Special Procedeedings Quick Reviewer - Edward Arriba

SPECIAL PROCEDURE
- Certification against non forum shopping is applied in Specpro
RULE 73: VENUE AND PROCESS:
JURISDICTION - Gross value of the estate (400/300k)
- It is not the actual gross value of the estate which is the basis. It is the ALLEGED GROSS VALUE
VENUE:
1. Inhabitant/Resident - Resides at the time
2. Non resident - He had his estate
REMEDY IF VENUE IS IMPROPERLY LAID: Ordinary appeal & Rule 65
KINDS OF SETTLEMENT:
1. Extrajudicial - a proceeding where the decedent left no will and no debts and the heirs
adjudicate the estate among themselves without seeking letters of administration
2. Judicial Settlement
1. Summary judicial proceeding (Not exceeding 10k)
2. Regular
Probate courts are of limited jurisdiction. It may only determine:

1. Liquidation
2. Administration
3. Distribution
- Complaint in intervention is allowed in probate provided that all parties consented.

- Court cannot determine issue of ownership
EXCEPTIONS:
1. Ownership may be provisionally determined for purpose of including the property in
inventory
2. All heirs take part in the distribution
3. Question is one of collation or advancement
OTHER QUESTIONS WHICH PROBATE COURT MAY DETERMINE:

1. Status of a woman who claims to be lawful wife of decedent
2. Inventory is conjugal or exclusive
3. Status of each heir
4. Matters incidental or collateral
5. Validity of waiver
6. Decedents
© EDWARD VANGE ARRIBA 1 of 58

- A trial court cannot make a declaration of heirship in an ordinary civil action
- If decedent is neither an inhabitant nor has an estate, Venue may be waived.
- GR: PC cannot issue writs of execution.
- EXC:
- 1. Partition of expenses
- 2. Contributive shares
- 3. Surety’s Liability
- There is no need for an independent action for declaration of presumptive death for purposes
of succession
RULE 74: SUMMARY SETTLEMENT OF ESTATE

- Without appointment of ExecAd
EXTRAJUDICIAL SETTLEMENT PROCESS:

1. Division in PUBLIC INSTRUMENT
2. Filed with ROD and bond of the value of the personal property (if there is Personal prop)
3. Publication of notice
REQUISITES FOR EXTRAJUDICIAL SETTLEMENT:

1. No will
2. No debts or if there are debts, paid by the heirs at the time it is entered
3. Heirs are all of age or minors are represented
- If real estate, it shall be subject to a lien in favor of the creditors, heirs or other persons for the
full period of 2 years.
AFFIDAVIT OF SELF ADJUDICATION - Sole heir of a deceased person adjudicating to himself the
entire estate filed in ROD
- If heirs did not agree, May file partition

- A private instrument or document or oral agreement of partition as well as a compromise
agreement entered without authority of court is VALID among the heirs who participated in
the extrajudicial settlement.
- The same is still valid but REFORMATION MAY BE COMPELLED.
- Persons who do not participate or had no notice of an extrajudicial settlement will not be
bound thereby.
- Publication in this case will not constitute constructive notice

EXTRAJUDICIAL SETTLEMENT SUMMARY SETTLEMENT
No court intervention Requires summary judicial adjudication
Value is immaerial GE not exceeding 10k
Allowed only in INTESTATE Both in testate and intestate
No outstanding debt Available even if there are debts
Resorted by agreement of all heirs Instituted by any interested party
Bond is equal to personal property Court determines bond
- If no creditor files a petition for any letters of administration within 2 years after the death of
the decedent, it is presumed that the estate left no debts
SUMMARY SETTLEMENT OF ESTATE OF SMALL VALUE

- There is still hearing
- Court may admit it summarily even without the appointment of EXECAD
- WITHIN THE JURISDICTION OF MTC
- Bond is determined by the court
WHEN SETTLEMENT OF ESTATES MAY BE COMPELLED:

1. If there is an undue deprivation of lawful participation
2. Existence of debts against the estate
3. Undue deprivation of lawful participation payable in money
2 YEAR BAR RULE APPLIES ONLY: 

1. Persons who have participated or taken part or had notice of Extrajudicial part
2. All persons or heirs have taken part in the extrajudicial settlement
REMEDIES IF AGGRIEVED PARTIES:

1. Within 2 years: Claim against the bond or real estate
2. Rescission in case of preterition of compulsory heirs
3. Reconveyance
4. Action to annul deed
5. Petition for relief on the ground of fame
6. Reopening by intervention within any time before rendition of judgment
7. New action to annul within 2 years
- If 2 years have lapsed, One may file for reconveyance based on IMPLIED TRUST if property is
acquired through fraud. The person obtaining it is by force of law considered a trustee in an
implied trust for the benefit of the person whom the property comes.
- It shall be brought within 10 years from the registration of title in the name of trustee

- IF Minor, Incapacitated, in prison or outside PH, They may present their claims 1 year after the
disability is removed.
RULE 75: PRODUCTION OF WILL

- No will shall pass either real or personal property unless it it proved and allowed by court.
- Partitioning without probating is improper regardless of whether it is in accordance with the
will.
- Imprescriptible
- Estoppel does not apply
PROBATE - Act of proving in a court a document purporting to be the last will and testament of
the deceased person in order that it may be officially recognized, registered.
- Interested party may file. Including heirs and creditors

- Certificate of non forum shopping is required
- EFFECT: It is conclusive as to the execution and validity of the will. Forgery will not lie.
- GR:Only the determination of extrinsic validity is allowed.

- EXC:
1. PRETERITION
2. Entire or all the testamentary dispositions are void and where defect is apparent on its face
(Donation with parties guilty of adultery/concubinage)
EXTRINSIC - Covers only legal formalities, testamentary capacity, Due execution
Due execution - voluntariness to dispose his estate

- There was no vitiation of consent, no undue and improper influence and signature is genuine
- Personal service upon the heirs is a matter of procedural convenience not a jurisdictional
requisite
- If ante mortem, no publication needed
PROOF NEEDED WHEN NOT CONTESTED:

1. NOTARIAL WILL
1. NO CONTEST - One of the subscribing witnesses only is enough
2. NOT RESIDE IN PROVINCE - Court may authorize taking of deposition and a photocopy be
presented to the witness
3. DEAD, INSANE, NOT RESIDING IN PH - Court may admit the testimony of other witnesses. It
may admit proof of testator’s handwriting
2. HOLOGRAPHIC WILL
1. Testimony of one who knows the handwriting of the testator
PROOF WHEN CONTESTED:

1. NOTARIAL WILL
1. All the subscribing witnesses and notary public if present in the PH and not insane
2. Deposition is also allowed is some are outside the province
- If any or all of them testify against the due execution of the will or do not remember having
attested to, the will may be allowed if the court is satisfied from the testimony of other
witnesses and from all the evidence presented.
2. HOLOGRAPHIC WILL
- Testimony of 3 witnesses.
- CONTEST OF WILL - Challenge the authenticity of the will.
- If challenge was based on undue influence and lack of intent, it did not attach will’s
authenticity
- If alleged fraud on the signature - VALID CONTEST
PROOF IN CASE OF LOSS OR DESTROYED WILL

1. NOTARIAL WILL
1. Execution and validity
2. Existence of the will at the time of the testator’s death
3. At least 2 credible witness by which the provisions of the will are clearly and distinctly
proved.
2. HOLOGRAPHIC WILL
1. Same as notarial will
2. Testimonial evidence is not admissible because it is prone to fraud or mistake
- A holographic will may be proven by xerox copy
- Rule on destroyed or lost will NOT APPLIED IN HOLOGRAPHIC.
FACTS TO BE PROVEN FOR A LOST OR DESTROYED WILL

1. Duly executed
2. Existence when the decedent died or it was accidentally destroyed during his lifetime
3. Provisions of will are duly established by 2 witnesses
GROUNDS FOR DISALLOWANCE OF WILL:

1. Not executed according to formalities
2. Duress or influence of fear or threats
3. Undue and improper pressure
4. Signature was procured by fraud or trick
RULE 77: ALLOWANCE OF WILL PROVED OUTSIDE PH

- A will of a foreigner executed abroad can be probated in the PH without need of being
probated abroad.

REPROBATE - Local court acknowledges as binding the findings of the foreign probate court
provided its jurisdiction over the matter can be established.
VENUE - SAME AS RULE 73 (300/400)
- Requirements of publication and notice as stated in Rule 73 is still required.

- The will shall have an effect as if originally proved and allowed in such court.
- It shall only extend to all estates in the PH
RULE 78: LETTERS TESTAMENTARY AND ADMIN

EXECUTOR - Stated in the will
ADMINISTRATOR - Appointed by the court
ADMINISTRATOR WITH A WILL ANNEXED - The one appointed by the court in cases when
although there is a will, the will does not appoint any executor or if appointed said person is
either incapacitated or unwilling. (WILL WITH EXECUTOR BUT NOT COMPETENT, HENCE ADMIN)
- If a will is disallowed - ADMINISTRATOR

- Admin is still required to post a bond
NOT COMPETENT TO SERVE AS EXECAD

1. Minor
2. Non resident
3. Unfit according to court because of:
1. Drunkenness
2. Improvidence
3. Want of understanding
4. Want of integrity
5. Conviction of moral turpitude
- Executor of an executor cannot administer the estate
ADMINISTRATOR DE BONISNON - Of goods not administered.
LETTERS TESTAMENTARY - With will that is validly probated

LETTERS OF ADMINISTRATION - Without a will
ORDER OF PREFERENCE IN GRANTING ADMINISTRATION:

1. Surviving spouse or next of kin
- Next of Kin - persons entitled by law to receive the decedent’s property
- Preference to surviving spouse is not absolute. If there is another person having MORE INTEREST
than surviving spouse, such may be appointed as admin.
2. Principal creditors

3. Strangers of any qualified applicant
- Neglect of filing after 30 days of death ALONE is not sufficient to exclude the widow
- Appointment is in the sound judgment of the court
- Order is final and unappealable
- Co administrator may be appointed
- Where the fact of being indebted was subsequently discovered after the administrator had
been duly appointed, he should not be removed absent any other lawful ground
RULE 79: OPPOSING THE ISSUANCE OF THE LETTERS TESTAMENTARY

- In writing
- A petition may be accompanied by a petition for issuance of letters of administration
- Notice to heirs and creditors and other person having interest IS JURISDICTIONAL. Without this,
It is void.
GROUNDS:
1. Incompetency
2. Preferential right
- An incompetent minor may contest the appointment
RULE 80: SPECIAL ADMINISTRATOR

SPECIAL ADMINISTRATOR - A representative of the decedent appointed by the court to take
care and preserve the estate until an executor or general administrator is appointed
- Appointment of SA implies a denial of the power to appoint regular administrator during the
pendency of the appeal
WHEN MAY BE GRANTED:

1. Delay in the granting of letters including appeal
2. Executor is a claimant of the estate that he represents
- Preference not applied. Appointment is discretionary

- Notice and publication is still a jurisdictional req
- SA cannot be sued by a creditor for the payment of debts of the deceased
- Powers will cease upon the appointment of regular excad
- Not appealable. Remedy is Rule 65
RULE 81: BONDS OF EXECAD

- Judicial: Fixed by court
- Terms and effectivity of bond does not expire until the administration is closed
- If the will states that the executor serves without a need of bond, It is conditioned that he can
only pay the debts of the testator

RULE 82: REVOCATION OF ADMINISTRATION
- Testate proceedings take precedence over intestate for the same estate
GR: The court which the petition is first file shall take cognizance of the settlement of the
intestate estate.
EXC: If it learns thereafter that another court has before it a petition for probate, It may hold the
petition in abeyance and defer to the second court where the probate proceeding is pending.
- Discovery of a will does not ipso facto nullify the letters of administration
- Discretion in the removal of admin is within the discretion of the court appointing him
- Order of removal is APPEALABLE
RULE 83: INVENTORY

- Must be made within 3 months from the grant of letters
- 3 Month period is not mandatory. Filing after such period will not deprive the probate court
of jurisdiction to approve it. Unexplained delay is only a ground for removal
- Approval of inventory is not a conclusive determination of assets. It is only PROVISIONAL and

prima-facie finding of issue of ownership
- Children need not be minors in order to be entitled to allowance
- Grandchildren are not entitled to allowance
RULE 84: POWERS OF EXECAD

- The right of EXECAD to the possession and management of the properties of the deceased is
not absolute and can only be exercised so long as it is necessary for the payment of the debts
and expenses.
RESTRICTIONS OF POWERS:
1. Cannot acquire by purchase even at public or judicial auction either in person or mediation
of another the property under administration
2. Cannot speculate with fund
3. Cannot lease the property for more than 1 year.
4. Cannot exercise the right of legal redemption over a portion of property owned in common
which is sold by one of the other co-owner
5. Cannot enter into transaction involving estate subject to the testate or intestate proceeding
without approval of court
6. Cannot profit by the increase of decrease in the value of property
7. Cannot borrow money without authority of court
8. Cannot continue business of the deceased unless authorized by court
- EXECAD may bring actions necessary to protect the assets
RULE 85: ACCOUNTABILITY AND COMPENSATION
EXECAD is accountable for: Whole estate of the deceased at the value of the appraisement
contained in inventory Except those which did not come to his possession

