SC

LAW
STEPHANIE A. CLAROS
ATTORNEY | 0921 324 7759 | tepiclaros@gmail.com
SUITE 301, NELSON AND MURDOCK LAW OFFICE, HELLS KITCHEN

SPECIALIZATIONS LEGAL OPINION IN THE MATTER OF

Succession Law
Labor Law
THE ESTATE OF JOSE DELA CRUZ
Human Rights Law
Election Law DECEMBER 23, 2016
Land Registration
Naturalization Law
MRS. MYRNA DELA CRUZ
CANADA
CONTACT DETAILS
Office: 032-253-1012
DEAR MRS. DELA CRUZ,
Fax: 345-1820
This legal opinion seeks to address your query regarding the strength
Mobile:
of your case and the legalities involved in the pending action for judicial
Smart - 0921-324-7759 partition filed by your children Jose Jr., Carmel and Marie over the
properties left by your late husband Jose Dela Cruz.
Globe - 0916-552-4517

THE FACTS

From the documents you submitted, the facts I gleaned are as follows:

You and your husband, Jose, migrated to Canada and became Canadian citizens in 1980,
accompanied by your three children, Jose Junior, Carmel and Marie who automatically became Canadian
citizens, being minors at that time.
When Jose died in 2012, you were named as the sole heir and executor and is to own all of your
husbands properties in Canada and a 40 hectare land in Tarlac Philippines based on the will Jose executed
in Canada in 2011. The said will has already been probated and approved by the Canada courts.
In 2013, your three children commenced a suit against you for judicial partition in the court of Tarlac,
demanding that the Tarlac property be divided in accordance with the Philippine laws.
From the foregoing, the main issue is whether your husbands will which was executed and probated
in Canada can be given effect in the Philippines with respect to excluding your children from inheriting
with you the Tarlac property.
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STEPHANIE A. CLAROS
ATTORNEY | 0921 324 7759 | tepiclaros@gmail.com
SUITE 301, NELSON AND MURDOCK LAW OFFICE, HELLS KITCHEN

The Philippine laws on succession and property are interwoven in this case and preliminary, this
legal opinion will deal with your qualification to inherit private lands in the Philippines, as well as your
childrens qualifications, requiring a discussion on citizenship laws.

Once your qualification is determined, I can surmise the efficacy of your husbands will in accordance
with Philippine laws and how the law will apply on the claims of your children on the division of the Tarlac
property.

Lastly, this legal opinion will identify the remedies available to you in the pending partition case that
you face.

THE APPLICABLE LAWS

There are several applicable laws, namely:

1. The 1987 Constitution

Section 1 of Article IV on Citizenship:

Section 1. The following are citizens of the Philippines:

1. Those who are citizens of the Philippines at the time of the adoption of this Constitution;
2. Those whose fathers or mothers are citizens of the Philippines;
3. Those born before January 17, 1973, of Filipino mothers, who elect Philippine Citizenship
upon reaching the age of majority; and
4. Those who are naturalized in accordance with law.
Section 7 and 8 of Article XII on National Economy and Patrimony:

Section 7. Save in cases of hereditary succession, no private lands shall be transferred or

conveyed except to individuals, corporations, or associations qualified to acquire or hold lands of
the public domain.

Section 8. Notwithstanding the provisions of Section 7 of this Article, a natural-born citizen of

the Philippines who has lost his Philippine citizenship may be a transferee of private lands, subject
to limitations provided by law.
2. R.A. 386 or the New Civil Code

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STEPHANIE A. CLAROS
ATTORNEY | 0921 324 7759 | tepiclaros@gmail.com
SUITE 301, NELSON AND MURDOCK LAW OFFICE, HELLS KITCHEN

Article 16:

Article 16. Real property as well as personal property is subject to the law of the country
where it is stipulated.

However, intestate and testamentary successions, both with respect to the order of succession
and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall
be regulated by the national law of the person whose succession is under consideration, whatever
may be the nature of the property and regardless of the country wherein said property may be
found.
Article 17:

Article 17. The forms and solemnities of contracts, wills, and other public instruments shall
be governed by the laws of the country in which they are executed.
When the acts referred to are executed before the diplomatic or consular officials of the
Republic of the Philippines in a foreign country, the solemnities established by Philippine laws shall
be observed in their execution.

