1) Change of Name exercise jurisdiction to the exclusion of all

2) Adoption other courts.

3) Trustees
4) Constitution of Family Home Under RA 7691, the law expanding the
5) Hospitalization of Insane Persons jurisdiction of the inferior courts, MTC, MeTC
6) Absence and Death, Declaration of and MCTC shall exercise exclusive original
7) Guardianship and Custody of Children jurisdiction over probate proceedings, testate
8) Escheat and intestate, where the value of the estate
does not exceed P300,000 (outside Metro
9) (Voluntary) Dissolution of Corporation Manila) or where such estate does not exceed
10) Settlement of Estate of Deceased Persons P400,000 (in Metro Manila).
11) Habeas Corpus
12) (Judicial) Approval of Voluntary The jurisdiction of the RTC is limited to the
Recognition of Minor Natural Children settlement and adjudication of properties of
13) Rescission and Revocation of Adoption the deceased and cannot extend to collateral
14) Cancellation or Correction of Entries in the matters.
Civil Registry

Special Proceedings is an application or

VENUE IN JUDICIAL SETTLEMENT OF ESTATE
proceeding to establish the status or right of a
party, or a particular fact, generally
The residence of the decedent at the time of
commenced by application, petition or special
his death is determinative of the venue of the
form of pleading as may be provided for by the
proceeding.
particular rule or law.

If he was a resident (inhabitant, whether

SETTLEMENT OF ESTATE OF DECEASED
citizen or alien) of the Philippines, venue is laid
PERSONS (Rules 73 91)
exclusively in the province of his residence at
the time of his death. Residence means his
SETTLEMENT OF ESTATE OF DECEASED
personal, actual, or physical habitation, his
PERSONSVENUE AND PROCESS (RULE 73)
actual residence or place of abode.

WHICH COURT HAS JURISDICTION

It is only where the decedent was a
nonresident of the Philippines at the time of
If the decedent is an inhabitant of the
his death that venue lies in any province in
Philippines at the time of his death, whether a
which he had an estate, The question of
citizen or an alien, his will shall be proved, or
residence is determinative only of the venue
letters of administration granted, and his
and does not affect the jurisdiction of the
estate settled, in the RTC in the province in
court.
which he resides at the time of his death, and if
he is an inhabitant of a foreign country, the
Venue is waivable. If instituted in two courts,
RTC of any province in which he had his estate.
the court in which the proceeding was first
The court first taking cognizance of the
filed has exclusive jurisdiction to resolve the
settlement of the estate of a decedent, shall
issue. attendance of witnesses;
4) Determine and rile upon issues relating to
EXTENT OF JURISDICTION OF PROBATE COURT the settlement of the estate, such as
administration, liquidation, and distribution of
The main function of a probate court is to the estate; and
settle and liquidate the estates of deceased 5) Determine the following:
person either summarily or through the a) Heirs of the decedent;
process of administration. b) Recognition of natural child;
c) Validity of the disinheritance effected by
The probate court exercises limited testator;
jurisdiction, thus it has no power to take d) Status of a woman who claims to be the
cognizance of and determine the issue of title lawful wife of the decedent;
to property claimed by a third person e) Validity of waiver of hereditary heirs;
adversely to the decedent unless the claimant f) Status of each heir;
and all other parties have legal interest in the g) Whatever property in inventory is conjugal
property consent, expressly or impliedly, to the or exclusive property of deceased spouse; and
submission of the question to the probate h) Matters incidental or collateral to the
court. In that case, if the probate court allows settlement and distribution of the estate.
the introduction of evidence on ownership it is
for the sole purpose of determining whether SUMMARY SETTLEMENT OF ESTATES (RULE 74)
the subject properties should be included in
the inventory, which is within the Summary settlement of estate is a judicial
probate courts competence. proceeding wherein, without the appointment
of executor or administrator, and without
The determination is only provisional subject delay, the competent court summarily
to a proper action in a separate action to proceeds to value the estate of the decedent;
resolve the title. ascertain his debts and order payment thereof;
allow his will if any; declare his heirs, devisee
The jurisdiction of the probate court merely and legatees; and distribute his net estate
relates to matters having to do with the among his known heirs, devisees, and legatees,
settlement of the estate and the probate of who shall thereupon be entitled to receive and
wills, the appointment and removal of enter into the possession of the parts of the
administrators, executors, guardians and estate so awarded to them, respectively.
trustees. The question of ownership is, as a
rule, an extraneous matter which the probate EXTRAJUDICIAL SETTLEMENT BY AGREEMENT
court cannot resolve with finality. BETWEEN HEIRS WHEN ALLOWED

POWERS AND DUTIES OF PROBATE COURT If the decedent left no will and no debts and
the heirs are all of age, or the minors are
The powers and duties of a probate court: represented by their judicial or legal
1) Distribute shares; representatives duly authorized for the
2) Determine the legal heirs; purpose, the parties may, without securing
3) Issue warrants and processes to secure letters of administration, divide the estate
among themselves as they see fit by means of legal representative;
a public instrument filed in the office of the 4) The partition was made by means of a public
register of deeds, and should they disagree, instrument or affidavit duly filed with the
they may do so Register
in an ordinary action of partition. of Deeds; and
5) The fact of the extrajudicial settlement or
If there is only one heir, he may adjudicate to administration shall be published in a
himself the entire estate by means of an newspaper
affidavit filed in the office of the register of of general circulation.
deeds.
TWO-YEAR PRESCRIPTIVE PERIOD
The parties to an extrajudicial settlement,
whether by public instrument or by stipulation It shall be presumed that the decedent left no
in a pending action for partition, or the sole debts if no creditor files a petition for letters of
heir who adjudicates the entire estate to administration within two (2) years after the
himself by means of an affidavit shall file, death of the decedent. If it shall appear at any
simultaneously with and as a condition time within two (2) years after the settlement
precedent to the filing of the public and distribution of an estate in accordance
instrument, or stipulation in the action for with the provisions of either of the first two
partition, or of the affidavit in the office of the sections of this rule, that an heir or other
register of deeds, a bond with the said register person has been unduly deprived of
of deeds, in an amount equivalent to the value his lawful participation in the estate, such heir
of the personal property involved as certified or such other person may compel the
to under oath by the parties concerned and settlement of the estate in the courts in the
conditioned upon the payment of any just manner hereinafter provided for the purpose of
claim that may be filed under section 4 of this satisfying such lawful participation.
rule.
And if within the same time of two (2) years, it
The fact of the extrajudicial settlement or shall appear that there are debts outstanding
administration shall be published in a against the estate which have not been paid, or
newspaper of general circulation in the that an heir or other person has been unduly
manner provided in the next succeeding deprived of his lawful participation payable in
section; but no extrajudicial settlement shall money, the court having jurisdiction of the
be binding upon any person who has not estate may, by order for that purpose, after
participated therein or had no notice thereof hearing, settle the amount of such debts or
Extrajudicial partition of the estate shall be lawful participation and order how much and
valid when the following conditions concur: in what manner each distributee shall
1) The decedent left no will; contribute in the payment thereof, and may
2) The decedent left no debts, or if there were issue execution, if circumstances require,
debts left, all had been paid; against the bond provided in the preceding
3) The heirs are all of age or if they are minors, section or against the real estate belonging to
thelatter are represented by their judicial the deceased, or both. Such bond and such
guardian or real estate shall remain charged with a liability
to creditors, heirs, or other persons for the full enter into the possession of the portions of the
period of two (2) years after such distribution, estate so awarded to them respectively. The
notwithstanding any transfers of real estate court shall make such order as may be just
that may have been made. respecting the costs of the proceedings, and all
orders and judgments made or rendered in the
AFFIDAVIT OF SELF-ADJUDICATION BY SOLE course thereof shall be recorded in the office of
HEIR the clerk, and the order of partition or award, if
it involves real estate, shall
If there is only one heir, he may adjudicate to be recorded in the proper register's office.
himself the entire estate by means of an
affidavit filed in the office of the register of The court, before allowing a partition, may
deeds. require the distributees, if property other than
real is to be
SUMMARY SETTLEMENT OF ESTATES OF SMALL distributed, to file a bond in an amount to be
VALUE; WHEN ALLOWED fixed by court, conditioned for the payment of
any just claim.
Whenever the gross value of the estate of a
deceased person, whether he died testate or REMEDIES OF AGGRIEVED PARTIES AFTER
intestate, does not exceed ten thousand pesos, EXTRA-JUDICIAL SETTLEMENT OF ESTATE
and that fact is made to appear to the RTC
having jurisdiction of the estate by the petition 1) The creditor may ask for administration of
of an interested person and upon hearing, enough property of the estate sufficient to pay
which shall be held not less than (1) month nor the debt, but the heirs cannot prevent such
more than three (3) months from the date of administration by paying the obligation.
the last publication of a notice which shall be
published once a week for three (3) 2) Where the estate has been summarily
consecutive weeks in a newspaper of general settled, the unpaid creditor may, within the
circulation in two-year period, file a motion in the court
the province, and after such other notice to wherein such summary settlement was for the
interested persons as the court may direct, the payment of his credit. After the lapse of the
court may proceed summarily, without the two-year period, an ordinary action may be
appointment of an executor or administrator, instituted against the distributees within the
and without delay, to grant, if proper, statute of limitations, but not against the bond.
allowance of the will, if any there be, to
determine who are the persons legally entitled 3) The action to annul a deed of extrajudicial
to participate in the estate, and to apportion settlement on the ground of fraud should be
and divide it among them after the payment of filed within four years from the discovery of the
such debts of the estate as the court shall then fraud.
find to be due; and such persons, in their own
right, if they are of lawful age and legal PRODUCTION AND PROBATE OF WILL (RULE
capacity, or by their guardians or trustees 75)
legally appointed and qualified, if otherwise,
shall thereupon be entitled to receive and NATURE OF PROBATE PROCEEDING
 mailing. If the testator asks for the allowance of
Probate of a will is a proceeding in rem. It his own will, notice shall be sent only
cannot be dispensed with and substituted by to his compulsory heirs.
another
proceeding, judicial or extrajudicial, without ALLOWANCE OR DISALLOWANCE OF WILL
offending public policy. It is mandatory as no (RULE 76)
will shall pass either real or personal property
CONTENTS OF PETITION FOR ALLOWANCE OF
unless proved and allowed in accordance with
WILL
the Rules.
It is imprescriptible, because it is required by
A petition for the allowance of a will must
public policy and the state could not have
show, so far as known to the petitioner:
intended to defeat the same by applying
1) The jurisdictional facts;
thereto the statute of limitation of actions.
2) The names, ages, and residences of the
heirs, legatees, and devisees of the testator or
WHO MAY PETITION FOR PROBATE; PERSONS
decedent;
ENTITLED TO NOTICE
3) The probable value and character of the
property of the estate;
Any executor, devisee, or legatee named in a
4) The name of the person for whom letters are
will, or any other person interested in the
prayed;
estate, may, at any time after the death of the
5) If the will has not been delivered to the
testator, petition the court having jurisdiction
court, the name of the person having custody
to have the will allowed, whether the same be
of it.
in his possession or not, or is lost or destroyed.
The testator himself may, during his lifetime,
But no defect in the petition shall render void
petition the court for the allowance of his will.
the allowance of the will, or the issuance of
letters
The court shall also cause copies of the notice
testamentary or of administration with the will
of the time and place fixed for proving the will
annexed.
to be addressed to the designated or other
known heirs, legatees, and devisees of the
GROUNDS FOR DISALLOWING A WILL
testator resident in the Philippines at their
places of residence, and deposited in the post
The will shall be disallowed in any of the
office with the postage thereon prepaid at least
following cases;
twenty (20) days before the hearing, if such
1) If not executed and attested as required by
places of residence be known.
law;
2) If the testator was insane, or otherwise
A copy of the notice must in like manner be
mentally incapable to make a will, at the time
mailed to the person named as executor, if he
of its execution;
be not be petitioner; also, to any person
3) If it was executed under duress, or the
named as co-executor not petitioning, if their
influence of fear, or threats;
places of residence be known. Personal service
4) If it was procured by undue and improper
of copies of the notice at least ten (10) days
pressure and influence, on the part of the
before the day of hearing shall be equivalent to
beneficiary, or of some other person for his
benefit; If the court is satisfied, upon proof taken and
5) If the signature of the testator was procured filed, that the will was duly executed, and that
by fraud or trick the testator at the time of its execution was of
6) If the testator acted by mistake or did not sound and disposing mind, and not acting
intend that the instrument he signed should be under duress, menace, and undue influence, or
his will at fraud, a certificate of its allowance, signed by
the time of affixing his signature thereto. the judge, and attested by the seal of the court
shall be attached to the will and the will and
REPROBATE; REQUISITES BEFORE WILL certificate filed and recorded by
PROVED OUTSIDE ALLOWED IN THE the clerk. Attested copies of the will devising
PHILIPPINES; EFFECTS OF real estate and of certificate of allowance
PROBATE thereof, shall be recorded in the register of
deeds of the province in which the lands lie.
Will proved outside Philippines may be allowed
here. Wills proved and allowed in a foreign The general rule universally recognized is that
country, according to the laws of such country, administration extends only to the assets of the
may be allowed, filed, and recorded by the decedent found within the state or country
proper Court of First Instance in the where it was granted, so that an administrator
Philippines. appointed in one state or country has no
power over the property in another state or
If it appears at the hearing that the will should country.
be allowed in the Philippines, the court shall so
allow it, and a certificate of its allowance, When a person dies intestate owning property
signed by the judge, and attested by the seal of in the country of his domicile as well as in
the court, to which shall be attached a copy of foreign country, administration shall be had in
the will, shall be filed and recorded by the both countries. That which is granted in the
clerk, and the will shall have the same effect as jurisdiction of the decedents domicile is
if originally proved and allowed in such court. termed the principal administration, while any
other administration is termed ancillary
When a will is thus allowed, the court shall administration. The ancillary administration is
grant letters testamentary or letters of proper whenever a person dies leaving in a
administration with the will annexed, and such country other than that of his domicile,
letters testamentary or of administration, shall property to be administered in the nature of
extend to all the estate of the testator in the assets of the
Philippines. Such estate, after the payment of decedent, liable for his individual debts or to
just debts and expenses of administration, be distributed among his heirs.
shall be disposed of according to such will, so
far as such will may operate upon it; and the LETTERS TESTAMENTARY AND OF
residue, if any, shall be disposed of as is ADMINISTRATION (RULE 78)
provided by law in cases of estates in the
Philippines belonging to persons who are Letters testamentary is the appointment issued
inhabitants of another state or country. by a probate court, after the will has been
admitted to probate, to the executor named in required by the will.
the will to administer the estate of the
deceased testator, provided the executor If no executor is named in the will, or the
named in the will is competent, accepts the executor or executors are incompetent, refuse
trust and gives a bond. the trust, or fail to give bond, or a person dies
intestate, administration shall be granted:
WHEN AND TO WHOM LETTERS OF
ADMINISTRATION GRANTED a) To the surviving husband or wife, as the case
may be, or next of kin, or both, in the discretion
No person is competent to serve as executor of the
oradministrator who: court, or to such person as such surviving
a) Is a minor; husband or wife, or next of kin, requests to
b) Is not a resident of the Philippines; and have appointed,
c) Is in the opinion of the court unfit to execute if competent and willing to serve;
the duties of the trust by reason of
drunkenness, b) If such surviving husband or wife, as the
improvidence, or want of understanding or case may be, or next of kin, or the person
integrity, or by reason of conviction of an selected by them,
offense be incompetent or unwilling, or if the husband
involving moral turpitude. or widow, or next of kin, neglects for thirty (30)
days
The executor of an executor shall not, as such, after the death of the person to apply for
administer the estate of the first testator. administration or to request that
administration be granted to some other
A married woman may serve as executrix or person, it may be granted to one or more of the
administratrix, and the marriage of a single principal creditors, if competent and willing to
woman shall serve;
not affect her authority so to serve under a
previous appointment. c) If there is no such creditor competent and
willing to serve, it may be granted to such
When a will has been proved and allowed, the other person as
court shall issue letters testamentary thereon the court may select.
to the person named as executor therein, if he
is competent, accepts the trust, and gives bond ORDER OF PREFERENCE; PRIORITY IN
as required by these rules. SELECTING AN ADMINISTRATOR