- If there is loss, he is not liable if justly made
- Execad is accountable for damages if he neglects or unreasonably delays and the value
lessened or unnecessary costs or interest accrued.
- An execad is allowed the necessary expenses in the care, management and settlement
- NECESSARY EXPENSES - Entailed for the preservation of the estate
NOT NECESSARY EXPENSES:

1. Expenses for the settlement of question as to who are entitled to the estate
- An administrator who is also a lawyer may not recover attorneys fees from the estate
- A lawyer of an administrator may not charge from the estate. He must charge the EXECAD
- When a lawyer has rendered legal services to the execad to assist him in the execution of his
trust, his attorney’s fees shall be allowed expenses of administration. The estate however is not
directly liable for his fees. EXECAD is primarily liable subject to reimbursement.
- Duty to render account is not waivable even in extrajudicial settlements.
RULE 86: CLAIMS AGAINST THE ESTATE
MONEY CLAIMS - Claims for money, debt or interest upon a liability contracted by a decedent
BEFORE HIS DEATH arising from CONTRACT: Implied or express EXCEPT Delict or Quasi Delict
- Due or not due or absolute or contingent or even a deficiency judgment
EXC: Funeral expenses and expenses for the last sickness of the decedent
- Filed in the office of clerk of court

- It is entertained by settlement court regardless of the amount. BP 129 is not applicable
STATUE OF NON CLAIMS - Creditors of a deceased must present their claims for examination and
allowance within the specified period which shall not be less than 6 months but not beyond 12
years.
- File within the time fixed in the notice or else barred forever
- Even if the testator acknowledged the debt in his will and instructed the executor to pay the
debt, the statute of non claims must still be complied with otherwise barred.
TARDY CLAIMS - Claims not filed within the original period fixed by the rules.
- At anytime before order of distribution, creditor may still file with cause shown. Court
may allow such claim to be filed within a time not EXCEEDING 1 MONTH from the order allowing
- File a motion for leave to file tardy claim then file a tardy claim within 1 month.
- Statute of non claims prevails over the statute of limitations
REMEDY: A creditor barred by the statute of non claims may file a claim as COUNTERCLAIM in
ANY SUIT that the execad may bring against the creditor

WAIVER OF STATUTE OF NON CLAIMS
- It may be waived by the estate’s representative
- Administrator’s failure to plead the statute of non claims and his active participation and
resistance to the civil action amounts to such waiver.
- When an action is for recovery of money and defendant dies before final judgment, the civil
case shall be dismissed to be prosecuted in the testate or intestate proceedings to avoid
duplicity
- If the Civil case is final, the estate has thus waived its right to have the claim re-litigated in the
estate proceedings.
- Notice to all creditors and publication is required.

- A notice to creditors to file their claims is not proper if only a SPECIAL ADMINISTRATOR has been
appointed as a special administrator is generally NOT EMPOWERED TO PAY THE DEBTS OF THE
DECEASED.
- Statute of non claims applies to debts not secured. If secured, 2 years lien
DEFICIENCY JUDGMENT - Contingent claim. Must be filed with the probate court.
- Execution is not proper if civil case is final and executory. It must be filed in the settlement pro
- Unpaid taxes by the government is not included in money claims.
- Where the defendant dies while the action for sum of money is pending, he shall be
substituted therein by his legal representatives.
- If Solidary obligation, File as if he were the only debtor without prejudice to reimbursement
- If joint, File up to the extent of his portion
- The law reserves a right to Execad to redeem a mortgaged property of a decedent which the
mortgagee has opted to foreclose upon the discretion of court.
- The EXECAD has 15 days to file his answer to the claim. EXECAD may interpose any
counterclaim in the offset of a claim. Such is regarded as compulsory counterclaim
- Any claim admitted ENTIRELY by the execad shall immediately be submitted to court which
may approve the same without hearing
- Judgments approving or denying is appealable as in ordinary cases. RECORD OF APPEAL
WITHIN 30 DAYS from notice of judgment
- Judgment against the EXECAD shall not create any lien
RULE 87: ACTIONS BY AND AGAINST EXECAD

DIRECTLY AGAINST EXECAD:
1. Recovery of real prop or personal prop
2. Recovery of any interest from estate
3. Enforcement of lien
4. Action to recover damage from injury (tort)
ACTIONS BY EXECAD: For the recovery or protection of estate in the right of deceased actions
for causes which survives

- Heirs may not sue until share is assigned
- Heirs have no legal standing to sue during the pendency of administration proceedings
- EXCEPTIONS:
- 1. Execad is unwilling to sue
- 2. Administrator is alleged to have participated in the act complained
- 3. Heirs may bring reinvidicatory action before declaration of heirship.
- There is no need to ask for the authority of court to foreclose the mortgaged property.
DOUBLE VALUE RULE - A person who before the granting of letters testamentary or administration
embezzles or alienates any money, goods, chattels shall be liable to an action in favor of the
execad for DOUBLE THE VALUE of the property
- EXECAD may recover properties fraudulently disposed by decedent:

1. Disposed in fraud against the creditors
2. Void conveyance
- If execad fails to bring such action, any of the creditors may bring in his own name upon filing
of indemnity bond
REQUISITES BEFORE ACTION BE FILED BY CREDITORS:

1. Deficiency of assets in the hands of execad
2. Fraudulent conveyance
3. Execad shows no desire to file
4. Leave of court
5. Bond
RULE 88: PAYMENT OF THE DEBTS OF THE ESTATE

- Writ of execution is not proper.
- Court may order the sale or mortgage of the properties to pay debts
- Approval of payment does not create lien
- Personal property first then real property
- Even after partition, The heirs may be held individually liable for the payment of all lawful
outstanding claims against the estate in proportion to the amount or value of the property
they received
- Execution may only issue where the heirs, devisees and legatees have entered into possession
of their respective portions in the estate prior to the payment of debts and expenses and is
later ascertained that there are still debts to be paid
- If non resident decedent, His estate in the PH shall be so disposed of that his creditors in and
outside the PH may receive pro rata
TIME OF PAYMENT: Shall not exceed 1 year in the first instance.

EXCEPT: Court may extend not exceeding 6 months and the whole period allowed to the
original execad shall not exceed 2 years

RULE 89: SALES, MORTGAGES AND OTHER ENCUMBRANCES
- Written notice to the heirs and other persons interested is mandatory or else VOID.
- Notice to the parents of minor is not sufficient.
- But Notice to the counsel or guardian ad litem is sufficient if duly represented
- Persons interested may prevent such sale by giving bond
- If the opposition of the sale is based on claims of title, the court will hold in abeyance the
authority to sell until issue of ownership has been settled in ORDINARY ACTION.
- Objection of one of the heirs to the application for the authority to sell a property or her failure
to receive notice of such application is not sufficient legal cause to annul the sale ordered by
the court.
- There is no payment by installment in this sale EXCEPT court allows
RULE 90: DISTRIBUTION AND PARTITION OF THE ESTATE:

- Shall be made after payment of all debts, funeral expenses, expenses for administration,
allowance of the widow and inheritance tax.
- EXC: There is bond deposited
- Liquidation and distribution of heirs shall first be accomplished

- Probate court has the power to entertain the question whether or not a person is an
acknowledged natural child of the decedent
- Adoption decree cannot be assailed collaterally in settlement proceedings
REMEDIES OF HEIRS ENTITLED TO RESIDUE 

1. Duly notified but not given
- Move for reconsideration or appeal within 30 days from notice
2. Address is known but no notice
- Action to annul judgment
3. Address is unknown and no notice
- NOT FINAL ORDER:Motion for the delivery of his share or to reopen
- FINAL ORDER: Action for reconveyance
4. Where the heir is given a share in the order of distribution, he may move for the delivery even
after the closure of proceedings subject to acquisitive prescription
GR: NO WRIT OF EXECUTION

EXC:
1. Partition expenses
2. Examination costs
3. Contributive shares - (When entered prior possession of the estate)
4. Surety’s liability on bonds
- Court may issue writ of possession in favor of the heirs

- Title is vested to the heirs from the finality of order of distribution
- Orders that determine heirs and shares are appealable

PROJECT PARTITION - A document prepared by the executor or administrator setting forth the
manner in which the estate of the deceased is to be distributed among the heirs.
ORDER OF CLOSURE - Issued after the payment of all debts and the delivery of the estate to the
heirs.
- It is appealable
RULE 91: ESCHEAT

- Falling of a decedent’s estate into the general property of the state on his death
THREE TYPES:
1. INTESTATE LEAVING NO HEIRS
2. Reversion of property alienated in violation of consti or law
3. Unclaimed balances act
- The RP is the real party.

- Action shall be instituted by the SOLGEN or officer acting in behalf of RP
WHERE TO FILE:
1. RESIDENT - RTC of province where the deceased last resided
2. NON RESIDENT - RTC of the place where his estate is located
- Hearing shall not be more than 6 months after entry of order

- There must be direct publication of order for 6 consecutive weeks
ASSIGNMENT OF PROPERTIES
1. Personal - Decedent last resided
2. Real - Where it is located
3. Non resident - Municipality where the property may be found
- The court at the instance of interested party or o its own motion may order the establishment
of a permanent trust so that only the income from the property shall be used.
- The beneficiaries shall be in favor of public schools, public charitable institutions and centers
- Right to escheat may be waived expressly or impliedly
- Interested persons may file within 5 years from the date of judgment to claim the estate
escheated or else barred forever.
- Reckoned from the date of delivery to the state
- A trial court cannot convert escheat proceedings to ordinary special proceeding.

- Publication requirements. 6 weeks in escheat. usually 3 weeks in others

GUARDIANSHIP - power of protective authority given by law and imposed in an individual who is
free and in enjoyment of his rights over one whose weakness on account of his age or other
infirmity renders him unable to protect himself
GUARDIANSHIP OF MINOR - Special rule - FC

GUARDIANSHIP OF INCOMPETENT - ROC - RTC
- Court is solely concerned with the ward’s custody and control of the person’s estate
- Conflicts regarding ownership or title of the property shall be litigated in separate proc.
- Court cannot actually order delivery unless title is clear and indisputable.
LEGAL GUARDIAN - Without need of judicial appointment

GUARDIAN AD LITEM - appointed by courts.
JUDICIAL GUARDIAN - Appointed in pursuance of law.
VENUE:
1. RESIDENT - RTC of ward’s place of residence
2. NON RESIDENT - RTC of place where ward’s property is located.
INCOMPETENT INCLUDES:
1. Civil interdiction
2. Hospitalized lepers
3. Prodigals - spendthrift or a person who by excessive drinking, gaming, idleness or debauchery
of any kind shall so spend, waste or lessen his estate as to expose himself or his family to want,
or suffering.
4. Deaf and dumb who are unable to read and write
5. Unsound mind though with lucid intervals
6. Not unsound but by reason of age, weak mind, disease and other similar causes cannot
without outside help take care of themselves or manage his properties.
RULE 93: APPOINTMENT

WHO MAY FILE
1. Any relative
2. Friend
3. Other person on behalf of the resident incompetent who has no parents or lawful guardian
4. Director of health in favor of insane person who should be hospitalized or in favor of leper
- Creditor and mortgagee cannot be appointed as guardian

- CNFS is required
- Notice to person interested or publication in case of non resident ward is required
- The notice to person mentioned in PH residing in PH and incompetent is required.
- NOTICE ONLY. NO NEED FOR PUBLICATION
- EXCEPT TO NON RESIDENT

- If insane: DIRECTOR OF HOSPITAL
- Incompetent must be present in the hearing
ANCILLARY GUARDIANSHIP - refers to the guardianship in a state other than that in which
guardianship is originally granted.
VALUE OF PROPERTY IS LESS THAN 50K - Father and mother jointly exercises legal guardianship
EXCEEDS 50K - parents must File a verified petition
RULE 94: BONDS

- Before an appointed guardian enters, he shall give a bond
CONDITIONS:
1. Inventory within 3 months
2. Faithfully execute duties
3. Accounting
4. Perform orders of the court
- Filed in the office of clerk of court

- Breach of conditions may be filed in a separate or same proceeding
RULE 95: SELLING AND ENCUMBERING
GROUNDS FOR PETITION FOR LEAVE TO SELL:

1. When the income of the estate is insufficient to maintain the ward and family
2. For the benefit of the ward
- Status of sale without authority is unenforceable

