JARD NOTES

Special Proceedings [Atty. Wilson A. Legaspi]

1st Semester - AY 2020-2021
Chapter I e. Special rules of court on
Basic Concepts Alternative Dispute
Resolution
Civil Action
A party sues another for the The rules that govern special
enforcement or protection of a right, proceedings are those mentioned in
or the prevention or redress of a Rule 72 to 109, and, in its absence,
wrong. the rules of ordinary civil actions.

Criminal Action Chapter II

The State prosecutes a person for an Settlement of Estate of Deceased
act or omission punishable by law. Person

Special Proceeding Succession

Remedy by which a party seeks to  Mode of acquisition by virtue of
establish a status, right, or a particular which the property, rights and
fact. No formal pleadings are required obligations to the extent of the
unless the statute expressly so value of the inheritance, of a
provides. person are transmitted through
his/her death to another or
Cases Considered as Special others either by his will or by
Proceedings operation of law.
1. Settlement of estate of the  The right of succession arises
deceased person from the moment of death of
2. Escheat the decedent.
3. Guardianship and custody of
minor children Judicial Settlement
4. Trusteeship  A petition for judicial settlement
5. Adoption and rescission of of estate can be filed in either
adoption the regional trial court or
6. Hospitalization of insane municipal court depending on
persons the gross value of the estate in
7. Habeas corpus the place where the decedent
8. Change of name last resided.
9. Judicial recognition of filiation  If he was not a resident of the
[Link] of absence or death Philippines, in the place where
[Link] of correction of his property is located.
entries in the civil registry
[Link] cases not under the Rules Can the legal requirement of
of Court proper venue be waived?
a. Petition for writ of Yes, based on Uriarte vs CA. Such a
amparo procedural defect can be waived by
b. Petition for habeas data the opposing party by lack of
c. Petition for declaration of objection.
nullity of marriage,
annulment of marriage, Residence
and legal separation It should be viewed or understood in
d. Petition for recognition its popular sense, meaning, the
and enforcement of personal, actual or physical habitation
decisions promulgated in of a person, actual residence or place
foreign courts of abode. Residence simply requires

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JARD NOTES
Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
bodily presence as an inhabitant in a advancement, or all the
given place. parties have consented to
the assumption of
How to prove the residence of the jurisdiction by the
decedent probate court and the
The recitals in the death certificate rights of third parties are
may be relied upon to reflect the true not impaired, the probate
situation at the time of their parent’s court is competent to
death. However, a decedent’s death decide the question of
certificate is not a conclusive evidence ownership.
as to their residence prior to their  Determination of lawful heirs
death. cannot be made in an ordinary
civil action.
Probate Court  The court has consistently ruled
The court exercising jurisdiction in a that a declaration of heirship is
judicial settlement filed before it. The improper in an ordinary civil
court first taking cognizance of the action since the matter is within
proceeding shall exercise jurisdiction the exclusive competence of
to the exclusion of all other courts. Its the court in a special
jurisdiction cannot be contested in proceeding.
another action cognizable by another  Where special proceedings had
court except on appeal from the said been instituted but had been
court or for lack of jurisdiction. finally closed and terminated,
however, or if a putative heir
What is the jurisdiction of the has lost the right to have
probate court? himself declared in the special
 Jurisdiction of probate court proceedings as co-heir and he
merely relates to matters can no longer ask for its re-
having to do with the opening, then an ordinary civil
settlement of the estate and the action can be filed for his
probate of wills of deceased declaration as heir.
persons, and the appointment o Exception: by way of
and removal of administrators, practicality
executors, guardians, and  When the marriage is dissolved
trustees. by the death of the husband or
 A probate court cannot decide wife, the community property
on the question of ownership. shall be inventoried,
However, for the purpose of administered, and liquidated,
determining whether a certain and the debts thereof paid, in
property should or should not the testate or intestate
be included in the inventory of proceedings of the deceased
estate proceeding, the probate spouse.
court may pass upon the  If both spouses have died, the
question of ownership, but such conjugal partnership shall be
determination is provisional, not liquidated in the testate or
conclusive, and is subject to the intestate proceedings of either.
final decision in a separate
action to resolve title.
o Exception: if the
interested parties are all Effect on the creditors of the
heirs, or the question is spouses?
one of collation or

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Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
 No complaint against the
conjugal partnership can be There can be Extrajudicial Settlement
brought against the surviving of estate as long as the decedent upon
spouse. The claim must be his death left no will and debts.
made in the proceedings for the
liquidation and settlement of Extrajudicial settlement can be done
the conjugal property. by the heirs through the execution of
 Upon the death of one spouse, a public instrument and filed in the
the power of administration of office of the register of deeds where
the surviving spouse ceases and the property is situated.
is passed to the administrator.
If there is only one heir, extrajudicial
Circumstances and the settlement can be done through the
corresponding periods before a execution of the affidavit of self-
person can be presumed dead adjudication and filed in the office of
 Presumed dead for all purposes the register of deeds.
EXCEPT succession after an
absence of seven years The filing or registration with the
 Presumed dead for purposes of register of deeds of the
succession after an absence of extrajudicial settlement of
ten years affidavit of self-adjudication is
 If seventy-five years or older, necessary to bind third persons.
presumed dead for all purposes However, this does not mean that
after an absence of five years such extrajudicial settlement or
 Presumed dead after an affidavit of self-adjudication cannot be
absence of four years used as evidence to prove that one is
o On board a vessel lost an heir.
during a sea voyage or
an airplane which is Its non-registration does not strip
missing, which has not away the document’s evidentiary
been heard of value with respect to the heir’s status
o Person in the armed and interest over the property of the
forces who has taken part decedent.
in war
o Person in danger of death A bond should be posted in the office
under other of the registry of deeds where there is
circumstances and his personal property involved, in the
existence has not been amount equivalent to the value of the
known said property, and conditioned upon
the payment of any just claim that
If the absentee appears, or without may be filed under this provision.
appearing his existence is proved, he
shall recover his property in the The fact of extrajudicial settlement
condition in which it may be found and shall be published in a newspaper of
the price of any property that may general circulation for three
have been alienated or the property consecutive weeks.
acquired therewith, but he cannot
claim either fruits or rents.
Purpose of Putting in a Public
Chapter III Instrument
Summary and Extrajudicial To protect the creditors of the estate
Settlement and the heirs themselves from tardy

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Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
claims. The object is to serve as
constructive notice to others. Where If the property is already sold to third
no rights of creditors are affected, the persons, the deprived heir has ten
intrinsic validity of the partition is not years. From time of act based on
affected, if partition or self- constructive trust within which to
adjudication was not executed in a recover the property.
public instrument.
Summary Settlement of Estate
Oral partition is valid and is not  It is possible when the gross
covered by the Statute of Frauds as it estate of the deceased, whether
is not exactly a conveyance of real he/she died testate or intestate,
property. It is just a confirmation or does not exceed ten thousand
ratification of title or right of property. pesos. The petition shall be filed
in the municipal trial court
Section 1, Rule 74 does not preclude where the decedent last resided
the heirs from instituting or if anon-resident, in the place
administration proceedings, even if where the property is situated.
the estate has no debts or obligation,  Upon filing of the petition, a
if they do not desire to resort for good hearing shall be held not less
reasons to an ordinary action of than one month nor more than
partition. three months from the date of
publication.
No extrajudicial settlement shall be  Publication shall be made once
binding upon any person who has not a week for three consecutive
participated therein or had no notice weeks in a newspaper of
thereof. Any partition of the estate general circulation in the
made without their knowledge, much province where petition is filed.
more consent, is invalid in so afar as  The court, without granting an
they are concerned. executor or administrator, shall
grant the allowance of the will
The publication of the settlement does without delay. After which,
not constructive notice to the heirs persons legally entitled are
who had no knowledge or did not take summarily determined.
part in it because the same was notice  If the estate of the deceased
after the fact of execution. consists not only of real
property but of personal
A deed of extrajudicial partition property, a bond shall be posted
executed without including some of in the amount to be fixed by the
the heirs, who had no knowledge of court to be fixed by the court
and consent to the same, is fraudulent conditioned upon the payment
and vicious. of any claim by creditors.

The prescriptive period of two years

within which a creditor can file a
petition for letters of administration
does not apply to the heirs who were
not able to participate in the Liability of Distributes and Estate
settlement of estate. There is a two-year period after the
estate has been extrajudicially or
The action to impugn the same or to summarily settled for the creditors to
institute administration proceedings pursue a claim against such estate or
does not prescribe. the distributes. It does not apply to

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Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
heirs who were not able to participate No will shall pass either real or
in the proceedings because of lack of personal estate unless it is proved and
knowledge or notice. It only applies to allowed in the proper court. Subject to
valid partitions. right of appeal, the will shall be
conclusive as to its due execution.
The court having jurisdiction of the
estate, may, by order for that purpose, Probate of Will
after hearing, settle the amount of Judicial act whereby an instrument is
such debts or lawful participation and adjudged valid and is ordered to be
order how much and in what manner recorded. It is the statutory method of
each distribute shall contribute in the establishing the proper execution of
payment thereof and may issue an instrument and giving notice of its
execution. contents.

After the estate has been settled Preference of Testate Proceedings

extrajudicially or summarily, a new over Intestate Proceedings
transfer certificate now in the name of Even though there is already an
the heirs will be issued containing the ongoing intestate proceeding, this
annotation of encumbrance at the does not render moot the petition for
back of the said certificate of title. probate once a will is later discovered.

The annotation at the back is sufficient Probate Court

notice to buyers of the limitation of The authority of the probate court is
the seller’s right to dispose of the limited to ascertaining whether the
property. testator, being of sound mind, freely
executed the will in accordance with
Other remedies the formalities prescribed by law and
 Motion to reopen the intestate that the will is genuine.
or testate proceedings
 Excluded heir in a partition
agreement which was already
approved by the court can file
an action for rescission based Notarial Will
on fraud within four years from  In writing and executed in a
the time of the approval of such language or dialect known to
partition agreement the testator
 Separate action if the decision  Must be subscribed at the end
of the court approving a thereof by the testator himself
partition agreement has already or by the testator’s name
become final written by some other person in
 A complaint to declare null and his presence, and by his
void the extrajudicial partition express direction, and attested
 Deprived heir can file an action and subscribed by three or
for reconveyance which does more credible witnesses in the
not prescribe presence of the testator and of
one another
Chapter IV  Signe each and every page
Production, Allowance or thereof, except the last, on the
Disallowance of Will and left margin, and all the pages
Allowance of Will Proved Outside shall be numbered correlatively
the Philippines in letters placed on the upper
part of each page

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Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
 Attestation stating the number
of pages used upon which the The State is duty-bound it gives full
will is written and the fact that effect of the wishes of the testator to
the testator signed the will and distribute his/her estate in the manner
every page thereof, or caused provided in his/her will so long as it is
some other person to write his legally tenable.
name, under his express
direction, in the presence of the Delivery of the Will to Court with
instrumental witnesses, and Jurisdiction within twenty days
that the latter witnessed and  One in possession of will or the
signed the will and all the pages custodian after acquiring
thereof in the presence of the knowledge of the death\
testator and of one another  Named executor after gaining
 Acknowledged before a notary knowledge of death or after
public by the testator and the learning that he/she is the
witnesses named executor
 In case of refusal or non-
Holographic Will compliance, he/she shall be
 Entirely written, dated, and fined not exceeding two
signed by the hand of the thousand peso and can also be
testator committed until delivery of will
 Subject to no other form, and
maybe made in or out of the Obligation to file of the petition for
Philippines probate of will is imposed on any
 Need not be witnessed executor, devisee, legatee, or any
other person interested in the estate.
It is necessary that the testator at the Even the testator can file a petition for
time of the execution of the will is of probate of his/her will during his
sound and disposing mind. lifetime.