Prohibitive laws concerning persons, their acts or property, and those which have for their
object public order, public policy and good customs shall not be rendered ineffective by laws or
judgments promulgated, or by determinations or conventions agreed upon in a foreign country.
Article 816:

Article 816. The will of an alien who is abroad produces effect in the Philippines if made with
the formalities prescribed by the law of the place in which he resides, or according to the formalities
observed in his country, or in conformity with those which this Code prescribes.
Article 838:

Article 838. No will shall pass either real or personal property unless it is proved and allowed
in accordance with the Rules of Court.

The testator himself may, during his lifetime, petition the court having jurisdiction for the
allowance of his will. In such case, the pertinent provisions of the Rules of Court for the allowance of
wills after the testator's a death shall govern.
The Supreme Court shall formulate such additional Rules of Court as may be necessary for the
allowance of wills on petition of the testator.
Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator
or after his death, shall be conclusive as to its due execution.
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LAW
STEPHANIE A. CLAROS
ATTORNEY | 0921 324 7759 | tepiclaros@gmail.com
SUITE 301, NELSON AND MURDOCK LAW OFFICE, HELLS KITCHEN

Article 886, 887 and 888:

Article 886. Legitime is that part of the testator's property which he cannot dispose of
because the law has reserved it for certain heirs who are, therefore, called compulsory heirs.
Article 887. The following are compulsory heirs:
(1) Legitimate children and descendants, with respect to their legitimate parents and
ascendants;
(2) In default of the foregoing, legitimate parents and ascendants, with respect to their
legitimate children and descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural children by legal fiction;
(5) Other illegitimate children referred to in article 287.

Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by those in Nos. 1
and 2; neither do they exclude one another.
In all cases of illegitimate children, their filiation must be duly proved.
The father or mother of illegitimate children of the three classes mentioned, shall inherit from
them in the manner and to the extent established by this Code.

Article 888. The legitime of legitimate children and descendants consists of one-half of the
hereditary estate of the father and of the mother.
The latter may freely dispose of the remaining half, subject to the rights of illegitimate
children and of the surviving spouse as hereinafter provided.
Article 892:

Article 892. If only one legitimate child or descendant of the deceased survives, the widow
or widower shall be entitled to one-fourth of the hereditary estate. In case of a legal separation, the
surviving spouse may inherit if it was the deceased who had given cause for the same.

If there are two or more legitimate children or descendants, the surviving spouse shall be
entitled to a portion equal to the legitime of each of the legitimate children or descendants.
In both cases, the legitime of the surviving spouse shall be taken from the portion that can be
freely disposed of by the testator.
Article 904:
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STEPHANIE A. CLAROS
ATTORNEY | 0921 324 7759 | tepiclaros@gmail.com
SUITE 301, NELSON AND MURDOCK LAW OFFICE, HELLS KITCHEN

Article 904. The testator cannot deprive his compulsory heirs of their legitime, except in
cases expressly specified by law.
Neither can he impose upon the same any burden, encumbrance, condition, or substitution of
any kind whatsoever.
Article 960:

Article 960. Legal or intestate succession takes place:

(1) If a person dies without a will, or with a void will, or one which has subsequently
lost its validity;
(2) When the will does not institute an heir to, or dispose of all the property belonging
to the testator. In such case, legal succession shall take place only with respect to the
property of which the testator has not disposed;

(3) If the suspensive condition attached to the institution of heir does not happen or is
not fulfilled, or if the heir dies before the testator, or repudiates the inheritance, there
being no substitution, and no right of accretion takes place;
(4) When the heir instituted is incapable of succeeding, except in cases provided in
this Code.
Article 961:

Article 961. In default of testamentary heirs, the law vests the inheritance, in accordance with
the rules hereinafter set forth, in the legitimate and illegitimate relatives of the deceased, in the
surviving spouse, and in the State.
Article 979:

Article 979. Legitimate children and their descendants succeed the parents and other
ascendants, without distinction as to sex or age, and even if they should come from different
marriages.