- Notice to the next of kin is jurisdictional and required
- EXC: Where next of kin are her mother, guardian, uncles, and aunts who agreed to make
the transfer of their respective shares in the property
Duration of order: Within 1 year from the granting of order. It shall not extend beyond unless
renewed by the court.
- The guardian cannot acquire by purchase even at a private or public sale or through
mediation of another the property of the person or persons who may be under his
guardianship.
- Appeal is proper in such order
- Court may order investment of proceeds
- Guardian ad litem has no authority to act or bind a minor in any transaction with regard to his
estate but he can however do so with the approval of the court

GUARDIAN MAY BE AUTHORIZED TO JOIN IN PARTITION PROCEEDINGS:
1. hearing
2. Notice to all relatives
3. Careful investigation
- Compensation of the guardian shall not exceed 15% of the net income of the ward
- A guardian is prohibited to make donations of the property of his ward
TERMINATION OF GUARDIANSHIP:
Who may file:
1. Declared incompetent
2. Friend
3. Guardian
4. Relative
- Remedy of a removed guardian is to appeal
SPECIAL DISQUALIFICATIONS:
1. Judges, clerks, lawyers
2. Advance age
3. Non residence
- Voluntary emancipation is no longer recognized as a ground for termination of guardianship
GUARDIANSHIP OF MINORS
TENDER AGE PRESUMPTION - A mother is to be preferred in awarding custody of children under

the age of 7
- This presumption may be overcome only by compelling evidence of mother’s unfitness
- Sexual preference or moral laxity alone does not prove parental neglect or incompetence
- If the incapacitated is a MINOR, SC AM shall apply
WHO MAY PETITION:

1. Minor himself if 14 years of age or over
2. Any relative
3. Other person on behalf of a minor
4. Secretary of DSWD
5. Secretary of health
GROUND:
1. Death or continued absence or incapacity of his parents
2. Suspension, termination or deprivation of parental authority

3. Remarriage of his surviving parent and is found unsuitable
4. Best interest
- In default parents shall be appointed as guardian of minor

- Others in order:
- 1. Grand parents
- 2. Oldest brother or sister of the minor over 21 years of age
- 3. Actual custodian of the minor over 21
- 4. Other person in the discretion of court
- Notice must be given to persons named in the petition including the minor if over 14 years of
age
- Notice if above 14 years old is jurisdictional
- Guardian shall first secure a bond determined by the court
- IF PARENTS ARE GUARDIANS - Post a bond if market value of child’s property is ABOVE 50K
- Authority shall also be obtained before selling. (Same as rule above)
- Guardianship’s termination may be motu proprio or upon motion
RULE 98: TRUSTEES

- Confidence reposed in one person called the TRUSTEE for the benefit of another called CESTUI
QUE TRUST with respect to the property held by the former for the benefit of the latter.
- JURISDICTION: RTC or MTC in which the will was allowed

- If not allowed in PH: RTC of province in which the property is situated
- Applies only to EXPRESS TRUST

- Trust is not an adverse possession
- EXCEPT:
- REQUISITES:
1. Trustee has performed unequivocal acts of repudiation amounting to ouster of the cestui
que trust.
2. Positive acts of repudiation known by the cestui que trust.
3. Clear and conclusive
- No person succeeding to the trust as EXECAD shall be required to accept such trust
- Notice to and consent of the beneficiary are not essential
- When a land in the PH is held in trust for a resident by a trustee who derives his authority from
abroad, such trustee must petition the RTC where the land is situated otherwise trust will be
vacant
- When trust is created abroad for property in the PH, Judicial approval is still needed though
the trustor is alive.
- Trustee must file a bond
- EXCEPT:
- If requested by Testator or all persons beneficially interested in the trust

- Neglect to file a bond - resignation/decline
- When the trustee is appointed as successor to prior trustee, the court may dispense with the
making and return of an inventory if one has already been filed
EXECAD GUARDIAN TRUSTEE
Accounts are not under oath Must be under oath and annually Must be under oath and annually
and shall be filed only at tiles
may be required by the court
RTC/MTC RTC - Incompetent FC - Minor where the will was allowed
If dies, resigns - RTC shall

appoint new trustee
May sell if it is necessary for May sell upon order of the court May sell upon order of the court.
the purpose of paying debts
upon application to courts
with notice to heirs
No time limit for order of sale Valid for 1 year No time limit
Settle estate Guardian Carry the provisions of the will
Not exempted from filing bond Must always file a bond May be exempted if provided in
the will
Services of execad is Terminated upon attainment of Terminated upon turning over

terminated upon payment of age of majority or upon gaining the property to the beneficiary
debts competency (Court order for the after the expiration of trust
latter)
Must pay the debts of the Must pay the debts of ward No obligation to pay debts of
estate beneficiary or trustor
CONTRACTUAL TRUST - Trustee declines, resigns or dies or is removed before the accomplishment
of trust
TESTAMENTARY TRUST - Will creating a trust but the testator omitted to appoint trustee in the PH
ADOPTION
- A juridical act, a proceeding in rem which creates between two persons a relationship similar
to that which results from legitimate paternity and filiation
- Adoption must comply with the statutory process in order to be valid.
- Not an adversarial proceeding.
- Strictly personal between adopter and adopted
- Shall be considered as if legitimate child
GR: Decree of adoption shall have retroactive effect from the time of the petition
EXC: TAMARGO VS CA: The natural parents shall be liable and such will not have an retroactive
effect

- An illegitimate child upon adoption by her natural father may use the surname of her natural
mother as her middle name. No law on middle name in PH
2 PHASES OF ADOPTION:
1. Administrative phase - Until DSWD announces that child is legally available
2. Judicial Phase
RULES ON DOMESTIC ADOPTION

WHO MAY ADOPT
1. ANY FILIPINO CITIZEN:
1. Legal age
2. Position to support and care
3. Good moral char
4. Full civil capacity
5. At least 16 years older than adoptee EXC: When adopter is biological parent
6. Not convicted of crime involving Moral turpitude
- PARDON WOULD NOT ERASE THE DISQUALIFICATION.
7. Emotionally capable.
2. ANY ALIEN
1. Same qualification as filipino
2. Diplomatic relations of his country
3. Certified that his government allowed the adoptee to enter his country as his adopted
child
4. Living in PH for at least 2 continuous years prior to the application and maintains such
residence until adoption decree is entered
- Temporary absences for professional business or emergency reasons NOT EXCEEDING 60
DAYS IN 1 YEAR shall not break the continuity
5. Legal capacity to adopt certified by their consular office
3. ANY GUARDIAN:
1. After termination of the guardianship with respect to his ward
2. Clearance of his or her financial accountabilities
NO RESIDENCY REQUIREMENTS IF:

1. A former filipino citizen seeking to adopt a relative within 4 degree of C/A
2. Seeks to adopt the legitimate child of his or her filipino spouse
3. One who is married to a filipino cit and seeks to adopt jointly a relative within 4th civil degree
of C/A of the filipino spouse.
- Foreign adoptee does not automatically acquire citizenship
GR: Husband and wife shall jointly adopt

EXC:

1. One spouse seeks to adopt the legitimate child of the other spouse
2. One spouse seeks to adopt his or her own illegitimate child with the consent of the other
spouse.
3. Spouses are legally separated.
WHO MAY BE ADOPTED:

1. Child whose biological or adoptive parents have died
- NO PROCEEDING SHALL BE INITIATED WITHIN 6 MONTHS FROM THE TIME OF DEATH OF
SAID PARENTS.
2. Child voluntarily committed to DSWD or legally declared available for adoption

3. Child whose adoption previously rescinded
4. Illegitimate child to improve statues
5. Legitimate child of other spouse
6. Person of legal age who prior to the adoption has been consistently considered by the
adopter as his or her own SINCE MINORITY
VENUE: FC of the province or city where the prospective adoptive parents reside.
- Petition may include application for change of name, Rectification of simulated birth,
voluntary or involuntary commitment of child, Declaration of child as abandoned.
ABANDONED CHILD - No proper parental care or whose parents have deserted him for a period
of at least 3 continuous months
- Physical estrangement alone without financial and moral desertion is not abandonment
AFFIDAVIT OF CONSENT REQUIRED:

1. Adoptee is 10 years or over
2. Biological parents or legal guardian or the child placement agency, child caring agency or
proper government instrumentality (EXCEPT IF THE CHILD WAS ABANDONED BY BP, NO NEED)
3. Legitimate and adopted children of the adopter and of the adoptee who are 10 years of
age or over
4. Illegitimate children of adopter if living with them who are 10 years or over
5. Spouse
HOME STUDY REPORT - study made by court of the motivation and capacity of the adoptive
parents to provide for home
- There must be an order of hearing and such must be published

- The necessary jurisdictional requirements should be indicated in the petition for adoption.
Thus, the name of the person to be adopted is that appearing in the civil registry and the
court does not acquire jurisdiction if a different name is carried in the notice of publication.
- When petition includes a prayer for change of name, notice to SOLGEN is required

SUPERVISED TRIAL CUSTODY - Before issuance of the decree of adoption, the court shall give the
adopter trial custody of the adoptee for AT LEAST 6 MONTHS
- Court may reduce or exempt parties for STC if it is for the best interest of child
GR: ALIEN adopter must complete the 6 months STC

EXC: When exempted for residency requirements
TEMPORARY PARENTAL AUTHORITY - Provisionally vested during the period of trial custody.
- In Tamargo vs CA the trial custody has not yet began

- 15 days from judgement - APPEAL
GR: After compliance with the jurisdictional requirements, all adoption hearings shall be
CONFIDENTIAL and shall not be open to public.
- Court may release information if necessary and if for the best interest of the child
INTERCOUNTRY ADOPTION:
- Adoption of legally free FILIPINO CHILD in a foreign country
WHERE TO FILE:
1. INTERCOUNTRY ADOPTION BOARD (ICAB)
2. In case of foreign nationals who file petition for adoption in PH - In RTC and shall be
transmitted to the ICAB
WHO MAY ADOPT:

- Any foreign national or Filipino Citizen permanently residing abroad who has the qualifications
and none of the disqualifications
QUALIFICATIONS:
1. Jointly file if married.
2. At least 27 years old and at least 16 years older than the child at the time of the application
UNLES:
1. Natural parent
2. Spouse of such parent by nature
3. Capacity to act and assume all rights under his national law
4. Not convicted of a crime involving moral turpitude
5. Eligible to adopt under his national laws
6. Agrees to uphold rights under UN Convention and PH laws
7. Country with diplomatic relations with PH
8. Position to provide for care and support
9. None of the Disq

WHO MAY BE ADOPTED:
- Any child who has been voluntarily or involuntarily committed to DSWD.
- Provided that if voluntarily committed, The physical transfer shall not be made earlier than 6
months from the date of execution of deed of voluntary commitment.
- This shall not be applied to children with special medical conditions
CHILD - Under 15
- An adoption created under the law of a foreign country is entitled to registration in the the PH.
The effects of such adoption shall be governed by the law of the PH
- Adopter can no longer rescind the adoption. He can merely disinherit the adoptee
- Rescission relates only as to the date of the judgment. Vested rights prior to rescission should
be respected
WHO SHALL FILE RESCISSION:

1. Adoptee over 18
2. If still minor, With the assistance of the DSWD
3. Guardian or counsel if over 18 but incapacitated.
GROUNDS:
1. Repeated physical violence and verbal maltreatment by the adopter despite counseling
2. Attempt of the life of the adoptee
3. Sexual assault or violence
4. Abandonment or failure to comply with the parental obligations
venue: FC where the ADOPTEE resides.