Sound mind
 Full possession of all his
reasoning faculties
 Mind be wholly unbroken, Allegations that must be state in
unimpaired, or not shattered by the petition for probate of will
disease injury or other cause  Jurisdictional facts
 Know the nature of the estate, o Fact of death
proper objects of his bounty, o Place of residence
character of testamentary act o Gross value of estate
 Law presumes that every  Names, ages, and residences of
person is of sound mind in the the heirs, legatees, and
absence of proof to the contrary devisees
 Exception  Probable value and character of
o If the testator, one month the property of the estate
or less, before making his  Name of the person for whom
will was publicly known to letters are prayed; and,
be insane, the person  Name of the person having
who maintains the custody of will, if will has not
validity of the will must been delivered
prove that the testator
has made it during a lucid Failure on the part of the petitioner to
interval allege all of the required information
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1st Semester - AY 2020-2021
that must be alleged in the petition testimony of the witnesses and from
does not warrant the automatic all the evidence.
dismissal of the petition filed.
If a holographic will is contested, at
The court shall then fix the time and least three witnesses who know the
place for proving the will. Notice of handwriting and signature must
such time and place shall be published explicitly declare that the will and
three weeks successively, previous to signature are in the testator’s
the time appointed, in a newspaper of handwriting. In the absence of any
general circulation in the province. competent witness, and if court deems
it necessary, expert testimony may be
Copies of notice of the will to be sent resorted to.
to legatees, devisees, or heirs residing
in the Philippines at least twenty days Proving a Lost or Destroyed Will
before hearing. Personal service of the  Execution and validity of will
copies of notice at least ten days  Existence at the time of death
before the day of hearing shall be of the testator
equivalent to mailing.  Provisions which must be
proven by the testimony of at
If it is the testator who filed least two credible witnesses
petition for probate, no need to  Loss and destruction, either
cause publication. Notice must be sent fraudulently or accidentally,
to his/her compulsory heirs. during the lifetime of the
testator without the latter’s
If no person appears to contest knowledge
the allowance of the will, testimony
of only one of the subscribing witness Grounds for Disallowance of Will
that will was executed as required by  Not executed and attested as
will. required by law
 Testator was insane or
If will is contested, all the otherwise mentally incapable to
subscribing witnesses and the notary make a will at the time of its
public, if present in the Philippines and execution
not insane, must be produced and  Will executed under duress, or
examined. the influence of fear or threats
 Will procured by undue and
Will can be contested by anyone by improper pressure and influence
stating in writing his/her grounds for  Signature of the testator was
opposing its allowance, and by serving procured by fraud or trick or he
a copy thereof to the petitioner and did not intend the instrument
other parties interested in the estate. should be his will

If witness is in the Philippines but If the will is allowed, court shall issue
outside of the province where certificate of allowance, signed by the
probate is filed, deposition must be judge and attested by the seal of the
taken. court, which shall be attached of the
will and filed and recorded by the
If any of them would testify clerk. If devising real estate, recorded
against the execution of the will, in the register of deeds.
the will may nevertheless be allowed if
the court is satisfied from the Reprobate of Will

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Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
Order of the court allowing the will Chapter V
that was already probated and allowed Letters Testamentary and of
in a foreign country. Copy of such will Administration, Opposition to
and the order or decree of allowance Issuance Thereof, and the Special
thereof, both duly authenticated, are Administrator
filed with a petition for allowance in
the Philippines. Letters Testamentary
 Due execution of the will in The instrument or process issued by
accordance with foreign laws the probate court to the named
 Testator has his domicile in the executor of the will who is competent,
foreign country accepts the trust and gives a bond,
 Will has been admitted to after the same has been admitted to
probate in such country probate.
 Fact that foreign tribunal is a
probate court
 Laws of a foreign country on
procedure and allowance of
wills Incompetent Executors
 Minor
How foreign laws proved  Not a resident of the Philippines
 Official publication of such (citizenship not an issue)
foreign law  Opinion of the court to be unfit
 Copy attested by officer having to exercise the duties by reason
legal custody of drunkenness, improvidence,
 If copy not kept in Philippines, or want of understanding or
by a certification issued by the integrity
Philippine embassy or consular  Conviction of an offense
office that such officer has involving moral turpitude
custody
 Certificate or its equivalent Letters of Administration
issued by a foreign country Instrument or process issued if no
which is a contracting party to a executor is named in the will, or the
treaty or convention in which executor or executors are
the Philippines is also a party, incompetent, refuse the trust, or fail to
and the foreign law is give bond, or dies intestate.
considered as such public
document under such treaty or To whom Letters of
convention (Apostille Administration granted
Convention) 1. Surviving husband or wife, or
next of kin, or both, or such
Effect if foreign law is not pleaded person they may appoint, if
or not proved competent and willing to serve
The court shall apply the Philippine 2. If (1) is incompetent, unwilling,
law under the doctrine of processual neglects for thirty days after
presumption death of decedent to apply for
administration or to request
When a will is allowed, the court shall that administration be granted
grant letters testamentary or letters of to some other person, to one or
administration with the will annexed more principal creditors, if
and such shall extend to all the estate competent and willing to serve
of the testator in the Philippines.

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1st Semester - AY 2020-2021
3. If (2) is not competent or 4. During hearing, petitioner must
unwilling to serve, to other show that notice has been given
persons the court may select and that there is compliance
with the jurisdictional
Next of Kin requirements
One whose relationship with the 5. Court to conduct hearing
decedent is such that he/she is
entitled to a share in the estate as Any interested person can also
distribute oppose the issuance of letters of
administration in favor of another by
A separate action to determine if one filing a written opposition thereto on
is a next of kin is not allowed because the ground of the competency of the
it will only result in a multiplicity of person for whom letters are prayed
suits. for, on the ground of contestant’s own
right to the administration, and he/she
One of the applicants for the for the may pray that letters be issued to
issuance of letters of administration in him/her or to any competent
his/her favor can also be the oppositor person/persons
to the issuance of letters
testamentary. Appointment of Special
Administrator
Petition for letters of administration To preserve the estate until it can pass
must be filed by an interested party. to the hands of a person fully
authorized to administer it. The
Interested Party appointment of the special
One who would be benefited in the administrator lies entirely in the
estate. Interest must be material and discretion of the court and is not
direct, and not merely indirect or appealable. The selection or removal
contingent. of special administrators is not
governed by the rules regarding the
Petition for the Issuance of selection or removal of regular
Letters Administration administrators. As long as said
1. Jurisdictional facts discretion is exercised without grave
2. Names, ages, and residences of abuse, higher courts will not interfere
the heirs and the names and with it.
residences of the creditors
3. Probable value and character of Responsibilities of the Special
the property of the estate Administrator
4. Name of the person whom  Take possession and charge of
letters are prayed for the goods, chattels, rights,
credits, and estate
No defect in the petition shall render  Preserve the same
void the issuance of letters of  Commence and maintains suits
administration. as such administrators
 Sell perishable goods and other
Procedures observed property as the court orders
1. Filing of petition sold
2. Court to fix the time and  Not be liable to pay any debts
hearing of the petition of the deceased unless so
3. Notice to be given to known ordered by the court
heirs and creditors and
interested parties

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Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
The powers of the special Powers and Duties of Executor or
administrator can be terminated Administrator
whenever letter testamentary or of  The executor or administrator is
administration is granted on the estate obliged, within three months
of the deceased. after his appointment, to make
a return to the court of a true
Chapter VI and correct inventory and
Powers, Duties, Accountability, appraisal of all the real and
Compensation, and Revocation of personal properties of the
Appointment of Executors and deceased
Administrators  Render an account within one
year from the time of receiving
Posting of Bond letters
Before an executor or administrator testamentary/administration
enters upon the execution of his trust,  To sell, mortgage, or encumber
and letters testamentary or of properties belonging to the
administration issue, he shall give a estate based on grounds stated
bond, in such sum as the court directs. in the Rules and upon prior
Posting of bond for the benefit of the approval by the court. Even if
creditors and the heirs. approved by the court, the
executor/administrator cannot
An executor can serve without a still exercise the same when a
bond if the testator directs in his/her person interested in the estate
will that he/she serve without a bond. has posted a bond.
The bond will only be required by the  Access to and examine papers
court to answer for the debts of the relating to the business of the
testator, or in case there is a change deceased
of circumstances or other sufficient  Possess and manage the real or
cause. personal estate of the deceased
necessary for the payment of
When two or more persons are debts and other expenses of
appointed executors or administration
administrators, court may take a  With prior court approval, deal
separate bond from each, or a joint with the debtor of the estate for
bond from all. the compounding of the debt
due the letter. They may even
The court may also require from foreclose mortgaged property
the special administrator the
posting of the bond conditioned Ground for Removal or
to comply with the following Resignation of Executor or
responsibilities: Administrator
1. To make and return a true  Will is discovered after issuance
inventory of properties which of letters of administration,
come to their possession or appointed administrator shall
knowledge surrender the letters and render
2. To account for such properties and accounting
upon revocation or expiration of  Death of the
their appointment executor/administrator
3. To deliver the properties to the  Neglects to render their account
appointed and settle the estate according
executor/administrator to law

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Special Proceedings [Atty. Wilson A. Legaspi]
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 Neglect to perform and order or express or implied, whether the
judgement of the court or a same be due, not due, or
duty expressly provided by the contingent
Rules  Funeral expenses
 Absconding, becoming insane or  Expenses for the last sickness of
otherwise incapable or the decedent
unsuitable to discharge the  Judgment for money against
trust decedent
 Purpose
Unsuitableness o Protection of the estate
Adverse interest of some kind or of the deceased person
hostility to those immediately  Process
interested in the estate o The court shall issue a
notice requiring all
Before the authority of the executor or persons having money
administrator is revoked, or before claims against the
he/she is allowed to resign, all the acts decedent to file them in
executed by the said executor or the office of the clerk of
administrator are considered valid and said court.
have legal effects. o Executor/administrator
shall cause the
Chapter VII publication of notice for
Claims Against the Estate, Actions three consecutive weeks
by and Against the Executor or in a newspaper of general
Administrator, Payment of Debts circulation in the
of the Estate, and Sales, province.
Mortgages, and Other o Notice to be posted for
Encumbrances of the Decedent the same period in four
public places in the
Once the court has already issued the province and in two
letters testamentary or of public places in the
administration to the municipality where the
executor/administrator, it is not the decedent last resided
gross value but only the net estate o Claim must be made not
that will be distributed. The residue less than six months nor
will be distributed after paying all the more than twelve months
debts and other obligations of the from the first publication
decedent. of notice
 Failure to file claim
The death of either debtor or creditor within such period
does not extinguish the obligation. bars the claim
Only obligations that are personal or forever except that
are identified with the persons the such claims
themselves are extinguished by death. may be set forth in
Death extinguishes only the obligee’s a counterclaim in
action or suit filed before the court, any action that the
which was no then acting as probate executor or
court. administrator may
bring against
Claims Against the Estate claimants
 All claims for money against the  The creditor can
decedent, arising from contract, still file an
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application  If contested, clerk
showing good shall set claim for
cause on failure to trial
file a claim, made o Decision of the court
at any time before approving/disapproving
an order of claim can be appealed
distribution is and is appealable as in
entered ordinary cases
 The court may
issue an order Money claims not barred by
allowing the filing failure to file within required
of the claim at any period
time not exceeding  Counterclaim filed by the
one month from defendant in an action for sum
the receipt of the for money filed by the decedent
claimant of such during his/her lifetime can be
order pursued notwithstanding the
o Claim made by delivering expiration of the period
the same with the  Judgment for money against the
necessary vouchers to latter
the clerk of court and by  Decedent died pending the
serving a copy to the outcome of the original action
executor/administrator filed against him/her
 Claim is due,  Decedent died during the
supported by hearing of the counterclaim
affidavit stating against him/her
amount justly due,  Judgment against the deceased
that no payments defendant has not yet become
have been made, final and executory
and that no offsets
have been made Joint or Solidary Obligation of the
 Claim is not due or Decedent
contingent when  Obligation of the decedent is
filed, affidavit solidary with another debtor,
stating particulars. the claim shall be filed against
Affidavit may be the decedent as if he were the
made by person only debtor, without prejudice
other than to the right of the estate to
claimant but such recover contribution from the
fact and reason debtor
thereof be stated  Joint obligation of the decedent,
o Fifteen days from receipt claim shall be confined to the
of claim, portion belonging to decedent
executor/administrator
may either admit or Secured Obligations
contest claim  Abandon the security and
 If admitted, clerk prosecute claim and share in
shall submit claim the distribution of the estate
to court for  Judicial foreclosure of real
approval estate mortgage with the
executor/administrator the
party defendant; should there

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JARD NOTES
Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
be any deficiency, claim  If debts cannot be paid from the
deficiency judgment from the property mentioned in the will
estate or if it is insufficient to pay the
 Extrajudicial foreclosure of the debts, personal estate of the
real estate mortgage; creditor deceased not disposed of by will
shall receive no share in the shall be first chargeable with
distribution of estate the payment of debts and
 No provision prohibiting the expenses
executor/administrator from  If personal property is
redeeming the property insufficient to pay the debts, or
mortgaged/pledged under the its sale would redound to the
direction of the court, if the detriment of the participants of
court shall adjudge it to be for the estate, whole of the real
the best interest of the estate estate not disposed of by will, or
Contingent Claim so much thereof as is
 Claim necessarily dependent necessary, may be sold,
upon an uncertain event nor its mortgaged, or otherwise
existence or validity. It is claim encumbered by the
not yet firmly established by the executor/administrator, after
creditor. obtaining a court order
 Must be filed when the claim  If the assets for which can be
becomes absolute, within two appropriated for the payment of
years from the time limited to debts are not sufficient for that
other creditors to file their purpose, executor/administrator
claims shall pay debts by observing the
 Even after the period of two rule on the concurrence and
years, claim may still be preference of credits
recovered by proceeding  EXCEPTIONS – the court on
against estate already application of
distributed to recover just executor/administrator and on
claims, and as such, the written notice to heirs, devisees
distributes shall be jointly liable and legatees residing in
to the person holding a valid Philippines may authorize the
claim executor/administrator to sell,
 Holders of contingent claims mortgage, or otherwise
must file their claim within encumber so much as maybe
period allowed by court, which necessary of the real estate, in
must be not less than six lieu of personal estate
months nor more than twelve o Personal estate of the
months from first publication of decease is not sufficient
notice o Sale of such personal
estate may injure the
Executor or Administrator having business or other
a Claim against Estate interests
 Rules allow the appointment of o Testator has not
the special administrator otherwise sufficient
 Written notice of such claim provision for payment of
must be submitted to court debts and expenses
o Deceased bound himself
Order of Preference to convey real property
 Debts shall be paid according to or any interest
provisions of will

