here is the residence of the ward as distinguished from
the venue in adoption, which is the residence of the adopter. Bakit? Because in
adoption, the result is that the adoptee will become the child of the adopter for all
legal intents and purposes. But here, it is the guardian that goes to the ward as
the relation here is only of a temporary character.
You file a guardianship proceeding only on 2 grounds:

1. Minority; and
2. Incompetency.
The term “incompetent” here is different from that in settlement of estate. Here,
“incompetent” refers to:
Sec. 2. Meaning of the word “incompetent”. Incompetent includes:
1. Those suffering from the penalty of civil interdiction (a penalty attached to
conviction);
2. Hospitalized lepers;
3. Prodigals (one who is a spendthrift; wastes money or property on things
without reserving any for himself and before you know it, he is not only a
prodigal son but also a grasa man.);

4. Deaf and Dumb unable to read and write;

5. Those of unsound mind although they have lucid intervals;
6. Persons not of unsound mind but by reason of age, disease, weak mind, and
other similar causes, cannot, without outside aid, take care of themselves or
manage their property.
A minor, under the age of 18, can be the subject of guardianship.
Case of Evangelista: The petition for guardianship was granted by the court
and Caniza was appointed as the guardian of Evangelista. As a guardian,
remember the rights, the guardian can sue and be sued, can collect debts, can
manage the properties of the ward. So one of his actions here was to ask the
Estradas to vacate the premises owned by the ward. Judgment was rendered in
favor of plaintiff, but on appeal, it was reversed and on appeal again from the
order of reversal, it was sustained. That is why it went up to the Supreme Court.
But pending the appeal with the CA, the ward died. This is a case for ejectment.
The issue here is that considering that there is no more guardianship because
death terminates guardianship, hence, the case must be dismissed because the
party appellant is not the proper party-in-interest. The SC said No. Even if death
terminates guardianship, in this particular case, it is contrary to the principle of
equity of justice if we have to start all over again. The case is already with us, so
remand of the case to the lower court would be a waste of time and more
importantly, they found from the record that Caniza was one of the heirs of the
ward. Hence, there is still a party-in-interest even if there is no settlement of the
estate. Ang importante ay pag guardian ka tapos heir ka din, there is no need for
the settlement of the estate.
NOTE: Remember that you find that also in Sec. 16 of Rule 3: Substitution of
Parties (“without a need of appointing an administrator or executor of the estate
in the substitution of parties.”). That is the doctrine laid down in this case.
Q: Who can initiate a petition for guardianship?

A: Anybody who has interest in the person of or property of the ward. If you
cannot establish any interest in the person of or in the property of the ward, you
cannot file a petition for guardianship.
Buyena vs. Ledesma: In this case, they were able to establish interest. They
were both single and they were living together.
You have to establish interest. The Rule says, friends, relatives, or any person
who has interest.
Q: What is the procedure?

A: File a petition with a court of competent jurisdiction in the proper venue. And
the court will issue an order setting the case for hearing. If there are oppositors,
then they can file their opposition. Remember, this is a special proceeding and

jurisdiction is always acquired through publication. After trial, there will be

decision either allowing or disallowing guardianship. In other word, appointing a
guardian or not appointing a guardian.
The guardian now enters into the guardianship after he has filed the necessary
bond. The duties and responsibilities of a guardian are similar to that of an
executor or administrator .
Q: Can he sell the properties of his ward?

A: Yes. Even without permission from the court if the property involved is
personal property. But, if it is real property, just like, an executor or
administrator, he has to get permission from the court. Only with the permission
of the court will the sale of real property be considered a valid sale. It is not only
permission of the court which is required, but also notice to all interested parties.
In guardianship, the absence of notice, even with permission of the court, still
renders the sale void.
Q: In what instances may guardianship be terminated?