- Separate proceeding from the adoption
- Must be filed within 5 years from reaching of age of majority or after recovery of
incompetency
EFFECTS:
1. Parental authority of biological parent or legal custody of DSWD will be restored if still M/I
2. Reciprocal rights will be extinguished
3. Successional rights shall revert back to its status prior to the adoption.
4. Vested rights shall be respected
5. Adoptee to use original name
6. Cancel new Birth cert and revert the original
- Validity of adoption cannot be questioned collaterally
RULE 101: HOSPITALIZATION OF INSANE PERSONS

1. Voluntary
2. Involuntary

- Only for the public welfare
- Venue is RTC of province where the person alleged to be insane is found.
- Court may motu proprio send a person to National center for mental health
REQUISITES:
1. Secretary of health is of the opinion that the commitment of the person is for public welfare
or for welfare of such person
2. Person insane or having custody opposed.
- Notice of hearing shall be served upon person alleged to be insane and one having charge
of him
- Secretary of health cannot order release without approval of RTC and RTC cannot order
release without recommendation of Secretary
RULE 102: HABEAS CORPUS

- A writ directed to the person detaining another and commanding him to produce the body
of the person at a certain time and place with the day and cause of his caption and
detention.
KINDS:
1. PRELIMINARY CITATION - If the person is detained under government authority and the
illegality of his detention is not patent from the petition for the writ.
2. PEREMPTORY WRIT - If the cause of detention appears to be patently illegal. Non compliance
to this shall be punishable
WRIT OF HABEAS CORPUS PRIVILEGE OF WRIT OF HC
Order requiring the person to whom it is issued Further order inquiring into the cause of detention
to produce the body of the person alleged to and directing the release of the person if he is
be restrained of his liberty and to justify his illegally detained.
detention
SCOPE OF HC:
1. Illegal confinement or detention by which a person is deprived of his liberty
2. Rightful custody of the person is withheld from person entitled thereto.
- Actual physical restraint is not required. Any restraint which will prejudice freedom of action is
sufficient
- The writ cannot be used as a substitute for the trial court’s function. It cannot be used to
investigate and consider questions of error
- It is not ordinarily granted where the law provides other remedies
- It is a summary remedy
- It is a prerogative writ which does not issue as a matter of right but in the discretion of the
court.
- Resort to such writ is not to inquire into the criminal act of which a complaint is made but unto
the right of liberty

- HC may be used with the Writ of certiorari for the purpose of review
- However it does not lie where the petitioner has the remedy of appeal or certiorari because
it will not be permitted to perform the function of writ of error or appeal for the purpose of
reviewing mere errors or irregularities in the proceedings of the court.
GROUND FOR SUSPENSION OF WHC:

1. Invasion when public safety requires it.
2. Rebellion when public safety requires it.
HC IS PROPER WHEN:
1. Deprivation of constitutional right resulting to restraint of a person
2. No jurisdiction to impose sentence
3. Excessive penalties
4. Amendment of law lowering penalty
5. Denial of right to speedy trial
6. Results of post conviction DNA testing favorable to the accused
7. Parents to regain custody of minor even of her own free will
8. Constitutionality of statute
9. Testing the legality of alien’s confinement and expulsion
10. Permitting an alien to land in PH
11. Legality of extradition
12. Mistaken identity
NOT PROPER WHEN:

1. Denial of bail
2. Correcting errors of appreciating facts
3. When the court has jurisdiction over the cause and person of the accused
4. Detention because of a charge in court. He may no longer question the detention
5. Compel husband to live with wife
- Release whether permanent or temporary renders petition of WHC moot and academic
- EXC: Release precludes freedom of action (Lukban Case)
- HC is not available if restraint is voluntary EXC: Parents to minor
WHO MAY ISSUE:

RTC, CA SC - Concurrent jurisdiction
MTC - If no available RTC Judge
- Hierarchy of courts in HC is not observed
IF RTC - Enforceable only within its territorial jurisdiction

CA/SC - Anywhere in PH

- SB may issue only if it is in aid of appellate jurisdiction
IF CUSTODY OF MINORS: FC. Enforceable within its judicial region.
WHO MAY FILE:

1. Party whose relief it is intended
2. Some person on his behalf
- Formalities in HC must be construed liberally

- Person must be under ACTUAL AND EFFECTIVE restraint or deprivation of liberty
- Three day detention of suspect without charge provided that the arrest of those suspected
with terrorism or conspiracy to commit treason must be in accordance with act. NO HC
- Supervening events may bar the release. Events which made it legal detention - NO HC
- Posting of bail is not a waiver to question illegality of detention
- In emergency cases, the judge may issue the writ under his own hand and deputize any
person to serve it
EXCEPTIONAL CASES WHEN HC IS VALID EVEN DETENTION IS BY VIRTUE OF JUDGMENT:

1. Deprivation of constitutional right
2. No jurisdiction to impose sentence
3. Excessive
4. Lowered penalty as amended
5. Results of post conviction DNA testing are favorable
- Person to be produced may be designated even if his name is not known but he must be
identified.
- Court acquires jurisdiction over the person by mere service of writ
- If detention if by public authority, the return is considered prima facie evidence of the validity
of the restraint and the petitioner has the burden of proof.
- If by PRIVATE INDIVIDUAL - The return is considered only a plea of the facts asserted therein and
the person responsible for the detention has burden of proof to establish that it is legal
- HC will not lie after WARRANT OF COMMITMENT was issued by court on the basis of information
filed against the accused.
- Once a person detained is DULY CHARGED in court, he may no longer question the detention
through HC. Remedy is to quest the information
- Court includes quasi judicial bodies like deportation board of the Bureau of immigration
PERIOD OF APPEAL: 48 HOURS from the notice of judgment or final order. (notice of appeal only)
GR: A person who is set at liberty upon HC shall not again be imprisoned for the same offense.
EXC: Lawful order or process of court

- Person may again avail the privilege of WHC
CUSTODY OF MINORS AND WRIT OF HC IN RELATION TO CUSTODY OF MINORS

- May be filed by any person claiming rightful custody
- Filed in FC where the petitioner resides OR where the minor may be found.
- Enforceable in the judicial region of the FC
- May be filed in a regular court where no FC is available but it shall again transmit the case to
the FC if available
- It may also be filed in SC/CA - Enforceable anywhere
- Returnable to FC
REQUISITES:
1. Petitioner has the right of custody over minor
2. Withheld
3. Best interest of minor
- Purpose is not only present the body of the child but also determine who has the rightful
custody of such child
- MD is not allowed except lack of jurisdiction over the subject matter.
- Any ground other than Lack of juris over the Subject matter may be raised as an affirmative
defense.
- Respondent has 5 days to answer
- Pre trial is mandatory
- PETITIONER FAILS TO APPEAR - Dismissed unless counsel appears with valid excuse
- RESPONDENT FAILS - Petitioner shall be allowed to present evid ex parte.
TEMPORARY VISITATION RIGHTS: The court shall provide in their order awarding provisional
custody appropriate visitation rights to the non custodial parent unless unfit or DQ
HOLD DEPARTURE ORDER - The minor child subject of the petition shall not be brought out of the
country without prior order from court where petition is pending
- Court may motu proprio order such

- No appeal shall be allowed unless MR is filed.
- Judgment involving custody of minor cannot be accorded as RES JUDICATA
- In case of LegSep, The custody of minor children shall be awarded to the innocent spouse
unless if it is not for the best interest of the children.
- Upon filing of petition for declaration of nullity, the issue of custody is deemed automatically
submitted pursuant to the express provision of FamCode
WRIT OF AMPARO (WAMP)

- Remedy available to any person whose right to life, liberty and security is violated or
threatened with violation of an unlawful act or omission of a public official or employee or a
private individual or entity

COVERAGE:
1. Extralegal killings
2. Enforced disappearances
- There must be substantial evidence that the disappearance was carried out by or with the
authorization, support or acquiescence of the state or a political organization followed by a
refusal to acknowledge the same or give information on the fate or whereabouts of said
missing person.
- GOVERNMENT PARTICIPATION IS AN INDISPENSABLE ELEMENT
EXTRA LEGAL KILLINGS - Killings committed without due process.
ENFORCED DISAPPEARANCES REQUISITES:

1. Arrest, detention or abduction of a person
2. By a government officer to organized groups or private individuals acting with direct or
indirect acquiescence of the government
3. Refusal of the state to disclose the fate or whereabouts
4. Intent of which is to place such person outside the protection of law
- It is confined only with extralegal killings and Enforced disappearances
AMPARO LIBERTAD - For the protection of freedom equivalent to Habeas Corpus

AMPARO CONTRA LEYES - Judicial review of constitutionality of statutes
AMPARO CASACION - Judicial review of constitutionality and legality of judicial decisions
AMPARO ADMINISTRATIVO - Judicial review of administrative actions
AMPARO AGRARIO - Protection of peasant’s rights derived from agrarian reform process
- WAMP is limited to life, liberty and security

- There must be ACTUAL THREAT.
- WAMP is not available as a remedy for threatened demolition of dwelling
- WAMP is not available against a barangay captain’s alleged trespass
- Mere violation of property rights, wamp is not proper
WHO MAY FILE (ORDER OF PREFERENCE)

1. Any member of the immediate family: Spouse, children and parents
2. Ascendant/Descendant or collateral relative of the aggrieved within 4 civil degree CA
3. Any concerned citizen, organization, association or institution if there is no known member of
the immediate family or relative
- Filing by the aggrieved party suspends the right of all other authorized
WHERE TO FILE:
1. RTC where the threat, act or omission was committed or any of its elements
2. SB, CA, SC or any justice of such courts

- ENFORCEABLE ANYWHERE IN PH
WHERE RETURNABLE
1. RTC - Same court
2. SB,CA - Such court or to any RTC where the threat happened
3. SC - Such court or SB, CA or RTC where the threat happened
- Petition may be filed on any day, including saturday, sunday or holiday and at any time from
morning until evening
- No docket fees in WAMP
- GR: Clerk of court shall issue writ

- EXC: In case of urgent necessity, Justice or judge may issue under his or her own hand and
may deputize any officer or person to serve it.
- Writ is served upon the respondent by a judicial officer or by a person deputized by the court
who shall retain a copy on which to make a return of service
- In case it cannot personally serve, substituted service shall apply
- Return serves as the responsive pleading.
- Respondent shall file a verified return together with supporting affidavits within 5 WORKING
DAYS after service.
- THERE IS NO GENERAL DENIAL. Revelation of all evidence relevant is required.
- OMNIBUS WAIVER RULE - Respondent must plead all his defense in the return or else deemed
waived
PROHIBITED MOTIONS
1. MD
2. Extension
3. Dilatory motion
4. Bill of parti
5. Counterclaim or crossclaim
6. Third party complaint
7. Reply
8. Motion to declare in default
9. Intervention
10. Memorandum
11. MR of interlocutory orders
12. Certiorari, mandamus, prohibition against interlocutory order.
- Failure to file return - May hear petition ex parte.

- Hearing is summary

INTERIM RELIES OF PETITIONER
1. Temporary Protection Order -Upon motion or motu proprio may order that the petitioner or
aggrieved party and any member of immediate family be protected in a government
agency or by an accredited private institution capable of keeping and securing their safety.
2. INSPECTION ORDER -Order any person in possession or control of a designated land or other
property to permit entry for the purpose of inspecting, measuring, surveying or
photographing the property
3. PRODUCTION ORDER - Order any person in possession, custody or control of any designated
documents, papers, books, accounts, or objects which constitute or contain evidence
relevant to the petition.
4. WITNESS PROTECTION ORDER - Refer the witness to DOJ for admission to the witness
protection security and benefit program or the witness may be referred to other government
agencies or to accredited persons or private institutions capable of keeping and securing
safety
- Interim relief may only be granted before final adjudication of the case is made.
- Once WAMP is granted, It necessarily entails the protection of the aggrieved party
INTERIM RELIEFS AVAILABLE TO RESPONDENT

1. Inspection order
2. Production order
- Burden of proof - Substantial evidence

- Presumption of regularity in the performance cannot be invoked
- Extraordinary diligence in the performance shall be observed
- Exhaustion of administrative remedies is not required
- Technical rules of evidence not observed in WAMP.
- Hearsay evidence may be validly admitted.
CONTEMPT:
1. Refuses to make a return
2. False return
3. Disobeys lawful orders of court
- Appeal if 5 days from judgment

- TO SC UNDER RULE 45
PRIVILEGE OF WRING OF AMPARO - Includes availment of the entire procedure outlined in the
rules.
- HC and WAMP are immediately executory
LIBERALIZED RULE ON DISMISSAL - The court shall not dismiss the petition but shall archive it if upon
the determination it cannot proceed for a valid cause such as failure of the petitioner or witness
to appear due to threats on their lives

- The petition shall be dismissed with prejudice upon failure to prosecute after the lapse of 2
years from notice of order archiving the case
- Filing of WAMP shall not preclude the filing of separate criminal, civil or admin
- When a criminal action is commenced, no separate petition for the writ shall be filed. Writs
shall be available by motion in the said criminal case
CONSOLIDATION: When a criminal action is filed subsequent to the filing of a petition, the latter
shall be consolidated with the criminal action.
- If WAMP and Crim and civ case were subsequently filed - CONSOLIDATE IN CRIMINAL
DOCTRINE OF COMMAND RESPONSIBILITY - Any government official or supervisor or officer of PNP

shall be held accountable for neglect of duty if he has knowledge of crime or offense.
- The president cannot be included as respondent in a WAMP solely on the basis of command
responsibility because of presidential immunity from suits
- AFP chief and PNP Director may be included as respondents but not for the purpose of
attaching liability and responsibility to them but only to determine the author who is
accountable.
WRIT OF HABEAS DATA (HD)

- Remedy available to any person whose right to privacy in life, liberty and security is violated or
threatened by an unlawful act or omission of a public official or employee or of a private
individual or entity engaged in gathering, collecting or storing of data or information
regarding the person, family, home and correspondence of aggrieved party.
WHO VIOLATES: Public official or employee or of a private individual or entity engaged in

gathering, collecting or storing of data or information
NEXUS: Violation of right to privacy AND violation of right to life, liberty and security
- HD may be filed with WAMP