Page 13 of 59
JARD NOTES
Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
o Deceased in his/her  The court then may summon
lifetime has held real the suspected person and have
property in trust for him/her examined
another person  If said person refuses to appear
or to answer, court may punish
Period of Payment of Debts him/her for contempt and
 In the first instance shall not commit him/her to prison
exceed one year.  Court may also summon a
 Upon application of person entrusted by the said
executor/administrator, may be executor/administrator with any
extended for six months for a part of the estate to appear and
single extension but the whole render a full account of the
period allowed shall not exceed property
two years, after summary  If such person refuses, punish
hearing him/her for contempt
 If the executor/administrator  If made before granting of
dies, additional six months at a letters
time but must not exceed six testamentary/administration,
months beyond the time such person shall be liable for
allowed to original double the value of the property
executor/administrator sold, embezzled, or alienated
 If the one who made such act is
Actions by and against Executor the deceased, executor may
 To recover property or any commence an action for
interest recovery for the benefit of the
 To enforce a lien creditors
 To recover damages for an o Creditors must first file
injury an application with the
 The right of the estate and pay the costs
executor/administrator to bring and expenses, or give
suit is not exclusive. security to the executor
 Heirs themselves can bring an or administrator
action when: o If executor failed to file
o No appointed an action, any creditor of
executor/administrator the estate may
o Executor/administrator commence action with
refuses to file or the permission of court
prosecute an action and after posting of a
o Executor/administrator bond in favor
participated in the act executor/administrator
complained of and suit  IF such act was made by
has also been brought deceased in favor of
against him/her executor/administrator, action
which creditor shall bring will be
Property Concealed, Embezzled or in the name of all the creditors
Fraudulently Conveyed and that permission of the court
 The executor/administrator, and posting of bond is not
heir, legatee, creditor, or necessary
interested person may file a
complaint to the court. Chapter VIII
Appeals in Special Proceedings

Page 14 of 59
JARD NOTES
Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
An appeal in special proceedings can  Order allowing allowance or
be made by record on appeal. Since it disallowance of will
involves multiple appeals, appeal in a  Order determining the lawful
special proceeding is through a notice hear and their distributive
of appeal and a record on appeal. shares
 Order allowing or disallowing
Rationale: claim against estate
To enable the rest of the case to  Order constituting a final
proceed in the event that a separate determination in the lower court
and distinct issue is resolved by the of the rights of the party
court and held to be final appealing EXCEPT that no
appeal shall be allowed from
The probate court loses jurisdiction the appointment of a special
only over the subject matter of the administrator
appeal but retains jurisdiction over the  Final order or judgment
special proceeding from which the affecting substantial rights of
appeal was taken. the person appealing UNLESS
order granting or denying a
Period of filing an appeal in any motion for a new trial or for
special proceeding EXCEPT when the reconsideration
specific rule provides otherwise.
30 days from receipt of judgment or Any interested person may file an
decision (rule 40) appeal in a special proceeding.

From the decision of the municipal Chapter IX

trial court, 30 days to file notice of Distribution and Partition of
appeal and record on appeal to Estate
regional trial court (rule 40)
The probate court, in the exercise of
From the regional trial court in its its jurisdiction to distribute the estate,
exclusive original jurisdiction, 30 days has the power to determine the
to file notice of appeal and record on portion or parts to which each
appeal at the Court of Appeals (rule distribute is entitled
41)
In order to affect the distribution of
Originally appealed in the RTC the residue of the estate through
exercising appellate jurisdiction, 15 partition, a project of partition is
days to file petition for review to the needed.
CA (rule 42)
Project of partition – formal proposal
Purely question of law in the decision for the distribution of the hereditary
of RTC exercising original jurisdiction, estate which the court may accept or
15 appeal by certiorari to Supreme reject
Court (rule 45)
When the residue of the estate has
Grave abuse of discretion by the court, already been distributed, the court
60 days to file a civil action for shall issue the final decree of
certiorari (rule 65) distribution

Grounds of Appeal in Special Final decree of distribution = vests the

Proceedings title to the land of the estate in the
distributes.

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JARD NOTES
Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
subject of advance
If the decree is erroneous, it should be distribution
corrected by opportune appeal. 2. The distributes must post
a bond, fixed by the
When the decree is validly issued, the court, conditioned for the
validity or invalidity, the validity or payment of outstanding
invalidity of the project of partition obligations of the estate
becomes irrelevant.
Chapter X
Final Order of Distribution; When Escheat
Can Be Set Aside
When interested party is left out by Escheat
reason of circumstances beyond  A proceeding whereby the
his/her control or through mistake or State, by virtue of its
inadvertence not imputable to sovereignty, steps in and
negligence. claims the real or personal
property of a person who
He or she must demand his/her share died intestate leaving no
through proper motion or for the heir.
reopening of the same case by proper  It is the Solicitor General, for
motion. and in behalf of the Republic of
the Philippines, who may file a
Action for rescission is also the proper petition for escheat.
action in case of an alleged preterition  Where to file:
of ca compulsory heir by reason of o RTC of the province
alleged bad faith or fraud of the other where the deceased
persons. Action shall prescribe in four last resided
years from the time of the approval of o If he/she resided outside
the agreement of partition. the Philippines, RTC
where he/she had
When does probate court lose property
jurisdiction over the estate  Process
proceeding? o Filing of petition
After payment of all the debts and the sufficient in form and
remaining estate delivered to the heirs substance
entitled to receive the same o Court fixes date of
hearing, not more than 6
A judicial partition is not final and months from the issuance
conclusive and does not prevent the of the order
heir from bringing an action to obtain o Copy of the order
his share, provided the prescriptive published once a week
period therefor has not lapsed in 6 successive weeks in
a newspaper of general
Advance Distribution circulation
Estate can be distributed to the heirs o Conduct of hearing
even before the payment of all the  Personal estate –
obligation of the estate provided that: assigned to
1. Only part of the estate city/municipality
that is not affected by where decedent
any pending controversy last resided
or appeal may be the  Real estate –
assigned to
Page 16 of 59
JARD NOTES
Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
city/municipality distribution of the estate of
where it is located the decedent in an escheat
 Non-resident proceeding and adjudicate for
decedent – all of the properties of the oppositors.
his/her estate
assigned to Other kinds of escheat provided
city/municipality by the rules and other provisions
where the same is of laws
located  Section 5, Rule 91 – Section7,
o In lieu of physical Article XII of the Constitution –
distribution of property, action for reversion can be
the court, either motu filed against a person who
propio or at the instance acquired a property in violation
of an interested party, of constitutional or statutory
may order the provision
establishment of a o Venue RTC of the
permanent trust so province where property
that only the income from is situated
the property shall be  RA 8435 – action for escheat of
used an irrigated agricultural land,
 If any devisee, legatee, heir, 7 hectares or larger,
or other person entitled to deliberately caused to
estate appears, he may file a remain idle or unproductive
claim thereto. (claimant) for more than 2 years
 If claimant appears after EXCEPT through force
estate has already been majeure
escheated, claim must be filed  PD 679 – escheat on deposits
within five years from the date of money, credits or other
of judgment evidence of indebtedness
o Granted – claimant shall whose owner is known to be
have possession and title dead or has not made further
or if sold, the deposits or withdrawal for 10
city/municipality shall be years or more
accountable to him/her
for the proceeds after Chapter XI
deducting the estate Trustees
o If not made within 5
years, barred forever Aside from executor, decedent may
 Even if there is a lawful appoint another person to carry such
claimant, the escheat other provisions of his/her will. A trust
proceedings undertaken relationship is created and the person
cannot be converted into appointed other than executor is
the settlement of estate. For called the trustee.
such proceedings (distribution
of estate of decedents) to be Trust
instituted, the proper parties  Legal relationship between a
must implead and the person having an equitable
proceedings should comply with ownership of property and
the requirements of the Rules. another person owning the
 The RTC does not have the legal title to such property
power to order or to  The equitable ownership of the
proceed with the former entitling him/her to the

Page 17 of 59
JARD NOTES
Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
performance of certain o True inventory of all the
duties and the exercise of properties of the estate
certain powers by the latter  But when the
 Express or implied trustee is
 Any conveyance of real or appointed as a
personal property shall be upon successor to prior
prior approval of the court trustee, the court
(petition-due notice-hearing) may dispense with
making and return
Appointment of Trustee of an inventory, if
 Trustee has to be appointed one has already
first by RTC of the place where been filed
will was allowed o Manage and dispose of
 If will allowed outside of the all such estate and
Philippines, RTC of the place faithfully discharge his
where the property of testator trust
or any portion thereof shall o Render upon oath a true
appoint the trustee account of the
 In the creation of express trust, properties in possession
testator omits to appoint once a year until trust is
the executor/trustee, the RTC fulfilled
will appoint a trustee after o Settle accounts in court
notice is given to all interested and pay over and deliver
parties remaining estate at the
 Trustee who derives expiration of trust
authority abroad shall still be
required to file a petition in the Removal of Trustee
RTC where the property or  Essential in the interest of
portion thereof is situated. After the persons beneficially
filing the court will give notice interested in the estate
to all interested parties before  Insane or incapable of
acting on the petition. discharging the trust
 Petition must be filed in court
Posting of Bond by persons beneficially
 Required to post a bond for the interested and after due notice
entire duration of the trust to the trustee and conduct of
o Refusal/neglect to post a hearing
bond shall bar him/her  Trustee may also resign but is
from assuming the subject to prior approval of the
obligations as such court
trustee
 Generally mandatory EXCEPT Cessation of Duties under the
when Trust
o Testator has directed  Declining appointment
in the will that a trustee  Non-posting of bond
shall assume the trust  Death
without posting a bond  Removed for cause
o All persons beneficially  After due notice to all persons
interested in the trust interested, courts may appoint
has requested for such a new trustee
exemption
 Condition of the bond Express Trust
Page 18 of 59
JARD NOTES
Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
 Trustee is appointed by will or equitable principles
other written instrument independent of the particular
 Created by the direct and intention of the parties
positive acts of the parties by  Kinds
some writing or deed, or will, or o Constructive Trust
by oral declaration, in words  Arises by
evincing an intention to operation of law
create a trust and not by
 Kinds agreement or
o Eleemosynary or intention. It arises
Charitable trust- one in order to satisfy
designed for the benefit the demands of
of a segment of the justice.
public or of the public in  Examples
general. Created for  When land
charitable, educational, passes by
social, religious, or succession
scientific purposes, or for to any
the general benefit of the person and
humanity (De Leon, he causes
2014). the legal
o Accumulation trust- title to be
one that will accumulate put in the
income to be reinvested name of
by the trustee in the trust another, a
for the period of time trust is
specified (De Leon, established
2014). by
o Spendthrift trust- one implication
established when the of law for
beneficiary need to be the benefit
protected because of his of the true
inexperience or owner (NCC,
immaturity from his Art. 1451).
imprudent, spending  If an
habits or simply because absolute
the beneficiary is conveyance
spendthrift (De Leon, of property
2014). is made in
o Sprinkling trust- one order to
that gives the trustee the secure the
right to determine the performance
income of the of an
beneficiaries who should obligation of
receive income each year the grantor
and the amount thereof toward the
(De Leon, 2014). grantee, a
trust by
Implied Trust virtue of law
 Arises by legal implication is
based on the presumed established.
intention of the parties or on If the

Page 19 of 59
JARD NOTES
Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
fulfillment of trustee of an
the implied trust
obligation is for the
offered by benefit of
the grantor the person
when it from whom
becomes the property
due, he may comes (NCC,
demand the Art. 1456)
reconveyanc (UP Law
e of the Complex,
property to pg. 96).
him (NCC, o Resulting Trust
Art. 1454).  Arises from the
 When any nature or
trustee, circumstance of
guardian or the
other person consideration
holding a involved in a
fiduciary transaction
relationship whereby one
uses trust person becomes
funds for the invested with legal
purchase of title but is
property and obligated in equity
causes the to hold his/her title
conveyance for the benefit of
to be made another
to him or to  Valuable
a third consideration and
person, a not legal title is
trust is determinative of
established equitable title or
by operation interest and is
of law in always presumed
favor of the to have been
person to contemplated by
whom the the parties
funds  Examples
belong.  When
(NCC, Art. property is
1455). sold, and the
 If property is legal estate
acquired is granted to
through one party
mistake or but the price
fraud, the is by
person another for
obtaining it the purpose
is, by force of having
of law the
considered a beneficial

Page 20 of 59
JARD NOTES
Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
interest of  If the price
the of a sale of
property. property is
The former loaned or
is the paid by one
trustee, person for
while the the benefit
latter is the of another
beneficiary. and the
However, if conveyance
the person is made to
to whom the the lender or
title is payor to
conveyed is secure the
a child, payment of
legitimate or the debt, a
illegitimate, trust arises
of the one by operation
paying the of law in
price of the favor of the
sale, no person to
trust is whom the
implied by money is
law, it being loaned or for
disputably whom it is
presumed paid. The
that there is latter may
a gift in redeem the
favor of the property and
child (NCC, compel a
Art. 1448). conveyance
 when a thereof to
donation is him (NCC,
made to a Art. 1450).
person but it
appears that
although the
legal estate
is
transmitted Chapter XII
to the Proceedings for Hospitalization of
donee, he Insane Persons
nevertheless
is either to  Secretary of Health files a
have no petition, with the assistance of
beneficial the city prosecutor, in the RTC
interest or where the person alleged
only a part insane is found if the person in
thereof charge of the insane person is
(NCC, Art. opposed to such confinement
1449).  The commitment applied for
must show:

Page 21 of 59
JARD NOTES
Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
o For the public welfare  Established by any of the
or for the welfare of the means allowed to prove filiation
insane person of a legitimate child
o And that his relatives are  Due recognition of an
unable for any reason to illegitimate child in a record of
take proper custody and birth, will, statement before a
care court or record, or in any
 The court shall make proper authentic writing is, in itself, a
provisions for the custody of consummated act of
property or money belonging acknowledgement of the child,
to the insane until a guardian and no further court action is
can be properly appointed required.
 Only the Secretary of Health  Any writing is treated not just a
who can file a petition for the ground for compulsory
release of the insane person if recognition; it is in itself
o Temporarily or voluntary recognition that does
permanently cured or not require a separate action for
o Maybe released judicial approval
without danger
Judicial Action for Recognition of
Chapter XIII Filiation
Recognition of Filiation  When voluntary recognition is
timely made, an action for its
Legitimate Children judicial declaration can
Children born or conceived while their survive the death of either
parents are legally married the parent or the legitimate
child
Illegitimate Children o When a party is so
Conceived or born outside of a valid minded as to still bring an
marriage action on the basis of
such voluntary
Proof of Filiation of a Legitimate acknowledgment, no time
Child frame for initiating it
 Record of birth (civil registry or would obviously be a
final judgment) constraint
 Admission of legitimate  When a claim for recognition is
filiation (public document or predicated on other evidence
private handwritten instrument merely tending to prove
signed by the parent paternity, judicial action
concerned) within the applicable statute
 In the absence of foregoing of limitations is essential in
evidence: order to establish the child’s
o Open and continuous acknowledgment.
possession of the status
of a legitimate child
o Other means allowed by
the Rules of Court and Voluntary Recognition
special laws  An admission of the fact of
paternity or maternity by the
Proof of Filiation of an Illegitimate presumed parent, expressed in
Child the form prescribed by the Civil
Code.

