Beruflich Dokumente
Kultur Dokumente
LJC Notes
parties. Under these circumstances, we are convinced that the nonintervention of a prosecuting attorney to assure lack of collusion between the
contending parties is not fatal to the validity of the proceedings in the trial
court. (Tuason vs. CA)
A holographic will, as provided under Article 810 of the Civil Code, must be
entirely written, dated, and signed by the hand of the testator himself. It is
subject to no other form, and may be made in or out of the Philippines, and
need not be witnessed.
Kim Chees document, although it may initially come across as a mere
disinheritance instrument, conforms to the formalities of a holographic will
prescribed by law. It is written, dated and signed by the hand of Kim Chee
herself. An intent to dispose mortis causa can be clearly deduced from the
terms of the instrument, and while it does not make an affirmative disposition
of the latters property, the disinheritance of Gerald, nonetheless, is an act of
disposition in itself. In other words, the disinheritance results in the disposition
of the property of the testator in favor of those who would succeed in the
absence of Gerald.
Moreover, it is a fundamental principle that the intent or the will of the
testator, expressed in the form and within the limits prescribed by law, must
be recognized as the supreme law in succession. All rules of construction are
designed to ascertain and give effect to that intention. It is only when the
intention of the testator is contrary to law, morals, or public policy that it
cannot be given effect.
Holographic wills, therefore, being usually prepared by one who is not learned
in the law, as illustrated in the present case, should be construed more
liberally than the ones drawn by an expert, taking into account the
circumstances surrounding the execution of the instrument and the intention
of the testator. In this regard, the Court is convinced that the document, even
if captioned as Kasulatan ng Pag-Aalis ng Mana, was intended by Segundo to
be his last testamentary act and was executed by him in accordance with law
in the form of a holographic will. Unless the will is probated, the disinheritance
cannot be given effect. (Seangio vs. Sandoval-Gutierez, et.al, 2006)
5. What are the requisites for a valid marriage settlement? (5 pts)
ANSWER:
REQUISITES FOR THE ENFORCEABILITY OF MARRIAGE SETTLMENTS
1. must be made before the celebration of the marriage;
2. it shall be in writing ;
3. must be signed by the parties;
4. it shall not prejudice third persons unless:
> it is registered in the local civil registry where the marriage contract is
recorded as well as in the proper registries of property
6. In the case of Rosendo Herrera vs. Alba, June 15, 2005 the SC ruled
that trial courts should require at least 99.9 % as the minimum value
of the DNA TEST RESULT on probability of paternity, prior to a
paternity inclusion. This rebuttable presumption of paternity is
subject to the VALLEJO TEST. What is the Vallejo Test? Explain FULLY.
(10 pts)
ANSWER:
It depends on the stage of the proceedings when Polo died. If he died after all
the requirements under the law have been complied with and the case is
already submitted for resolution, the court may grant the petition and issue a
decree of adoption despite the death of the adopter. (Section 13, RA 8552).
Otherwise, the death of the petitioner shall have the effect of terminating the
proceedings.
8. Heraclio died without a will, leaving only an undeveloped and
untitled lot. He is survived by his wife and 4 children. His wife told
the children that she is waiving her share in the property, and
allowed Bong, the eldest son who was about to get married, to
construct his house on of the lot, without however obtaining the
consent of his siblings. After settlement of Heraclios estate and
partition among the heirs, it was discovered that Bong's house was
constructed on the portion allocated to his sister, Cathy asked Bong
to demolish his house and vacate the portion alloted to her. In leiu of
demolition, Bobby offered to purchase from Cathy the lot portion on
which his house was constructed. At that time, the house
constructed was valued at P350.000. (2008 BQ)
A.
ANSWER:
Article 448 of the New Civil Code is applicable by analogy.
Pursuant thereto, Cathy is given two options: (1) to appropriate the
house the Bong built, upon payment of indemnity; or (2) to comple
Bong to buy the land, considering that its value is not considerably
higher than the value of the house. At this state she is not given the
option to demand demolition of the house. However, if she has chosen
to sell the land to Bong and the latter does not or cannot buy the land,
she can demand the demolition of the house.
(10%)
9. Spouses Bernabe and Gwen begot two offsprings. Albeit they had
serious personality differences, the spouses continued to live under
one roof. Bernabe begot a son by another woman. Gwen also begot a
daughter by another man. (2010 BQ)
B.) What is the filiation of the child of Gwen with another man?
ANSWER:
If Bernabe acquiesces and does not file the action to impugn
the legitimacy of the child within the prescriptive period for doing so in
Article 170 of the Family Code, Gwens daughter by another man shall
be conclusively presumed as the legitimate daughter of Bernabe by
Gwen.
10.George entered into an agreement with Marj for her to carry in her
womb his baby via in vitro fertilization. George shouldered all the
pre-natal expenses as well as those attendant to her delivery. George
would thereafter pay Majorette P2 million and, in return, she would
give custody of the baby to him. After Marj gave birth and delivered
the baby to George following her receipt of P2 million, she engages
your services as her lawyer to regain custody of the baby. (2010 BQ)
A. What legal action can you file on behalf of Majorette? Explain
fully. (10 %)
ANSWER:
As her lawyer, I can file a petition for habeas corpus on behalf of Marj
to recover custody of her child. Since she is the mother of the child that
was born out of wedlock, she has exclusive parental authority and custody
over the child. George, therefore, has no right to have custody of the child
and his refusal to give up custody will constitute illegal detention for which
habeas corpus is the proper remedy.
ANOTHER ANSWER:
The action to regain custody will not prosper. In the first place Marj can
not regain custody of the baby. As surrogate mother she merely carries the
child in her womb for its development. The child is the child of the natural
parents George and his partner. The agreement between George and
Marj is a valid agreement.