A: Death also terminates guardianship, but the general rule is that if the ground
for the appointment of the guardian ceases, then guardianship ceases as well.. If
the minor is already of age (remember, even the minor himself can ask for
guardianship). This is an exception regarding lack of a minor’s legal personality
to sue. If the ground is based on incompetency and it is established that the
ward is already competent, or that he was insane, but now, he is no longer
insane; a petition for termination of guardianship may be filed.
Q: Should the legal guardian file guardianship proceedings over the person and
property of their minor children?
A: Yes if the property of the war, which is their own children, is worth more than
P50T. If they sell the property of their ward, even if they are the legal guardians,
the sale of the property is void.
Q: Distinction between a guardian and a trustee

A: The distinction between a guardian and a trustee is that the latter has the
legal title while the guardian has no legal title of the property. So that the trustee
can negotiate and encumber the property under trust. Although the same trustee
may either be a trustee and a beneficiary at the same time.
A trust relationship can either be express if there is a trust agreement between

parties or implied if it is by operation of law. Examples of trust by operation of law
is when parents die without a will and then some children are still minors,
whoever is the guardian of the minor holds the property for and in behalf of the
minors in trust. So that you will note that the guardian here, being the trustee,
may not be a party to a written trust agreement but he cannot dispose the minor's
property without consent of the court for the reason that he is only in trust for the
ces qui trust. Even in the absence of a written contract, there is a trust
relationship by operation of law.

ADOPTION
Background of adoption: The rule on adoption has been amended several times
and even the rules on procedure, which you find in 99 and 100 are no longer
applicable. They have been repealed expressly. As early as the mid-70s when
the Child and Youth Welfare Code (PD 603) was enacted, it already amended
the rules on adoption. PD 603 was also amended by the Family Code. But all
these are no longer applicable in toto because of the new laws on adoption which
should be the subject matter of today's section. The laws applicable now is not
even the Civil Code per se, but rather it should be RA 8562, the Domestic
Adoption Law of 1998 and the Inter Country Adoption Law of 1995 (RA 8043).
These are the substantive law governing adoption. Our concern is the rule on
adoption.
AM 02-6-02SC, dated July 2002, is the new rule on Adoption.
Q: Who may be adopted only?

A: General Rule: one who is legally available for adoption.
Q: Who are legally available for adoption?

A: Those who are voluntarily committed and/or involuntarily committed.
The parents or guardians of these persons have voluntarily surrendered their

parental or guardianship authority to the DSWD.
Q: Who are those involuntarily committed?

A: Judicially or administratively deprived. Minors, whose parents or guardians
are administratively or judicially deprived of their authority over these persons.
They are involuntarily committed. And within that concept, you have the
abandoned, the dependents, and neglected children.
Q: What is a child-placement agency as distinguished from a child-caring

agency?
A: The distinction is in the services that they cater. Pag placement, it is to
provide comprehensive child welfare services including, but not limited to,
receiving applications for adoption, evaluating the prospective adoptive parents,
and preparing the adoption home study while pag caring, it is like Hospicio de
San Jose, which provides 24 hour residential care services for abandoned,
orphaned, neglected or voluntarily committed therein.
Q: Which court has jurisdiction over a petition for adoption?

A: It is the Family Court. RTC is not even a totally and perfectly correct answer
because it may be another RTC.
Q: What is the venue?

A: The place where the adoptive parents reside.

NOTE: Here, the meaning of residence is the actual habituation of the petitioner.
We are only going to study 2 fundamental questions on adoption. Who may be

adopted and who may adopt. Once you perfect that we can go to another lesson.
Q: Who may adopt? Or who is a qualified prospective adopter?

A:
1. Any Filipino Citizen
2. Any alien
3. Guardian, with respect to the ward. And remember, there is no qualification
as to the citizenship of the guardian. The only qualification is that the
guardianship must have ended AND his accountability as a guardian has
been completed. Yun lang ang qualification.
Q: Now let's go to the Filipino, what are the qualifications?

A:
1.of legal age;
2.he must possess full civil capacity and legal rights;
3.of good moral character;
4.has not been convicted of any crime involving moral turpitude;
5.emotionally and psychologically capable of caring or children;
6.financially capable or economically capable;
7.at least 16 years older than the adoptee.
NOTE: When one is of legal age, a minor cannot adopt. Because he must be
capable of unquestionable demonstration. Under the Rules on Evidence, the
court can either take judicial notice of that because he is capable of
unquestionable demonstration.
Q: What does possession of full civil capacity and legal rights mean?
A: Give me a person who is not possessed of full civil capacity and legal right. A
convicted person which has received an additional penalty of civil interdiction.
Q: How about a deaf-mute? Is a deaf-mute in possession of full civil capacity?