Page 22 of 59
JARD NOTES
Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
 Its essence lies in the avowal of of administration of his/her
the parent that the child is his; property or business by his/her
the formality is added to make court appointed representative,
the admission incontestable trustee, or administrator.

Compulsory Recognition Petition for declaration of absence

 Sometime also called a judicial of person
recognition  Periods observed before filiping
 Court recognition can be availed o 2 years from
of when the proof of filiation is disappearance –
through the open and without any news about
continuous status of legitimate the absentee or since the
or illegitimate filiation or receipt of last news
through other means allowed by o 5 years from absence –
the Rules of Court when absentee has left a
person in charge of the
Petition for Judicial Recognition of administration of his or
Filiation her property
 Filed in the RTC where the  Who may file petition:
child resides o Spouse present
 If legitimate child, maybe o Heirs instituted in a will
brought by the child during (present authentic copy)
his/her lifetime and shall be o Relative who would
transmitted to the heirs should succeed (intestacy)
the child die during minority or o Those who have rights
in a state of insanity. Heirs shall over property
have five years to institute (subordinated
action. conditioned on
 If illegitimate child, action absentee’s death)
must be brought within the  Declaration of absence shall not
same period as legitimate child take effect until 6 months
EXCEPT when action is based on after its publication in a
open and continuous possession newspaper of general
of the status of illegitimate child circulation designated by the
and other evidence allowed court and in the Official Gazette
under law or rules (action may
be brought only during the
lifetime of the child)

Parent of the illegitimate child Appointment of Representative of

dies during the minority of the Absentee
latter  Absent – person disappears
 Illegitimate child has the right from his/her domicile, his/her
to seek recognition for a period whereabouts being unknown,
of up to 4 years from attaining and without having left an
majority age agent to administer his/her
property or the power conferred
Chapter XIV to an agent has expired
Absentees  Filed in the RTC where the
absentee has resided before
Rule 107 confined to the declaration of his/her disappearance
absence of a person for the purpose

Page 23 of 59
JARD NOTES
Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
 Filed by any interested party,  Guardianship proceeding is
relative, or friend instituted to further the ward’s
 Who shall be representative well-being
o Spouse is preferred if no  Intended to preserve the
legal separation property as well as to render
o If absentee left no spouse any assistance that the ward
or if spouse is may require
incompetent, any  While custody involves
competent person may immediate care and control,
be appointed guardianship indicates not only
those responsibilities, but those
Grounds for Termination of of one in loco parentis as well
Administration
 Absentee personally appears Incompetent Person
(or his agent)  Person suffering from
 Death of the absentee is o Penalty if civil interdiction
proved AND testate or intestate  Civil interdiction
heirs appear shall deprive the
 Third person appears, showing offender during the
proper documents proving time of his
purchase of absentee’s sentence of the
property rights of parental
authority, or
Upon termination of administration, guardianship,
trustee or administrator shall cease in either as to the
the performance of his office and the person or property
property shall be placed at the of any ward, of
disposal of those who may have a marital authority,
right thereto. of the right to
manage his
Chapter XV property, and of
Guardianship of Incompetent the right to dispose
Persons of such property by
any act or any
 Guardianship of the person and conveyance inter
property of an incompetent vivos.
person is covered by Rule 92 to o Hospitalized lepers
97. o Prodigals
 Guardianship of minor over the  A spendthrift or
latter’s person or property is prodigal is a
now covered under a different “person who, by
rule AM 03-02-05-SC. excessive drinking,
gambling, idleness
Guardianship or debauchery of
 Trust relation between a any kind shall so
guardian and ward. spend, waste or
o Guardian – acts for lessen his estate
another as to expose
o Ward – whom the law himself or his
regards as incapable of family to want or
managing his/her own suffering”
affairs
Page 24 of 59
JARD NOTES
Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
o Deaf and dumb who can’t discretion of the court. A
read and write guardian that a court
o Unsound mind, appoints to watch after
regardless of lucid someone during a case.
intervals
o Sound mind but cannot, Appointment of Guardian
without outside aid, take  Filed or instituted
care of themselves and o If resident – RTC of the
manage their property place where incompetent
 Before a court can find that a resides
person is incompetent, the o Non-resident – RTC where
finding should be anchored on any of properties is
clear, positive, and definite situated
evidence o No court other that in
which guardian was
Guardian appointed shall have
 In the selection of guardian, the jurisdiction over the
court considers the following: guardianship
o Financial situation  Who may file
o Physical situation o Any relative
o Sound judgment o Friend
o Prudence and o Other person on behalf of
trustworthiness a resident incompetent
o Morals who has no parent
o Character and conduct  Petition for Guardianship
o Present and past history o Jurisdictional facts
o Probability of being able o Incompetency
to exercise the power and o Names, ages, and
duties of the guardian residence of the relatives
 Becomes incompetent when: of the incompetent and of
o Mental incapacity the person having him in
o Conviction of crime their care
o Moral delinquency o Probable value and
o Physical disability character of estate
preventing the proper o Name of person whom
discharge of duties letters of guardianship is
 Kinds of guardians to be issued
o General – person and  Contest of Appointment
property of the minor or o Any interested person
incompetent may, by filing a written
o Legal - both parents of opposition, o
the minor child. No o On the ground of
necessity for court competency of the
appointment. alleged incompetent or
o Ad Litem – officer of the unsuitability of the
court in a limited sense, person for whom letters
tasked to represent the of guardianship are
interest of the prayed for
incompetent or minor. o May pray that petition be
Appointment of such is dismissed or the letters
addressed to the sound of guardianship be issued

Page 25 of 59
JARD NOTES
Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
to the oppositor or to any o Property only
suitable person  Pay debts
 If the court decides to grant o If sufficient, personal
petition for guardianship estate and income of
o Issue letters of estate
guardianship o If insufficient, real estate,
o Appointed guardian must subject to court approval
first post a bond, in such  Settled accounts and demand,
sum as the court directs, sue for, and receive all debts,
subject to the following compound debts and discharge
condition: creditors (court approval)
 Submit within 3  Appear for and represent his
months a true and ward in all actions and special
complete inventory proceedings UNLESS another
of properties person be appointed
 Faithfully execute  Manage estate frugally and
the duties of without waste
his/her trust  Assent to partition of property
 Manage and (court approval)
dispose the estate
according to the Termination of Guardianship
rules and best  Incompetent becomes
interest of ward competent upon determination
 Provide proper of court
care, custody, and o Incompetent, guardian,
education relative, or firend, may
 True and just file petition
account of the o Petition shall state that
estate incompetent is then
 At the expiration of competent
trust, settle o Court shall fix a time for
accounts and hearing the questions
deliver and pay and cause reasonable
over all estate notice
 Perform all orders  Death of the ward
of the court  Guardian’s removal or allowed
to resign, upon prior of filing of
Duties and Obligations of motion
Guardian o Insanity
 Upon prior approval of court, to o Incapability of
sell, mortgage, encumber the discharging trust
property belonging to the word o Unsuitable
o when income of the o Wasted or mismanaged
estate under estate
guardianship is o Failed for 30 days after it
insufficient or for the
is due to render an
benefit of the ward
account
o Proceeds put out at
interest or invested in
some productive security
 Care and custody
o Ward and property
Page 26 of 59
JARD NOTES
Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
Chapter XVI o Minor himself if 14 years
Rule on Guardianship of Minors of age or over
o DSWD Secretary
 AM 03-02-05-SC is applicable in o DOH Secretary if insane
a suppletory character to the minor
provisions of the Family Code  Where filed
on guardianship o Resident – famil court of
province or city where
Legal Guardians minor actually resides
 Father and mother shall jointly o Non-resident – family
exercise legal guardianship court of province or city
without necessity of court where property is
appointment situated
 If market value of the property  Content of Petition
or annual income of the child o Jurisdictional facts
exceeds P50,000, parent o Name, age, and
concerned shall furnish a bond residence of ward
no less than 10% of the value of o Ground for appointment
such property or annual income
o Death of parents
 Verified petition for approval of
o Termination, deprivation,
the bond shall be filed
or suspension of parental
o Resident – family court of
authority
place where child resides
o Remarriage of minor’s
o Non-resident – family
surviving parent
court of place where any
o Name, age, and
of the properties is
residence of relatives
situated
within 4th civil degree and
o Docketed as a summary
person having custody
special proceeding
o Probable value,
 "Illegitimate children are
character, and location of
automatically under the sole
property
custody and parental authority
o Name, age, and
of the mother. The age of the
child or whether the father residence of person
expressed paternity and whom letters prayed for
consent to the child using his  Court fix a time and place for
surname doesn't matter." hearing and shall cause
reasonable notice to be given to
Appointment of Guardian persons mentioned in petition
 Order of Preference  Grounds for Appointment
o Surviving grandparent/s o Death, continued
o Older brother or sister at absence, or incapacity
o Suspension, deprivation,
least 21 years of age
o Actual custodian at least or termination of parental
authority
21 years of age
o Remarriage of surviving
o Any other person, in the
parent, if unable to
sound discretion of the
exercise parental
court
authority
 Who may file
o Best interests
o Relative
 Contest of Appointment
o Other person in behalf of
minor
Page 27 of 59
JARD NOTES
Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
o Any interested person deliver and pay
may, by filing a written over all estate
opposition, o  Perform all orders
o On the ground of alleged of the court
minor is in age of
majority or insuitability of Duties and Obligations of
the person for whom Guardian
letters of guardianship  Upon prior approval of court, to
are prayed for sell, mortgage, encumber the
o May pray that petition be property belonging to the word
dismissed or the letters o when income of the
of guardianship be issued estate under
to the oppositor or to any guardianship is
suitable person insufficient or for the
 If the court decides to grant benefit of the ward
petition o Proceeds put out at
o Issue letters of interest or invested in
guardianship some productive security
o If already final and  Care and custody
executory o Ward and property
 Annotated in civil o Property only
registry where o If non-resident minor,
minor resides management of all
 Register of deeds property in the
where property of Philippines
minor is situtated  Pay debts
o Appointed guardian must o If sufficient, personal
first post a bond, in such estate and income of
sum as the court directs, estate
subject to the following o If insufficient, real estate,
condition: subject to court approval
 Submit within 3  Settled accounts and demand,
months a true and sue for, and receive all debts,
complete inventory compound debts and discharge
of properties creditors (court approval)
 Faithfully execute  Appear for and represent his
the duties of ward in all actions and special
his/her trust proceedings UNLESS another
 Manage and person be appointed
dispose the estate  Manage estate frugally and
according to the without waste
rules and best  Assent to partition of property
interest of ward (court approval)
 Provide proper  Verified inventory within 3
care, custody, and months from appointment and
education annually thereafter
 True and just  Report property not included in
account of the inventory 3 months after such
estate discovery, succession, or
 At the expiration of acquisition
trust, settle
accounts and
Page 28 of 59
JARD NOTES
Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
 Render accounting of property 1 o Judicial declaration of
year from appointment and absence or incapacity of
annually thereafter person exercising
parental authority
Termination of Guardianship
 Guardian’s removal or allowed Suspension of Parental Authority
to resign, upon reasonable  Conviction of crime which
notice to guardian. Court would carries penalty of civil
require the surrender of interdiction
property o Authority automatically
o Insanity reinstated upon service
o Incapability of of penalty or upon pardon
discharging trust or amnesty of offender
o Unsuitable  Court action filed for the
o Wasted or mismanaged purpose
estate o Excessive harshness or
o Failed for 30 days after it cruelty
is due to render an o Giving corrupting orders,
account counsel, or example
 Ward has come of age o Compelling to beg
 Ward has died o Subjecting or allowing to
be subjected to acts of
Chapter XVII lasciviousness
Custody of Minors and Habeas o Culpable negligence
Corpus in Relation to Custody of o Sexual abuse –
Minors permanent deprival
 Suspension may be revived in a
 AM 03-04-04-SC is the case filed for the purpose or in
applicable rule with respect to the same proceeding in the
the right to gain custody of a same court if the court finds
minor that the cause therefor has
 The ones who can primarily ceased and will not be repeated
invoke the right to gain custody
over the minor are their parents Availment of Right to Gain
for they are the ones who have Custody of Minor Child
parental authority over the child  In case of separation of the
parents, parental authority shall
Termination of Parental Authority be exercised by the parent
 Death of the parents designated by the court
 Death of the child  Court shall take into account all
 Emancipation of the child relevant consideration
 Unless subsequently revived by especially the choice of the
a final judgment child over 7 years old
o Adoption of the child  If child is below 7 years,
o Appointment of a general custody is with mother (tender
guardian age presumption)
o Judicial declaration of o Exception (when
abandonment mother is…)
o Final judgment divesting  Best interest of
the party concerned of child
parental authority  Neglect
 Abandonment
Page 29 of 59
JARD NOTES
Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
 Unemployment o Respondent files answer,
 Immorality personally verified by
 Habitual him, 5 days from receipt
drunkenness of summons and copy of
 Drug addiction petition
 Maltreatment o Court may order a social
 Insanity worker to make a case
 Affliction with a study (notice of pre-trial)
communicable  Submit report and
disease recommendations
 Petition for custody of minor 3 days before
o Filed by any person scheduled trial
claiming such right o Court shall notify of pre-
through a verified trial conference within 15
petition in the family days after the filing of
court of province/city answer ir expiration of
where petitioner resides period to fila answer
or minor is found  Includes order to
o Material allegations file pre-trial brief 3
 Personal days before pre-
circumstances of trial
petitioner and o Court shall require
respondent respondent to present
 Name, age, and minor in court
present
whereabouts of Pre-Trial
minor and  Mandatory
relationship to  Party’s failure to appear:
petitioner and o If petitioner fails to
respondent appear personally, case
 Material operative shall be dismissed
facts constituting UNLESS counsel or
deprivation of representative appears in
custody court and provides valid
 Other matters excuse
relevant  Dismissal is
o Certificate against forum without prejudice.
shopping personally Petition can be re-
signed by petitioner filed.
o If sufficient in form and o Respondent filed answer
substance, issue but failed to appear,
summons and served petitioner allowed to
personally present evidence ex
o Upon receipt of motion parte
 Respondent not  Petitioner’s failure to file pre-
allowed to file MTD trial brief or comply with
unless based on required contents shall have
lack of jurisdiction same effect as failure to appear
 Grounds for in pre-trial - DISMISSED
dismissal raised as  Respondent’s failure to file pre-
affirmative defense trial brief – hearing to proceed
ex parte or court may render
Page 30 of 59
JARD NOTES
Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
judgment based on allegations  Habitual use of
in pleadings and evidences alcohol, dangerous
available drugs, or regulated
 Parties may agree on custody of substances
minor  Marital misconduct
o If parties fail, refer to  Most suitable
mediator – 5 days to environment
effect agreement  Preference of
o If not settled in minor over seven
mediation, pre-trial years old and of
conference sufficient
discernment
Provisional Reliefs  Temporary Visitation Rights
 Temporary Custody o Custodian shall give at
o Order of Preference least 5 days’ notice to
 Both parents  Plan to change
jointly minor’s residence
 Either parent  Take minor out of
 Grandparent residence for more
 Eldest brother or than 3 days,
sister (21 years or provided not
older) prejudicial to
 Actual custodian visitation rights
(21 years or older)  Hold Departure Order
 Other person or o During pendency of
institution suitable proceedings, minor child
o Court shall consider best cannot be brought out of
interest of minor country without prior
o Best interest – totality order from court
of circumstances and o Application under oath, or
conditions as are most motu propio, for issuance
congenial to the survival, of ex parte HDO
protection, and feelings addressed to Bureau of
of security of the minor Immigration and
encouraging to his/her Deportation
physical, psychological, o Family court shall furnish
and emotional Bureau of Immigration
development. and Deportation and DFA
o Other considerations of copy of hold departure
 Extrajudicial order within 24 hours
agreement from issuance through
 Desire and ability fastest means
of one parent to o Information
foster an open and  Complete name,
loving relationship date and place of
 Health, safety, and birth, nationality
welfare or minor and place of last
 History of child or residence
spousal abuse  Complete title and
 Nature and docket number
frequency of  Specific nature of
contact case
Page 31 of 59
JARD NOTES
Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
 Date of HDO  Actual and effective and not
 Recent photograph merely nominal or moral, illegal
if available restraint of liberty
o Court may recall HDO  To inquire into all manner of
motu propio or upon involuntary restrain as
verified motion after distinguished from voluntary,
summary hearing and to relieve a person
 Protection Order therefrom if such restraint is
o Stay away from home, illegal
school, business, or place  May be resorted to in cases
of employment or minor where the rightful custody of
or custodian any person is withheld from the
o Cease and desist from person entitled there to
harassing, intimidating,  Proper legal remedy to enable
or threatening parents to regain the custody of
o Refrain from acts a minor child even if the latter
creating unreasonable be in the custody of a third
risk to health, safety, or person of his/her own free will
welfare  Procedure
o Permit to visit minor at o Any person claiming right
stated period to gain custody shall file
o Permit designated party verified petition in family
to enter residence to take court where petitioner
personal belonging resides or where child is
o Comply with such orders found
o Writ issued by family
Judgment court is enforceable in
 If both parents unfit, custody the judicial region where
given by order of preference they belong
 Order requiring parents to give o May also be filed with SC,
amounts necessary for support, CA (concurrent original
maintenance, and education jurisdiction), if so
o Financial resources granted, is enforceable
o Physical and emotional anywhere in the
health Philippines
o Standard of living  Returnable to any
o Non-monetary court within judicial
region
contribution
o Upon return of writ, court
 Aggrieved party can appeal
o FIRST file MR within 15 shall decide the issue on
custody of minor
days from notice of
o Appellate court furnished
judgment
o If motion denied, 15 days copy of decision
to file notice of appeal
from receipt of denial