An adopted child succeeds to the property of the adopting parents in the same manner as a
legitimate child.
Article 980:

Article 980. The children of the deceased shall always inherit from him in their own right,
dividing the inheritance in equal shares.
Article 996:
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STEPHANIE A. CLAROS
ATTORNEY | 0921 324 7759 | tepiclaros@gmail.com
SUITE 301, NELSON AND MURDOCK LAW OFFICE, HELLS KITCHEN

Article 996. If a widow or widower and legitimate children or descendants are left, the
surviving spouse has in the succession the same share as that of each of the children.
Article 1039:

Article 1039. Capacity to succeed is governed by the law of the nation of the decedent.
3. Batas Pambansa Bilang 185

Section 1. In implementation of Section fifteen of Article XIV of the Constitution, a natural-

born citizen of the Philippines who has lost his Philippine citizenship may be a transferee of private
land, for use by him as his residence, subject to the provisions of this Act.
Sec. 2. Any natural-born citizen of the Philippines who has lost his Philippine citizenship and
who has the legal capacity to enter into a contract under Philippine laws may be a transferee of a
private land up to a maximum area of one thousand square meters, in the case of urban land, or one
hectare in the case of rural land, to be used by him as his residence. In the case of married couples,
one of them may avail of the privilege herein granted; Provided, That if both shall avail of the same,
the total area acquired shall not exceed the maximum herein fixed.

In case the transferee already owns urban or rural lands for residential purposes, he shall still
be entitled to be a transferee of additional urban or rural lands for residential purposes which, when
added to those already owned by him, shall not exceed the maximum areas herein authorized.
Sec. 3. A transferee under this Act may acquire not more than two lots which should be
situated in different municipalities or cities anywhere in the Philippines; Provided, That the total area
thereof shall not exceed one thousand square meters in the case of urban lands or one hectare in the
case of rural lands for use by him as urban land shall be disqualified from acquiring rural land, and
vice versa.
xxx

Sec. 5. Transfer as a mode of acquisition of private land under this Act refers to either
voluntary or involuntary sale, devise or donation. Involuntary sales shall include sales on tax
delinquency, foreclosures and executions of judgment.

4. RA No. 7042, as amended by RA No. 8179 dated March 28, 1996, implementing Section 8,
Article XII of the Constitution:

SEC. 10. Other Rights of natural Born Citizen Pursuant to the Provisions of Article XII, Section
8 of the Constitution. - Any natural born citizen who has lost his Philippine citizenship and who has
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LAW
STEPHANIE A. CLAROS
ATTORNEY | 0921 324 7759 | tepiclaros@gmail.com
SUITE 301, NELSON AND MURDOCK LAW OFFICE, HELLS KITCHEN

the legal capacity to enter into a contract under Philippine Laws may be a transferee of a private land
up to maximum area of five thousand (5,000) square meters in the case of urban land or three (3)
hectares in the case of rural land to be used by him for business or other purposes. In the case of
married couples, one of them may avail of the privilege herein granted: Provided, That If both shall
avail of the same, the total are acquired shall not exceed the maximum herein fixed.

In case the transferee already owns urban or rural land for business or other purposes, he shall be
entitled to be a transferee of additional urban or rural land for business or other purposes which
when added to those already owned by him shall not exceed the maximum areas herein authorized.

A transferee under this Act may acquire not more than two (2) lots which should be situated in
different municipalities or cities anywhere in the Philippines: Provided, That the Total land area
thereof shall not exceed five thousand (5,000) square meters in the case of urban land or three(3)
hectares in the case of rural land for use by him for business or other purposes. A transferee who has
already acquired urban land shall be disqualified from acquiring rural land and vice versa.

5. Rule 77 of the Rules of Court

Rule 77. Allowance of Will Proved Outside of Philippines and Administration of Estate Thereunder

Section 1. Will proved outside Philippines may be allowed here. Wills proved and
allowed in a foreign country, according to the laws of such country, may be allowed, filed, and
recorded by the proper Court of First Instance in the Philippines.