When all of the executors named in a will 1) Surviving spouse, or next of kin, or both, or
cannot act because of incompetency, refusal to person as such surviving spouse, or next of kin,
accept the trust, or failure to give bond, on the requests;
part of one or more of them, letters 2) One or more of the principal creditors if such
testamentary may issue to such of them as are surviving spouse, or next of kin, or the person
competent, accept and give bond, and they selected,
may perform the duties and discharge the trust be incompetent or unwilling, or if they neglect
for 30 days after the death of the decedent to business, and may examine and make invoices
apply for of the property belonging to such partnership;
administration or to request that and the surviving partner or partners, on
administration be granted to some other request, shall exhibit to him all such books,
person, it may be granted to, if competent and papers, and property in their hands or
willing to serve; control. On the written application of such
3) Such other person as the court may select. executor or administrator, the court having
jurisdiction of the estate may order any such
OPPOSITION TO ISSUANCE OF LETTERS surviving partner or partners to freely permit
TESTAMENTARY; SIMULTANEOUS FILING OF the exercise of the rights, and to exhibit the
PETITION books, papers, and property, as in this section
FOR ADMINISTRATION provided, and may punish any partner failing
to do so for contempt.
Any person interested in a will may state in
writing the grounds why letters testamentary An executor or administrator shall maintain in
should not issue to the persons named therein tenantable repair the houses and other
executors, or any of them, and the court, after structures and fences belonging to the estate,
hearing upon notice, shall pass upon the and deliver the same in such repair to the heirs
sufficiency of such grounds. A petition may, at or devisees when directed so to do by the
the same time, be filed for letters of court.
administration with the will annexed.
An executor or administrator shall have the
POWERS AND DUTIES OF EXECUTORS AND right to the possession and management of the
ADMINISTRATORS; RESTRICTIONS ON THE real as well as the personal estate of the
POWERS deceased so long as it is necessary for the
(RULE 84) payment of the debts and the expenses of
administration.
An EXECUTOR is the person nominated by a
testator to carry out the directions and An administrator of an intestate cannot
requests in his will and to dispose of his exercise the right of legal redemption over a
property according to his testamentary portion of the property owned in common sold
provisions after his death. by one of the other co-owners since this is not
within the powers of administration.
An ADMINISTRATOR is person appointed by the
court, in accordance with the governing Where the estate of a deceased person is
statute, to administer andsettle intestate estate already the subject of a testate or intestate
and such testate estate as no competent proceeding, the
executor was designated by the testator. administrator cannot enter into any
transaction involving it without any prior
The executor or administrator of the estate of a approval of the Court.
deceased partner shall at all times have access
to, and may examine and take copies of, books The right of an executor or administrator to the
and papers relating to the partnership possession and management of the real and
personal properties of the deceased is not grants letters to someone to act with him. If
absolute and can only be exercised so long as it there is no remaining executor or
is necessary for the payment of the debts and administrator, administration may be granted
expenses of administration. to any suitable person (Sec. 2, Rule 82).

APPOINTMENT OF SPECIAL ADMINISTRATOR CLAIMS AGAINST THE ESTATE (RULE 86)