Habeas Corpus (in relation to

custody of minor)
 To determine whether or not a
particular person is legally held.

Page 32 of 59
JARD NOTES
Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
Chapter XVIII  When a restrains is under legal
Habeas Corpus process, mere errors and
irregularities, which do not
Habeas Corpus render the proceedings void,
 Latin term meaning “you have are not grounds for relief by
the body” habeas corpus because in such
 Object is to bring a party before cases, the restraint is not illegal
a court or judge  Is a summary remedy
 Primary function is release from  Acts upon the person who holds
unlawful imprisonment him/her in what is alleged to be
 Only issue is whether prisoner is the unlawful authority
restrained of his/her liberty by  Parties before the court
due process o Petitioner (prisoner)
 Governed by Rule 102 of the o Person holding the
Rules of Court petitioner in custody
 Civil proceeding in character  Writ may be denied if the
 Summary proceeding petitioner fails to show facts
 Seeks the enforcement of civil that he/she is entitled thereto
rights ex merito justicias
 Rule applies even when  Prerogative writ which does not
instituted to stop a criminal issue as a matter of right but in
prosecution and secure freedom the sound discretion of the
 When a prisoner petitions for a court or judge
writ of habeas corpus, he  Writ of right on proper
thereby commences a suit and formalities being made by proof
prosecutes a case in the court
 NOT Application of Writ of Habeas of
o In the nature of writ error Corpus
o A substitute for the trial  Person unlawfully denied or one
court’s function or more of his/her constitutional
o Take the place of appeal, freedoms
certiorari, or writ of error.  Denial of due process
o Be used to investigate  Retraints are not merely
and consider questions of involuntary but are also
error that may be raised unnecessary
relating to procedure or  Deprivation of freedom
on merits originally valid has later become
o Ordinarily granted where arbitrary
the law provides for other
remedies in the regular  Mere allegation of a violation of
course and in the one’s constitutional right is not
absence of exceptional sufficient.
circumstances  The violation of constitutional
o Granted in advance of right must be sufficient to void
trial the entire proceedings.
 The inquiry in a habeas corpus
proceeding is a addressed to Courts will extend scope of the
the question of whether the writ if (post-conviction remedy)
proceedings and the assailed  Deprivation of constitutional
order are for any reason null right resulting in the unlawful
and void restraint