- HD allows families of victims of enforced disappearance to petition to the courts to COMPEL
THE GOVERNMENT TO ALLOW ACCESS TO DOCUMENTS about missing person.
- Entity need not be in the business of collecting or storing data.
- It will not issue to protect PURELY PROPERTY AND COMMERCIAL CONCERNS
WHO MAY FILE HD

1. Aggrieved party may file
WHO MAY FILE HD IN WAMP:

1. Any member of the immediate family
2. Ascendant, descendant or collateral relative of the aggrieved party within the fourth civil
degrees of C/A
- HUMAN RIGHTS ORG/INSTITUTIONS cannot file

WHERE TO FILE:
1. RTC where the petitioner or respondent resides. or that which has jurisdiction over the place
where the data or information gathered, collected or stored at the option of the petitioner.
2. SC or CA or SB when action concerns PUBLIC DATA FILES OF GOV OFFICES
WHERE RETURNABLE
1. RTC - Same court
2. SB/CA - Same court or RTC of the place where the respondent resides or that which has
jurisdiction over the place where the data or information is gathered.
3. SC - Same court or CA/SB or RTC of the place where the respondent resides or that which
has jurisdiction over the place where the data or information is gathered.
- ENFORCEABLE ANYWHERE
- There is docket fees but indigent may be exempted.
- Petition for HD shall be verified.
- Respondent shall file a written return within 5 working days
- General denial is still not allowed.
DEFENSES AVAILABLE TO THR RESPONDENT:

1. National security
2. State secrets
3. Privilege communications
4. Confidentiality of source of information of media
- SAME PROHIBITED PLEADINGS

- Hearing shall be summary
JUDGMENT: If proven, The court shall enjoin the act complained of or order the deletion,
destruction or rectification of the erroneous data or information and grant other relevant reliefs.
- Shall be enforced within 5 working days
GRANT OF WRIT - Decision of the court to give due course and requires the respondent to submit
return
GRANT OF PRIVILEGE OF WRIT - Petition is found meritorious and prayers are granted
APPEAL - 5 DAYS FROM THE JUDGMENT OR FINAL ORDER to SC by Rule 45

- Same consolidation rule in WAMP
RULE 103: CHANGE OF NAME:

- Covers SUBSTANTIAL CHANGE in the name recorded in the civil registry.
- Mere correction of typographical or clerical errors in the entry of the name which are obvious
are governed by RULE 108.
- Both petitions are subject to the primary jurisdiction of the LCR or CG

CHARACTERISTICS OF NAME:
1. Absolute
2. Obligatory
3. Fixed, unchangeable or immutable
4. Outside commerce of man
5. Imprescriptible
- RULE 103 covers the change of first name, nickname, middle name or surname which is not
simply a correction of a typographical error.
- Real and official name of a person is that which is given in the civil registrar no the name by
which he is baptized.
GROUNDS FOR CHANGE OF NAME: (EXCLUSIVE)

1. When the name is ridiculous, dishonorable or extremely difficult to write or pronounce
2. Change results as a legal consequence as in legitimation
3. Avoid confusion
4. Continuously used and been known since childhood by a Filipino name, unaware of her
alien parentage
5. Sincere desire to adopt a filipino name to erase signs of former alienage
6. Surname causes embarrassment and not done for fraudulent purpose.
Change of name will not be allowed:

1. Legal separation alone
2. Using such name and has become known by it
- An alien can petition for change of name but he must be domiciled in PH

- Change of name affects only the petitioner. A separate petition is needed for his spouse or
children.
- Change of name is proceeding in rem. Jurisdiction to hear and determine the petition is
acquired after publication
- Sex reassignment is not a valid ground
- Venue is RTC of the province where the petitioner has been residing for at least 3 years prior to
the filing.
- Requirement of verification is a mere formal defect.
- All names and aliases must be stated in the order or else it will defeat the purpose of
publication.
- Publication must include the correct information in order to vest jurisdiction upon the court
- Law does not allow one to drop his middle name because it has practical and legal
significance. It serves to identify the material lineage of filiation.
- Hearing shall not be within 30 days prior to AN ELECTION nor within 4 months after the last
publication.
- Wrong spelling of name in publication is substantial defect.
WHO MAY OPPOSE:

1. Interested person

2. Republic of PH
- A decree of adoption grants the adoptee to use the name of the adopter. If change of first
name is desired, it must be prayed and alleged in adoption
- Copy of judgment furnished with Civil reg
- Change of name does not change the status or legal capacity
- A married woman has the option to use the surname of her husband
- Appeal is by NOTICE OF APPEAL ONLY.
- A legitimate child cannot change his surname in order to adopt the surname of her
stepfather.
- BEST REMEDY: ADOPTION
RULE 107: ABSENTEE

- One who disappears from the domicile and his whereabouts being unknown and without
having left an agent to administer his property or the power conferred upon the agent has
expired.
JURISDICTION: RTC where the absentee resided before his disappearance
APPOINTMENT OF REPRESENTATIVE IF:

1. Person disappears
2. Whereabouts unknown
3. Leaves no agent or upon expiration of agency
2 YEARS - If person left no administrator

5 YEARS - Person left administrator
WHO MAY FILE FOR APPOINTMENT:

1. Spouse
2. Heirs instituted in a will
3. Relatives
4. Right over the property
- If petition left no property, petition is useless.

- Disqualification as an heir does not inhibit him to file a petition for declaration of absence or to
be appointed as administrator
REQUISITES FOR DECLARATION OF PRESUMPTIVE DEATH:

1. Absent spouse has been missing for 4 consecutive years or 2 years if the disappearance
occurred where there is danger under the circumstances stated in NCC
2. Present spouse wishes to remarry
3. Well founded belief that the absentee is death
4. Files a summary proceeding

- Declaration of presumptive death is immediately final and executory
GROUNDS FOR ADMINISTRATION:

1. Absentee appears personally or through agent
2. Absentee’s death is proven by heirs
3. Third person appears showing that he acquired such property
- Declaration of presumptive death is only for the purpose of remarriage.
7 YEARS - Considered as dead for all purposes except succession

10 YEARS - Considered dead for the purposes of succession.
- 5 YEARS if disappeared at the age of 75
CONSIDERED DEAD FOR ALL PURPOSES INCLUDING SUCCESSION:

1. Lost during voyage for a period of 4 years
2. Member of armed forces taking part thereof and missing for 4 years
3. Danger of death under other circumstances missing for 4 years
- If absentee reappears, He shall recover his property in the condition in which it may be
founded the price of any property that may have been alienated or property acquired
therein.
RULE 108: CANCELLATION OR CORRECTION OF ENTRIES IN CIVIL REGISTRY

- 108 applies only to substantial changes or correction of entries or typographical errors in the
civil registry
- BUT IT EXCLUDES:
- 1. Change of nationality, Age and Status (NAS)
- 2. Change of first name or nickname
- 3. Change of date and month of birth
- 4. Sex where it is patently clear that there was mistake in entry
- Any person interested in any act, event, order or decree concerning the civil status of persons
recorded in the civil registry
WHERE TO FILE: RTC of province where the civil reg is located
ENTRIES SUBJECT TO CANCELLATION OR CORRECTION:

1. Births
2. Marriages
3. Deaths
4. Legal separations
5. Judgments of annulments or void marriages
6. Legitimations
7. Adoptions

8. Acknowledgements
9. Naturalization
10. Election, loss or recovery of citizenship
11. Civil interdiction
12. Judicial declaration of filiation
13. Voluntary emancipation
14. Change of name
- Person with Congenial Adrenal Hyperplasia may elect his or her gender after reaching the
age of majority
- Civil registrar and all person who have claim or interest must be impleaded.
- Failure to implead will make the proceedings void.
- Notice and publication is needed.
OPPOSITION:
- Filed within 15 days from notice of petition or date of last publication
- Petition for change of name and correction of entry may be joined in one proceeding if the
change of name and correction of entry are based on the same underlying facts or logically
connected to each other and provided that all the requirements are complied with.
- Venue of such will follow the principal proceeding
CLERICAL ERROR ACT (RA 9048)

SCOPE:
1. Clerical or typographical errors and change of first name or nickname
2. Clerical or typographical errors and change of the day and month in the date of birth
3. Clerical or typographical errors and change of Sex of a person where it is patently clear
there was clerical mistake
- Changed by the concerned city or municipal registrar or consul general
CANNOT BE CORRECTED: NAS

1. NATIONALITY
2. AGE
3. STATUS
- Legitimate to illegitimate - substantial - Adversarial proceedings
CLERICAL OR TYPOGRAPHICAL ERROR - A mistake committed in the performance of clerical work

in writing, copying, transcribing or typing an entry in the civil register that is HARMLESS and
innocuous such as misspelled name, misspelled place of birth or the like.
- Rule 103 and 108 are different proceedings.

GROUNDS:
1. Petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely
difficult to write
2. New first name or nickname has been habitually and continuously used by the petitioner and
he has been publicly known by the first name or nickname in the community
3. Avoid confusion
- Any person of legal age having direct or personal interest in correction
WHERE TO FILE:
1. Local civil registrar where record is kept
2. Nearest PH consulate for citizens of PH who are presently residing or domiciled in foreign
countries.
- 103, 108 and 9048 may only be availed once under the same law.
PUBLICATION IS REQUIRED ONLY WHEN:

1. Change of first name
2. Correction of entry concerning day or month of bday
3. Correction of entry concerning sex of person
- Change shall be reflected on the birth cert by way of marginal annotation

PROVISIONAL REMEDIES
- Temporary, auxiliary and ancillary remedies available to the litigant for the protection of his
rights while the main action is pending
- Dependent for the existence of main actions. If main action is dismissed, PR is also dismissed.
- Available in criminal cases and in some special civil actions and specpro.
- Court which has jurisdiction over the main action has jurisdiction to PR
- Orders granting PR are merely interlocutory and cannot be subjected to appeal
RULE 57: PRELIMINARY ATTACHMENT

- Ancillary remedy applied for not for its own sake but to enable the attaching party to realize
upon the relief sought and expected to be granted in the main or principal action.
- It may also be availed to acquire jurisdiction over the action by actual or constructive seizure
of the property in those instances where personal or substituted service of summons on the
defendant cannot be effected
- It is strictly construed against the applicant.
REQUISITES:
1. Motion whether ex parte or with notice to parties.
2. Applicant or some other who knows personally the facts must state in the affidavit that:
1. Sufficient cause of action exists
2. No other sufficient security for the claim sought
3. Amount due to the applicant or the value of the property the possession of which he is
entitled to recover is as much as the sum for which the order is granted above all legal
counterclaims.
3. Post a bond fixed by court
4. Bond duly filed in court
- Attachment places the property in custody of the court.

- Jurisdiction of the defendant is not required as long as the court acquires jurisdiction over the
res
- It doe not affect the decision on the merits of the main action
KINDS OF ATTACHMENT:
1. Preliminary attachment or levy on attachment - one issued at the commencement of the
action or at any time before the entry of the judgment as security for the satisfaction of any
judgment that may be recovered in the cases provided by the rule.
2. Garnishment - Plaintiff seeks to claim either the property of the defendant in the hands of a
third party called the GARNISHEE or the money which said third person owes the adverse
party.
3. Levy on execution - writ issued by the court after judgment has become final and executory
by which the property of the judgment obligor is taken into the custody of the court before
the sale of the property on execution for the satisfaction of a final judgment.

WHEN TO APPLY PA:
1. At the commencement of action
2. Any time before entry of judgment
- It may also be availed by defendant whenever he asserts counterclaim won it is compulsory

or permissive.
GROUNDS FOR THE ISSUANCE:

1. Recovery of a specified sum of money or damages EXCEPT moral and exemplary damages
on cause of action arising from law, contract, quasi contract, delict or quasi delict against a
party about to depart from the PH with intent to defraud his creditors
2. In actions for money or property embezzled or fraudulently misapplied or converted on his
own use by a public officer or an officer of a corp or an attorney, factor, broker, agent or
clerk in the course of his employment or by any person in a fiduciary capacity
3. Actions to recover the possession of property unjustly or fraudulently taken, detained or
converted when the property or party thereof has been concealed or disposed of to prevent
being found by the applicant
4. Actions against a person guilty of fraud in contracting the debt (dolo causante) or incurring
or performing an obligation upon which the action is based (Dolo incidente)
5. Actions against a party who has removed or disposed of his property or is about to do so with
intent to defraud creditors.
6. Actions against non residents not found in the PH or on whom summon is served by
publication
- Intended to acquire jurisdiction over the res by converting the action in personam to an
action quasi in rem and thus justifying summons by publication.
- It applies in any action where the defendant is designated as an unknown owner or the
like or whenever his whereabouts are unknown and it cannot be ascertained by diligent inquiry
- Service may be applied by publication. It applies to PERSONAM, REM, QREM
- PA can be applied even on appeal
PRELIMINARY ATTACHMENT FINAL ATTACHMENT
Auxiliary remedy to give security for a Means for the execution of final judgement
judgment still to be rendered
No sale Always accompanied by sale at public auction
At the commencement and before entry of After the judgment has become final and
judgment executory
Proceeds of sale are in custodia legis Turned over to the attaching creditor
Intervention is a remedy Intervention is not a remedy
- PA is issued either ex parte or upon motion with notice to parties.