When there is delay in granting letters Administration is for the purpose of liquidation
testamentary or of administration by any cause of the estate and distribution of the residue
including an appeal from the allowance or among the heirs and legatees. Liquidation
disallowance of a will, the court may appoint a means the determination of all the assets of
special administrator to take possession and the estate and payment of all debts and
charge of the estate of the deceased until the expenses.
questions causing the delay are decided and
executors or administrators appointed. The purpose of presentation of claims against
decedents of the estate in the probate court is
GROUNDS FOR REMOVAL OF ADMINISTRATOR to protect the estate of deceased persons. That
way, the executor or administrator will be able
Administration revoked if will discovered - If to examine each claim and determine whether
after letters of administration have been it is a proper one which should be allowed.
granted on the estate of a decedent as if he had
died intestate, his will is proved and allowed by Further, the primary object of the provisions
the court, the letters of administration shall be requiring presentation is to apprise the
revoked and all powers thereunder cease, and administrator and the probate court of the
the administrator shall forthwith surrender the existence of the claim so that a proper and
letters to the court, and render his account timely arrangement may be made for its
within such time as the court payment in full or by pro rata portion in the
directs. Proceedings for the issuance of letters due course of the administration, inasmuch as
testamentary or of administration under the upon the death of a person, his entire estate is
will shall be as hereinbefore provided. burdened with the payment of all his debts and
no creditor shall enjoy any preference or
If an executor or administrator neglects to priority; all of them shall share pro rata in the
render his account and settle the estate liquidationof the estate of the deceased.
according to law, or to perform an order or
judgment of the court, or a duty expressly TIME WITHIN WHICH CLAIMS SHALL BE FILED;
provided by these rules, or absconds, or EXCEPTIONS
becomes insane, or otherwise incapable or
unsuitable to discharge the trust, the court The court shall state the time for the filing of
may remove him, or, in its discretion, may claims against the estate, which shall not be
permit him to resign. When an executor or more than twelve (12) nor less than six (6)
administrator dies, resigns, or is removed the months after the date of the first publication of
remaining executor or administrator may the notice. However, at any time before an
administer the trust alone, unless the court order of distribution is entered, on application
of a creditor who has failed to file his claim to the provisions of the will, which must be
within the time previously limited, the court respected (Sec. 2);
may, for cause shown and on such terms as are 3) If the estate designated in the will is not
equitable, allow such claim to be filed within a sufficient, such part of the estate as is not
time not exceeding one (1) month. disposed of by will shall be appropriated for
the purpose (Sec. 2);
STATUTE OF NON-CLAIMS 4) The personal estate not disposed of by will
shall be first chargeable with payment of debts
A claim by a person against the estate of and expenses (Sec. 3);
deceased should be made in not less than 6 5) If the personal estate is not sufficient, or its
months nor more than 12 months since the sale would be detrimental to the participants
first publication of allowance of the will. If the of the
said claims are not filed within the time estate, the real estate not disposed of by will
limited in the notice, they are forever be shall be sold or encumbered for that purpose
barred. (Sec. 3);
6) Any deficiency shall be met by contributions
CLAIM OF EXECUTOR OR ADMINISTRATOR from devisees, legatees and heirs who have
AGAINST THE ESTATE entered into possession of portions of the
estate before debts and expenses have been
If the executor or administrator has a claim paid (Sec. 6);
against the estate he represents, he shall give 7) The executor or administrator shall retain
notice thereof, in writing, to the court, and the sufficient estate to pay contingent claims when
court shall appoint a special administrator, the
who shall, in the adjustment of such claim, same becomes absolute
have the same power and be subject to the
(Sec. 4). f the estate is insolvent, the debts shall
same liability as the general administrator or
be paid in the following manner:
executor in the settlement of other claims.
1) The executor or administrator shall pay the
debts in accordance with the preference of
The court may order the executor or
credits established by the Civil Code (Sec. 7);
administrator to pay to the special
2) No creditor of any one class shall receive any
administrator necessary funds to defend such
payment until those of the preceding class are
claim.
paid (Sec. 8);
3) If there are no assets sufficient to pay the
PAYMENT OF DEBTS (RULE 88)
credits of any one class of creditors, each
creditor within
If there are sufficient properties, the debts shall
such class shall be paid a dividend in
be paid, thus:
proportion to his claim (Sec. 8);
1) All debts shall be paid in full within the time
4) Where the deceased was a nonresident, his
limited for the purpose (Sec. 1);
estate in the Philippines shall be disposed of in
2) If the testator makes provision by his will, or
such a way that creditors in the Philippines and
designates the estate to be appropriated for
elsewhere may receive an equal share
the
inproportion to their respective credits (Sec. 9);
payment of debts they shall be paid according
5) Claims duly proved against the estate of an ACTIONS THAT MAY BE BROUGHT AGAINST
insolvent resident of the Philippines, the EXECUTORS AND ADMINISTRATORS
executor or administrator, having had the
opportunity to contest such claims, shall e An action to recover real or personal property,
included in the certified list of claims proved or an interest therein, from the estate, or to
against the deceased. The owner of such enforce a lien thereon, and actions to recover
claims shall be entitled to a just distribution of damages for an injury to person or property,
the estate in accordance with the preceding real or personal, may be commenced against
rules if the property of such deceased person in the executor or administrator.
another
country is likewise equally apportioned to the Whenever a party to a pending action dies, and
creditors residing in the Philippines and other the claim is not thereby extinguished, it shall
creditors, according to their respective claims be the duty of his counsel to inform the court
(Sec. 10); within thirty (30) days after such death of the
6) It must be noted that the payments of debts fact thereof, and to give the name and address
of the decedent shall be made pursuant to the of his legal representative or representatives.
order of Failure of counsel
the probate court (Sec. 11). to comply with this duty shall be a ground for
disciplinary action. The heirs of the deceased
On granting letters testamentary or may be allowed to be substituted for the
administration the court shall allow to the deceased, without requiring the appointment
executor or administrator a time for disposing of an executor or administrator and the court
of the estate and paying the debts and legacies may appoint a guardian ad litem for the minor
of the deceased, which shall not, in the first heirs.
instance, exceed one (1) year; but the court
may, on application of the executor or The court shall forthwith order said legal
administrator and after hearing on such notice representative or representatives to appear
of the time and place therefor given to all and be substituted within a period of thirty (30)
persons interested as it shall direct, extend the days from notice. If no legal representative is
time as the circumstances of the estate require named by the counsel for the deceased party,
not exceeding six (6) months for a single or if the one so named shall fail to appear
extension nor so that the whole period allowed within the specified period, the court may
to the original executor or administrator shall order the opposing party, within a specified
exceed two (2) years (Sec. 15). time, to procure the appointment of an
executor or administrator for the estate of the
ACTIONS BY AND AGAINST EXECUTORS AND deceased and the latter shall immediately
ADMINISTRATORS (RULE 87) appear for and on behalf of the deceased. The
court charges in procuring such appointment,
No action upon a claim for the recovery of if defrayed by the opposing party, may be
money or debts or interest thereon shall be recovered as costs.
commenced against the executor or
administrator. When the action is for recovery of money
arising from contract, express or implied, and
the defendant dies before entry of final
judgment in the court in which the action was Before there could be a distribution of the
pending at the time of such death, it shall not estate, the following two stages must be
be dismissed but shall instead be allowed to followed:
continue until entry of final judgment. A 1) Payment of obligations (liquidation of
favorable judgment obtained by the plaintiff estate) under the Rules, the distribution of a
therein shall be enforced in the manner decedents assets may only be ordered under
especially provided in these Rules for any of the following three circumstances:
prosecuting claims against the estate of a a. when the inheritance tax, among other is
deceased person. paid;
b. when a sufficient bond is given to meet the
REQUISITES BEFORE CREDITOR MAY BRING AN payment of the inheritance tax and all other
ACTION FOR RECOVERY OF PROPERTY obligations; and;
FRAUDULENTLY c. when the payment of the said tax and all
CONVEYED BY THE DECEASED other obligations has been provided for; and
2) Declaration of heirs there must first be
1) There is a deficiency of assets in the hands of declaration of heirs to determine to whom the
an executor or administrator for the payment residue of the estate should e distributed. A
of debts separate action for the declaration of heirs is
and expenses of administration; not proper.
2) The deceased in his lifetime had made or
attempted to make a fraudulent conveyance of And likewise after, not before the declaration of
his real or personal property, or a right or heirs is made may the residue be distributed
interest therein, or a debt or credit, with intent and delivered to the heirs. The settlement of a
to defraud his creditors or to avoid any right, decedents estate is a proceeding in rem which
debt or duty; or had so conveyed such is binding against the whole world. All persons
property, right, debt, or credit that by law the having interest in the subject matter involved,
conveyance would be void as against his whether they were notified or not, are equally
creditors; bound.
3) The subject of the attempted conveyance
would be liable to attachment by any of them LIQUIDATION
in his lifetime;
4) The executor or administrator has shown to When order for distribution of residue made.
have no desire to file the action or failed to When the debts, funeral charges, and expenses
institute the same within a reasonable time; of administration, the allowance to the widow,
5) Leave is granted by the court to the creditor and inheritance tax, if any, chargeable to the
to file the action; estate in accordance with law, have been paid,
6) A bond is filed by the creditor as prescribed the court, on the application of the executor or
in the Rules; administrator, or of a person interested in the
7) The action by the creditor is in the name of estate, and after hearing upon notice, shall
the executor or administrator. assign the residue of the estate to the persons
entitled to the same, naming them and the
DISTRIBUTION AND PARTITION (RULE 90) proportions, or parts, to which each is entitled,
and such person may demand and recover partition does not pay his proportion or share,
their respective shares from the executor or the court may issue an execution in the name
administrator, or any other person having the of the executor or administrator against the
same in his possession. If there is a controversy party not paying for the sum assessed.
before the court as to who are the lawful heirs
of the deceased person or as to the distributive PROJECT OF PARTITION
shares to
which each person is entitled under the law, Project of partition is a document prepared by
the controversy shall be heard and decided as the executor or administrator setting forth the
in ordinary manner in which the estate of the deceased is
cases. to be distributed among the heirs. If the estate
is a testate estate, the project of partition must
No distribution shall be allowed until the conform to the terms of the will; if intestate,
payment of the obligations above mentioned the project of partition must be in accordance
has been made or provided for, unless the with the provisions of the Civil Code.
distributees, or any of them, give a bond, in a
sum to be fixed by the court, conditioned for REMEDY OF AN HEIR ENTITLED TO RESIDUE
the payment of said obligations within such BUT NOT GIVEN HIS SHARE
time as the court directs.
1) If there is a controversy before the court as
Questions as to advancement to be to who are the lawful heirs of the deceased
determined. Questions as to advancement person or as to the distributive shares to which
made, or alleged to have been made, by the each person is entitled under the law, the
deceased to any heir may be heard and controversy shall be heard and decided as in
determined by the court having jurisdiction of ordinary cases.
the estate proceedings; and the final order of 2) The better practice for the heir who has not
the court thereon shall be binding on the received his share is to demand his share
person raising the questions and on the heir. through a proper motion in the same probate
or administration proceedings, or for
By whom expenses of partition paid. If at the reopening of the probate or
time of the distribution the executor or administrative proceedings if it had already
administrator has retained sufficient effects in been closed, and not through an independent
his hands which may lawfully be applied for action, which would be tried by another court
the expenses of partition of the properties or judge.
distributed, such expenses of partition may be 3) It has been held that an order which
paid by such executor or administrator when it determines the distributive share of the heirs
appears equitable to the court and not of a deceased person is appealable. If not
inconsistent with the intention of the appealed within the reglementary period, it
testator; otherwise, they shall be paid by the becomes final.
parties in proportion to their respective shares 4) The Court allowed the continuation of a
or interest in the premises, and the separate action to annul the project of
apportionment shall be settled and allowed by partition by a preterited heir, since the estate
the court, and, if any person interested in the proceedings have been closed and terminated
for over three years, and on the ground of void and not allowed to probate, or where no
lesion, preterition and fraud. executor was named in the will, or the executor
named therein in incompetent or refuses to
INSTANCES WHEN PROBATE COURT MAY ISSUE serve as such.
WRIT OF EXECUTION
An association or corporation authorized to
conduct the business of a trust company in the
a) To satisfy the contributive shares of
Philippines may appointed as trustee of an
devisees, legatees and heirs in possession of
estate in the same manner as an individual
the decedents assets;
(Art. 1060, CC). An association or corporation
b) To enforce payment of expenses of partition;
authorized to conduct the business of a trust
and
company in the Philippines may appointed as
c) To satisfy the costs when a person is cited for
executor or administrator of an estate in the
examination in probate proceedings.
same manner as an individual (Art. 1060, CC).
GENERAL GUARDIANS AND GUARDIANSHIP
Duties are usually governed by the intention of
the trustor or the parties if established by a
TRUSTEES (RULE 98)
contract. Duties may cover a wider range.
Duties are fixed and/or limited by law (Rule 84).
Requisites for existence of a valid trust:
1) Existence of a person competent to create;
Grounds for removal of trustee:
2) Sufficient words to create it;
a) Insanity;
3) A person capable of holding as trustee a
b) Incapability of discharging trust or evidently
specified or ascertainable object;
unsuitable therefor (Sec. 8, Rule 98);
4) A definite trust res; and
c) Neglect in the performance of his duties;
5) A declaration of the terms of the trust
d) Breach of trust displaying a want of fidelity,
not mere error in the administration of the
TRUSTEE EXECUTOR / ADMINISTRATOR
trust;
e) Abuse and abandonment of the trust;
An instrument or agent of the cestui que trust, f) Refusal to recognize or administer the trust;
who acquires no beneficial interest in the g) Failure or neglect or impropriety in
estate; he merely took the legal estate only as investment of the trust estate as to give rise to
the proper execution of the trust required; and, waste of trust property;
his estate ceases upon the fulfilment of the h) Failure to file accounts, and failure of one co-
testators wishes, in which case, the same vest trustee to keep himself informed of the
absolutely in the beneficiary. conduct of the other in the administration of
An executor is the person named in the will to the trust.
administer the decedents estate and carry out
the Grounds for removal:
provisions thereof. a) Neglect to render an account and settle the
An administrator is the person appointed by estate according to law;
the court to administer the estate where the b) Neglect to perform an order or judgment of
decedent died intestate, or where the will was the court;
c) Neglect to perform a duty expressly provided c) That he will render upon oath at least once a
by these rules; year until his trust is fulfilled, unless he is
d) Absconds, or becomes insane, or excused therefrom in any year by the court, a
e) otherwise incapable or unsuitable to true account of the property in his hands and
discharge trust; of the management and disposition thereof,
f) (e) Fraud or misrepresentation and will render such other accounts as the
court may order.
CONDITIONS OF THE BOND
That at the expiration of his trust he will settle
A trustee appointed by the court is required to his accounts in court and pay over and deliver
furnish a bond and the terms of the trust or a all the estate remaining in his hands, or due
statute may provide that a trustee appointed from him on such settlement, to the person or
by a court shall be required to furnish a bond in persons entitled thereto. But when the trustee
order to qualify him to administer the trust. is appointed as a successor to a prior trustee,
the court may dispense with the making and
However, the court may until further order return of an inventory, if one has already been
exempt a trustee under a will from giving a filed, and in such case the condition of the
bond when the testator has directed or bond shall be deemed to be altered
requested such exemption or when all persons accordingly.
beneficially interested in the trust, being of full
age, request the exemption. Such exemption REQUISITES FOR THE REMOVAL AND
may be cancelled by the court at any time, and RESIGNATION OF A TRUSTEE
the trustee required to forthwith file a bond. If
the trustee fails to furnish a bond as required A trustee may be removed upon petition to the
by the court, he fails to qualify as such. proper RTC of the parties beneficially
Nonetheless the trust is not defeated by such a interested, after due notice to the trustee and
failure to give bond. hearing, if it appears essential in the interests
of the petitioners. The court may also, after
The following conditions shall be deemed to be due notice to all persons interested, remove a
a part of the bond whether written therein or trustee who is insane or otherwise incapable of
not: discharging his trust or evidently unsuitable
a) That the trustee will make and return to the therefor. A trustee, whether appointed by the
court, at such time as it may order, a true court or under a written instrument, may
inventory of all the real and personal estate resign his trust if it appears to the court proper
belonging to him as trustee, which at the time to allow such resignation.
of the making of such inventory shall have
come to his possession or knowledge; A trustee whose acts or omissions are such as
b) That he will manage and dispose of all such to show a want of reasonable fidelity will be
estate, and faithfully discharge his trust in removed by the court and where trust funds
relation thereto, according to law and the will are to be invested by the trustee, neglect to
of the testator or the provisions of the invest constitutes of itself a breach of trust, and
instrument or order under which he is is a ground for removal.
appointed;
GROUNDS FOR REMOVAL AND RESIGNATION trustee, either alone or jointly with the others.
OF A TRUSTEE
ESCHEAT (RULE 91)
The proper Regional Trial Court may, upon
petition of the parties beneficially interested Escheat is a proceeding whereby the real and
and after due notice to the trustee and hearing; personal property of a deceased person in the
remove a trustee if such removal appears Philippines, become the property of the state
essential in the interests of the petitioners. The upon his death, without leaving any will or
court may also, after due notice to all persons legal heirs.
interested, remove a trustee who is insane or
otherwise incapable of discharging his trust or WHEN TO FILE
evidently unsuitable therefor. A trustee,
whether appointed by the court or under a When a person dies intestate, seized of real or
written instrument, may resign his trust if it personal property in the Philippines, leaving
appears to the court proper to allow such no heir or person by law entitled to the same,
resignation. the Solicitor General or his representative in
behalf of the Republic of the Philippines, may
A trustee whose acts or omissions are such as file a petition in the Court of First Instance of
to show a want of reasonable fidelity will be the province where the deceased last resided
removed by the court and where trust funds or in which he had estate, if he resided out of
are to be invested by the trustee, neglect to the Philippines, setting forth the facts, and
invest constitutes of itself a breach of trust, and praying that the estate of the deceased be
is a ground for removal. declared escheated.