Page 33 of 59
JARD NOTES
Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
 Court has no jurisdiction to o Place where
impose sentence imprisoned/restrained
 Excessive penalty is imposed o Copy of commitment or
and such sentence is void as to cause of detention or
the excess such fact that
imprisonment or restraint
Rules on DNA Evidence (post- is without legal authority
conviction remedy)  Where filed
 Convict can avail of the remedy o RTC where person is
of habeas corpus illegally detained, any
 Petition filed judge or justice
o Court of origin  Writ enforceable
o Court of appeals within the said
o Supreme court court’s judicial
o Member of said courts region
 May conduct a hearing or  Returnable only to
remand petition to court of said court for
origin and issue appropriate decision and
orders hearing on merits
o SC, Court of Appeals, any
Petition for Writ of Habeas Corpus judge or justice
 Applicable to (concurrent
o Illegal confinement or jurisdiction)
detention by which any  Writ enforceable
person is deprived of his anywhere in the
liberty Philippines
o Rightful custody of any  Returnable to said
person is withheld from courts or justices
the person entitled or even to the RTC
thereto for hearing and
 Who may file verified decision on the
petition merits
o Person for whose relief is o During inquest
intended proceedings?
o Other person on his/her  Prosecutor
behalf determines validity
 Material allegations of warrantless
o Fact that person is arrest and merits
imprisoned or restrained of charges
of liberty  Once turned over
o Officer or name of person to court, invalidity
by whom he/she is of court,
imprisoned  Court will determine if writ
 Unknown or should be issued
uncertain, o In case of emergency,
assumed judge may issue writ
appellation – under his/her own hand
person served with and deputize the sheriff
writ shall be or the process server of
deemed the person the court, or any
intended authorized officer to
serve
Page 34 of 59
JARD NOTES
Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
 Classifications of writ o Respo
o Preliminary Citation ndent
 Illegality of to
detention is not appea
patent r
 Judge directs before
officer concerned court
to show cause why and
a writ of habeas show
corpus should not cause
be issued Return
o Preemptory Writ of  Verified unless signed by a
Habeas Corpus public officer in his/her official
 Ground of illegality capacity
of detention is  Plainly and unequivocally state
patent the following:
 Judge commands o Fact of custody
officer concerned o Authority to restrain and
to produce the true and whole cause of
detainee before detention
the court o Not produce, nature and
 Kinds gravity of sickness or
 Public infirmity by reason of
officer which he/she cannot,
o Public without danger, be
officer brought before judge
comm o If transferred, person
anded whom such transfer was
to made and time cause and
produ authority of transfer
ce  Person is detained or restrained
before under a warrant of commitment
court pursuant to law
 Private o Return shall be
individual considered prima facie
o Comm evidence of the cause of
ands restraint
a  Person is restrained of liberty by
public a private individual
officer o Return considered only a
to plea of facts and party
have claiming custody must
body prove facts
of
restrai Court satisfied that person is
ned unlawfully restrained or
and imprisoned
broug  Order discharge
ht  Discharge not effective until
before copy of order served upon
court officer or person detaining
 If no appeal, prisoner released
Page 35 of 59
JARD NOTES
Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
o Appeal within 48 hours o MR denied, appeal to SOJ
from notice of judgement then President – review
or final order appealed under Rule 43
from o Petition for certiorari with
 Person who is set at liberty CA under Rule 65
upon a writ of HC shall not
again be imprisoned for the Chapter XIX
same offense unless by the Rule on the Writ of Amparo
lawful order or process of court
having jurisdiction of the cause Writ of Amparo
or offense  Remedy available to any person
 Person who refuses to discharge whose right to life, liberty, and
o Contempt security is violated or
o Fine of 1,000 pesos threatened with violation by an
 Person knowingly recommits, unlawful act or omission of a
imprisos, or causes to be public official or employee, or of
committed or imprisoned or a private individual or entity
knowingly aids or assists  Exercise of the court’s
o Contempt expanded power to promulgate
o Fine of 1,000 pesos rules to protect people’s
constitutional rights
Writ of HC not allowed or the  Remedies under Rule 65 and
discharge of a person detained or 102 may not be adequate to
restrained of liberty is not address the pestering problem
authorized of extralegal killings and
 Person alleged to be restrained enforced disappearances
of liberty is in custody of officer  The swiftness required to
under process issued by the resolve a petition for writ of
court or by virtue of a judgment amparo through summary
or order of a court having proceeding and the availability
jurisdiction over the case of appropriate interim and
 Initial informality or defect in permanent reliefs offer a better
the process, judgment or order remedy to extralegal killings
prior to the issuance of writ, and and enforced disappearances
later on the court acquires and threats thereof
jurisdiction after the writ is  Provides rapid judicial relief as it
issued partakes of a summary
 Person charged with, much proceeding that requires only
more convicted, of an offense substantial evidence to make
punishable by law in the the appropriate reliefs available
Philippines to the petitioner
o Once a person is duly  Not an action to determine
charged in court, he/she criminal liability, liability for
may no longer question damages, or administrative
nhis detention – remedy liability.
is to quash the  Serves both preventive and
information and/or the curative roles
warrant of arrest o Preventive – breaks
 Deportation proceedings expectation of impunity
o File an MR o Curative – facilitates the
subsequent punishment
of perpetrators
Page 36 of 59
JARD NOTES
Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
 Exclusive and successive order
Extralegal Killings is mandatory
 Killing committed without due o To prevent indiscriminate
process of law and groundless filing of
petitions for amparo
Enforced Disappearance  Filed at any time day and any
 Arrest, detention, or abduction time
of a person by a government o RTC of place where
official or organized groups or threat, act, or omission
private individuals acting with was committed or any of
direct or indirect acquiescence its elements occurred
of the government o Sandiganbayan, Any
 Refusal of the State to disclose justice of such courts
the fate or whereabouts of the o CA, Any justice of such
person concerned courts
 Refusal to acknowledge the o SC, Any justice of such
deprivation of liberty which courts
places such persons outside the  Not required to pay docket and
protection of law other lawful fees
 Court, justice, or judge shall
Protective Writ of Amparo to docket the petition and act
Issues in Enforced Disappearances upon it immediately
 Substantial evidence to
prove Petition
o Disappearance was  Signed and verified
carried out by or with the  Material facts
authorization, support or o Personal circumstances
acquiescence of the of petitioner
government or a political o Name and personal
organization circumstance of
 Private individual respondent or assumed
or entity – appellation
government o Right to life, liberty, or
involvement is security violated or
indispensable threatened and how
o Refusal to acknowledge committed
the same or give o Investigation conducted
information on the fate or and manner and conduct
whereabouts of investigation, together
 Who may file with any report
o Members of immediate o Actions and recourse
family taken by petitioner
o Relative within fourth civil o Relief prayed for
degree o General prayer for other
o Concerned citizen,
just and equitable reliefs
organization, association  After filing, judge makes
or institution – no known immediate evaluation of facts
member of immediate as alleged in the petition and
family or relative affidavits submitted
 Filing of authorized party
suspends the right of all others After Evaluation
 Issue writ of amparo
Page 37 of 59
JARD NOTES
Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
o Sets in motion the life, liberty, or security is
presumptive judicial under threat
protection for the o Acts complained of are
petitioner not unlawful
o Court compels
respondents to appear Return
before a court of law to  Within 5 working days after
show whether the service of writ
grounds for more  Verified together with
permanent protection supporting affidavits
and interim reliefs are  Material facts
necessary o Lawful defenses
o Clerk of court shall issue  All defenses shall
with under seal of court be raised,
o Urgent necessity – judge otherwise deemed
issues writ under his or waived
her own hand, deputizing o Steps or actions take to
any person or officer to determine fate or
serve it whereabouts
o Sets the date and time o All relevant information
for hearing – not later o Public official or
than 7 days from date of employee, actions taken
issuance  To verify identity of
o Enforceable anywhere aggrieved party
o Where returnable  To recover and
 Issued by RTC preserve evidence
 before such  To identify witness
court or and obtain
judge statements
 Sandiganbayan,  To determine the
CA, or any justices cause, manner,
 Court or location, and time
justice of death or
 RTC of place disappearance
where threat  To identify and
or act or apprehend
element person/s involved
committed  To bring suspected
 SC or any justices offender/s before a
 Court or competent court
justice o Other matters relevant to
 Sandiganbay investigation, resolution,
an, CA, or and prosecution
any justices  Period to file return cannot be
 RTC of place extended EXCEPT on highly
where threat meritorious ground
or act or  Return serves as the responsive
element pleading
committed  Failure to file return
 Dismissal o Proceed to hearing ex
o Petition does not show parted
that petitioner’s right to o Contempt
Page 38 of 59
JARD NOTES
Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
o Imprisonment and/or fine o Supported by affidavits or
testimonies
Prohibited motions and pleadings o If opposed on the ground
 Dismiss of national security or
 Extension of time to file privileged nature, hearing
 Dilatory motion for in chambers to determine
postponement merit
 Bill of particulars o Expires 5 days after
 Counterclaim or cross-claim issuance unless extended
 Third-party complaint for justifiable reasons
 Reply  Production order
 Declare respondent in default o Produce and permit
 Intervention inspection, copying, or
 Memorandum photographing
 Reconsideration of interlocutory o If opposed on the ground
orders or interim relief orders of national security or
 Certiorari, mandamus, or privileged nature, hearing
prohibition against any in chambers to determine
interlocutory order merit
 Witness Protection Order
Proceeding o Refer witnesses to DOJ
 Preliminary conference to for admission to the
simplify issues and determine Witness Protection
possibility of obtaining Security and Benefit
stipulations and admissions Program (RA 6981)
 Hearing shall be from day to o Refer to other agency or
day until completed and given institutions for security
the same priority as petitions
for habeas corpus Provisional Remedies
 Petitioner must establish claim (respondent)
by substantial evidence  Inspection order
 Judgment within 10 days from  Protection order
time petition submitted for  Obtained upon verified motion
decision and after due hearing
Provisional Remedies (petitioner) Quantum of Proof
 Temporary Protection Order  Substantial Evidence
o Protected in a o Relevant evidence which
government agency or by a reasonable mind might
an accredited person or accept as adequate to
private institution support a conclusion
capable of keeping and  New standard of relaxed
securing their safety admissibility
 Inspection Order o Consider all pieces of
o Permit entry for the evidence adduced in their
purpose of inspecting, totality and any evidence
measuring, surveying, or otherwise inadmissible
photographing property under usual rules should
or any relevant object or be admissible if
operation consistent with the
o State in details places to admissible evidence
be inspected adduced
Page 39 of 59
JARD NOTES
Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
o Criminal action, or
Respondents criminal action and
 Private separate civil action filed
o Prove ordinary diligence subsequent to filing writ
observe in performance of amparo, latter shall be
of duty consolidated
 Public o Criminal action
o Extraordinary diligence commenced, no separate
o Cannot invoke the petition for writ shall be
presumption that official filed. Relief under writ
duty has been regularly shall be availed by
performed to evade motion in criminal cases
responsibility or liability
Chapter XX
Privilege of Writ of Amparo Rule on the Writ of Habeas Data
 Judgment
 Availment of the entire Writ of Habeas Data
procedure outlined in AM 07-9-  Independent and summary
12-SC remedy designed to protect the
 Judgment should detail the image, privacy, honor,
required acts from the information, and freedom of
respondents that will mitigate, if information of an individual, and
not totally eradicate, the to provide a forum to enforce
violation of or the threat to the one’s right to the truth and to
petitioner’s life liberty or informational privacy
security  Available to any person whose
 Judgment which simply grants right to privacy in life, liberty or
the privilege cannot be security is violated or
executed threatened by an unlawful act
 Remedy is to appeal to SC or omission of a public official or
under Rule 45 5 days from date employee, or of a private
of notice of adverse judgment individual or entity engaged in
o Rule 45 – question of the gathering, collecting or
fact, law, or both storing of data or information
 There is nothing in AM 07-9-12- regarding the person, family,
SC proscribing the filing of a home and correspondence of
motion for reconsideration of the aggrieved party
the final judgment or order that  Not confined to extralegal
grants or denies a writ of killings and enforced
amparo disappearance
 Designed to safeguard
Writ of Amparo individual freedom from abuse
 Order to file a return within 5 in the information age
days from receipt  Remedies
 Date and time of summary o Updating
hearing, not later than 7 days o Rectification
from issuance o Suppression
 Filing of petition shall not o Destruction
preclude filing separate  Availment of writ requires
criminal, civil, or administrative existence of nexus between the
actions right to privacy on one hand

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JARD NOTES
Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
and the right to life, liberty, or o Issued by clerk with seal
security on the other of court served within 3
 Not available as a remedy just days from issuance
to protect purely property or o Urgent necessity – judge
commercial concerns, nor when or justice under his/her
the grounds invoked in support own hand and deputize
of the petitions therefor are officer to serve
vague or doubtful  Writ shall also contain date and
time of summary hearing not
Private Individual – Respondent later than 10 working days from
 Engaged in the gathering, date of issuance. Enforceable
collecting, or storing of data or anywhere in the Philippines
information regarding the o Issued by RTC
person, family, home and  before such court
correspondence of the or judge
aggrieved party o Sandiganbayan, CA, or
 Engaged – to do or take part in any justices
something  Court or justice
 RTC where
Proceeding petitioner or
 Who may file (in case of respondent resides
extra-legal killing and  RTC where data or
enforced disappearances) information is
o Aggrieved party gathered,
o Members of immediate collected, or stored
family o SC or any justices
o Relative within fourth civil  Court or justice
degree  CA, Sandiganbayan
 Where filed  RTC where
o RTC where petitioner or petitioner or
respondent resides respondent resides
o RTC where data or  RTC where data or
information is gathered, information is
collected, or stored gathered,
o Public data files of collected, or stored
government offices - SC,  Upon receipt, Respondent
CA, Sandiganbayan required to file return
 Required to pay docket and o Verified return with
other lawful fees, except when supporting affidavits
indigent o Within 5 working days
o Proof of indigency may from service of writ, may
be submitted not later be reasonably extended
than 15 days from filing for justifiable reasons
 Allegations in petition must be o Fails to file return,
supported by substantial hearing ex parte
evidence showing an actual or  Imprisonment or
threatened violation of the right fine
to privacy in life, liberty, or  Hearing is summary in nature
security
 Upon filing, immediately order Prohibited motions and pleadings
issuance of writ if on its face it  Dismiss
ought to be issued  Extension of time to file
Page 41 of 59
JARD NOTES
Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
 Dilatory motion for  Copies served
postponement  How judgement
 Bill of particulars enforced and
 Counterclaim or cross-claim complied with
 Third-party complaint  Objections of
 Reply parties regarding
 Declare respondent in default manner and
 Intervention regularity
 Memorandum  Court shall set return for
 Reconsideration of interlocutory hearing with due notice to
orders or interim relief orders parties
 Certiorari, mandamus, or  Does not preclude filing of other
prohibition against any actions in court
interlocutory order
Chapter XXI
Proceedings Domestic Adoption
 Hearing in chambers may be
conducted where the Adoption
respondent invokes national  Process of making a child,
security or state secrets or whether related or not to the
privileged character adopter, possess in general the
 Preliminary conference rights accorded to a legitimate
 Judgment within 10 days after child
submitted for decision  It is a juridical act proceeding in
o Deletion rem.
o Destruction  Not merely an act to establish a
o Rectification relationship of paternity and
o Other relevant reliefs filiation, but also as an act
 Does not entail any finding of which endows the child with a
civil, criminal, or administrative legitimate status
liability  Philosophy is to promote the
 3 Rulings - If allegations welfare of the child
proven by substantial evidence  AM 02-6-02-SC - The best
o Grant access to database interest of the child shall be the
or information paramount consideration in all
o Enjoin act complained matters relating to his care,
o Order deletion, custody, and adoption
destruction or  Domestic Adoption
rectification  objectives
 Appeal to SC under Rule 45
within 5 working days from date Domestic Adoption
of notice  Persons Qualified to Adopt –
 Upon finality, enforced within 5 qualifications proved with
working days evidence
 Officer who shall execute o Filipino Citizen
judgment  Legal age
o Return within 3 days from  Full civil capacity
enforcement and legal rights
 Full statement of  Good moral
proceedings character
 Complete
inventory
Page 42 of 59
JARD NOTES
Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
 Not convicted of  Foreign
crime involving government allows
moral turpitude adoptee to enter
 Emotionally and country as adopted
psychologically child
capable of caring  Residency and
for children Certification
 16 years older than requirement
adoptee WAIVED
 Waived  Former
when Filipino
adopter is citizen
biological adopting
parent of relative
adoptee or within 4th
spouse of degree of
adoptee’s consanguinit
biological y or affinity
parent  Adoption of
 In a position to legitimate
support and care in child of
keeping with the Filipino
means of the spouse
family  One married
o Alien to a Filipino
 Same citizen and
requirements as adopts
Filipino Citizen jointly a
 Foreign country relative
has diplomatic within 4th
relations with the degree of
Philippines consanguinit
 Living in the y or affinity
Philippines for at o Guardian
least 3 continuous  Ward
years prior to filing  After termination
of petition of guardianship
 Maintains such  Clearance of
residence until financial
adoption decree is accountabilities
entered  Who may be adopted 18-
 Certified to LILAD
possess legal o Person below 18 years of
capacity to adopt age who has been
in his/her country voluntarily committed to
 Diplomatic/ the DSWD (Article 154-
consular 156 of PD 603) or
office judicially declared
 Any available for adoption
appropriate o Legitimate child of one
government spouse
office

Page 43 of 59
JARD NOTES
Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
o Illegitimate child by him/her, 10 years
qualified adopter - or older
consent  Spouse of adopter
o Person of Legal age or adoptee
regardless of civil status o Where filed
consistently considered  Family court of
and treated by adopter province or city
as own child since where prospective
minority adoptive parents
o Adoption previously reside
rescinded o Court issues order setting
o Biological or adoptive hearing
parents have died  Notice sent to
 No proceeding  OSG
shall be initiated  City or
within 6 months provincial
from time of death prosecutor
o Child not disqualified by of court
law or rules where case
 Petition for Adoption filed
o Husband and wife shall  DSWD
file jointly EXCEPT  Interested
 One spouse adopts person
legitimate child of  Published once a
other spouse week for 3
 Spouse adopts own consecutive weeks
illegitimate child o Who Testifies
and other spouse  Interested persons
consented  Those who
 Spouses legally consented – if no
separated testification,
o Affidavit of Consent hearsay
 Adoptee 10 years  Court grants petition and no
or older appeal made
 Biological parents o Decision final after 15
if known, legal days from receipt –
guardian, or child- certificate of finality
placement agency, o Certificate of live birth is
child-caring changed – after issuance
agency, or proper of decree
government o Court will not yet issue
instrumentality decree of adoption –
having legal court will issue an order
custody of child for a supervised trial
 Legitimate and custody
adopted children of  Supervised Trial Custody
adopter and of o After judgment but
adoptee, 10 years before issuance of decree
or older of adoption
 Illegitimate child of o Trial custody for at least
adopter living with six months