Section 2. Notice of hearing for allowance. When a copy of such will and of the order
or decree of the allowance thereof, both duly authenticated, are filed with a petition for allowance in
the Philippines, by the executor or other person interested, in the court having jurisdiction, such
court shall fix a time and place for the hearing, and cause notice thereof to be given as in case of an
original will presented for allowance.

Section 3. When will allowed, and effect thereof. If it appears at the hearing that the will
should be allowed in the Philippines, the shall so allow it, and a certificate of its allowance, signed by
the judge, and attested by the seal of the court, to which shall be attached a copy of the will, shall be
filed and recorded by the clerk, and the will shall have the same effect as if originally proves and
allowed in such court.

Section 4. Estate, how administered. When a will is thus allowed, the court shall grant
letters testamentary, or letters of administration with the will annexed, and such letters testamentary
or of administration, shall extend to all the estate of the testator in the Philippines. Such estate, after
the payment of just debts and expenses of administration, shall be disposed of according to such will,
so far as such will may operate upon it; and the residue, if any shall be disposed of as is provided by
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LAW
STEPHANIE A. CLAROS
ATTORNEY | 0921 324 7759 | tepiclaros@gmail.com
SUITE 301, NELSON AND MURDOCK LAW OFFICE, HELLS KITCHEN

law in cases of estates in the Philippines belonging to persons who are inhabitants of another state or
country.

LAW ON OWNERSHIP OF LANDS IN THE PHILIPPINES

The fundamental policy under the 1987 Constitution regarding land ownership is to conserve
agricultural resources in the hands of Filipinos and this purpose is made more emphatic by the provision
that save in cases of hereditary succession, no private lands shall be transferred or conveyed except to
individuals, corporations or associations qualified to acquire or hold lands of the public domain. A
natural-born citizen of the Philippines who has lost his citizenship may be a transferee of private lands,
subject to limitations provided by law.
On the basis of their capacity to acquire or hold lands of the public domain, the following may
acquire private lands: (a) Filipino citizens; (b) Filipino corporations and associations as defined in Section
2, Article XII of the Constitution; and, by exception, (c) aliens, but only by hereditary succession; and (d)
a natural-born citizen of the Philippines who has lost his citizenship under the terms of Section 8.

The time to determine whether a person acquiring land is qualified is the time the right to own it is
acquired1, thus, it is necessary to determine, first, Joses qualification to acquire the inherited land, and
then you and your childrens capacity to acquire the land from him.
QUALIFICATION OF JOSE DELA CRUZ TO INHERIT THE TARLAC PROPERTY:

It is not clear in what capacity your husband Jose acquired the 40 hectare land situated in Tarlac.
Three scenarios thus arise:
1. If he acquired the land prior to 1980 when he was still a citizen, then Jose is qualified.
2. If he acquired the land after 1980 after his naturalization as a Canadian citizen, he is qualified as an
alien if he inherited the land by intestate succession.
3. If he acquired the land after his naturalization and not by intestate succession, he may still be qualified
as a transferee but subject to the limitations in Section 2 of Batas Pambansa Bilang 185 or Section
10 of R.A. 7042 or the Foreign Investments Act of 1991 as amended by R.A. 8179.

1
Director of Lands v. Intermediate Appellate Court and Acme, GR No. 73002, Dec. 29, 1986, 146 SCRA 509.
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LAW
STEPHANIE A. CLAROS
ATTORNEY | 0921 324 7759 | tepiclaros@gmail.com
SUITE 301, NELSON AND MURDOCK LAW OFFICE, HELLS KITCHEN