- When issued ex parte, the writ cannot be enforced and may not be validly implemented
unless preceded by a service of summons upon the defendant or simultaneously

accompanies by service of summons, a copy of the complaint, application for attachment,
order of attachment and the attachment
- Bond posted is for the damages, costs which may be adjudged to the adverse party arising
from and by reason of attachment.
- The person whose property is to be attached may PREVENT THE IMPLEMENTATION of writ by
making CASH DEPOSIT or executing a counter bond to the adverse party equal to the amount
of the bond fixed by the court.
- Once the implementation of writ commences, the court must have acquired jurisdiction over
the defendant by prior or CONTEMPORANEOUS SERVICE OF SUMMONS.
- Without such, court has no jurisdiction against the defendants
CONTEMPORANEOUS SERVICE OF SUMMONS:

1. Service of summons
2. Copy of the complaint
3. Application for attachment
4. Affidavit and bad
5. Order and writ of attachment.
EXCEPTIONS:
1. Summons count not be served personally or by substituted service
2. Defendant is a resident of the PH temporarily absent therefrom
3. Defendant is non resident
4. Action is one in rem or quasi in rem
- In garnishment, By notice of garnishment court acquires jurisdiction over the garnishee and
the later becomes a forced intervenor
- Property legally attached is property in custodia legis and cannot be interfered without the
permission of the court.
PRINCIPLE OF SENIORITY OF LIENS - Where the property attached by the judgment creditor had
previously mortgaged, the judgment creditor’s lien is inferior to that of the mortgagee which
must first be satisfied in the event of foreclosure.
- It is not necessary to serve summons upon the garnishee in order that the trial court may
acquire jurisdiction. Service to him of the writ of garnishment is enough.
- Sale at public auction after levy on attachment and before entry of judgement may be
ordered when:
1. Perishable in nature
2. Interests of all the parties will be subserved.
- Proceeds will be in custodia legis

- The remedy of adverse party is lifting the attachment through cash deposit or counter bond
IF ATTACHMENT HAS ALREADY BEEN ENFORCED:

- Notice of the deposit shall be served on the attaching party. Court shall after due notice and
hearing order the discharge
- Mere posting of the counterbond does not automatically discharge the writ of attachment
- Ex parte discharge or suspension of attachment is not allowed.

- Upon discharge of an attachment, Deposit or counterbond shall stand in place of the
property so discharged.
- Preliminary attachment is not lifted by execution of a compromise agreement even if
approved by court.
GROUNDS FOR DISCHARGE OF PA:

1. Debtor has posted counterbond or cash deposit
2. Attachment was improperly or irregularly issued
3. Judgment is rendered against the attaching creditor
4. Attachment is excessive but discharge shall be limited to the excess
5. Exempt from execution
- When judgment against the party whose property has been attached becomes final and
executory, the surety on any counterbond given shall become charged on such counterbond
and bound to pay the judgment obligee after notice and summary hearing
- Liability on the counterbond automatically attaches without the need of supplemental
pleadings
RULE 58: PRELIMINARY INJUNCTION (PRINJ)
INJUNCTION - An independent action brought specifically to restrain or command the

performance of an act.
- An original action for injunction may only be filed in the RTC. (Incapable of pecuniary)
- Immediately executory
- Preliminary injunction may be issued by any court having jurisdiction of the main case.
PRELIMINARY INJUNCTION - An ancillary or preventive remedy where a court requires a person, a

party or even a court or tribunal to either refrain or perform an act during the pendency of the
final disposition of the principal action.
- It is merely a temporary remedy
- It may be extended in cases of extreme urgency where the right is very clear
- Not judgment on the merits. Evidence presented is not conclusive and complete. It is a mere
preliminary determination
- Purpose is to preserve status quo and prevent future wrongs
STATUS QUO - The last peaceable and uncontested situation which precedes a controversy. It is
the situation at time of the filing of the case

REQUISITES OF PI:
1. Clear and unmistakable right (Right in esse)
2. Material and substantial invasion of right
3. Urgent need for writ to prevent irreparable injury
4. No other ordinary, speedy and adequate remedy
CLEAR AND UNMISTAKABLE RIGHT - Clearly founded in or granted by law or is enforceable as a

matter of law
IF FILED BEFORE A SINGLE SALA COURT

- Notice of the application must be served to the adverse party
- Preceded or contemporaneously accompanies by service of summons
FILED IN MULTIPLE SALA COURT:

- Raffled only after notice of the application is sent to the adverse party or person to be
enjoined.
- Contemporaneous service of summons with the copy of complaint
- It is improper for a judge to order a hearing on issuance of TRO where it was not prayed.
- Summary hearing after sheriff’s return
- If granted, party must file a bond as determined by the court
- Order granting Prinj is interlocutory
EX PARTE ISSUANCE OF TRO: (EXCEPTION ONLY)

1. Great irreparable injury would result to the applicant before the matter can be heard on
notice
1. Single sala court - Effective only for 20 days FROM SERVICE of TRO
2. Multi Sala court - Raffle must be immediately be conducted without the notice to the
person whose property is to be attached. Judge may likewise issue TRO effective only for
20 days from the service
3. Matter of extreme urgency and applicant will suffer grave injustice and irreparable injury
- Executive judge of a multi sala court or presiding judge of a single sala court may issue
exparte a TRO effective only for 72 hours from issuance. TRO must immediately be served to the
party sought to be enjoined.
- Presiding judge if the single sala court shall conduct a summary hearing to determine
whether the TRO shall be extended until the application for preliminary injunction can be heard.
- Within 72 hours, the executive judge of a multi sala court who issued TRO shall raffle the
case to an ordinary judge without notice to the person whose property is going to be attached.
- IN NO CASE SHALL THE TOTAL PERIOD OF EFFECTIVITY OF TRO EXCEED 20 DAYS INCLUDING THE
ORIGINAL 72 DAYS.
IRREPARABLE - If constant and frequent recurrence that no fair or reasonable redress can be had

- TRO is deed automatically vacated if not resolved within 20 days. It is not extendible without
need of any judicial declaration to that effect and no court shall have the authority to extend
or renew the same on the same ground which it was issued.
PERIOD OF EFFECTIVITY:
1. RTC: Effective for 20 days or 72 hours if not extended
- EXCEPT: TEPO: Remain effective until case is decided
2. CA: 60 days from the service on the party or person sought to be enjoined
3. SC: Effective until further orders
PRELIMINARY PROHIBITORY INJUNCTION - To prevent

PRELIMINARY MANDATORY INJUNCTION - To require
PROHIBITORY INJUNCTION PROHIBITION
Directed against a party Directed against a court, tribunal or a person

exercising judicial, quasi judicial or ministerial
functions
Does not involve jurisdiction GAD
May be the main action or provisional remedy Always main action
MANDATORY INJUNCTION MANDAMUS
Directed to a party or litigant Commanding a tribunal, board or officer to

perform a ministerial duty
- Prinj should not issue to take the properties out of the possession of one party to place it in the
hand of another
- EXC: FEUD to prevent the defendant from committing further acts of dispossession against
the plaintiff.
- Within 5 days from the filing of complaint may file for the issuance of PRELIMINARY
MANDATORY INJUNCTION to restore him in his possession.
- Within 10 days from the perfection of appeal to RTC of a judgment in an action for FEUD,
the court may issue a writ of preliminary mandatory injunction to restore the plaintiff in
possession if the court is satisfied that the defendant’s appeal is frivolous or dilatory
WHO MAY GRENT PRINJ:

1. SC in its original and appellate juris
2. CA WON in aid of appellate juris
3. Trial court in cases pending before it
4. SB
5. CTA
LIMITATIONS OF POWERS OF RTC TO ISSUE WRIT:

1. Restrain acts being or about to be committed within its JURISDICTION ONLY

2. Cannot issue in ULP
3. Not issue against SEC, Bureau of patents, Trademarks, COMELEC
4. Cannot interfere by injunction with the judgment of a court of concurrent jurisdiction
GROUNDS:
1. Applicant is entitled to relief demanded and the whole or part of such relief consists in
restraining or requiring an act for a limited period or perpetually
2. Commission or continuance or non performance of act complained
3. Party, court, agency or person is doing, threatening, or is attempting to do or is procuring or
suffering some acts in violation of his rights respecting the subject of the action or proceeding
NO PRINJ ALLOWED:
1. Foreclosure of mortgage by a government bank
2. Only SC may issue any TRO or Print against the government or any of its subdivisions, officials
or any person, entity, whether public or private acting under government discretion, to
restrain, prohibit or compel the following acts:
1. Acquisition, clearance and development of the right of way and or site or location of any
national government project
2. Bidding or awarding of contract/project of the national government
3. Commencement prosecution, execution, implementation, operation of any such
contract or project
4. Termination or rescission of any such project
5. Undertaking or authorization of any other lawful activity necessary for such contract of
project
- APPLIES TO ALL CASES OF DISPUTES OR CONTROVERSIES instituted by public parties including

but not limited to cases filed by bidders or those claiming to have rights through such bidders.
- NOT APPLY when the matter is of extreme urgency involving constitutional issue such that
unless a TRO is issued, grave injustice will arise.
- Applicant shall file a bond which shall accrue in favor of the government.
3. Concessions, licenses, permits, patents, public grants as to the disposition, exploitation,

utilization, exploitation and or development of natural resources.
4. Except SC, No court can issue TRO or Prink against lawful actions of government agencies that
enforce environmental laws or prevent violations thereof.
5. RTC shall not enjoin the arbitration proceedings that has already commenced during the
pendency of the petition for relief
6. CA shall not during the pendency of the decision for certiorari from a judgment rendered by
RTC under ADR prohibit or enjoin the commencement of arbitration
- Absence of verification makes an application patently insufficient both in form and substance
- Notice of PRINJ or TRO shall be preceded or contemporaneously accompanied by service of

summons together with the copy of the complaint or initiatory pleading.
- EXCEPTIONS:
1. Where the summons cannot be served personally or substituted

2. Resident of PH temporarily absent
3. Non resident
- When TRO is issued ex parte because of extreme urgency, The TRO will be effective upon the
issuance without prior and contemporaneous service of summons.
- Summons must be immediately be served thereafter together with other documents
PRINJ TRO
No definite date of effectivity but if the writ is Does not exceed 20 days including the first 72
issued by RTC or the CA, SB or CTA against hours in RTC,
lower court, the former shall decide the main 60 days in CA
case or petition within 6 months from the Indefinite in SC

issuance of writ
Restrains or requires the performance of a Maintanis status quo

particular act
Cannot be granted without notice of hearing May be granted ex parte if the matter is of
extreme urgency and applicant will suffer grave
injustice and irreparable injury
STATUS QUO ORDER - Not a TRO. More in the nature of cease and desist order since it directs the
doing or undoing of acts as in the case of prohibitory or mandatory injunction. It has no definite
time. It lasts until revoked. Duration may be subjected to the agreement of parties and no bond
required
TRO IN EXECUTIVE JUDGE MULTI SALA TRO ISSUED BY ORDINARY JUDGE

COURTS
Good for 72 hours Good for 20 days including the first 72 hours
Issued before raffling Issued AFTER raffling
Issued exparte because the matter is of Issued after summary hearing to determine
extreme urgency whether the TRO shall be extended until the
application for Prinj be heard
- Writ of injunction may not be denied or dissolved by simply posting a counterbond. The party
must show in the hearing that there will be irreparable damage to the party enjoined.
PRINJ FINAL INJUNCTION
Granted at any stage before the rendition of Issued in the judgment permanently restraining
judgment the defendant or making the PRINJ permanent
RULE 59: RECEIVERSHIP

INSTANCES WHERE ALLOWED:
1. Applicant has in interest in the property or fund subject of the proceeding and such property
is in the danger of being lost, removed or materially injured unless receiver is appointed
2. Foreclosure of mortgage when the property is in danger of being wasted or dissipated or
materially injured and that its value is probably insufficient to discharge the mortgage debt
(Real property only)
3. After judgment, to preserve the property during the pendency of appeal
4. When most convenient and feasible means of preserving it
- Property being placed must be the subject of litigation

- A receiver is not a representative party but a real party in interest. But he cannot file a case
without the consent of court.
- GR: Neither party to litigation may be appointed as receiver without other’s consent.
Indifferent person
- Not agent of any party. He is an officer of the court.
- May be a principal or ancillary action
- PRINCIPAL: RTC (Incapable of pecuniary)
- Ancillary: Where the main action is pending
- May be resorted to during the pendency of an appeal or even after the judgment becomes
final and executory
POWERS:
1. Bring and defend in such capacity in his own name
2. Take and keep possession
3. Receive rents
4. Collect debts
5. Compound for or compromise the same
6. Make transfers
7. Pay debts
8. Invest funds in his hands only by order of the court.
- No action may be brought against the receiver without leave of court.