Page 44 of 59
JARD NOTES
Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
o Monitored by court social o It is important to take
worker, DSWD, or social note that the decree
service of LGU, or the becomes effective upon
child-placement/caring filing of the Petition of
agency Adoption. This completes
o Temporary parental the process of adoption
authority vested as the petitioner can now
o EXCEPT legally refer to the
 Motu propio or adoptee as his or her own
upon motion of child.
party, period of o Public document required
trial custody be to be entered into the
reduced or public records
exempted for best  Local civil
interest of the registrar’s office
adoptee stating  Court which
reasons rendered judgment
 Adoption Decree o Cannot be collaterally
o There will also be an attacked
amended certificate of o Mere imputation or
birth issued by the Civil irregularities will not cast
Registry. This reinforces a cloud of doubt on the
the petitioner's claim to adoption decree
the adoptee by o Certification and contents
registering the child with are presumed valid until
a new surname. The proof to the contrary is
previous birth certificate offered
will also be cancelled and o Contrary proof can only
stamped appropriately. be presented in a
o will also contain the new separate action brought
name of the child. With principally for the
the decree also comes purpose of nullifying
the following, a certificate  Effects
of finality to be issued by o Sever all legal ties
the Clerk of Court after between biological
the closure of the 15-day parents and adoptee
appeal period and a  Except when a
certified true copy of the biological parent is
adoption decree to be a spouse of
submitted by the adopter adopter
to the Civil Registrar o Deem adoptee as legal
within 30 days of the child
issuance of the certificate o Reciprocal rights and
of finality. The Civil obligations arising from
Registrar, after making the relationship of parent
the proper annotations to and child
the decree of adoption,  Choose name child
must then seal away the is to be known
adoptee's original birth  Right to be legal
certificate, replacing it and compulsory
with a new birth heirs
certificate.[19] o Rights of legitimate child
Page 45 of 59
JARD NOTES
Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
 Bear surname of  Name of the
the father adoptee as
 Natural and recorded in the
necessary civil register should
consequenc be used in the
e of a grant adoption
of adoption proceedings in
and must order to vest the
specifically court with
be contained jurisdiction
in the order  Change cannot be
of the court authorized without
even if not a judicial order
prayed for
 Receive support Rescission of Adoption
 Legitime and other  Adoptee can rescind adoption
successional rights  Adopter may however disinherit
o Rights of Adoptive adoptee for cause provided in
Parents Article 919 of Civil Code
 All rights of  Verified Petition
biological parents o Filed a family court of city
o Can adoptee use or province where
surname of his/her adoptee resides
natural mother as o Adoptee 18 years older
his/her middle name? o With assistance of DSWD
 YES. Although if below 18
there is no law o above 18 but
allowing, there is incapacitated, by
no law prohibiting guardian/counsel
either.  within 5 years after
 Adoption statutes reaching age of
being humane and majority or after
salutary should be recovery from
liberally construed incompetency
to carry out the  Grounds R-AL-S-Ab-FC
beneficent purpose o Repeated physical and
of adoption verbal maltreatment
o Petitioner cannot despite having
automatically change the counselling
first name of the o Attempt on life
prospective adoptee in an o Sexual assault or
adoption proceeding violence
 Creation of o Abandonment
adoptive o Failure to comply with
relationship does parental obligations
not confer upon
the adopter a Chapter XXII
license to change Inter-Country Adoption
the adoptee’s
registered Qualifications of any foreign
Christian or first national or Filipino citizen
name permanently residing abroad
Page 46 of 59
JARD NOTES
Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
 At least 27 years old and 16
years older than adoptee at  Rule 103 covers grounds and legal
time of application requirements for change of family
o UNLESS petitioner is name.
parent by nature of child  Article 412, NCC – No entry in a
or spouse of such parent civil register shall be changed or
 If married, name of spouse must corrected, without a judicial order.
be joined as co-petitioner
o EXCEPT when adoptee is Name
a legitimate child of  Designation by which a person is
spouse known and called in the community
 Capacity to act and assume all living in and is best known
rights and responsibilities of  Word or combination of words
parental authority which a person is distinguished
 Appropriate counselling from an from other individuals
accredited counselor  Label or appellation which is born
 Not convicted of crime involving for the convenience of the world at
moral turpitude large
 Eligible to adopt under their  Used merely as one method of
national law indicating the identity of persons
 Can provide proper care and o Identity is the essential thing
support and instill necessary o When identity is certain, a
moral value and example variance in, or misspelling
 Agrees to uphold basic rights of of, the name is immaterial
child
 Abide by rules and regulations Given or Proper Name
issue to implement RA 8043  Given at birth or baptism to
 Philippines has diplomatic distinguish from other individuals
relations and government  May be freely selected by the
maintains a similarly authorized parents
and accredited agency
 Adoption of Filipino child is Name or Family Name
allowed  Identifies to which family individual
 Possesses all qualifications and belongs
none of the disqualifications  Continued from parent to child
under RA8043  Fixed by law

Only child legally available for Characteristics of Name of a

domestic adoption may be subject of Person
inter-country adoption  Absolute, to protect individual from
being confused with others
Petition must be filed a family court  Obligatory in certain respects
having jurisdiction over place where  Fixed, unchangeable, or
child resides or may be found. immutable, at least at the start
o May be changed only for
If court finds petition sufficient in form good cause and by judicial
and substance, court will immediately proceedings
transmit petition to the Inter Country  Outside the commerce of man,
Adoption board for action. inalienable and untransmissible
 Imprescriptible
Chapter XXIII
Change of Name Petition to Change Surname
Page 47 of 59
JARD NOTES
Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
 Any person can file, it is a legal one’s existing family relations
requirement that the person or in the rights and duties
who wants to have his/her name flowing therefrom
changed shall be the one to file  It does not alter one’s legal
the petition capacity or status
 Filed at RTC of province/city  Change applied for may be
where petitioner is resident for open to objection by parties
last 3 years prior to date of who already bear the surname
filing desired – existence of such ties
 Purely personal, cannot be filed might be erroneously impressed
by a parent’s minor or other on the public mind
persons in the name of the
parent or such other persons Requirements to justify a request
 The name of the petitioner shall for change of name
be included in the title of the  Proper and compelling reason
petition  Proof that the person requesting
o Failure to include the will be prejudiced by use of
name sought to be official name
adopted in the title of the  Adversarial proceedings
petition and in the
notices published is a Material allegations in petition for
substantial judicial change of name
infirmity – the court will  Petitioner is bona fide resident
be precluded from of province /city where petition
obtaining jurisdiction is filed for at least 3 years prior
 Action in rem to date of filing
 Publication of the order issued  Cause for change
is required  Name asked for
o Brings in the whole world
as a party in the case and Grounds for Change of Name
vests the court with 1. Ridiculous, dishonorable, or
jurisdiction to hear and extremely difficult to write or
decide it pronounce
 Not a mere matter of allowance 2. Change as a result of legal
or disallowance of a request but consequence (ex. Legitimation)
a judicious evaluation of the 3. To avoid confusion
sufficiency and propriety of the 4. Continuous use since childhood
justifications advanced, mindful of Filipino name, unaware of
of the consequent results in the alien parentage
event of its grant 5. Sincere desire to adopt Filipino
 Heard in an adversarial name to erase signs of former
proceeding alienage, all in good faith
without prejudicing anybody
Why is judicial authorization
required for a change of surname Adversarial Proceeding
under Rule 103?  Question of proper and
 To prevent fraud and allow reasonable cause is left to the
other parties, who may be sound discretion of the court
affected by change of name, to  Evidence need only be
oppose the matter satisfactory
 Change of name does not  Involved judicious evaluation of
define or effect a change of the sufficiency and propriety of

Page 48 of 59
JARD NOTES
Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
the justifications advanced, 2. First name or nickname
mindful of the consequent 3. Day and month of birth
results, and with the sole 4. Sex of a person
prerogative of making such  Patently clear there was
determination lodged in courts a clerical or typographical
error or mistake in the
Should a woman whose marriage entry
was previously annulled or
declared a nullity, file a petition Petition for Correction
to revert back to using her  Filed by any person having
maiden name? direct and personal interest in
 No. when the marriage ties or the correction
vinculum no longer exists, the  Filed with the local civil registry
widow or divorcee need to not office of the city or municipality
seek judicial confirmation of the where record is kept
change in her civil status in o If petitioner has already
order to revert to her maiden migrated to another
name as the use of her former place in the country and
husband’s name is optional and it would not be practical
not obligatory to her. for such party – filed with
 Onerous requirements of Rule local civil registrar of
103 on change of name should place where interested
not be applied to judicial party is presently
confirmation of the right of a residing or domiciled
divorced woman, or whose  Two local civil
marriage was annulled or registrars will
declared a nullity, to resume communicate and
her maiden name and surname. facilitate
processing of
Chapter XXIV petition
Change of Name(RA 9048 as o If petitioner is citizen
amended by RA 10172) residing or domiciled in
foreign countries – file
Cases that can be corrected or with neareast Philippine
changed by the concerned city or consulates
municipal civil registrar or
consular general under RA 9048 Grounds for allowance of change
1. Clerical or typographical errors of first name or nickname (RA
 Mistake committed in the 9048)
performance of clerical 1. Ridiculous, tainted with
work, harmless and dishonor, or extremely difficult
innocuous, visible to the to write or pronounce
eyes or obvious to the 2. New name/nickname habitually
understanding, and can and continuously used and has
be corrected or changed been publicly known by such
only by reference to name/nickname
other existing record or 3. To avoid confusion
records
 NO correction must Is sex reassignment a ground for
involve the change of change of first name under RA
nationality, age, or status 9048?
of the petitioner

Page 49 of 59
JARD NOTES
Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
 Law does not sanction a change o Civil registrar
of first name on the ground of o Person who have or claim
sex reassignment any intertest who would
 No correction, much less be affected
change of first name, shall be
made on the nationality, age, Entries that are subject to
status, or sex of a person cancellation or correction
 Such change is not a mere 1. Birth
clerical or typographical error 2. Marriages
 Sex reassignment is a 3. Deaths
substantial change for which 4. Legal separations
the applicable provision is Rule 5. Judgment of annulment of
108 marriage
 No such special law in the 6. Legal separation
Philippines governing sex 7. Judgment declaring marriage
reassignment and its effects void ab initio
8. Legitimation
Can a court grant the petition for 9. Adoption
change of first name under RA 9048 [Link]
by a person who is suffering from [Link], loss, or recovery of
congenital adrenal hyperplasia? citizenship
(Silverio v Republic) [Link] interdiction
 YES. CAH causes the early or [Link] determination of filiation
inappropriate appearance of
male characteristics. Is sex reassignment a ground for
 Where the person is biologically correction of entries under Rule
or naturally intersex, the 108? – NO (Silverio v Republic)
determining factor in his/her  No reasonable interpretation of
gender classification would be the provision can justify the
what the individual, having conclusion that it covers the
reached the age of majority, correction on the ground of sex
with good reason, thinks of reassignment
his/her sex. o To correct – to make or
set right or to remove
Chapter XXV faults or error
Cancellation or Correction of o To change – to replace
Entries (Rule 108) something with
something else
Petition for cancellation or  Sex reassignment is not an act,
correction of entry event, or judicial decree that
 Filed by any person interested produces legal consequences
in any act, event, order, or that touch upon the legal
decree concerning the civil capacity, status, and nationality
status of persons, recorded in of a person
the civil register  No special law in the Philippines
 Filed with the RTC of province governing sex reassignment
or city where corresponding civil and its effects
registry is located o Article 412, NCC – all
 No entry in a civil register shall other matters pertaining
be changed or corrected, to the registration of civil
without a judicial order status shall be governed
 Parties included in the petition by special laws
Page 50 of 59
JARD NOTES
Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
 Since there is no law legally into and the person who is
recognizing sex reassignment, presumably married is not even
the determination of a person’s aware of such existence
sex made at the time of his or
her birth, if no attended by Chapter XXVI
error, is immutable Special Rules of Procedure on
o Birth certificate – a Declaration of Absolute Nullity of
historical record of the Void Marriage and Annulment of
facts as they existed at Voidable Marriages (AM 02-11-10-
the time of birth SC)

Can a court grant the petition for Petition for Declaration of Nullity
correction or cancellation of of Void Marriage
entries under Rule 108 by a  Who may file
person who is suffering from CAH? o Filed solely by the
-YES (Republic v Cagandahan) husband or wife
 Where the person is biologically o EXCEPTION- a spouse in
or naturally intersex, the a subsisting marriage can
determining factor in his/her file a petition for the
gender classification would be declaration of nullity of a
what the individual, having subsequent bigamous
reached the age of majority, marriage
with good reason, thinks of  Prior spouse has a
his/her sex. personal and
 Both harmless errors and material interest in
substantial or controversial maintain the
errors in the civil registry are integrity of the
allowable in an action filed marriage he
under this Rule as long as the contracted in the
issues are properly threshed out property relations
in appropriate adversarial arising from it
proceedings  Interest in the
cancellation of an
Can a marriage of the parties be entry of a
invalidated by resorting to the bigamous marriage
filing of petition under Rule 108? - in the civil registry
NO (Republic v Olaybar)  Property rights are
 A petition for correction or already
cancellation of an entry in the substantive rights
civil registry cannot substitute protected by the
for an action to invalidate Constitution, but a
marriage spouse’s right in a
 Direct action is necessary marriage extends
o Limited grounds for further to relational
dissolution rights recognized
o Support pendente lite under Title III of
o Liquidation, partition, and the Family Code
distribution of properties  Where filed
o Investigation of the public o RESIDENT – Family Court
prosecutor where petitioner or
 HOWEVER it is different where respondent lives for at
no marriage at all was entered least 6 months upon filing
Page 51 of 59
JARD NOTES
Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
o NON-RESIDENT  Between
(wherever he or she may ascendants and
be found in the descendants
Philippines) – election of  Brothers and
the petitioner sisters
o Public policy
Grounds for Declaration of  Between collateral
Marriage as Null and Void Ab blood relatives up
Initio to 4th civil degree
 Article 35  Step-parents and
o Contracted by any party step-children
below 18 years of age,  Parents-in-law and
regardless of consent of children-in-law
parents/guardians  Adopting parent
o Solemnized by person not and adopted child
legally authorized to  Surviving spouse
perform marriages of the adopting
 UNLESS marriage parent and the
was contracted adopted child
believing in good  Surviving spouse
faith that the of the adopted
solemnizing officer child and the
had legal authority adopter
o Solemnized without  Adopted child and
license legitimate child of
 EXCEPT those adopter
covered by  Adopted children
preceding chapter  One, with the
o Bigamous or polygamous intention to marry
marriage not falling the other, killed
under Article 41 the other person’s
o Contracted to mistake as spouse, or his or
to identity her own spouse
o Subsequent marriages
that are void under How can the court ascertain that the
Article 53 petitioner is indeed residing in the
 Article 36 place where the petition is filed for a
o Marriage contacted by required number of time?
any party who, at the  Sworn certification of residency
time of the celebration, (with house location sketch)
was psychologically issued by barangay
incapacitated to comply  Sworn statement of counsel or
with the essential marital record that he/she personally
obligations of marriage verified petitioner’s residency
o Marriage shall likewise be  Supporting documents
o Utility bills
void even if such
incapacity becomes o Government-issued ID or
manifest only after its company ID
solemnization o Notarized lease contract
 Article 37 and/or receipts for rental
o Incestuous payment