A: Under the rules, a deaf-mute who is not able to read and write is not in
possession of full civil capacity, thus it is incapable of contracting obligations.
Q: A person caught urinating, and charged of urinating in public. Is this not moral
turpitude?
A: Urinating or defecating in public is an offense and not a crime. The
requirement speaks of one who has not been convicted of a crime, which is
punishable by the Revised Penal Code.
Q: But if you are charged of Rape, can you not adopt?

A: No. Because it speaks of conviction. You must first be convicted.

But if you are convicted of homicide, recent jurisprudence say, you can still adopt
because it is not a crime of moral turpitude. So tatlo, there must be a crime,
there must be conviction, and it must be of moral turpitude.
Q: How do you establish your emotional and psychological capacity?

A: Clearances to show that you have not been convicted from a crime of moral
turpitude. Clearances from RTC, police, PNP, barangay, MTC, etc. And these
clearances will ought to show that you are of good moral character, that you are
emotionally and psychologically capacitated, subject of course to presentation of
evidence and cross-examination. Wala namang summons sa adoption.
Q: How do you establish your financial capacity?

A: Certificate of employment, income tax returns.
Q: When we speak of age gap, the miracle number is 16, why? What is sought to
be avoided by this age gap?
A: To avoid temptation. You look at the history of the Civil Code of the
Philippines which was adopted from the Civil Code of Spain. And being of
European origin, there is that also a 16 year old gap. Malalaking bulas ang mga
european and they seek adoption as a means of having mistresses.
Q: Who may be adopted?

A: General Rule: one who is legally available for adoption.
Q: Who are legally available for adoption?

A: There are 7. So that minority is not an absolute requirement to be adopted.
Relationship is not even a disqualification on the part of the adoptee. because
they can be adopted.
What I would like to emphasize is the doctrine laid down in Cang v CA, which is
that consent must be given either by the prospective adoptee, if he is at least 10
years old, or parents, or guardians, or the DSWD. Without that consent, as laid
down in this doctrine, adoption is null and void.
So you can adopt even your own child. You can even adopt your own
grandchildren just like what Juan Ponce Enrile did to his grandchildren.
Q: Another person who may adopt is a foreigner, and he may adopt under the
domestic adoption law or the inter-country adoption law. What are the
requirements?
A: So all the requirements applied to a Filipino prospective adopter are also
required of an alien. Therefore, he must be of legal age, in possession of full civil
capacity and legal rights, of good moral character, not convicted of a crime
involving moral turpitude, etc.
Over and above this, an alien is also required:
1. he must have continuously resided in the Philippines 3 years prior to the filing
of the adoption;

2. he must have a certification from his consular official that he is in possession

of full civil capacity;
3. his country of origin must have diplomatic relations with our country;
4. his country of origin must allow the adoptee to become a citizen of his
country;
5. that his country of origin allows the adoptee to enter the country of origin of
the adopter;
Q: Where should he file this petition for adoption? (Section 28)

A:
1. It may be filed by a foreign national or Filipino citizen permanently residing
abroad with the Family Court having jurisdiction over the place where the
child resides or may be found;
2. It may be filed directly with the Inter-Country Adoption Board.
When an alien files a petition before the Inter-Country Adoption Board, the alien
will come here in the Philippines and will bring the adoptee and the social worker
back to his country of origin for the trial custody of 6 months will happen there.
This is purposely done by the law, because there is an objective of

discouragement. To discourage the adoption of Filipino citizens by aliens. In fact
that is only allowed if the prospective adoptee cannot be adopted by a Filipino.
Filipinos have the preference of adopting.
Q: What constitutes the allegations?