LAW ON SUCCESSION

Since Jose Dela Cruz is qualified to acquire private lands in the Philippines, the next legal issue is
the validity of his testamentary disposition of the Tarlac property. It is undisputed that Jose was a Canadian
citizen at the time of the execution of his will and at the time of his death. Being a foreign national with real
property located in the Philippines, the laws of Canada and the Philippines have to be taken into
consideration to determine the extrinsic and intrinsic validity of Joses will.
EXTRINSIC VALIDITY
Pursuant to Article 816 of the New Civil Code, the will of a foreigner who is abroad produces effect
in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or
according to the formalities observed in his country.
The will of an alien proven and allowed in a foreign country, in accordance with the laws of that
country, may be allowed, filed and recorded by the Philippine courts. A copy of the will and the decree of
allowance issued by the proper authorities in the foreign country, must be duly authenticated, and filed with
a petition for allowance before the Philippine courts. The due execution of the will and the testamentary
capacity of the decedent need not be proven again. After hearing, the Philippine court decides whether the
will may be allowed in the Philippines.
INTRINSIC VALIDITY
In accordance with Article 16 of the New Civil Code, the intrinsic validity of a will and intestate and
testamentary successions, both with respect to the order of succession and to the amount of successional
rights, are governed by the law of the country of the decedent. The Philippines subscribes to the nationality
principle and this rule is further bolstered by the exception found in Article 16 which provides that although
real and personal property is governed by the law of the country where it is situated, when the property is
the subject of succession, the governing law is the law of the country of the decedent whatever may be the
nature of the property and regardless of the country wherein said property may be found.
Thus, the national or domiciliary laws of the deceased foreigner apply regardless of the nature or
location of the property in question and Canadian laws must supply the rules for disposing of Joses property
in the Philippines. Hence, the application of Canadian law to the disposition of the Tarlac property may be
subject to the doctrine of renvoi.
The renvoi doctrine comes into play when the law of the forum makes reference to a foreign law but
the foreign law contains a rule that refers back to the law of the forum2.

2
Aznar v. Garcia, G.R. No. L-16749, January 31, 1963.
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STEPHANIE A. CLAROS
ATTORNEY | 0921 324 7759 | tepiclaros@gmail.com
SUITE 301, NELSON AND MURDOCK LAW OFFICE, HELLS KITCHEN

APPLICATION OF THE RENVOI DOCTRINE

Assuming that Jose was a resident of Canada at the time of his death, since the facts do not show that he
resided elsewhere, the following scenarios in which renvoi may be anticipated, include, in your case:

That Canadian law states that the applicable legislation for inheritance issues is the law of the country
where the property is located (lex situs), which is the Philippines.

That Canadian law states that the applicable legislation is the law of the country where the decedent
is a national or where he is domiciled, which is Canada.

Should Canadian laws be the applicable law of succession, there is a need to determine whether
there is a provision on legitimes for compulsory heirs under the foreign law, if there is none, then Joses
disposition of his estate with you as the sole heir can be given effect in the Philippines. If Canadian laws refer
the issue of succession with respect to the Philippine property back to the Philippines, the Tarlac property
would have to be partitioned in accordance with the Philippine law. Under Philippine laws, the capacity to
succeed to real property situated in the Philippines require a further discussion on the citizenship
qualifications of the heirs while the amount of successional rights must comply with the law on legitimes.

CAPACITY TO SUCCEED

In consonance with the nationality principle, capacity to succeed is governed by the law of the nation
of the decedent as stated in Article 1039.

If under Canadian law, the testator is allowed to bequeath or devise his estate to the surviving spouse
without reservation as to the children, then such law will prevail and apply to the disposition of the Tarlac
property even when it is located outside of Canada.
But if the renvoi doctrine applies, Philippine laws must be taken into account. The validity of the
testamentary disposition naming you as the sole heir to the Tarlac property requires capacity to succeed
under testamentary succession.
CAPACITY TO SUCCEED UNDER TESTAMENTARY SUCCESSION
As aforecited, no alien may acquire private lands save by hereditary succession. By hereditary
succession, the Constitution refers only to intestate succession, not testamentary succession. The Supreme
Court, speaking through Justice Vicente Abad Santos, declared that the clause "save in cases of hereditary
succession" "does not extend to testamentary succession." Otherwise, the Court said, "the prohibition will