- An action filed by successor receiver against his predecessor receiver is allowed without
leave of court.
RULE 60: REPLEVIN

- Seeking for possession of personal property prior to the determination of the main action for
the recovery thereof.
- Principal and provisional relief

- PRINCIPAL ACTION may be filed before RTC or MTC depending on the value of personal
property
WHEN APPLIED: At the commencement of the action but before defendant files an answer
- NO REPLEVIN IN APPELLATE COURTS.

REPLEVIN WRIT OF PRELIMINARY ATTACHMENT
Recover personal property capable of manual Property put in the custody of the court to secure
delivery from the defendant and to give the the satisfaction of the judgment
plaintiff custody during the pendency of the
action
Property belongs to plaintiff or one over which Property does not belong to plaintiff
he has right of possession
May be sought ONLY WHEN PRINCIPAL Available even if recovery of property is just
ACTION IS FOR THE RECOVERY OF incidental
PERSONAL PROPERTY
Only when defendant is in actual or Even if property is in the possession of third

constructive possession person
Cannot be availed when in CUSTODIA LEGIS May be availed even in custodia legis
Before defendant answers Before judgment
Bond is double the value Fixed by court
Only to personal property capable of manual All kinds of property

delivery
- Replevin and Preliminary attachment cannot be availed at the same time on the same
property.
- In PA, It puts the property in custodia legis, thus replevin is not proper.
- If detention of property is actually legal, No replevin
- Sheriff may cause the building or enclosure to be broken open and take the property in
possession.
REDELIVERY BOND - Defendant may file such.

- Serve copy of such bond to the plaintiff
- Within 5 days from the taking by the officer.
- Sheriff shall retain possession for 5 days (Period of filing redelivery bond)

SPECIAL CIVIL ACTIONS
- Kind of action which are governed by its own special rules.
- No cause of action required as compared with ordinary civil action
- MTC has jurisdiction to take cognizance of real actions or those affecting title to real property
or for condemnation of or foreclosure of a mortgage on real property.
EXPROPRIATION/CONDEMNATION - Incapable of pecuniary estimation - RTC

FORECLOSURE OF REAL ESTATE MORTGAGE: Incapable of pecuniary estimation - RTC
RULE 62: INTERPLEADER

- Special civil action where a person who has property in his possession or an obligation to
perform either wholly or partially but who claims no interest in the subject or whose interest in
whole or in part is not disputed by others, goes to court and asks conflicting claimants to
litigate among themselves.
- It cannot be availed to resolve the issue of breach of undertakings made by defendants
REQUISITES:
1. Plaintiff claims no interest in the subject matter or his claim thereto in whole or in part is not
disputed
2. Parties to be interpleader must make effective claims
3. There must be at least two or more conflicting claimants with adverse or conflicting interest
to a property in custody or possession of or to an obligation to be performed by the plaintiff.
4. Same subject matter
- No cause of action required to the plaintiff only a threat

- It must be filed within a reasonable time after a dispute his arisen without waiting to be sued
by either claimants or else barred by laches.
- EXC: Stakeholder acts with reasonable diligence in view of environmental circumstance
JURISDICTION
MTC RTC
PERSONAL PROPERTY - Does not exceed Beyond values of MTC

300/400
REAL PROPERTY - Assessed value does not If matter is exclusively within the jurisdiction of
exceed 20/50 RTC
- Summons shall be served to both of the conflicting claimants

- Each claimant has 15 days to file MD
- Period to file an answer shall be tolled by filling MD. If denied, period shall not be less than 5
days to file answer.
- Also 15 days to answer

- Court by a motion may declare the claimant in default
- Parties may file crossclaim, counterclaim or 3rd party complaints
- Docket fees on conflicting claims are paid by the conflicting claimants not the one who
initiated the interpleader suit.
- For interpleader suit: Plaintiff must pay docket fee
RULE 63: DECLARATORY RELIEF

- Relief sought is the declaration of rights and duties
- Issue if the validity or construction of the subject matter.
- Any person interested under a deed, will, contract or written instrument or those affected may
file.
- It may be treated as mandamus or prohibition
REQUISITES:
1. Subject matter must be a deed, will, contract or other written instrument, statute, ECO,
Regulation or ordinance or other governmental regulation (EXCLUSIVE)
2. Actual justiciable controversy or ripening seeds of one between persons whose interests are
adverse
3. No breach of document
4. Doubtful validity and requires judicial construction
5. Ripe for judicial determination
6. No other adequate relief available
- Court decisions may not be subject to DR. MR or New trial are the adequate remedies
ACTUAL JUSTICIABLE CONTROVERSY - existing or ripe for judicial determination not merely
anticipatory
RIPENESS: Inevitable or administrative remedies were exhausted
- A declaration shall not prejudice the rights of persons not parties to the action
- Notary public is not a party to a contract in DR case.
- SOLGEN shall be notified when assailing validity of statute, EO or gov regulation
- Prosecutor shall be notified if validity of local government ordinance
COURT MAY REFUSE DR IF:

1. Decision will not terminate the controversy or uncertainty
2. Construction is not necessary EXC: Reformation of instrument and quieting of title
- DR may be converted into an ordinary action if before termination of the case a breach or
violation of the instrument or statute occurs
- If there is breach of statute before filing, DR is not proper
- Third party complaint is not allowed
- Compulsory counter claim is allowed

- No writ of execution. Judgement stands on its own
PROCEEDINGS CONSIDERED AS SIMILAR REMEDIES:

1. Reformation of instrument
2. Action to quiet title or remove cloud
3. Petition for consolidation of ownership
- In these remedies, Court is required to render judgement. In DR, Court may refuse.
- Jurisdiction is RTC (incapable of pecuniary estimation)

- EXC:
1. Treated as prohibition or mandamus
2. Quieting of title (assessed value) 20/50
RULE 64: REVIEWS OF JUDGMENT AND FO OF COMELEC AND COA

- Does not apply to Civil service commission
- COMELEC AND COA - VIA RULE 65 - SC - 30 DAYS (As an independent civil action)
- GRAVE ABUSE OF DISCRETION (JURISDICTIONAL QUESTIONS) Mere errors of judgments are to
covered.
- CSC - RULE 43 - CA - 15 DAYS
- Only in the exercise of adjudicatory power or quasi judicial power of COMELEC AND COA
- - In complex - Extends only to FO or resolutions EN BANC and not interlocutory decisions of
Division
- FRESH PERIOD NOT APPLIED

- If MR is denied, the petition must be filed with the remaining period which shall in no case
be less than 5 days
- MR is a pre requisite for appeal

- Findings of fact of the commission supported by substantial evidence shall be final and non
reviewable
- The filing of petition for certiorari shall not stay the execution of judgment.
- EXC: When SC deems just. Party may apply for TRO or Prinj from SC to stay the execution
RULE 65: CERTIORARI, PROHIBITION MANDAMUS

- Writ of certiorari cannot be issued by RTC against an administrative agency exercising quasi
judicial function since they are of the same rank.
- Writ of prohibition may be issued by RTC against administrative agencies exercising
administrative functions
WRIT OF CERTIORARI - Emanating from the superior court directed against an inferior court,
tribunal, board or officer exercising quasi judicial or judicial functions where by the record of a
particular case is elevated for review and correction in matters relating to jurisdiction.

- A person not a party to the proceeding may not avail certiorari
- EXCEPT WHEN INDISPENSABLE PARTIES
- A law firm which acted as a counsel for the widow in an estate proceeding may file a petition
for certiorari when it was ordered by the probate court to reimburse in its own capacity the
widow’s allowance to estate
- Certiorari is a prerogative writ.
REQUISITES OF CERTIORARI:
1. Respondent tribunal, board or officer is exercising JUDICIAL AND QUASI JUDICIAL FUNCTIONS
2. GAD
3. No appeal or other plain, speedy and adequate remedy
- Issuance of EO is not a QJ/J function.

- Central Bank Monetary board performs executive functions. Issuance of CB Circulars is in the
exercise of an executive function. Certiorari will not lie.
- Certiorari does not lie to assail the issuance of a resolution by Sangunian panglungsod
- DOJ orders are not subject to certiorari
- Revenue regulation is in the exercise of Quasi Legislative function hence within the scope of
certiorari - Because of the expanded definition
- ERC’s issuance of electric cooperatives’ wheeling rates from members of capital contributions
is an exercise of rule making power reviewable by certiorari
- SC may issue Certiorari or prohibition to correct errors of jurisdiction if not exercising QJ/J or
ministerial functions where the matter is of transcendental importance
GRAVE ABUSE OF DISCRETION - Capricious, whimsical, arbitrary and despotic manner in the
exercise of his judgment.
- Certiorari relates to errors of jurisdiction

- CA has the power to review the factual findings of the NLRC. Such power
GR: Certiorari is not proper for order denying MD. The remedy is to file an answer and to
interpose defense and to proceed to trial.
ECE: Grave abuse of discretion
- Petition for certiorari filed in CA is an independent and original action so there is a need for
the CA to acquire jurisdiction over the person of the parties.
- It must be dismissed if it fails to join OSG because the latter possesses the requisite authority
to represent the people in appeal in CRIMINAL CASES
- When appeal is available, Certiorari will not lie even if there is grave abuse of discretion.
- Declaration of presumptive death is immediately final and executory and cannot be
appealed, hence certiorari is proper
- Small claims may be assailed by petition for certiorari under rule 65

45 65
Purely question of law Question of jurisdiction
Appellate jurisdiction Original jurisdicrion
Only to SC May be filed in appropriate court having

jurisdiction over the lower court
No need for MR MR is required
Fresh 15 days if there is MR Fresh 60 days if there is MR
TBO shall not be impleaded TBO shall be impleaded as nominal party
Stays the judgment Does not stay unless TRO or PRINJ
Availed only after a final judgment Availed during the pendency of the case or even
before judgment
- In original actions for certiorari, findings of CA are not conclusive upon SC

- 45 may be treated as 65 where the question is of jurisdiction
- Petition for certiorari is not available to appellant who failed to refile a sufficient appellant’s
brief
- 45 and 65 are mutually exclusive remedies
EXCEPTIONS: Even when appeal is available, 65 will be allowed:

1. When appeal does not constitute a speedy and adequate remedy
2. When orders were issued either in excess of or without jurisdiction
3. Certain special considerations as public policy or welfare
4. Order is a patent nullity
5. Decision in the certiorari case will avoid future litigation
- If after judgment, the petition for certiorari is availed of when appeal is a plain and pesky
remedy, then the petition must fail as certiorari. The right of appeal is deemed abandoned
- After a judgment has been rendered and an appeal is perfected, a petition for certiorari
relating to CERTAIN INCIDENTS may prosper. (Hence not exclusive of one another)
- Certiorari is available despite failure to avail intervention

- Certiorari is not a substitute for a lost appeal
- EXCEPTIONS:
1. Appeal is lost without appellant’s negligence
2. Public welfare dictates
3. Broader interest of justice
4. Writs are null and void
5. Oppressive exercise of judicial authority
PLAIN SPEEDY REMEDY - MR

- Absence of verification is not a jurisdictional defect
WRIT OF PROHIBITION - A writ issued by a superior court and directed against an inferior court,
tribunal, corporation, board, officer or other person (TIBO-PC) whether exercising JUDICIAL,
QUASI JUDICIAL OR MINISTERIAL FUNCTIONS commanding it to desist from further proceedings
- Preventive remedy
- The petitioner should obtain TRO or PRINJ
REQUISITES:
1. TIBOPC is exercising Judicial, Quasi judicial and MINISTERIAL FUNCTION
2. GAD
3. No appeal or plain speedy and adequate remedy
- Where the principal relief sought is to invalidate an IRR issued pursuant to quasi legislative
power, the remedy is ordinary nullification
- Petition for prohibition is proper remedy to prohibit or nullifying the acts of executive officials
that amount to usurpation of legislative authority
- Demolition if discretionary - PROHIBITION IS NOT PROPER
- Prohibition and not mandamus is the proper remedy where a MD is improperly denied.
- If private corporation - Prohibition will not lie.