A:
1. Jurisdictional facts;
2. legal capacity of the prospective adopter and the adoptee;
In the case of Republic v. Hernandez (1997), the SC said that the petition for
adoption does not carry with it the change of name of the adoptee. With the
present rules on adoption specifically under Section 10, this doctrine does not
apply anymore. This is a good bar question. So you can now have joinder of
causes of action in special proceedings, in effect. Dati wala. So you can now join
in your prayer, asking for a change of name and for adoption. Let me emphasize,
it is a change of name and not a change of surname because change of surname
is an automatic effect of adoption.
Q: After you have filed a petition for adoption, what happens now?
A: There would be a case study, where it is immediately assigned to a social
worker. Under present dispensation in our jurisdiction, every family courts is now
provided with a social worker. Because a petition for adoption is exclusively
cognizable by the Family Courts.

Q: For what purpose is this?

A: One is the home study report and the other is the case study report. The
home study report is about assigning to the social worker of the respective
adoptee and the case study report is about the prospective adopter.
The general objective of adoption, why it is allowed under the rules, is that which
leads to the benefit of the adoptee.
Under the rules, it is mandatory that the petitioner must appear and testify.
Similar to an annulment of marriage case, there can be no stipulation of facts
here or confessions of judgment. There must be actual presentation of evidence
here. And basic requirement here is the consent given by the adoptee, the
parents or the guardians of the adoptee.
Q: After the hearing, may the court render judgment now?

A: The judgment referred to here is not similar to the judgment that we have
ordinarily because the judgment here is always subject to the issuance of
another decree of adoption. Ang finality dito is not the finality of the judgment but
rather the finality of the decree of adoption.
Q: When is the decree of adoption issued?

A: After complying with the 6 month trial custody. Again, this is another
undertaking of the DSWD. Tignan niyo, the home or case study report is before
the decision is rendered, but before a decree of adoption is rendered kailangan
pa ng isa pang report which is the trial custody report.
Q: For how long?

A: General Rule: 6 months.
Exception: when it is in the best interest of the child; the petition during the
hearing is that the prospective adoptee is already living with the adopter.
Q: After the decree of adoption has become final and executory, what is the
next?
A: There should be a new birth certificate issued. Remember that one of the
rights of a party in litigation is the right to a speedy and public trial. But this
adoption proceeding is exceptional because even the documents there are public
records but are not open to the public, not anybody can get it including the new
birth certificate issued to the adopter.
NOTE: But take note that under the rule on rescission of adoption, the issued
certificate of the civil registrar's office is cancelled in favor of the old birth
certificate, which means that the old birth certificate is not deleted, but remains in
the record. And this is the reason of the confidential nature of the proceedings.

Q: What is adoption?
A: It is a judicial proceeding whereby the relationship of paternity and filiation is
established. AS simple as that.
According to a noted professor, when a decree of adoption is final and executory,

there is the total and absolute cut of any legal relationship between the natural
parent and the child.
Under the new rules, the adopter cannot rescind the adoption but only disinherit
the adopted child. An adopted child has all the rights of a legitimate child.

HABEAS CORPUS
Q: What is the constitutional provision about habeas corpus?
A: The privilege of the writ of habeas corpus shall not be suspended except in
cases of invasion or when public safety requires it. It is not the writ which is
suspended but the privilege.
Q: What is a writ of habeas corpus?

A: It is an order or judicial process directed to the person to show cause for the
reason of detention.
Q: By that definition, it is directed in two conditions, which are:

A:
1. illegal detention or confinement;
2. illegal withholding of custody from a person entitled thereto.
It is directed to someone who commits an act of either illegal detention or
confinement or illegal withholding of custody from a person entitled thereto.
Q: What is an example of the first instance?

A: Violation of the constitution, whereby a person is deprived or restrained of his
liberty or not afforded a right to due process, or an order from an authority which
has no jurisdiction.
Q: What is an example of the second instance?