EXTENT OF AUTHORITY OF TRUSTEE REQUISITES FOR FILING OF PETITION

A trustee appointed by the RTC shall have the a) That a person died intestate;
same rights, powers, and duties as if he had b) That he left no heirs or person by law
been appointed by the testator. No person entitled to the same; and
succeeding to a trust as executor or c) That the deceased left properties.
administrator of a former trustee shall be
required to accept such trust. REMEDY OF RESPONDENT AGAINST PETITION;
PERIOD FOR FILING A CLAIM
Such new trustee shall have and exercise the
same powers, rights, and duties as if he had If a devisee, legatee, heir, widow, widower or
been originally appointed, and the trust estate other person entitled to such estate appears
shall vest in him in like manner as it had vested and files a claim thereto with the court within 5
or would have vested, in the trustee in whose years from the date of such judgment, such
place he is substituted; and the court may person shall have possession of and title to the
order such conveyance to be made by the same, or if sold, the municipality or city shall
former trustee or his representatives, or by the be accountable to him for the proceeds, after
other remaining trustees, as may be necessary deducting reasonable charges for the care of
or proper to vest the trust estate in the new the estate; hence, claim not made within such
time limit shall forever be barred. c) Judicial those who are appointed by the
court in pursuance to law, as guardian for
GUARDIANSHIP (RULES 92 97) insane persons, prodigals, minor heirs or
Guardianship is the power of protective deceased was veterans and other incompetent
authority given by law and imposed on an persons.
individual who is free and in the enjoyment of
his rights, over one whose weakness on GENERAL POWERS AND DUTIES OF GUARDIANS
account of his age or other infirmity renders (RULE 96)
him unable to protect himself. Guardianship
may also describe the relation subsisting a) To have care and custody over the person of
between the guardian and the ward. It involves his ward, and/or the management of his estate
the taking of possession of an management of, (Sec. 1);
the estate of another unable to act for himself. b) To pay the just debts of his ward out of the
latter estate (Sec. 2);
A guardian is a person lawfully invested with c) To bring or defend suits in behalf of the
power and charged with the duty of taking care ward, and, with the approval of the court,
of a person who for some peculiarity or status compound for debts due the ward and give
or defect of age, understanding or self-control discharges to the debtor (Sec. 3);
is considered incapable of administering his d) To manage the estate frugally and without
own affairs. waste, and apply the income and profits to the
comfortable and suitable maintenance of the
Kinds of guardians: ward and his family (Sec. 4);
1) According to scope or extent e) To sell or encumber the real estate of the
a) Guardian of the person one who has been ward upon being authorized to do so (Sec. 4);
lawfully invested with the care of the person of f) To join in an assent to a partition of real or
minor whose father is dead. His authority is personal estate held by the ward jointly or in
derived out of that of the parent; common with others (Sec. 5).
b) Guardian of the property that appointed by
the court to have the management of the CONDITIONS OF THE BOND OF THE GUARDIAN
estate of a minor or incompetent person;
c) General guardians those appointed by the a) To file with the court complete inventory of
court to have the care and custody of the the estate of the ward within 3 months;
person and of b) To faithfully execute the duties of his trust to
all the property of the ward. manage and dispose of the estate according to
the Rules for the best interests of the ward, and
2) According to constitution to provide for the proper use, custody, and
a) Legal those deemed as guardians without education of the ward;
need of a court appointment (Art. 225, Family c) To render a true account of all the estate,
Court); and of the management and disposition of the
b) Guardian ad litem those appointed by courts same;
of justice to prosecute or defend a minor, d) To settle his accounts with the court and
insane or person declared to be incompetent, deliver over all the estate remaining in his
in an action in court; and hands to the person entitled thereto;
e) To perform all orders of the court by him to guardianship;
be performed (Sec. 1; Sec. 14, AM 03-02-05-SC). f) Lack of conflict of interest with the minor;
and
RULE ON GUARDIANSHIP OVER MINORS g) Ability to manage the property of the minor.
(AM 03-02-05-SC)
Order of preference in the appointment of
The father and mother shall jointly exercise guardian or the person and/or property of
legal guardianship over the person and minor:
property of their unemancipated common a) The SURVIVING GRANDPARENT and in case
child without the necessity of a court several grandparents survive, the court shall
appointment. The Rule shall be suppletory to select any of them taking into account all
the provisions of the Family Code on relevant considerations;
guardianship. b) The OLDEST BROTHER OR SISTER of the
minor over 21 years of age, unless unfit or
On grounds authorized by law, any relative or disqualified;
other person on behalf of a minor, or the minor c) The ACTUAL CUSTODIAN of the minor over
himself if 14 years of age or over, may petition 21 years of age, unless unfit or disqualified;
the Family Court for the appointment of a and
general guardian over the person or property, d) Any OTHER PERSON, who in the sound
or both, of such minor. The petition may also discretion of the court, would serve the best
be filed by the Secretary of DSWD and of the interests of the
DOH in the case of an insane minor who needs minor.
to be hospitalized.
Factors to consider in determining custody:
Grounds of petition: a) Any extrajudicial agreement which the
a) Death, continued absence, or incapacity of parties may have bound themselves to comply
his parents; with respecting the rights of the minor to
b) Suspension, deprivation or termination of maintain direct contact with the non-custodial
parental authority; parent on a regular basis, except when there is
c) Remarriage of his surviving parent, if the an existing threat or danger of physical,
latter is found unsuitable to exercise parental mental, sexual or emotional violence which
authority; or endangers the safety and best interests of the
d) When the best interest of the minor so minor;
require. b) The desire and ability of one parent to foster
an open and loving relationship between the
Qualifications of guardians: minor
a) Moral character; and the other parent;
b) Physical, mental and psychological c) The health, safety and welfare of the minor;
condition; d) Any history of child or spousal abuse by the
c) Financial status; person seeking custody or who has had any
d) Relationship of trust with the minor; filial relationship with the minor, including
e) Availability to exercise the powers and anyone courting the parent;
duties of a guardian for the full period of the e) The nature and frequency of contact with
both parents; ADOPTION
f) Habitual use of alcohol, dangerous drugs or Governed by RA 8552, the Domestic Adoption
regulated substances; Act of 1998; procedure governed by AM No. 02-
g) Marital misconduct; 06-02-
h) The most suitable physical, emotional, SC, Aug. 22, 2002.
spiritual, psychological and educational Governed by RA 8043, the Inter-Country
environment for the holistic development and Adoption Act of 1995; procedure governed by
growth of the minor; and the Amended Implementing Rules and
i) The preference of the minor over 7 years of Regulations on ICAA.
age and of sufficient discernment, unless the
parent Applies to domestic adoption of Filipino
chosen is unfit (Sec. 14, AM No. 03-04-04-SC). children, where the entire adoption process
The court shall order a social worker to beginning from
conduct a the filing of the petition up to the issuance of
case study of the minor and all the prospective the adoption decree takes place in the
guardians and submit his report and Philippines. Applies to adoption of a Filipino
recommendation to the court for its guidance child in a foreign country, where the petition
before the scheduled hearing. for adoption is filed, the
supervised trial custody is undertaken and the
ADOPTION (RULES 99 100, SUPERSEDED BY AM decree of adoption is issued outside of the
02-6-02-SC) Philippines.
Who may be adopted Who may be adopted. A
Adoption is a juridical act which creates child legally available for adoption.
between two persons a relationship similar to
that which results from legitimate paternity. Requisites:
Adoption is a juridical act, a proceeding in rem, a) Below 18 years of age; and
which creates between the two persons a b) Judicially declared available for adoption.
relationship similar to that which results from c) Exceptions:
legitimate paternity and d) Legitimate son/daughter of one spouse by
filiation. Adoption is not an adversarial the other spouse;
proceeding. An adversarial proceeding is one e) Illegitimate son/daughter by a qualified
having opposing parties, contested, as adopter;
distinguished from an ex parte application, one f) Person of legal age if, prior to the adoption
of which the party seeking relief has given legal said person has been consistently considered
warning to the other party and afforded the and treated by the adopter/s Only a legally free
latter an opportunity to contest it excludes an child may be adopted.
adoption proceeding. In adoption, there is no
particular defendant to speak of since the Requisites:
proceeding a) Below 15 years of age; and
involves the status of a person it being an b) Has been voluntarily or involuntarily
action in rem. committed to the DSWD in accordance with PD
603. as his/her
DOMESTIC ADOPTION INTER-COUNTRY own child since minority.
 or affinity; (b)
Who may adopt Who may adopt one seeks to adopt the legitimate
A. FILIPINO CITIZENS son/daughter of his/her Filipino spouse; (c) one
who is married to a Filipino citizen and seeks to
1) Of legal age; adopt a relative within the 4th degree of
2) In possession of full civil capacity and legal consanguinity or affinity of the Filipino spouse.
rights;
3) Of good moral character; A. FILIPINO CITIZENS
4) Has not been convicted of any crime
involving moral turpitude; 1) Permanent resident of a foreign country;
5) Emotionally and psychologically capable of 2) Has the capacity to act and assume all rights
caring for children; and responsibilities of parental authority under
6) In a position to support and care for his/her Philippine laws;
children in keeping with the means of the 3) Has undergone the appropriate counseling
family; from an accredited counselor in country of
7) At least 16 years older than the adoptee but domicile;
this latter requirement may be waived if (a) the 4) Has not been convicted of a crime involving
adopter is the biological parent of the adoptee; moral turpitude;
or (b) the adopter is the spouse of the adoptees 5) Eligible to adopt under Philippine laws;
parent; and 6) In a position to provide the proper care and
8) Permanent resident of the Philippines. support and to give the necessary moral values
and example to all his children, including the
B. ALIENS child to be adopted;
7) Agrees to uphold the basic rights of the child
1) Same qualifications as above, and in as embodied under Philippine laws, the UN
addition: Convention on Rights of the Child, and to abide
2) His/her country has diplomatic relations by the rules and regulations issued to
with the Republic of the Philippines; implement the provisions of the ICAA;
3) His/her government allows the adoptee to 8) Residing in a country with whom the
enter his/her country as his/her adopted Philippines has diplomatic relations and whose
son/daughter; government maintains a similarly authorized
4) Has been living in the Philippines for at least and accredited agency and that adoption is
3 continuous years prior to the filing of the allowed in that country;
application for adoption and maintains such 9) Possesses all the qualifications and none of
residence until the adoption decree is entered; the disqualifications provided in the ICAA and
and in other applicable Philippine laws;
5) Has been certified by his/her diplomatic or 10) At least 27 years of age at the time of the
consular office or any appropriate government application; and
agency that he/she has the legal capacity to 11) At least 16 years older than the child to be
adopt in his/her country. This requirement may adopted at the time of application, unless (a)
be waived if (a) a adopted is the parent by nature of the child to
former Filipino citizens seeks to adopt a be adopted; or (b) adopter is the spouse of the
relative within the 4th degree of consanguinity parent by nature of the child to be adopted.
 son/daughter of the other;
B. ALIENS 2) If one spouse seeks to adopt his/her own
illegitimate son/daughter but the other spouse
1) At least 27 years of age at the time of the must give his/her consent;
application; 3) If the spouses are legally separated from
2) At least 16 years older than the child to be each other.
adopted at the time of application unless the Rule: if the adopter is married, his/her spouse
adopter is the parent by nature of the child to must jointly file for the adoption.
be adopted or the spouse of such parent;
3) Has the capacity to act and assume all rights Procedure Procedure
and responsibilities of parental authority under
his Where to file application: In the Family Court of
national laws; the province or city where the prospective
4) Has undergone the appropriate counseling parents reside.
from an accredited counselor in his/her
country; After filing: The petition shall not be set for
5) Has not been convicted of a crime involving hearing without a case study report by a
moral turpitude; licensed social
6) Eligible to adopt under his/her national law; worker.
7) In a position to provide the proper care and
support and to give the necessary moral values Supervised Trial Custody:
and example to all his children, including the a) Temporary parental authority is vested in
child to be adopted; prospective adopter;
8) Agrees to uphold the basic rights of the child b) Period is at least 6 months, but may be
as embodied under Philippine laws, the UN reduced by the court motu propio or upon
Convention on the Rights of the Child, and to motion;
abide by the rules and regulations issued to c) If adopter is alien, the law mandatorily
implement the provisions of the ICAA; requires completion of the 6-month trial
9) Comes from a country with whom the custody and may not be reduced, except if:
Philippines has diplomatic relations and whose 1) a former Filipino citizen seeks to adopt a
government maintains a similarly authorized relative within 4th degree of consanguinity or
and accredited agency and that adoption is affinity;
allowed under his/her national laws; and 2) one seeks to adopt the legitimate
10) Possesses all the qualifications and none of son/daughter of his/her Filipino spouse;
the disqualifications provided in the ICAA and 3) one who is married to a Filipino citizen and
in other seeks to adopt jointly with his/her spouse a
applicable Philippine laws. Requirement of relative within the 4th degree of consanguinity
Joint Adoption by Spouses Requirement of or affinity of the Filipino spouse.
Joint Adoption by Spouses General rule:
husband and wife shall jointly adopt; Decree of Adoption: Issued by Philippine
otherwise, the adoption shall not be allowed. Family Court.
Exceptions: Consent Required: Written consent of the
1) If one spouse seeks to adopt the legitimate Where to file application: Either in (a) Family
Court having jurisdiction over the place where child;
the child resides or may be found, or (b) Inter- 3) legitimate and adopted sons or daughters,
Country Adoption Board (ICAB) through an 10 years of age or over, of the adopter/s and
intermediate agency, whether governmental or adoptee, if any;
an authorized and accredited agency, in the 4) illegitimate sons/daughters, 10 years of age
country of the prospective adoptive parents. of over, of the adopter if living with said
adopter and the latters spouse, if any;
After filing: 5) spouse, if any, of the person adopting or to
a) if filed in the FC, court determines be adopted. above 10 years of age, in the form
sufficiency of petition in respect to form and of sworn statement is required to be attached
substance, after which, petition is transmitted to the application to be filed with the FC or
to ICAB; ICAB;
b) if petition is already with ICAB, it conducts 2) If a satisfactory pre-adoptive relationship is
matching of the applicant with an adoptive formed between the applicant and the child,
child; the written consent to the adoption executed
c) after matchmaking, the child is personally by the DSWD is required.
fetched by the applicant for the trial custody
which takes place outside of the Philippines.
DOMESTIC ADOPTION ACT
Supervised Trial Custody: (RA 8552; AM 02-06-02-SC)
a) This process takes place outside of the
country and under the supervision of the EFFECTS OF ADOPTION
foreign adoption agency;
b) For a period of 6 months; Transfer of parental authority except in cases
c) If unsuccessful, ICAB shall look for another where the biological parent is the spouse of the
prospective applicant. Repatriation of the child adopter, the parental authority of the
is to biological parents shall terminate and the
be resorted only as a last resort; same shall be vested in the adopters.
d) If successful, ICAB transmits a written
consent for the adoption to be executed by the Legitimacy the adoptee shall be considered the
DSWD, and the applicant then files a petition legitimate son/daughter of the adopter(s) for
for adoption in his/her country. all intents and purposes and as such is entitled
to all the rights and obligations provided by
Decree of Adoption: Issued by a foreign court. law to legitimate sons/daughters born to them
Consent Required: without discrimination of any kind.
1) Written consent of biological or adopted
children following to the adoption is required, Successional rights
in the form of affidavit: a) In legal and intestate succession, the
adopter(s) and the adoptee shall have
1) adoptee, if 10 years of age or over; reciprocal rights of succession without
2) biological parent/s of the child, if known, or distinction from legitimate filiation;
the legal guardian, or the proper government b) However, if the adoptee and his/her
instrumentality which has legal custody of the biological parent(s) had left a will, the law on
testamentary succession shall govern; obligations.
c) The adoptee remains an intestate heir of
his/her biological parent. Prescriptive period:
a) If incapacitated within five (5) years after he
Issuance of new certificate and first name and reaches the age of majority;
surname of adoptee b) If incompetent at the time of the adoption
a) The adoption decree shall state the name by within five (5) years after recovery from such
which the child is to be known. An amended incompetency.
certificate of birth shall be issued by the Civil
Registry attesting to the fact that the adoptee is EFFECTS OF RESCISSION OF ADOPTION
the child of the adopter(s) by being registered
with his/her surname; 1) Parental authority of the adoptees biological
b) The original certificate of birth shall be parent(s), if known, or the legal custody of the
stamped cancelled with the annotation of the DSWD shall be restored if the adoptee is still a
issuance of an amended birth certificate in its minor or incapacitated;
place and shall be sealed in the civil registry 2) Reciprocal rights and obligations of the
records. The new birth certificate to be issued adopter(s) and the adoptee to each other shall
to the adoptee shall not bear any notation that be extinguished;
it is an amended issue; 3) Cancellation of the amended certificate of
c) All records, books, and papers relating to the birth of the adoptee and restoration of his/her
adoption cases in the files of the court, the original birth certificate; and
DSWD, or any other agency or institution 4) Succession rights shall revert to its status
participating in the adoption proceedings shall prior to adoption, but only as of the date of
be kept strictly confidential and the court may judgment of
order its release under the following conditions judicial rescission. Vested rights acquired prior
only: (1) the disclosure of the information to a to judicial rescission shall be respected.
third person is necessary for purposes
connected with or arising out of the adoption; INTER-COUNTRY ADOPTION (RA 8043)
(2) the disclosure will be for the best interest of
the adoptee; and (3) the court may restrict the Inter-Country Adoption refers to the socio-legal
purposes for which it may be used. process of adopting a Filipino child by a
foreigner or a Filipino citizen permanently
INSTANCES WHEN ADOPTION MAY BE residing abroad where the petition is filed, the
RESCINDED supervised trial custody is undertaken, and the
decree of adoption is issued in the Philippines.
Grounds for rescission:
a) Repeated physical and verbal maltreatment WHEN ALLOWED
by the adopter(s) despite having undergone
counselling; Inter-country adoptions are allowed when the
b) Attempt on the life of the adoptee; same shall prove beneficial to the childs best
c) Sexual assault or violence; or interests, and shall serve and protect his/her
d) Abandonment and failure to comply with fundamental rights. It is allowed when all the
parental requirements and standards set forth under RA
8043 are complied with. The writ of habeas corpus shall extend to all
cases of illegal confinement or detention by
FUNCTIONS OF THE RTC which any person is deprived of his liberty, or
by which the rightful custody of any person is
An application to adopt a Filipino child shall be withheld from the person entitled thereto. The
filed either with the Philippine Regional Trial function of the special proceeding of habeas
Court having jurisdiction over the child, or with corpus is to inquire into the legality of ones
the Board, through an intermediate agency, detention.
whether governmental or an authorized and
accredited agency, in the country of the In all petitions for habeas corpus, the court
prospective adoptive parents, which must inquire into every phase and aspect of
application shall be in accordance with the the petitioners detention from the moment
requirements as set forth in the implementing petitioner was taken into custody up to the
rules and regulations. moment the court passes upon the merits of
the petition and only after such scrutiny can
BEST INTEREST OF THE MINOR STANDARD the court satisfy itself that the due process
clause of the Constitution has been satisfied.
In case of custody cases of minor children, the
court after hearing and bearing in mind the
best interest of the minor, shall award the However, once the person detained is duly
custody as will be for the minors best interests. charged in court, he may no longer question
his detention by a petition for the issuance of a
Best interests of the child - means the totality writ of habeas corpus. His remedy then is the
of the circumstances and conditions as are quashal of the information and/or the warrant
most congenial to the survival, protection, and of arrest duly issued. The reason for the
feelings of security of the child and most issuance of the writ even becomes more
encouraging to his physical, psychological, and unavailing when the person detained files a
emotional development. It also means the bond for his temporary release.
least detrimental available alternative for
safeguarding the growth and development of Habeas corpus may not be used as a means of
the child. obtaining evidence on the whereabouts of a
person, or as a means of finding out who has
specifically abducted or caused the
WRIT OF HABEAS CORPUS (RULE 102) disappearance of a certain person.