- Purely private capacity or private individuals - not within the scope
- Prohibition and certio before SC were proper to challenge DAP and related issuances
implanting dap notwithstanding the fact that it do not involve J/QJ/MINISTERIAL
ACCOMPLISHED FACTS (ACTS FAIT ACCOMPLI) - Prohibition does not lie to restrain accomplished
facts
EXCEPTIONS:
1. Capable of repetition yet evading review
2. Prevent creation of a new province by those in the corridors of power who could avoid
judicial intervention and review
WRIT OF MANDAMUS - Issued in the name of the state to an inferior TIBOPC commanding the
performance of an act which the law enjoins as a duty resulting to an office, trust or station
- Will not lie to compel DISCRETIONARY ACTS.

- Does not lie to require anyone to fulfill a contractual obligation or compel a course of
conduct.
- Not lie to compel performance of accomplished facts
REQUISITES:
1. Plaintiff has a clear legal right to the act demanded

2. Duty of the defendant to perform the act because it is MANDATED BY LAW
3. TIBOPC Unlawfully neglects or unlawfully excludes another from enjoyment
4. No appeal or any other plain, speedy and adequate remedy
- Mandamus will lie to compel the execution of judgment because execution of a final and
executory judgment is a matter of right
- It can be used to the extent of requiring the performance of a discretionary act but not to
require performance of such duty in a particular manner.
MINISTERIAL - No use of own judgment.
- If the respondent usurps, intrudes or unlawfully holds - QUO WARRANTO IS PROPER

- Mandamus may be combined with QW
- Mandamus will not issue when administrative remedies are STILL AVAILABLE.
- EXC: Pure question of law or estoppel
CERTIORARI PROHIBITION MANDAMUS
Judicial Judicial
Ministerial function
Quasi judicial Quasi Judicial
Ministerial
GAD GAD 1. Unlawfully neglects
2. Unlawfully excludes another
Annul or nullify proceedings Desist from further proceeding Do act required or pay damages
Corrective Preventive Affirmative
- It does not stay or interrupt. Independent actions.

- It does not affect the running of reglementary period.
GR: CPM shall not be available against interlocutory orders.

EXC INTERLOCUTORY ORDERS IN:
1. Small claims
2. Habeas Data
3. Amparo
4. Summary procedure
- Certiorari is not proper in cases where the purpose is to question the merits of an arbitral
award
WHERE FILED:
1. CA whether or not in aid of appellate jurisdiction
2. Sandiganbayan
3. RTC

4. COMELEC in Election cases involving an act or omission of MTC/RTC
- Hierarchy of courts is observed
IN AID OF APPELLATE JURISDICTION - Court’s right to hear an appeal from the lower court’s
judgment on the merits.
- Judges, Court, Quasi judicial agency, Tribunal, corporation, board, Officer or person who
rendered the judgment shall be joined.
- Private respondent shall appear and defend the assailed proceedings.
- IN CA OR SC, Non joinder of the private respondents shall be sufficient ground for the
dismissal
GR: Public respondents shall not appear in or file an answer or comment for they are mere
nominal parties.
EXC:
1. Directed by court
2. Actuations of a judge are assailed on grounds other than legal ones and imputing judge
personal motives
- Private respondent is an indispensable party

- The order requiring the respondents to comment is equivalent to summons in ordinary civil
actions
RULE 66: QUO WARRANTO

- Writ issued by the court to determine the right to use or exercise of an office, position, or
franchise and to oust the person holding to exercising such office, position or franchise if his
right is unfounded or if he had forfeited his right to enjoy the privilege.
QUO WARRANTO MANDAMUS
Designed to try the right or title to the officer, if Does not lie to try disputed titles but only to
the right or title to the officer itself is disputed enforce legal duties
Brought against the holder of the office Brought against the person who is responsible for
unlawfully excluding the petitioner from office
Usurpation or intrusion Excludes another without claiming any right
QUO WARRANTO ELECTION CONTEST
Occupant is disqualified from holding such Challenges the right of a person to hold office on
office by reason of ineligibility or disloyalty the ground of irregularities in the CONDUCT OF
ELECTIONS
Petitioner will not assume office Petitioner will assume office

QW IN OMNIBUS ELECTION CODE QW IN RULE 66
Election law Rules of court
Elective office Appointive
Issue is illegibility or disloyalty to the RP Validity of appointment
Petitioner may be declared the rightful Court will oust the person
occupant
Filed within 10 days from proclamation 1 year from the ouster of office or right of the
petitioner to hold the office
May be filed by ANY VOTER even if not entitled Person claiming must be entitled to office
to office
Comelec, RTC, MTC SC, CA
- If petitioner is a private person, he shall prove that he is entitled.
Quo warranto - Appointment is void

Impeachment - Appointment is valid
AGAINST WHOM BROUGHT:

1. Person who usurps, intrudes into or unlawfully holds or exercises a public office, position or
franchise.
2. PO who does or suffers an act which by the provisions of law constitutes a ground for
forfeiture of office
3. Association which acts as a corporation within PH without being legally incorporated.
- Not applied to private corporations
WHO MAY COMMENCE:

1. Government through the SOLGEN
2. Public prosecutor
EXC: An individual claiming to be entitled to a public office or position usurped or unlawfully held
or exercised by another.
- Person instituting QW in his behalf does not need to secure intervention from SOLGEN
- Public utility may bring QW against another Public utility
CLASSIFICATIONS:
1. Mandatory:
1. Directed by President
2. Upon complaint or otherwise he has good reason to believe that the case for QW can be
established

2. Discretionary
1. SOLGEN
2. Public prosecutor at the request or upon the relation of another person.
1. Leave of court and bond
- If action is filed by Solgen it is not necessary that there be a person entitled to the office.
- Venue - SC, CA RTC where the respondent or any of the respondent resides
- RTC, CA, SC if solgen
- Subject to hierarchy of courts.
- One year period to file is not interrupted by the filing of any administrative remedies.
- In quo warranto over public office, The filing of the petition suspends the running of the one
year period
- QW may only be brought against De facto corporations
RULE 67: EXPROPRIATION
EMINENT DOMAIN - Power of the nation or sovereign to take, or to authorize the taking of private
property for public use without the consent of the owner upon payment of just compensation
- Inherent power
REQUISITES
1. Due process
2. Just compensation
3. Public use
EXPROPRIATION - Procedure
- RTC has jurisdiction regardless of amount
PUBLIC USE - Public usefulness or productive of the general benefit.
2 STAGES:
1. Determination of authority
2. Determination of Just compensation
ELEMENTS OF TAKING:
1. Enter the private property
2. Entrance is more than momentary period
3. Entry under warrant or color of legal authority
4. Devoted for public use
5. Such a way to oust the owner and deprive him of all beneficial enjoyment
- If practical destruction or martial impairment - TAKING

REQUISITES FOR LGC TO EXERCISE:
1. Valid ordinance authorizing chief executive to exercise power
2. Public use
3. Payment of just compensation
4. Valid offer which was refused
- Resort to expropriation shall be made only after other modes of acquisition are exhausted.
- Where the right of plaintiff is conferred by law, the complaint does not have to state with
certainty the right of expropriation
- Actual filing binds the land not mere notice of intent to expropriate
- Property devoted to public use may also be expropriated
- Despite action, Owner may still sell to another.
PRELIMINARY DEPOSIT a requisite for the possession of plaintiff.

- Shall be in money or certificate of deposit payable on demand.
- It is only necessary if plaintiff desires entry on the land.
VALUE OF PD:
1. Personal property - Fixed by court
2. Real property - Assessed value in tax return
- IF LGU is expropriating, only 15% of the fair marker value based on the tax declaration is
required to be deposited.
- It does not apply with the cases involving NATIONAL GOVERNMENT INFRASTRUCTURE
PROJECTS - Immediate payment is required of the 100% value of the property based on the
current relevant zonal value or as stated in tax declaration
- Once PD is made, Plaintiff is entitled to writ of possession as a matter of right.
- No MD in Expropriation
- No counterclaim, cross claim, third party complaint in expro
- Defendant cannot be declared in default.
- Multiple appeals are permitted in exprop
- Not more than 3 disinterested persons may be appointed as commissioners to ascertain just
compensation
JUST COMPENSATION - The full and fair equivalent for the loss sustained by the defendant
- Equivalent to the fair market value at the time of the taking
JC = FMV + Consequential damages - Consequential benefits.

- If CB is more than CD= JC = FMV
- Sentimental value not computed.
- Action to recover just compensation from the state differs from the action to recover
damages

- Just compensation shall be reckoned as of the time of the taking even if apparently unjust.
Subject only to interests
- Trial before the commissioners is INDISPENSABLE to allow the parties to present evidence on the
issue of just compensation.
- EXC: When parties presented their respective positions in the eminent domain proceedings.
- Findings of the commissioners may be disregarded by the court and may adopt its own
valuation
- Order fixing just compensation is final. appeal is proper
- Trial court may decide conflicting claims of ownership in the same case but only for the
purpose of determining who is entitled to JC
- Property be vested to the plaintiff upon full payment of just compensation
GR: non payment of just compensation does not entitle the landowner to recover possession
EXC: If the government failed to pay just compensation within 5 years from the finality of the
judgment.
- Appeal does not delay the right of plaintiff to enter the property

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SPECIAL PROCEDURE

- Certification against non forum shopping is applied in Specpro

RULE 73: VENUE AND PROCESS:

JURISDICTION - Gross value of the estate (400/300k)

REMEDY IF VENUE IS IMPROPERLY LAID: Ordinary appeal & Rule 65

Probate courts are of limited jurisdiction. It may only determine:

- Complaint in intervention is allowed in probate provided that all parties consented.

OTHER QUESTIONS WHICH PROBATE COURT MAY DETERMINE:

© EDWARD VANGE ARRIBA 1 of 58

RULE 74: SUMMARY SETTLEMENT OF ESTATE

EXTRAJUDICIAL SETTLEMENT PROCESS:

REQUISITES FOR EXTRAJUDICIAL SETTLEMENT:

- If heirs did not agree, May file partition

© EDWARD VANGE ARRIBA 2 of 58

No court intervention Requires summary judicial adjudication

Value is immaerial GE not exceeding 10k

Allowed only in INTESTATE Both in testate and intestate

No outstanding debt Available even if there are debts

Resorted by agreement of all heirs Instituted by any interested party

Bond is equal to personal property Court determines bond

SUMMARY SETTLEMENT OF ESTATE OF SMALL VALUE

WHEN SETTLEMENT OF ESTATES MAY BE COMPELLED:

2 YEAR BAR RULE APPLIES ONLY:

REMEDIES IF AGGRIEVED PARTIES:

© EDWARD VANGE ARRIBA 3 of 58

RULE 75: PRODUCTION OF WILL

- Interested party may file. Including heirs and creditors

- GR:Only the determination of extrinsic validity is allowed.

EXTRINSIC - Covers only legal formalities, testamentary capacity, Due execution

Due execution - voluntariness to dispose his estate

PROOF NEEDED WHEN NOT CONTESTED:

PROOF WHEN CONTESTED:

© EDWARD VANGE ARRIBA 4 of 58

PROOF IN CASE OF LOSS OR DESTROYED WILL

- A holographic will may be proven by xerox copy

- Rule on destroyed or lost will NOT APPLIED IN HOLOGRAPHIC.

FACTS TO BE PROVEN FOR A LOST OR DESTROYED WILL

GROUNDS FOR DISALLOWANCE OF WILL:

RULE 77: ALLOWANCE OF WILL PROVED OUTSIDE PH

© EDWARD VANGE ARRIBA 5 of 58

VENUE - SAME AS RULE 73 (300/400)

- Requirements of publication and notice as stated in Rule 73 is still required.

RULE 78: LETTERS TESTAMENTARY AND ADMIN

- If a will is disallowed - ADMINISTRATOR

NOT COMPETENT TO SERVE AS EXECAD

- Executor of an executor cannot administer the estate

ADMINISTRATOR DE BONISNON - Of goods not administered.

LETTERS TESTAMENTARY - With will that is validly probated

ORDER OF PREFERENCE IN GRANTING ADMINISTRATION:

© EDWARD VANGE ARRIBA 6 of 58

RULE 79: OPPOSING THE ISSUANCE OF THE LETTERS TESTAMENTARY

- An incompetent minor may contest the appointment

RULE 80: SPECIAL ADMINISTRATOR

WHEN MAY BE GRANTED:

- Preference not applied. Appointment is discretionary

RULE 81: BONDS OF EXECAD

© EDWARD VANGE ARRIBA 7 of 58

RULE 83: INVENTORY

- Approval of inventory is not a conclusive determination of assets. It is only PROVISIONAL and

RULE 84: POWERS OF EXECAD

- EXECAD may bring actions necessary to protect the assets

RULE 85: ACCOUNTABILITY AND COMPENSATION

© EDWARD VANGE ARRIBA 8 of 58

2 YEAR BAR RULE APPLIES ONLY: 

REMEDIES OF HEIRS ENTITLED TO RESIDUE 