A: Malimit itong mangyari within the family, where the mother or father fights over
for the custody of the child.
Q: If a woman leaves the parental home in order to stay with her paramour, can
the parents file a petition for a writ of habeas corpus?
A: It depends. If the child is a minor, a writ of habeas corpus is available. But
when a child comes of age, the writ of habeas corpus is not available.
Q: Suppose a judge renders a judgment penalizing a person with imprisonment

of 6 years 1 month and 1 day, and then the convict has already stayed for more
than that period of time, is the writ available?
A: Yes, the writ is available because that is the immediate remedy. Although you
can also file certiorari but it is no longer immediate here. Because what do you
intend to annul there? wala.
Q: What is a preliminary citation as compared to the writ of habeas corpus or the

peremptory writ?
A: Preliminary citation is a citation to the government officer having the person in
his custody to show cause why the writ of habeas corpus should not issue
(detention not patently illegal).
Preemptory writ is issued when the cause of the detention appears to be patently
illegal and the non-compliance wherewith is punishable.
In preliminary citation, it is not mandatory where the court may dispense with the

issuance of the preliminary citation and go directly to the issuance of the writ of
habeas corpus.
A person in custody of another, restraining the liberty of another, must give a

return upon receipt of the writ of habeas corpus. That return can either be prima
facie evidence of the detention or a plea of the facts stated therein, in the return.
Q: Ano ang ibig sabihin nito? (Section 13)

A: The content of the return as to whether it is a plea only or prima facie
evidence of detention, they distinguish as to who has burden of proof. If the
return contains prima facie evidence of the detention, then petitioner has the
burden of proof to show that the detention is illegal. But if it is only a plea of the
facts stated in the return, then the one who has the custody of the person has the
burden of proof.
So a writ of habeas corpus is directed to a jail warden. When the jail warden
prepares the return, which is brought to the court, he says that this person is
under a commitment order, merong desisyon ang korte that this one should be
imprisoned because he was denied bail although is appeal is still pending. That
is prima facie evidence of the cause of his detention, and when that is submitted
to the court, the applicant has the burden to establish that that commitment order
is illegal.
But if the return, it says well i am taking custody of this child because i am the
father, that is not a commitment order or judicial order, that is coming from a
private person. Therefore, that is not prima facie evidence but only a plea of the
facts stated therein. Hence, the father will show that he has the right to take
custody of the child and not anymore the petitioner.

RULE 103 (CHANGE OF NAME) and 108 (CORRECTION OF ENTRIES) are

still applicable. They have only been amended but are not yet repealed by RA
9048. Therefore, an affected person can avail of Rule 103 or Rule 108 without
RA 9048 being violated.
RA 9048 is known as administrative procedure of changing one's name or nick

name or administrative procedure of correcting an entry in a document.
Therefore, being administrative, it is extrajudicial. In case of Rules 103 and 108,
they are judicial processes.
Q: Which courts have jurisdiction over Rules 103 and 108?

A: RTC, specifically the Family Courts.
Q: Venue?
A: Residence in case of change of name. Where the registry is located in case of
correction of entries.
Q: What are the amendments to these two rules brought about by RA 9048?
A: Remember that RA 9048 speaks only of names and nickname but when Rule
103 says change of name, it does not only refer to name or nick name but also to
family name. So if you want to change the family name you cannot avail of RA
9048.
Q: What are the grounds?

A:
The same grounds. Under RA 9048, the same grounds:
1. That the name is ridiculous. If your name is Lucifer, you can have it changed
under Rule 103 or RA 9048.
2. Tainted with dishonor. If your name is Osama Bin Laden, you can have it
changed.
3. Your name is very difficult to pronounce or write. If your name is
supercalifragilisticexpialidocious.
4. That you are known by the name in the community.
5. To avoid confusion.
6. To avoid foreign alienage.
So the same grounds either under Rule 103 or RA 9048.
Under Rule 108, you have to correct entries in a document. And the enumerated
public documents where entries have had are as many as possible. Those which
are in the custody of the register of deeds. If the change are substantial, you
cannot avail RA 9048 but Rule 108. You can only avail of RA 9048 if the change
sought is clerical or typographical in nature.