Writ of habeas corpus is a writ which has been The writs of habeas corpus and certiorari may
esteemed to the best and only sufficient be ancillary to each other where necessary to
defense of personal freedom having for its give effect to the supervisory powers of the
object the speedy release by judicial decree of higher courts. A writ of habeas corpus reaches
persons who are illegally restrained of their the body and the jurisdictional matters, but
liberty, or illegally detained from the control of not the record. A writ of certiorari reaches the
those who are entitled to their custody. record but not the body. Hence, a writ of
habeas corpus may be used with the writ of
certiorari for the purpose of review. legislative body in punishing a citizen for
contempt.
The general rule is that the release, whether 12) To obtain freedom after serving minimum
permanent or temporary, of a detained person sentence when the penalty under an old law
renders the petition for habeas corpus moot has
and academic, unless there are restraints been reduced by an amendatory law.
attached to his release which precludes
freedom of action, in which case the Court can
still inquire into the nature of his involuntary (Note: for CONTENTS OF THE PETITION and
restraint. Petitioners temporary release does CONTENTS OF THE RETURN of Habeas Corpus,
not render the petition for writ moot and please see the table below)
academic.
PEREMPTORY WRIT PRELIMINARY CITATION
Some instances when the writ may issue: Unconditionally commands the respondent to
1) To inquire into the legality of an order of have the body of the detained person before
confinement by a court martial. the court at a time and place therein specified;
2) To test the legality of an aliens confinement
and proposed expulsion from the Philippines. Requires the respondent to appear and show
3) To enable parents to regain custody of a cause why the peremptory writ should not be
minor child, even if the latter be in the custody granted
of a third
person of her own free will.
4) To obtain freedom for an accused confined WHEN NOT PROPER/APPLICABLE
for failure to post bail where the prosecuting
officer unreasonably delays trial by continued Instances when the writ of habeas corpus is not
postponement. proper are:
5) To give retroactive effect to a penal provision a) For asserting or vindicating denial of right to
favorable to the accused when the trial judge bail;
has lost jurisdiction by virtue of the finality of b) For correcting errors in appreciation of facts
the judgment of conviction. or appreciation of law where the trial court had
6) To determine the constitutionality of a no jurisdiction over the cause, over the person
statute. of the accused, and to impose the penalty
7) To permit an alien to land in the Philippines. provided for by law, the mistake committed by
8) To put an end to an immoral situation, as the trial court, in the appreciation of the facts
when a minor girl, although preferring to stay and/or in the
with her employer, maintains illicit relationship appreciation of the law cannot be corrected by
with him. habeas corpus;
9) When a bond given by an accused entitled c) Once a person detained is duly charged in
thereto is not admitted or excessive bail is court, he may no longer file a petition for
required of habeas corpus.
him. His remedy would be to quash the information
10) To determine the legality of an extradition. or warrant.
11) To determine the legality of the action of a
WHEN WRIT DISALLOWED/DISCHARGED Who may file petition:
By the party for whose relief it is intended, or
If it appears that the person alleged to be by some person on his behalf.
restrained of his liberty is in the custody of an
officer under process issued by a court or judge Who may file (in order):
or by virtue of a judgment or order of a court of a) Any member of the immediate family:
record, and that the court or judge had spouse, children and parents of the aggrieved
jurisdiction to issue the process, render the party;
judgment, or make the order, the writ shall not b) Any ascendant, descendant or collateral
be allowed; or if the jurisdiction appears after relative of aggrieved party within the 4th civil
the writ is allowed, the person shall not be degree of consanguinity or affinity;
discharged by reason of any informality or c) Any concerned citizen, organization,
defect in the process, judgment, or order. Nor association or institution, if no known member
shall anything in this rule be held to authorize of immediate family. Filing by the aggrieved
the discharge of a person charged with or party suspends the right of all other authorized
convicted of an offense in the Philippines, or of person to file such petition.
a person suffering imprisonment under lawful
judgment. Who may file (in order):
a) Any member of the immediate family:
spouse, children and parents of the aggrieved
WRIT OF HABEAS CORPUS WRIT OF AMPARO party;
WRIT OF HABEAS DATA b) Any ascendant, descendant or collateral
A remedy available to any person, it covers relative of aggrieved party within the 4th civil
cases of illegal confinement or detention by degree of consanguinity or affinity.
which any person is deprived of his liberty, or
by which the rightful custody of any person is Where to file: Where to file: Where to file:
withheld from the person entitled thereto. RTC, enforceable within its area of jurisdiction.
A remedy available to any person whose right CA or SC, enforceable anywhere in the
to life, liberty and security is violated or Philippines.
threatened with violation by an unlawful act or RTC, Sandiganbayan, CA, SC; Writ is
omission of a public official or employee, or of enforceable anywhere in the Philippines.
a private individual or entity. The writ covers RTC, SC, CA, Sandiganbayan; Writ is also
extrajudicial killings and enforced enforceable anywhere in the Philippines.
disappearances or threats thereof. It is a form
of constitutional relief. A remedy available to Where is the venue:
any person whose right to privacy in life, liberty If filed in the RTC:
or security is violated or threatened by an a) in the place where the petitioner resides;
unlawful act or omission of a public official or b) in the place where the respondents reside;
employee, or of a private individual or entity c) in the place where the data or information is
engaged in the gathering, collecting or storing gathered, collected or stored.
of data or information regarding the person, At the option of the petitioner Petitioner is
family, home and correspondence of the exempted to pay docket and other lawful fees.
aggrieved party. Indigent petitioner is exempted to pay docket
and other lawful fees. committed with attendance circumstances
detailed in supporting affidavits;
When issued: c) Investigation conducted, specifying names,
Forthwith when a petition therefor is personal circumstances and addresses of
presented and it appears that the writ ought to investigating authority or individuals, as well
issue, as manner and conduct of investigation
together with any report;
When issued: d) Actions and recourses taken by petitioner to
Immediately if on its face it ought to be issued; determine the fate or whereabouts of
Served immediately; aggrieved party and identity of person
Summary hearing set not later than seven (7) responsible for the threat, act or omission; and
days from date of issuance. e) The relief prayed for.
f) May include general prayer for other just and
When issued: equitable reliefs.
Immediately if on its face it ought to be issued;
Served within 3 days from issuance; Summary Contents of verified petition:
hearing set not later than ten (10) work days a) Personal circumstances of petitioner and
from date of issuance. respondent;
b) The manner the right to privacy is violated
Contents of verified petition: or threatened and how it affects the right to
a) That the person in whose behalf the life, liberty or security of aggrieved party;
application is made is imprisoned or restrained c) Actions and recourses taken by petitioner to
of his liberty; secure the data or information;
b) The officer or name of the person by whom d) Location of files, registers or databases,
he is so imprisoned or restrained; or, if both are government office, and the person in charge, in
unknown or uncertain, such officer or person possession or in control of the data or
may be described by an assumed appellation, information, if known;
and the person who is served with the writ e) Reliefs prayed for, which may include the
shall be deemed the person intended; updating, rectification, suppression or
c) The place where he is so imprisoned or destruction of the
restrained, if known; database or information or files kept by
d) A copy of the commitment or cause of respondent;
detention of such person, if it can be procured f) In case of threats, relief may include a prayer
without impairing the efficiency of the remedy; for an order enjoining the act complained of;
or, if the imprisonment or restraint is without and
any legal authority, such fact shall appear g) Such other reliefs as are just and equitable.