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LAW
STEPHANIE A. CLAROS
ATTORNEY | 0921 324 7759 | tepiclaros@gmail.com
SUITE 301, NELSON AND MURDOCK LAW OFFICE, HELLS KITCHEN

be for naught and meaningless. Any alien would be able to circumvent the prohibition by paying money to
a Philippine landowner in exchange for a devise of a piece of land3."
Applying the rule to the case, the following are the inevitable conclusions:
1. QUALIFICATION OF MYRNA DELA CRUZ TO SUCCEED TO THE TARLAC PROPERTY:
At the time of Joses death, you were already a naturalized Canadian citizen. By the express provision of the
Constitution, private lands may be acquired by aliens only by legal succession.
Thus, the will of Jose bequeathing all his properties including his properties in the Philippines to you as his
sole heir cannot be given effect with respect to the property in Tarlac.
2. QUALIFICATION OF JOSE JUNIOR, CARMEL AND MARIE TO SUCCEED TO THE TARLAC PROPERTY:

Jose Junior, Carmel and Marie are Canadian citizens by derivative citizenship because they were minors at
the time of the naturalization of Jose and Myrna. At the time of Joses death, the three children is presumed
to have retained their Canadian citizenship since there is no showing that they applied for repatriation upon
reaching the age of majority. Being Canadian citizens, they cannot acquire the Tarlac property by will. In
any case, Jose did not bequeath the property to them in his will.
However, the disqualification to succeed under testamentary succession does not totally foreclose
inheritance to the Tarlac property. The rule on intestate succession supplants Joses will but subject to the
legitimes of the compulsory heirs and its application to your case will be discussed below.

THE LAW ON LEGITIMES OF COMPULSORY HEIRS

Should the Philippine court accept a renvoi, then the reserved portions, reserves or legitimes for
compulsory heirs established in the New Civil Code become applicable to an alien decedent.
The compulsory heirs are classified in Article 887 as:
Primary legitimate children and/or descendants
Secondary legitimate parents and/or ascendants; illegitimate parents
Concurring surviving spouse; illegitimate children and/or descendants

Compulsory heirs are those whose inheritance cannot be diminished by the will of the testator. The
law reserves a portion of the hereditary estate called the legitime to the compulsory heirs both under the
systems of testamentary succession and intestate succession.

3
Palacios v Viuda de Ramirez, G.R. No. L-27952 February 15, 1982.
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LAW
STEPHANIE A. CLAROS
ATTORNEY | 0921 324 7759 | tepiclaros@gmail.com
SUITE 301, NELSON AND MURDOCK LAW OFFICE, HELLS KITCHEN

Primary compulsory heirs are preferred over secondary heirs, who receive only in default of the
primary while concurring compulsory heirs succeed as compulsory heirs, together with the primary or
secondary heirs.

The law reserves at least one-half of the hereditary estate to the legitimate children and/or
descendants as provided in Article 888 while the remaining half is the portion where the legitime of the
surviving spouse is to be satisfied. The legitime of the legitimate children and/or descendants is divided
equally among them while the share of the surviving spouse is equivalent to the share of one legitimate
child in accordance with Article 892.

THE LAW ON INTESTATE SUCCESSION

Absent a valid will, the law on intestate succession applies pursuant to Article 960 of the New Civil
Code. In intestate succession, the heirs of the decedent are as follows:
The order of hereditary or intestate succession, if the deceased was a legitimate child:
1. Legitimate children or descendants;
2. Legitimate parents or ascendants;
3. Illegitimate children or descendants;
4. Surviving spouse;
5. Brothers and sisters, nephews and nieces;
6. Other collateral relatives within the fifth degree; and,
7. The State.
The order of hereditary or intestate succession, if the deceased was an illegitimate child:
1. Legitimate children or descendants;
2. Illegitimate children or descendants;
3. Illegitimate parents (other ascendants are excluded);
4. Surviving spouse;
5. Brothers and sisters, nephews and nieces; and,
6. The State.

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LAW
STEPHANIE A. CLAROS
ATTORNEY | 0921 324 7759 | tepiclaros@gmail.com
SUITE 301, NELSON AND MURDOCK LAW OFFICE, HELLS KITCHEN

In this scenario, you and your children are intestate heirs of Jose. The shares of the intestate heirs
who are legitimate children is one half of the hereditary estate to be divided equally amongst them while
the surviving spouse has a share equal to that of each child.

