Wills & Succession

What is probate?

• Probate is a court
proceeding to establish
the validity of the will.
 Can a will be the basis for
transferring ownership of
property before probate?

• No. Until admitted to probate, a will has no

effect whatever and no right can be
claimed under it. No will shall pass either
real or personal property unless it is first
proved and allowed in accordance with the
Rules of Court
 Extrinsic Validity of the
Wills
• Extrinsic validity refers only to
formal validity which the law
requires that is, a will be in
proper form and made by one
with testamentary capacity.
Actual Situation Point of Contract
Made by an Lex nationali OR lex domicili
alien abroad OR RP law (Article 816, CC), OR
lex loci celebrationis (Article
17(1))

Made by Filipino Lex nationalii OR lex loci

abroad celebrationis (Article 815)
Made by an Lex nationalii OR lex loci
alien in the RP celebrationis (Article 817)
General Rule:
• The formal validity of a will shall be
governed by the law of the country
in which it is executed

ART. 17: provides that 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.
 Art. 816. The will of an alien who is
1
abroad produces effect in the
Philippines if made with the formalities
prescribed by the law of the place in
2 which he resides, or according to the
formalities observed in his country, or in
conformity with those which this Code
3

prescribes.
Art. 815. When a Filipino is in a
foreign country, he is authorized
to make a will in any of the forms
established by the law of the
country in which he may be. Such
will may be probated in the
Philippines.
 Art. 817. A will made in the Philippines
by a citizen or subject of another
country, which is executed in
1 accordance with the law of the country

of which he is a citizen or subject, and

which might be proved and allowed by
the law of his own country, shall have the
same effect as if executed according to
the laws of the Philippines.
Case : In re Estate of Johnson
This is the case where one of the daughters in the
first marriage wanted to invalidate the will so that
intestate proceedings may instead be conducted(i.e. she
will be an heir). Will was earlier probated, allegedly in
accordance with the Illinois law( TC judge took Judicial
Notice of the law just based on the annotation) and it
sought to nullified on the grounds that it was not made in
accordance with Illinois law and that the decedent is an
RP resident at time of death. Court held that since no
Illinois law showed ( to prove that it was indeed not made
in accordance with Illinois law) and since what matter is
that the decedent is a CITIZEN of US(Illinois) and she did
not contest the taking of JN of the TC of a foreign law
without the proof required, then deemed admitted that
the WILL was in accordance with Illinois Law.
 Extrinsic Validity of Joint
Wills (made in the same
instrument)
• A “joint” will is defined as a single
testamentary instrument which contains
the wills of two or more persons, jointly
executed by them, either for their
reciprocal benefit or for the benefit of a
third person.
 General Rule:
Art. 818. Two or more persons
cannot make a will jointly, or
in the same instrument, either
for their reciprocal benefit or
for the benefit of a third
person.
 Actual Point of Contract
Situation
Made by Lex nationalii (void, even if valid
Filipinos abroad where made) (Article 819)

Made by aliens Valid if valid according to lex

abroad domicilii or lex loci celebrationis
(Article 819)
Made by aliens Lex loci celebrationis therefore
in the RP void even if apparently allowed
by Article 817 because the
prohibition on joint wills is a
clear expression of public policy
Art. 819. Wills, prohibited by the
preceding article, executed by
Filipinos in a foreign country
shall not be valid in the
Philippines, even though
authorized by the laws of the
country where they may have
been executed.
 Case: Dacanay vs. Florendo
Facts:
 Isabel Florendo ang Tirso Dacanay executed a joint and reciprocal will on
Oct.20,1940.
 Isabel died. In a special proceeding in the CFI of La Union, Tirso sought to
probate their joint and reciprocal will, which provides that whoever of the
spouses, joint testators, shall survive the other, shall inherit all the properties of
the latter, with an agreement as to how the surviving spouse shall dispose of
the properties in case of his or her demise.
 The relatives of the deceased Isabel opposed the probate of said will
 The trial court issued an order dismissing the petition on the ground that the will
is null and void ab initio for having been executed in violation of Article 669 of
Civil Code (prohibition against execution of joint wills).

Issue: WON the joint and reciprocal will executed by Isabel Florence and Tirso
Dacanay is null and void?