Contents of verified petition: Contents of return:

a) Personal circumstances of petitioner and of a) Whether he has or has not the party in his
respondent responsible for the threat, act or custody or power, or under restraint;
omission; b) If he has the party in his custody or power, or
b) Violated or threatened right to life, liberty under restraint, the authority and the true and
and security of aggrieved party, and how whole cause thereof, set forth at large, with a
copy of the writ, order, execution, or other 3) identify witnesses and their statements;
process, if any, upon which the party is 4) determine cause, manner, location and time
of death or disappearance as well as pattern or
Contents of return: practice;
Within 72 hours after service of the writ, 5) identify and apprehend person/s involved in
respondent shall file a verified written return the death/disappearance;
together with the supporting affidavits, which 6) bring suspected offenders before a
shall competent court information;
contain: e) Other allegations relevant to resolution of
a) Lawful defenses; the proceedings.
b) Steps or actions taken to determine
whereabouts of aggrieved party; * A general denial of the allegations in the
c) All relevant information pertaining to threat, petition is not allowed. Effects of failure to file
act or return:
The court, justice or judge shall proceed to
Contents of return: hear the petition ex parte.
a) Lawful defenses such as national security,
state secrets, privileged communications, Effects of failure to file return:
confidentiality of source of information; The court, justice or judge shall proceed to
b) Disclosure of data/info about petitioner, hear the petition ex parte, granting the
nature of data/info, purpose of collection; petitioner such relief as the petition may
c) Steps or actions taken by respondent to warrant unless the court in its discretion
ensure security and confidentiality of data or requires petitioner to submit evidence.
information;
d) Currency and accuracy of data or held; Procedure for hearing:
c) If the party is in his custody or power or is The hearing on the petition shall be summary.
restrained by him, and is not produced, However the court, justice or judge may call for
particularly the nature and gravity of the a
sickness or infirmity of such party by reason of preliminary conference to simplify the issues
which he cannot, without danger, be brought and determine the possibility of obtaining
before the court or judge; stipulations and admissions from the parties.
d) If he has had the party in his custody or The hearing shall be from day to day until
power, or under restraint, and has transferred completed and given the same priority as
such custody or restraint to another, petitions for habeas corpus.
particularly to whom, at what time, for what
cause, and by what authority such transfer was Procedure for hearing:
made omission against aggrieved party; The hearing on the petition shall be summary.
d) If respondent is a public official or However the court, justice or judge may call for
employee, further state: a preliminary conference to simplify the issues
1) verify the identity of aggrieved; and determine the possibility of obtaining
2) recover and preserve evidence related to stipulations and admissions from the parties.
death or disappearance of person identified in
petition; Interim reliefs available before final judgment:
a) ) Temporary Protection Order protected in a notice of adverse judgment, to be given the
government agency of by an accredited person same priority as habeas corpus cases.
or private institution capable of keeping and
securing their safety; Appeal:
b) Inspection Order with a lifetime of 5 days Any party may appeal the decision within 5
which may be extended, may be opposed on working days from the final judgment or order
the ground of national security or privileged to the SC by way of Petition for Review on
information, allows entry into and inspect, Certiorari under Rule 45 on pure questions of
measure, survey or photograph the property; law and facts or both, to be given the same
c) Production Order to require respondents to priority as habeas corpus and amparo cases.
produce and permit inspection, copying or
photographing of documents, papers, books, Quantum of proof:
accounts, letters, photographs, objects or By substantial evidence. Private respondent to
tangible (Not applicable) things that contain prove ordinary diligence was observed in the
evidence. performance of duty. Public official/employee
d) Witness Protection Order the court may refer respondent to prove extraordinary diligence
the witnessed to the DOJ was observed, and cannot invoke the
presumption that official duty has been
Effect of filing criminal action: regularly performed to evade responsibility or
A criminal action first filed excludes the filing of liability.
the writ; relief shall beby motion in the
criminal case. A criminal case filed Quantum of proof:
subsequently shall be consolidated with the The court shall render judgment within 10 days
petition for the writ of amparo. from the time the petition is submitted for
decision. If the allegations are proven by
Effect of filing criminal action: substantial evidence, the court shall enjoin the
A criminal action first filed excludes the filing of act complained of, or the deletion, destruction,
the writ; relief shall be by motion in the or rectification of the erroneous data or
criminal case; A criminal case filed information and grant other reliefs as may be
subsequently shall be consolidated with the just and equitable; otherwise the privilege shall
petition for the writ of habeas data. be denied.
Appeal: RULES ON CUSTODY OF MINORS AND WRIT OF
To the SC under Rule 45, within 48 hours from HABEAS CORPUS IN RELATION TO CUSTODY OF
notice of judgment. A writ of habeas corpus MINORS (AM NO. 03-04-04-SC)
does not lie where petitioner has the remedy of
appeal or certiorari because it will not be The Family Court has exclusive original
permitted to perform the functions of a writ of jurisdiction to hear petitions for custody of
error or appeal for the purpose of reviewing minors and the issuance of the writ of habeas
mere errors or irregularities in the proceedings corpus in relation to custody of minors. The
of a court having jurisdiction over the person Court is tasked with the duty of promulgating
and the subject matter. special rules or procedure for the disposition of
Appeal: family cases with the best interests of the
To the SC under Rule 45, within 5 days from minor as primary consideration, taking into
account the United Nations Convention on the addressed to the BID of the DOJ a copy of the
Rights of the Child. It should be clarified that hold departure order within 24 hours from its
the writ is issued by the Family Court only in issuance and through the fastest available
relation to custody of minors. An ordinary means of transmittal.
petition for habeas corpus should be filed in
the regular Court. The issue of child custody WRIT OF AMPARO (AM NO. 07-9-12-SC) (See
may be tackled by the Family Court without table above)
need of a separate petition for custody being
filed. WRIT OF AMPARO SEARCH WARRANT Issuance
of the Writ.
The Committee chose the phrase any person
claiming custody as it is broad enough to cover Upon the filing of the petition, the court, justice
the following: (a) the unlawful deprivation of or judge shall immediately order the issuance
the custody of a minor; or (b) which parent of the writ if on its face it ought to issue. The
shall have the care and custody of a minor, clerk of court shall issue the writ under the seal
when such parent is in the midst of nullity, of the court; or in case of urgent necessity, the
annulment or legal separation proceedings. justice or the judge may issue the writ in his or
her own hand, and may deputize any officer or
The hearings on custody of minors may, at the person to serve it. The writ shall also set the
discretion of the court, be closed to the public date and time for summary hearing of the
and the records of the case shall not be petition which shall not be later than seven (7)
released to non-parties without its approval. days from the date of its issuance.
Requisites for issuing search warrant
A motion to dismiss the petition is not allowed
except on the ground of lack of jurisdiction A search warrant shall not issue except upon
over the subject matter or over the parties. Any probable cause in connection with one specific
other ground that might warrant the dismissal offense to be determined personally by the
of the petition shall be raised as an affirmative judge after examination under oath or
defense in the answer. affirmation of the complainant and the witness
he may produce, and particularly describing
Upon the filing of the verified answer of the the place to be searched and the things to be
expiration of the period to file it, the court may seized which may be anywhere in
order a social worker to make a case study of the Philippines.
the minor and the parties and to submit a
report and recommendation to the court at
least three days before the scheduled pre-trial. OMNIBUS WAIVER RULE

Hold Departure Order The minor child subject Defenses Not Pleaded Deemed Waived All
of the petition shall not be brought out of the defenses
country without prior order from the court shall be raised in the return, otherwise, they
while the petition is pending. The court motu shall be
propio or upon application under oath may deemed waived.
issue ex parte a hold departure order
WRIT OF HABEAS DATA (AM NO. 08-1-16-SC) civil
register.
Scope of writ; Availability of writ; Distinguish
from Habeas A mere change of name would not cause in
Corpus and Amparo; Who may file; Contents of ones
the petition; existing family relations, nor create new family
Consolidation; Effect of filing of a criminal rights
action; and duties where none exists before. Neither
Institution of separate action (See table above) would it
affect a persons legal capacity, civil status or
INSTANCES WHEN PETITION BE HEARD IN citizenship.
CHAMBERS
A change of name granted by the court affects
A hearing in chambers may be conducted only the
where the petitioner. A separate petition for change of
respondent invokes the defense that the name
release of the data must be filed by his wife and children.
or information in question shall compromise
national RULE 103 (Change of Name) RA 9048 (Clerical
security or state secrets, or when the data or Error Act) RULE 108 (Cancellation or
information correction of entries in the civil
cannot be divulged to the public due to its registry)
nature or Petition should be filed in the RTC where
privileged character. the petitioner resides
Petitions filed with the city or
CHANGE OF NAME (RULE 103) municipal civil registrar, or with
consul general for citizens living
A change of name is a special proceeding to abroad
establish Verified petition filed in the RTC
the status of a person involving his relation where the corresponding Civil
with Registry is located
others, that is, his legal position in, or with Civil Registrar is not a party. Solicitor
regard to, General to be notified by service of a copy
the rest of the community. It is proceeding in of petition.
rem and Civil Registrar is an indispensable
as such, strict compliance with jurisdictional party. If not made a party,
requirements, particularly on publication, is proceedings are null and void.
essential Reason: he is interested party in
in order to vest the court with jurisdiction protecting the integrity of public
therefor. documents. Solicitor General must
For this purpose, the only name that may be also be notified by service of a
changed copy of the petition.
is the true or official name as recorded in the Petition is filed by the person desiring to
Verified petition in the form of By a person difficult to write or pronounce;
interested in any acts, b) The first name or nickname
change his name affidavit is filed by any person has been habitually and
having direct and personal interest continuous used by petitioner
in the correction publicly known by that first
event, order or decree name or nickname in the
Involves change of name only Involves first community;
name and nickname All cancellation or c) Change will avoid confusion.
correction of Grounds:
entries of: (see below grounds or Cancellation or correction of
instances) entries of: (a) births; (b)
Involves substantial changes Involves clerical marriages; (c) deaths; (d) legal
or typographical separation; (e) judgments or
errors annulments of marriage; (f)
Substantial and adversary if judgments declaring marriages
change affects the civil status, void from the beginning; (g)
citizenship or nationality of a legitimations; (h) adoptions; (i)
party; Summary if involves mere acknowledgments of natural
clerical errors. children; (j) naturalizations; (k)
Grounds: election, loss or recovery of
a) Name is ridiculous, dishonorable or citizenship; (l) civil interdiction;
extremely difficult to write or (m) judicial determination of
pronounce; filiation; (n) voluntary
b) Change is a legal consequence of emancipation of a minor; and (o)
legitimation or adoption; changes of name.
c) Change will avoid confusion; Order for hearing to be published once a
d) One has continuously used and been week for three consecutive weeks in a
known since childhood by a Filipino newspaper of general circulation in the
name and was unaware of alien province.
parentage; Petition shall be published at least
e) Change is based on a sincere desire to once a week for two consecutive
adopt a Filipino name to erase signs of weeks in a newspaper of general
former alienage, all in good faith and circulation. Also to be posted in a
without prejudice to anybody; and conspicuous place for ten
f) Surname causes embarrassment and consecutive days.
there is no showing that the desired Order shall also be published once
change of name was for a fraudulent a week for three consecutive
purpose, or that the change of name weeks in a newspaper of general
would prejudice public interest. circulation in the province, and
Grounds: court shall cause reasonable
a) First name or nickname is notice to persons named in the
found to be ridiculous, tainted petition.
with dishonor or extremely Entry is correct but petitioner desires to
change the entry Stages of absence:
Entry is incorrect. Cancellation or correction of 1) provisional absence
correct or incorrect entries 2) declaration of absence
An appropriate adversary proceeding An 3) presumption of death
appropriate administrative
proceeding. PURPOSE OF THE RULE
An appropriate summary or
adversary proceeding depending The purpose of the Rule is to allow the court to
on effects appoint an
Requires judicial order Does not require administrator or representative to take care of
judicial order. Directed or changed by the city the
or property of the person who is sought to be
municipal civil registrar or consul judicially
general without judicial order declared absent. It also aims to have the court
Service of judgment shall be upon the civil appoint the
register concerned present spouse as administrator or
Transmittal of decision to civil administratrix of the
registrar general absent spouses properties, or for the
Service of judgment shall be upon separation of
the civil register concerned properties of the spouses.
Appeal may be availed of if judgment or
final order rendered affects substantial WHO MAY FILE; WHEN TO FILE
rights of person appealing.
In case denied by the city or The following may file an application for the
municipal civil registrar or the declaration of
consul general, petitioner may absence of a person:
either appeal the decision to the a) Spouse present;
civil register general or file b) Heirs instituted in a will, who may present
appropriate petition with proper an
court by petition for review under authentic copy of the same;
Rule 43. c) Relatives who would succeed by the law of
Appeal may be availed of if intestacy; and
judgment or final order rendered d) Those who have over the property of the
affects substantial rights of absentee
person appealing, to the RTC or to some right subordinated to the condition of his
the CA. death.
e) Those who have over the property of the
absentee
GROUNDS FOR CHANGE OF NAME some right subordinated to the condition of his
(please see table above) death.
After the lapse of two (2) years from his
ABSENTEES (RULE 107) disappearance and without any news about
the
absentee or since the receipt of the last news, 8) adoptions;
or of 9) acknowledgments of natural children;
five (5) years in case the absentee has left a 10) naturalization
person in charge of the administration of his 11) election, loss or recovery of citizenship
property, the declaration of his absence and 12) civil interdiction;
appointment of a trustee or administrator may 13) judicial determination of filiation;
be 14) voluntary emancipation of a minor; and
applied for. 15) changes of name.
When a person disappears from his domicile,
his
whereabouts being unknown, and without
having Correction may be effected in two ways. One is
left an agent to administer his property, or the without
power conferred upon the agent has expired, judicial authority or by administrative
any proceeding, which
interested party, relative or friend, may is governed by RA 9048 on matters relating to
petition correction
the Court of First Instance of the place where of mere clerical or typographical errors. The
the other is
absentee resided before his disappearance for through judicial or court proceedings, which is
the governed
appointment of a person to represent him by Rule 108.
provisionally in all that may be necessary.
The petition for change of first names or
CANCELLATION OR CORRECTION OF ENTRIES nicknames may
IN THE be allowed when such names or nicknames are
CIVIL REGISTRY (RULE 108) ridiculous,
tainted with dishonor or extremely difficult to
Entries subject to cancellation or correction write or
under Rule 108, pronounce; or the new name or nickname has
in relation to RA 9048 been used
Upon good and valid grounds, the following habitually and continuously petitioner and has
entries in the civil register may be cancelled or been
corrected: publicly known by that first name or nickname
1) births; in the
2) marriages; community; or the change will avoid
3) deaths; confusion.
4) legal separations;
5) judgments of annulments of marriage; APPEALS IN SPECIAL PROCEEDING (RULE 109)
6) judgments declaring marriages void from
the JUDGMENTS AND ORDERS FOR WHICH APPEAL
beginning; MAY BE
7) legitimations; TAKEN
An interested person may appeal in special Appeals in special proceedings necessitate a
proceedings record on
from an order or judgment rendered by a Court appeal as the original record should remain
of First with the trial
Instance or a Juvenile and Domestic Relations court; hence the reglementary period of thirty
Court, where (30) days is
such order or judgment: provided for the perfection of appeals in
a) Allows or disallows a will; special
b) Determines who are the lawful heirs of a proceedings.
deceased
person, or the distributive share of the estate MODES OF APPEAL
to
which such person is entitled; While under the concept in ordinary civil
c) Allows or disallows, in whole or in part, any actions some
claim of the orders stated in Sec. 1 may be
against the estate of a deceased person, or any considered
claim presented on behalf of the estate in interlocutory, the nature of special
offset to proceedings
a claim against it; declares them as appealable orders, as
d) Settles the account of an executor, exceptions to
administrator, the provisions of Sec., Rule 41. Thus:
trustee or guardian;
e) Constitutes, in proceedings relating to the 1) Ordinary appeal. The appeal to the CA in
settlement of the estate of a deceased person, cases decided
or by the RTC in the exercise of its original
the administration of a trustee or guardian, a jurisdiction
final shall be taken by filing a notice of appeal with
determination in the lower court of the rights the
of court which rendered the judgment or final
the party appealing, except that no appeal order
shall be appealed from and serving a copy thereof
allowed from the appointment of a special upon the
administrator; and adverse party. No record on appeal shall be
f) Is the final order or judgment rendered in the required
case, and affects the substantial rights of the except in special proceedings and other cases
person appealing, unless it be an order of
granting or multiple or separate appeals where the law or
denying a motion for a new trial or for the
reconsideration. Rules so require. In such cases, the record on
appeal
shall be filed and served in like manner.
WHEN TO APPEAL
2) Petition for review. The appeal to the CA in damages or unpaid rentals sought to be
cases recovered.
decided by the RTC in the exercise of its b. All other cases, except probate proceedings
appellate where the total amount of the plaintiffs claim
jurisdiction shall be by petition for review in does not exceed P100,000 outside, or
accordance with Rule 42. P200,000 in Metro Manila, exclusive of
interest and costs.
3) Petition for review on certiorari. In all cases
where 2) CRIMINAL CASES
only questions of law are raised or involved, a. Violation of Bouncing Checks Law (BP 22);
the b. Violation of traffic laws, rules and
appeal shall be to the SC by petition for review regulations;
on c. Violations of rental laws;
certiorari in accordance with Rule 45. d. All other criminal cases where the penalty
prescribed by law for the offense charged is
imprisonment not exceeding 6 months or a
RULE ON ADVANCE DISTRIBUTION fine not exceeding P1,000 or both,
irrespective of other imposable penalties,
Notwithstanding a pending controversy or accessory or otherwise, or of the civil liability
appeal in arising therefrom; and in offenses involving
proceedings to settle the estate of a decedent, damages to property through criminal
the court negligence, where the imposable fine does not
may, in its discretion and upon such terms as it exceed P1,000.
may deem e. In offenses involving damage to property
proper and just, permit that such part of the through criminal negligence, where the
estate as may imposable fine does not exceed P10,000.00
not be affected by the controversy or appeal be
distributed Note: The Rule shall not apply in a civil case
among the heirs or legatees, upon compliance where the
with the cause of action is pleaded with another cause
conditions set forth in Rule 90 of these rules. of action
subject to the ordinary procedure, nor to
criminal case
where the offense charged is necessary related
REVISED RULES ON SUMMARY PROCEDURE to
another criminal case subject to the ordinary
(MeTC, MTC and MCTC) procedure.