Q: Name is Maria Cecilia when in her birth certificate it shows as Ma. Cecilia, is
that typographical or clerical error?
A: There is no error there. What you have to seek is change of name because
Ma is different from Maria Cecilia. There is no error there.
You cannot avail of RA 9048 if it will change sex, status, or nationality. If there is
error you can change it under Rule 108 and not RA 9048.
Q: Suppose you do it under Rule 108, and it was denied. Where do you appeal
or what is the remedy?
A: The remedy is to go to the Civil Registrar General who is the Manager of the
National Census Administrative Office. It is not an appeal but a motion for
reconsideration. If the civil registrar affirms the denial, you file a PETITION under
Rule 108.
Q: Going back to RA 9048, A was born in Quezon City, he now resides in Baguio
City. Should he go to Quezon City in order to file under RA 9048?
A: No, he has to file it in Baguio and under the rules the two civil registrar, that of
Baguio and Quezon city will coordinate. It also can be done abroad, by filing the
same with the Philippine Consulate, it is a matter of communication.
NOTE: Appeal in RA 9048 is with the Civil Registrar General. Although it is not
really an appeal, it is a motion for reconsideration. Appeal under Rule 103 or 108
is ordinary/ regular appeal. In RA 9048, it is not really an appeal, wala naman
kasi appeal sa administrative remedies, you use the word appeal for facilitation of
better understanding. But that is not an appeal, motion for reconsideration siguro.


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REMEDIAL LAW REVIEW 2007

If I were an examiner, I would definitely ask in Special Proceedings, Settlement

Remember, Special Proceedings is different from all other actions, including

more specific, Special Proceedings are actions geared or directed towards

Q: So, how does a court acquire jurisdiction over the case?

Q: What are the Special Proceedings?

ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE

SETTLEMENT OF ESTATE OF DECEASED PERSONS

Q: There are two ways to Settle an Estate:

Q: What are the requirements for an Affidavit of Self Adjudication?

Q: How do you go about in making an Affidavit of Self Adjudication?

ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE

register of Deeds. (extrajudicial ha…the court has no participation whatsoever

The other mode of extrajudicial settlement is extrajudicial partition...that is not

In affidavit of self adjudication, of course you have to support your allegations

Judicial Settlement refers to Conventional: Rules 73-90. Summary

ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE

So if the proceeding is in Manila, but the property escheated is in Calamba, the

Q: Which court has jurisdiction over Petitions for Settlement of Estate?

The old books speak of Courts of First Instance (RTC), exclusively…hindi na

ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE

RULE 73 VENUE AND PROCESS.

Q: Is settlement of estate limited to the estate of Filipino Citizen?

Q: If an American was in the Philippines because he was a member of the

Q: So, is the last residence of the decedent a matter of jurisdiction or a matter of

Q: So, what happens to the case?

Let me emphasize to you that in civil cases, including special proceedings,

So, if there is no opposition, there is no question as to the petition filed by

Sec. 1 there does not speak of jurisdiction. Jurisdiction here is conferred

ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE

ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE

Q: What is the distinction between an executor and an administrator?

Q: An administrator is of two kinds, what are they?

Q: In what instances may the court appoint a special administrator?

ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE

Q: Are you bound to file a petition?

Q: If it is a testate proceeding, what is the first stage?

ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE

Q: Ano ba ang end of settlement of estate?

Q: Why is this so? Why does this issue pop up here?

In the beginning, there is no defendant. The equivalent of a defendant in a

Q: Once the will is allowed, What does it mean?

ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE

If Mr. A is accused of a crime of falsification of documents by forging the

We are talking here of allowance of the will within the Philippines.

Q: An American citizen residing in California died in California, his will was

Q: What are you supposed to establish or prove in the re-probate of a will?

These are mandatory requirements. These must all be established in the

ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE

Q: What are the qualifications for one to be appointed as administrator of the

Q: If a man cannot sleep without drinking at least 3 beers before he goes to

Q: In the course of the administratorship, when one has already be appointed,

Q: If a special administrator is appointed because the regular administrator has

ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE

The executor of an executor cannot be appointed as executor of the principal

Example: Richard is the testator. He appointed Piolo as his executor. Later on

Q: What are the duties of a special administrator?

Q: Can he encumber the property of the estate through lease?