Held: Yes. In accordance with Art.818 of the New Civil Code.

 Intrinsic Validity of Wills

• Lex nationalii of the deceased –

regardless of the LOCATION &
NATURE of the property (Article
16 (2))
Article 16, par. 2 of the Civil Code
render applicable the national law of
the decedent, in intestate or
testamentary succession, with regard
to four items:
1. the order of succession;
2. the amount of successional rights;
3. the intrinsic validity of the
provisions of the will; and
Case: Miciano v. Brimo
Facts: A will of a Turkish testator (Joseph Brimo) provided that his Phil.estate
is disposed of in accordance with the Philippine Law. The testator further
provided that whoever fails to comply with the request (that his estate be
distributed in accordance with the Phil.Law) would forfeit his inheritance.
Andre Brimo, one of the brothers of the deceased Joseph Brimo, opposed
the appellee (Juan Miciano’s) partition scheme of the estate which denies
his participation in the inheritance.
Issue: Whether the Turkish Law of Philippine Law be the basis on the
distribution of Joseph Brimo’s estates. Will Andre Brimo forfeit his
inheritance?
Ruling:
The court held that the provision of a foreigner’s will that his properties shall
be distributed accdg. To Phil.law and not his national law is NOT LEGAL
because it expressly ignores the testator’s national law when, accdg.to
art.16 of CC, such national law of the testator is the one to govern his
testamentary dispositions.
Testator’s estate shall be distributed accdg. To his national (Turkish)law.He
cannot provide otherwise. The appellant’s inheritance will not be forfeited
because the provision is not legal.
 Capacity to Succeed
• Lex nationalii of the deceased –
not of the heir (Article 1039).
–Exception: Renvoi Doctrine
 Revocation of a will
If done in the RP Lex loci actus (of the revocation)
(Article. 829)
If done OUTSIDE the RP
1. By a NON- Lex loci celebrationis (of the making
DOMICILIARY of the will, NOT revocation), OR lex
domicilii (Article 829)

1. By a Lex domicilii (RP law) OR lex loci

DOMICILIARY of actus (of the revocation) (Article 17)
the RP
 Revocation of Wills
Art. 829. A revocation done outside the
Philippines, by a person who does not have
his domicile in this country, is valid when it is
done according to the law of the place where
the will was made, or according to the law of
the place in which the testator had his
domicile at the time; and if the revocation
takes place in this country, when it is in
accordance with the provisions of this Code
Sample Problem:
Testator domiciled in State A, already
had a will. Revoked will in accordance
with law of State A. Transferred
domicile to State B, where revocation
done in State A is invalid. Died in State
B. Is the revocation valid?
 Probate of Wills Made Abroad
If not yet Lex fori of the RP applies as to
probated abroad the procedural aspects, i.e., the
will must be fully probated here
& due execution must be
shown
If already Lex fori of the RP again applies
probated abroad as to the procedural aspects;
must also be probated here, but
instead of proving due
execution, generally it is enough
to ask for the
 Vda. De Perez vs. Tolete, G.R. No. 76714,
June 2, 1994
FACTS:

 The Cunanan spouses, formerly Filipino but became American citizens

and residents of New York, each executed a will also in New York, containing
provisions on presumption of survivorship (in case of doubt, husband
presumed to have died first). Later, the entire family perished in a fire that
gutted their home. Rafael, the trustee of the Cunanan husband’s will, filed for
separate probate proceedings of both wills.
 Meanwhile, Salud Perez, the Cunanan wife’s mother, filed a petition for
reprobate of her daughter’s will in Bulacan, without notifying the husband’s
heirs. Rafael opposed the reprobate arguing that New York law should govern
and under which law Salud is not an heir but he and his brothers and sisters
are.
 For her part, Salud claimed that she was her daughter’s sole heir and
that two wills were in accordance with New York law. Before she could
present evidence to prove New York law, however, the reprobate court
disallowed the wills.
Issue: WON the reprobate of the wills should be allowed

Held: Extrinsic Validity of the Wills of Non-Resident Aliens. The will of Cunanan
spouses, who were Americal citizens, will only be effective in this country
upon compliance with the ff. provision of the CC under Art.816. and by
presenting the evidences