CASES COVERED BY THE RULE EFFECT OF FAILURE TO ANSWER

Should the defendant fail to answer the
1) CIVIL CASES complaint
a. All cases of forcible entry and unlawful within 10 days from service of summons, the
detainer irrespective of the amount of court shall MOTU PROPIO or ON MOTION of the
plaintiff, shall render judgment as may be
warranted by the facts alleged in the complaint SUBJECT MATTER FOR AMICABLE SETTLEMENT
and limited to what is prayed for therein.
The lupon of each barangay shall have
This is without prejudice to the applicability of authority to bring
Sec. 4, Rule 18 if there are two or more together the parties actually residing in the
defendants. same
municipality or city for amicable settlement of
PRELIMINARY CONFERENCE AND all disputes
APPEARANCES OF
PARTIES EXCEPT:
1) Where one party is the government or any
a preliminary conference shall be held not later subdivision or instrumentality thereof;
than 30 days after the last answer is filed. The 2) Where one party is a public officer or
rules on pre-trial in ordinary cases shall be employee,
applicable to the preliminary conference and the dispute relates to the performance of
unless his
inconsistent with the provisions of the Rule. official functions;
The failure of the plaintiff to appear in the 3) Offenses punishable by imprisonment
preliminary conference shall be cause for the exceeding
dismissal of his complaint. The defendant who one (1) year or a fine exceeding P5,000;
appears in the absence of the plaintiff shall be 4) Offenses where there is no private offended
entitled to judgment on his counterclaim. All party;
cross-claims shall be dismissed. 5) Where the dispute involves real properties
If a sole defendant shall fail to appear, the located
plaintiff in different cities or municipalities unless the
shall be entitled to judgment as warranted by parties thereto agree to submit their
the differences to
allegations in the complaint and limited to the amicable settlement by an appropriate lupon;
reliefs prayed for therein. The Rule shall not 6) Disputes involving parties who actually
apply reside in
where one of two or more defendants sued barangays of different cities or municipalities,
under except where such barangay units adjoin each
a common cause of action who had pleaded a other and the parties thereto agree to submit
common defenses shall appear at the their
preliminary differences to amicable settlement by an
conference. appropriate lupon;
7) Such other classes of disputes which the
President
may determine in the interest of justice or
KATARUNGANG PAMBARANGAY (Secs. 399 upon
422, LGC) the recommendation of the Secretary of
Justice;
8) Any complaint by or against corporations, 1) Disputes between persons actually residing
partnerships, or juridical entities. The reason is in the
that only individuals shall be parties to same barangay;
barangay 2) Those involving actual residents of different
conciliation proceedings either as barangays within the same city or municipality;
complainants or 3) All disputes involving real property or any
respondents; interest
9) Disputes where urgent legal action is therein where the real property or the larger
necessary to portion
prevent injustice from being committed or thereof is situated;
further 4) Those arising at the workplace where the
continued, specially the following: contending
a) A criminal case where the accused is parties are employed or at the institution
under police custody or detention; where such
b) A petition for habeas corpus by a person parties are enrolled for study, where such
illegally detained or deprived of his workplace
liberty or one acting in his behalf; or institution is located.
c) Actions coupled with provisional Objections to venue shall be raised in the
remedies, such as preliminary injunction, mediation proceedings before the punong
attachment, replevin and support barangay; otherwise, the same shall be
pendente litem; deemed
d) Where the action may be barred by the waived. Any legal question which may confront
statute of limitations; the punong barangay in resolving objections to
10) Labor disputes or controversies arising venue herein referred to may be submitted to
from the
employer-employee relationship. Secretary of Justice, or his duly designated
11) Where the dispute arises from the representative, whose ruling thereon shall be
Comprehensive binding.
Agrarian Reform Law;
12) Actions to annul judgment upon a WHEN PARTIES MAY DIRECTLY GO TO COURT
compromise
which can be filed directly in court. 1) Where the accused is under detention;
2) Where a person has otherwise been
The court in which non-criminal cases not deprived or
falling within personal liberty calling for habeas corpus
the authority of the lupon under the Code are proceedings;
filed may, at 3) Where actions are coupled with provisional
any time before trial, motu propio refer the remedies such as preliminary injunction,
case to the attachment, delivery of personal property, and
lupon concerned for amicable settlement. support pendente lite; and
4) Where the action may otherwise be barred
VENUE by the
statute of limitations.
 d) Municipal Circuit Trial Courts
EXECUTION
for payment of money where the value of the
The amicable settlement or arbitration award claim
may be DOES NOT EXCEED P100,000.00 exclusive of
enforced by execution by the lupon within six interest
(6) months and costs.
from the date of the settlement. After the lapse
of such The MTCs shall apply this Rule in all actions
time, the settlement may be enforced by action which are:
in the a) purely civil in nature where the claim or
appropriate city or municipal court. relief
prayed for by the plaintiff is solely for payment
REPUDIATION or
reimbursement of sum of money; and
Any party to the dispute may, within ten (10) b) the civil aspect of criminal actions, either
days from filed
the date of the settlement, repudiate the same before the institution of the criminal action, or
by filing reserved upon the filing of the criminal action
with the lupon chairman a statement to that in
effect sworn court, pursuant to Rule 111 of the Revised
to before him, where the consent is vitiated by Rules of
fraud, Criminal Procedure.
violence, or intimidation. Such repudiation
shall be These claims or demands may be:
sufficient basis for the issuance of the
certification for a) For money owed under any of the following:
filing a complaint before the court. 1. Contract of Lease;
2. Contract of Loan;
3. Contract of Services;
4. Contract of Sale; or
RULE OF PROCEDURE FOR SMALL CLAIMS 5. Contract of Mortgage;
CASES (AM b) For damages arising from any of the
No. 08-8-7-SC, as amended) following:
1. Fault or negligence;
2. Quasi-contract; or
SCOPE AND APPLICABILITY OF THE RULE 3. Contract;
c) The enforcement of a barangay amicable
This Rule shall govern the procedure in actions settlement or an arbitration award involving a
before the: money claim covered by this Rule pursuant to
a) Metropolitan Trial Courts; Sec. 417 of RA 7160.
b) Municipal Trial Courts in Cities;
c) Municipal Trial Courts; and COMMENCEMENT OF SMALL CLAIMS ACTION
 Response,
A small claims action is commenced by filing unless good cause is shown for the admission
with the court of additional
an: evidence. The grounds for the dismissal of the
1) accomplished and verified Statement of claim, under
Claim in Rule 16 of the Rules of Court, should be
duplicate; pleaded.
2) a Certification of Non-forum Shopping;
3) two (2) duly certified photocopies of the EFFECT OF FAILURE TO FILE RESPONSE
actionable document/s subject of the claim;
4) the affidavits of witnesses and other Should the defendant fail to file his Response
evidence to within the
support the claim. required period, and likewise fail to appear at
the date set
No evidence shall be allowed during the for hearing, the court shall render judgment on
hearing which the same
was not attached to or submitted together with day, as may be warranted by the facts.
the
Claim, unless good cause is shown for the Should the defendant fail to file his Response
admission of within the
additional evidence. No formal pleading, other required period but appears at the date set for
than hearing, the
the Statement of Claim is necessary to initiate court shall ascertain what defense he has to
a small offer and
claims action. proceed to hear, mediate or adjudicate the
case on the
RESPONSE same day as if a Response has been filed.

The defendant shall file with the court and PROHIBITED PLEADINGS AND MOTIONS
serve on the
plaintiff a duly accomplished and verified
Response within a) Motion to dismiss the complaint;
a non-extendible period of ten (10) days from b) Motion for a bill of particulars;
receipt of c) Motion for new trial, or for reconsideration of
summons. The response shall be accompanied a
by certified judgment, or for reopening of trial;
photocopies of documents, as well as affidavits d) Petition for relief from judgment;
of e) Motion for extension of time to file
witnesses and other evidence in support pleadings,
thereof. No affidavits, or any other paper;
evidence shall be allowed during the hearing f) Memoranda;
which was g) Petition for certiorari, mandamus, or
not attached to or submitted together with the prohibition
against any interlocutory order issued by the
court; Failure of the defendant to appear shall have
h) Motion to declare the defendant in default; the same
i) Dilatory motions for postponement; effect as failure to file a Response. This rule
j) Reply; shall not apply
k) Third-party complaints; and where one of two or more defendants sued on
l) Interventions. a common
cause of action appear.