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JARD NOTES
Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
o TCT, tax declaration, or incapable of
deed of sale consummating the
marriage with the other
Petition for Annulment of Marriage and such incapability
 Who may file continues and appears to
o Contracting party whose be incurable, 5 years
parent or guardian did after marriage
not give consent, within o Injured party where the
five year after attaining other party was afflicted
the age of 21 with STD found to be
 UNLESS after serious and appears to be
attaining age of incurable, 5 years after
21, such party celebration of marriage
freely cohabitated  Where filed
with spouse o RESIDENT – Family Court
o Parent or guardian of where petitioner or
other party, before respondent lives for at
reaching age of 21 least 6 months upon filing
o Sane spouse who had no o NON-RESIDENT
knowledge or by any (wherever he or she may
relative at anytime be found in the
before death of either Philippines) – election of
party the petitioner
o Insane spouse during  Court shall order service of
lucid interval or after summons
regaining sanity o Where respondent cannot
 UNLESS after be located or
coming to reason, whereabouts unknown
freely cohabitated and cannot be
with spouse ascertained by diligent
o Injured party whose inquiry
consent was obtained by  Publication once a
faraud, within 5 years week for two
after discovery consecutive weeks
 UNLESS with full in a newspaper of
knowledge of general circulation
fraud, freely in the Philippines
cohabitated with and in such places
spouse where the court
o Injured party whose may order
consent was obtained by  Copy served on the
force, intimidation, or respondent at last
undue influence within 5 known address by
years from time such registered mail or
disappeared or ceased any other means
 UNLESS after such the court may
disappeared or deem sufficient
ceased, freely o Data included in
cohabitated with summons
spouse  Title of case
o Injured party whose  Docket number
spouse is physically  Nature of petition
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JARD NOTES
Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
 Principal grounds o Respondent fails to file an
and reliefs prayed answer or answer does
for not tender an issue
 Directive to answer o Respondent fails to
within 30 days appear during pre-trial
from last issue of conference
publication o Respondent fails to file
 No motion to dismiss the pre-trial brief
petition shall be allowed  Trial
o EXCEPT on the ground of  Case submitted for decision
lack of jurisdiction over  Court issues decision
the subject matter or the o Aggrieved party first files
parties an MR
o Any other ground that o MR denied, file notice of
might warrant a dismissal appeal
of the case may be raised  Decision becomes final and
as an affirmative defense executory, issuance of
in an answer certificate of finality or entry of
 Answer judgment
o Filed within 15 days from  Decree of Nullity or Annulment
service of summons OR of Marriage issued after
within 30 days from last compliance of the following
issue of publication in o Registration of entry of
case of service of judgment in civil registry
summons by publication where marriage
o Must be verified by the celebrated and in civil
respondent and NOT by registry where family
counsel or attorney-in- court is located
fact o Registration of approved
 Pre-trial is mandatory partition and distribution
o On motion or motu of properties in register
propio, pre-trial is set of deeds
after last pleading has o Delivery of children’s
been served and filed or presumptive legitimes
upon receipt of the report o Compliance must be
of non-collusion made by reported to court within
the public prosecutor 30 days from receipt of
o Petitioner’s failure to copy of decree
appear personally – o In case service of
dismissal without summons made by
prejudice publication, publish
 UNLESS counsel or decree once in a
representative newspaper of general
appears and circulation
provides valid
excuse What is the importance of the decree
 Failure to file pre- of nullity or annulment of marriage?
trial brief is  Best evidence to prove the
equivalent to declaration of absolute nullity or
failure to appear annulment of marriage
 Non-collusion investigation –  Notice to third persons
upon order of the court
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JARD NOTES
Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
Death of party  Prohibited motion – same as
 At any stage of proceeding declaration of nullity
before entry of judgement –  Answer – same as declaration of
closed and terminated without nullity
prejudice to settlement o Failure of respondent to
 After entry of judgement of file answer – court shall
nullity or annulment – judgment order prosecutor to
binding upon the parties and investigate for collusion
successors in interest in within 1 month after
settlement of estate receipt of order
 Collusion exists,
Chapter XXVII state basis
Rule on Legal Separation (AM 02-  Parties shall
11-11-SC) file
comments
Petition for Legal Separation within 10
 Filed by husband or wife days from
 Within 5 years from the time of receipt of
occurrence of the following: report
o Repeated physical  Court then
violence or grossly sets hearing
abusive conduct  Dismissed if
o Physical violence or court
moral pressure to change convinced
religious or political  No collusion, court
affiliation shall set pre-trial
o Attempt of respondent to  Public
corrupt or induce to prosecutor
engage in prostitution or appears for
connivance in such state
corruption or inducement  No earlier
o Final judgment than 6
sentencing imprisonment months from
of more than 6 years date of filing
even if pardoned of petition
o Drug addiction or  Pre-trial
habitual alcoholism o Notice of pre-trial
o Lesbianism or  Date of pre-trial
homosexuality conference
o Contracting subsequent  Order to file pre-
bigamous marriage trial briefs 3 days
o Sexual infidelity or before pre-trial
perversion  Sent to respondent
o Attempt on life even if failed to
o Abdandoment without answer
 In case of
justifiable cause for more
summons by
than 1 year
publication and
 Proof of residence – same as
failed to file
declaration of nullity
answer, notice sent
 Service – same as declaration of
to last known
nullity
address

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JARD NOTES
Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
o parties shall personally o Action barred by
appear prescription
 failure to appear  Grant of petition
by petitioner – o Decree of legal
dismissed UNLESS separation issued after
counsel or full compliance with
representative liquidation
provides valid  In the absence of
excuse property, court
 respondent filed shall forthwith
answer but failed issue a decree
to appear – pre-  Decree registered
trial proceed in civil registry
 public where marriage
prosecutor celebrated and
to civil registry of
investigate family court
non- o Declarations
appearance  Spouses entitled to
within 15 live separately but
days marriage bond not
o no severed
collusi  Obligation of
on – mutual support
trial between the
on spouses ceases
merits  Offending spouse
o failure to file pre-trial is disqualified from
brief or to comply with inheriting from
required contents shall innocent spouse.
have effect as a failure to Provisions in favor
appear at the pre-trial of the offending
 Trial spouse made in
o Grounds for legal the will of innocent
separation must be spouse are
proved revoked
o No judgment on the o Service of copies to
pleadings, summary parties and Solicitor
judgment, or confession General
of judgment shall be  Respondent
allowed summoned by
 Grounds for denial of publication failed
petition to appear,
o Act condoned or published once in a
consented to commission newspaper of
of such general circulation
o Connivance in o Aggireved party files MR
commission of act within 15 days from
o Both parties given ground notice of judgment
for legal separation o After denial of MR, notice
o Collusion between parties of appeal within 15 days
from notice
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JARD NOTES
Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
o Proceed to liquidation, any insurance
partition and distribution policy even if
of the properties of the irrevocable
spouses  Takes effect upon
 Issuance of Decree of Legal written notification
Separation to insurer
o Registration of entry of  Death of party during
judgement in civil proceeding – same as
registry where marriage declaration of nullity
celebrated and civil
registry where family Reconciliation of Spouses
court located  Joint manifestation
o Compliance must be o Under oath
reported to court within o Duly signed by
30 days from receipt of spouses
copy of decree o Filed in same
o In case service of proceeding for legal
summons made by separation
publication, publish  If proceeding for legal
decree once in a separation is pending
newspaper of general o Court shall
circulation immediately issue an
o 5 years from the date of order terminating
decision has become final proceeding
 Innocent spouse  If made after rendition of
may file a petition judgment but before
under oath in the issuance of decree
same proceeding o Court issue decree of
to revoke the reconciliation
donations in favor  Spouses
of offending express in their
spouse – manifestation
revocation whether they
recorded in agree to revive
register of deeds the former
 Alienations, liens, regime of their
and encumbrances property
registered in good relations or
faith before the choose a new
recording of the regime
petition for  Reconciled after issuance of
revocation in the decree of separation
registries of o Court, upon proper
property shall be motion, shall issue
recorded decree of
o After issuance of decree reconciliation but
of legal separation separation of property
 Innocent spouse and forfeiture of share
may revoke the of spouse already
designation of the effect shall subsist
offending spouse
as a beneficiary in
Page 57 of 59
JARD NOTES
Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
 UNLESS new Recognition and Enforcement of
property regime Foreign Judgment on Divorce
agreed upon  Official publication of decision
 Recorded in and law on divorce of country
civil registries  Copy attested by officer having
 Motion for Revival of Regime legal custody of record and
of Property Relations or accompanied, if record not kept
adoption of another regime in the Philippines, with a
of property relations certificate that such officer has
o Filed at same the custody
proceedings  If office where record kept is in
o Verified foreign country, contracting
o Specifying the party to a treaty or convention
following where Philippines also a party,
 Properties to be and considered a public
contributed document under such treaty or
 Properties convention – certificate or its
retained as equivalent
separate o Reciprocity granted to
properties public documents
 Names and  If not contracting party,
addresses of certificate which is duly
known creditors authenticated
and amounts o Secretary of the embassy
owed of legation
o Creditors furnished o Consul general
with copies o Consul, vice-consul pr
o Published two consular agent
consecutive weeks in o Officer in the foreign
newspaper of general service
circulation  Failure to prove foreign law –
o Court issues order Philippine law will be applied
directing parties to
record order in proper Basis for Recognition of Foreign
registries within 30 Judgment
days from receipt of  Judgment or final order upon
order and submit specific thing is conclusive upon
proof of compliance title to the thing
 Judgment or final order against
Chapter XXVIII a person is presumptive
Recognition and Enforcement of evidence of a right as between
Foreign Judgment on Divorce parties and successors in
interest
Article 26, Family Code - Where a
marriage between a Filipino citizen Decision of foreign court can be
and a foreigner is validly celebrated assailed though want of jurisdiction,
and a divorce is thereafter validly want of notice to the party, collusion,
obtained abroad by the alien spouse, fraud, or clear mistake of law or fact.
capacitating him or her to remarry,
the Filipino spouse shall have capacity In a valid marriage between two
to remarry under Philippine law. Filipino citizens, where one party
is later naturalized as a foreign
Page 58 of 59
JARD NOTES
Special Proceedings [Atty. Wilson A. Legaspi]
1st Semester - AY 2020-2021
citizen and obtains a valid divorce the proceeding wherein the
decree capacitating him/her to divorce decree was granted
remarry, can the Filipino spouse  Whether the spouse initiated
likewise remarry under Philippine the foreign divorce proceeding
law? -YES or not, a favorable decree
 Filipino spouse should likewise dissolving the marriage bond
be allowed to remarry as if the and capacitating his or her alien
other party where a foreigner at spouse to remarry will have the
the time of the solemnization of same result: the Filipino spouse
the marriage will effectively be without a
 Reckoning point is not the husband or wife
citizenship of the parties at the
time of the celebration of What is the proper proceeding
marriage but the citizenship at that a party should avail of in the
the time a valid divorce is filing of a petition for recognition
obtained abroad of foreign judgment on divorce?
 Proceeding filed under Rule 108
Does the second paragraph of  The object of special
Article 26 of the Family Code proceedings is precisely to
extend to alien the right to establish the status or right of a
petition a court of this jurisdiction party or a particular fact
for the recognition of a foreign  Rule 108 is the appropriate
divorce decree? -YES adversarial proceeding by which
 Foreign divorce decree itself, the applicability of the foreign
after its authenticity and judgment can be measured and
conformity with the alien’s tested in terms of jurisdictional
national law have been duly infirmities, want of notice to the
proven according to our rules of party, collusion, fraud, or clear
evidence, serves as a mistake of law or fact.
presumptive evidence of right
even in favor of a foreigner
pursuant to Section 48, Rule 39
of the Rules of Court
 Direct involvement or being the
subject of the foreign judgment
is sufficient to clothe a party
with the requisite interest to
institute an action before our
courts for the recognition of the
foreign judgment

Does a Filipino citizen have the

capacity to remarry under the
second paragraph of Article 26
after initiating a divorce
proceeding abroad and after
obtaining a favorable judgment
against his or her alien spouse? -
YES
 The letter of the law does not
demand that the alien spouse
should be the one who initiated

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