PROCEDURAL LAWS IN THE SUCCESSION OF AN ALIEN DECEDENT

Rule 77 of the Rules of Court is the governing procedural law in the allowance of a will probated and allowed
abroad. Section 4 of Rule 77 provides that the estate of the decedent in the Philippines, after allowance in the courts
and after the payment of just debts and expenses of administration, shall be disposed of according to his will, so far
as such will may operate upon the estate in the Philippines.

As executor of Joses estate, the laws of Canada on succession and probate of wills must be introduced in
evidence, being foreign laws which must be proved in court in the form and manner provided for by the Rules of
Court4. To prove the laws of Canada, the Rule 132 states that the written official acts, or records of the official acts of
the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign
country is proven as follows:

Section 24. Proof of official record. The record of public documents referred to in paragraph (a) of Section
19, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by
the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the
Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in foreign
country, the certificate may be made by a secretary of the embassy or legation, consul general, consul, vice consul,
or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which
the record is kept, and authenticated by the seal of his office.

EFFECT OF THE PROBATE PROCEEDINGS ON THE ACTION FOR PARTITION

Article 838 of the Civil Code provides that no will shall pass either real or personal property unless it is proved
and allowed in accordance with the Rules of Court. Thus, unless the will is probated, the right of a person to dispose of
his property may be rendered nugatory. The rule applies with equal force on wills executed by foreigners, whether
probated abroad or not. Thus, partition cannot take precedence over probate proceedings when the decedent
executed a will.

CONCLUSION

With the foregoing laws in mind, I have summarized its application to your case as follows:
1. Jose Dela Cruz was qualified to hold private lands in the Philippines, namely the 40 hectare
land in Tarlac.
2. The will of Jose Dela Cruz is extrinsically valid and may be reprobated in the Philippine courts.

4
Bohanan v. Bohanan, G.R. No. L-12105, January 30, 1960, 106 Phil. 997 (1960).
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STEPHANIE A. CLAROS
ATTORNEY | 0921 324 7759 | tepiclaros@gmail.com
SUITE 301, NELSON AND MURDOCK LAW OFFICE, HELLS KITCHEN

3. Canadian law is the governing law to determine the intrinsic validity of the will, the capacity
to succeed and amount of successional rights of Myrna Dela Cruz and Jose Junior, Carmel and
Marie.
4. Philippine law may apply should Canadian law provide for rules on renvoi.
5. Under Philippine laws, the legitime of Jose Junior, Carmel and Marie cannot be impaired by
the will of Jose naming you as the sole heir.

RECOMMENDATION

To invoke the nationality principle which is favorable to your case, the following actions must be
taken:
1. Proof of Canadian law on succession and probate of wills must be obtained for further study
so that a comprehensive legal strategy may be framed.
2. The will of Jose must be probated in the proper court of Tarlac. To this end, I recommend the
filing of a Petition for the Allowance of a Will. The petition for the allowance of a will must
show, so far as known to the petitioner: (a) the jurisdictional facts; (b) the names, ages, and
residences of the heirs, legatees, and devisees of the testator or decedent; (c) the probable
value and character of the property of the estate; (d) the name of the person for whom letters
are prayed; and (e) if the will has not been delivered to the court, the name of the person
having custody of it. Jurisdictional facts refer to the fact of death of the decedent, his residence
at the time of his death in the province where the probate court is sitting, or if he is an
inhabitant of a foreign country, the estate he left in such province5.

I appreciate the opportunity to advise you regarding this matter. Please let me know if you wish to
discuss any of these issues further. Thank you.

Yours faithfully,

Atty. Stephanie A. Claros

5
Palaganas v Palaganas, G.R. No. 169144, January 26, 2011.
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SC
LAW
STEPHANIE A. CLAROS
ATTORNEY | 0921 324 7759 | tepiclaros@gmail.com
SUITE 301, NELSON AND MURDOCK LAW OFFICE, HELLS KITCHEN

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