Failure of both parties to appear shall cause

APPEARANCES the dismissal
with prejudice of both the claim and
The parties shall appear at the designated date counterclaim.
of hearing
PERSONALLY. Appearance through a HEARING; DUTY OF THE JUDGE
representative must
be for a valid cause. The representative of an At the beginning, the judge shall read aloud a
individual- short
party must: statement explaining the nature, purpose and
1) not be a lawyer; and the rule of
2) must be related to or next-of-kin of the procedure of small claims cases and shall exert
individual- efforts to
party. bring the parties to an amicable settlement of
Juridical entities shall not be represented by a their
lawyer dispute.
in any capacity.
The representative must be authorized under a Any settlement or resolution of the dispute
Special shall be
Power of Attorney to enter into an amicable reduced into writing, signed by the parties and
settlement of submitted
the dispute and to enter into stipulations or to the court for approval.
admissions of
facts and of documentary exhibits. Settlement discussions shall be strictly
confidential and
EFFECT OF FAILURE TO APPEAR any reference to any settlement made in the
course of such
Failure of the plaintiff to appear shall be cause discussions shall be punishable by contempt.
for the
dismissal of the claim without prejudice. The FINALITY OF JUDGMENT
defendant
who appears shall be entitled to judgment on a After the hearing, the court shall render its
permissive decision on the
counterclaim. same day and the same shall be final and
unappealable and counsels
if it is in favor of the plaintiff, the judgment under oath, and they shall remain under oath
shall be in all
executed upon his motion. pre-trial conferences.
The judge shall exert best efforts to persuade
the
parties to arrive at a settlement of the dispute.
RULES OF PROCEDURE FOR ENVIRONMENTAL The
CASES judge may issue a consent decree approving
(AM No. 09-6-8-SC) the
agreement between the parties in accordance
with
law, morals, public order and public policy to
SCOPE AND APPLICABILITY OF THE RULE protect
the right of the people to a balanced and
These Rules shall govern the procedure in civil, healthful
criminal ecology.
and special civil actions before the RTCs and Evidence not presented during the pre-trial,
MTCs except
involving enforcement or violations of newly discovered evidence, shall be deemed
environmental and waived.
other related laws, rules and regulations. CONSENT DECREE refers to a judicially-
approved
CIVIL PROCEDURE settlement between concerned parties based
on public
PROHIBITION AGAINST TEMPORARY interest aspect in environmental cases and
RESTRAINING encourages
ORDER AND PRELIMINARY INJUNCTION the parties to expedite the resolution of
litigation.
Except the Supreme Court, no court can issue a
TRO or PROHIBITED PLEADINGS AND MOTIONS (SEC.
writ of preliminary injunction against lawful 2, RULE 2)
actions of
government agencies that enforce a) Motion to dismiss the complaint;
environmental laws or b) Motion for a bill of particulars;
prevent violations thereof except the Supreme c) Motion for extension of time to file
Court. pleadings,
except to file answer, the extension not to
PRE-TRIAL CONFERENCE; CONSENT DECREE exceed
(SEC. 5, fifteen (15) days;
RULE 3) d) Motion to declare the defendant in default;
e) Reply and rejoinder; and
The judge shall put the parties and their f) Third party complaint.
 matter is
Motion for postponement, motion for new trial of extreme urgency and the applicant will
and suffer grave
petition for relief from judgment shall only be injustice and irreparable injury. The applicant
allowed in shall be
certain conditions of highly meritorious cases exempted from the posting of a bond for the
or to issuance of a
prevent a manifest miscarriage of justice. The TEPO.
satisfaction
of these conditions is required since these The executive judge of the multiple sala court
motions are before raffle
prone abuse during litigation. or the presiding judge of a single-sala court as
the case
Motion for intervention is permitted in order to may be, may issue ex parte a TEPO effective for
allow the only
public to participate in the filing and seventy-two (72) hours from date of the receipt
prosecution of of the
environmental cases, which are imbued with TEPO by the party or person enjoined. Within
public said period,
interest. the court where the case is assigned, shall
conduct a
Petitions for certiorari are likewise permitted summary hearing to determine whether the
since these TEPO may be
raise fundamentally questions of jurisdiction. extended until the termination of the case.

TEMPORARY ENVIRONMENTAL PROTECTION The court handling the case shall periodically
ORDER monitor the
(TEPO) existence of acts that are the subject matter of
the TEPO
Temporary Environmental Protection Order and may lift the same at any time as
(TEPO) - circumstances may
refers to an order issued by the court directing warrant.
or
enjoining any person or government agency to An applicant is exempt from the posting of a
perform or bond. While
desist from performing an act in order to the TEPO may be issued ex parte, this is more
protect, preserve of the
or rehabilitate the environment. exception. The general rule on the conduct of a
hearing
The TEPO shall be issued it appears from the pursuant to due process remains.
verified
complaint with a prayer for the issuance of an JUDGMENT AND EXECUTION (RULE 5)
Environmental Protection Order (EPO) that the
Any judgment directing the performance of contribute to
acts for the a special trust fund for that purpose subject to
protection, preservation or rehabilitation of the the control
environment shall be executory pending of the court.
appeal UNLESS
restrained by the appellate court. PERMANENT ENVIRONMENTAL PROTECTION
ORDER
It may not be stayed by the posting of a bond
and the sole The court may convert the TEPO to a
remedy lies with the appellate court. The permanent EPO or
appellate court issue a writ of continuing mandamus directing
can issue a TRO to restrain the execution of the the
judgment performance of acts which shall be effective
and should the appellate court act with grave until the
abuse of judgment is fully satisfied.
discretion in refusing to act on the application
for a TRO, a The court may, by itself or through the
petition for certiorari under Rule 65 can be appropriate
brought before government agency, monitor the execution of
the Supreme Court. the
judgment and require the party concerned to
RELIEFS IN A CITIZENS SUIT submit
written reports on a quarterly basis or sooner
Any Filipino citizen in representation of others, as may be
including necessary, detailing the progress of the
minors or generations yet unborn, may file an execution and
action to satisfaction of the judgment. The other party
enforce rights or obligations under may, at its
environmental laws. option, submit its comments or observations
on the
If warranted, the court may grant to the execution of the judgment.
plaintiff proper
reliefs which shall include the protection, WRIT OF CONTINUING MANDAMUS
preservation or
rehabilitation of the environment and the CONTINUING MANDAMUS is a writ issued by a
payment of court in an
attorneys fees, costs of suit and other litigation environmental case directing any agency or
expenses. instrumentality of the government or officer
It may also require the violator to submit a thereof to
program of perform an act or series of acts decreed by final
rehabilitation or restoration of the judgment
environment, the costs which shall remain effective until judgment is
of which shall be borne by the violator, or to fully
satisfied. assertion of environmental rights shall be
treated as a
The concept of continuing mandamus was SLAPP.
originally
enunciated in the case of Concerned Residents In a case is a SLAPP the defendant may file an
of Manila answer
Bay vs. MMDA, GR 171947-98, Dec. 18, 2008. interposing as a defense that the case is a
The Rules SLAPP. The
now codify the Writ of Continuing Mandamus hearing on the defense of a SLAPP shall be
as one of the summary in
principal remedies which may be availed of in nature. The party filing the action assailed as a
environmental cases. SLAPP shall
prove by preponderance of evidence that the
STRATEGIC LAWSUIT AGAINST PUBLIC action is not
PARTICIPATION a SLAPP and is a valid claim.

STRATEGIC LAWSUIT AGAINST PUBLIC The defense of a SLAPP shall be resolved

PARTICIPATION within thirty (30)
(SLAPP) refers to an action whether civil, days after the summary hearing. If the court
criminal or dismisses the
administrative, brought against any person, action, the court may award damages,
institution or attorneys fees and
any government agency or local government costs of suit under a counterclaim if such has
unit or its been filed.
officials and employees, with the intent to The dismissal shall be with prejudice. If the
harass, vex, court rejects
exert undue pressure or stifle any legal the defense of a SLAPP, the evidence adduced
recourse that such during the
person, institution or government agency has summary hearing shall be treated as evidence
taken or may of the
take in the enforcement of environmental laws, parties on the merits of the case. Since a
protection motion to dismiss
of the environment or assertion of is a prohibited pleading, SLAPP as an
environmental rights. affirmative defense
should be raised in an answer along with other
A legal action filed to harass, vex, exert undue defenses
pressure or that may be raised in the case alleged to be a
stifle any legal recourse that any person, SLAPP.
institution or the
government has taken or may take in the SPECIAL PROCEDURE / PROCEEDING
enforcement of
environmental laws, protection of the WRIT OF KALIKASAN (WOK)
environment or
The writ is a extraordinary remedy available to
a natural
or juridical person, entity authorized by law, DISCOVERY MEASURES
peoples
organization, non-governmental organization, A party may file a verified motion for the
or any following reliefs:
public interest group accredited by or a) Ocular Inspection - the court may order any
registered with any person in possession or control of a
government agency, on behalf of persons designated land or other property to permit
whose entry for the purpose of inspecting or
constitutional right to a balanced and healthful photographing the property or any relevant
ecology is object or operation thereon.
violated, or threatened with violation by an b) Production or inspection of documents or
unlawful act or things - the court may order any person in
omission of a public official or employee, or possession, custody or control of any
private designated documents, papers, books,
individual or entity, involving environmental accounts, letters, photographs, objects or
damage of tangible things, or objects in digitized or
such magnitude as to prejudice the life, health electronic form, which constitute or contain
or property evidence relevant to the petition or the return,
of inhabitants in two or more cities or to produce and permit their inspection,
provinces. copying or photographing by or on behalf of
the movant.
Those who may file for this remedy must
represent the WRIT OF CONTINUING MANDAMUS
inhabitants prejudiced by the environmental
damage A writ issued by a court in an environmental
subject of the writ to be filed with the SC or CA. case directing
The any agency or instrumentality of the
applicant is exempted from payment of docket government or officer
fees. thereof to perform an act or series of acts
decreed by final
PROHIBITED PLEADINGS AND MOTIONS judgment which shall remain effective until
judgment is
a) Motion to dismiss; fully satisfied. The petition shall contain a
b) Motion for extension of time to file return; sworn
c) Motion for postponement; certification of non-forum shopping.
d) Motion for a bill of particulars;
e) Counterclaim or cross-claim; 1) GROUNDS FOR CONTINUING MANDAMUS
f) Third-party complaint; a) When any agency or instrumentality of the
g) Reply; and government or officer thereof unlawfully
h) Motion to declare respondent in default. neglects the performance of an act which the
law specifically enjoins as a duty resulting from
an office, trust or station in connection with the judgment, a final
enforcement or violation of an environmental return of the writ shall be made to the court by
law rule or regulation or a right therein; the
b) When any agency or instrumentality of the respondent. If the court finds that the
government or officer thereof unlawfully judgment has been
excludes another from the use or enjoyment of fully implemented, the satisfaction of
such right. judgment shall be
entered in the court docket.
2) REQUISITES CONTINUING MANDAMUS
a) There must be a clear legal right or duty; The issuance of a TEPO is made available as an
b) The act to be performed must be practical; auxillary
c) Respondent must be exercising a ministerial remedy prior to the issuance of the writ itself.
duty; As a special
d) The duty or act to be performed must be in civil action, the WoCMa may be availed of to
connection with the enforcement or violation compel the
of an environmental law, rule or regulation or performance of an act specifically enjoined by
a right; and law. Its
e) There is no other plain, speedy, and availability as a special civil action likewise
adequate complements
remedy in the ordinary course of law. its role as a final relief in environmental civil
cases and in
the WOK, where continuing mandamus may
The petition shall be filed with the Regional likewise be
Trial Court issued should the facts merit such relief.
exercising jurisdiction over the territory where
the
actionable neglect or omission occurred or WRIT OF CONTINUING MANDAMUS VS. WRIT OF
with the Court KALIKASAN
of Appeals or the Supreme Court. The
petitioner shall be Subject matter. WoCMa is directed against the
exempt from the payment of docket fees. unlawful
neglect in the performance of an act which the
If warranted, the court shall grant the privilege law
of the writ specifically enjoins as a duty resulting from an
of continuing mandamus requiring respondent office, trust
to perform or station in connection with the enforcement
an act or series of acts until the judgment is or violation
fully satisfied of an environmental law rule or regulation or a
and to grant such other reliefs as may be right
warranted therein; or (a) the unlawful exclusion of
resulting from the wrongful or illegal acts of another from the
the use or enjoyment of such right and in both
respondent. Upon full satisfaction of the instances, there
is no other plain, speedy and adequate remedy petition is exempted from the payment of
in the docket fees.
ordinary course of law. A writ of kalikasan is
available Venue. A petition for the issuance of a writ of
against unlawful act or omission of a public continuing
official or mandamus may be filed in the following: (a)
employee, or private individual or entity, the RTC
involving exercising jurisdiction over the territory where
environmental damage of such magnitude as the
to prejudice actionable neglect or omission occurred; (b)
the life, health or property of inhabitants in the CA; or (c)
two or more the SC. Given the magnitude of the damage,
cities or provinces. In addition, magnitude of the application
environmental damage is a condition sine qua for the issuance of a writ of kalikasan can only
non in a be filed with
petition for the issuance of a writ of kalikasan the SC or any station of the CA.
and must be
contained in the verified petition. Discovery measures. The Rule on the WCM
does not
Who may file. A writ of continuing mandamus contain any provision for discovery measures,
is available unlike the
to a broad range of persons such as natural or Rule on WOK which incorporates the
juridical procedural
person, entity authorized by law, peoples environmental right of access to information
organization, through the
NGO, or any public interest group accredited use of discovery measures such as ocular
by or inspection order
registered with any government agency, on and production order.
behalf of
persons whose right to a balanced and Damages for personal injury. The WCM allows
healthful ecology is damages for
violated or threatened to be violated. the malicious neglect of the performance of
the legal duty
Respondent. The respondent in a petition for of the respondent, identical Rule 65. In
continuing contrast, no
mandamus is only the government or its damages may be awarded in a petition for the
officers, unlike in issuance of a
a petition for writ of kalikasan, where the WOK consistent with the public interest
respondent may character of the
be a private individual or entity. petition. A party who avails of this petition but
who also
Exemption from docket fees. The application wishes to be indemnified for injuries suffered
for either may file
another suit for the recovery of damages since
the Rule on
WOK allows for the institution of separate
actions.