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Conflict of Laws in Succession & Adoption
Conflict of Laws in Succession & Adoption
Conflict of Laws in Succession & Adoption
of Laws
Chapter IX: Succession
I. Definition
In the Philippines, the law on succession is governed by the New Civil Code,
which provides the following definitions:
Art. 774. Succession is a mode of acquisition by virtue of which the property,
rights and obligations to the extent of the value of the inheritance, of a
person are transmitted through his death to another or others either by his
will or by operation of law
Art. 778. Succession may be:
(1) Testamentary;
(2) Legal or intestate; or
(3) Mixed
Art. 779. Testamentary succession is that which results from the designation
of an heir, made in a will executed in the form prescribed by law.
Art. 780. Mixed succession is that effected partly by will and partly by
operation of law.
Intestate succession occurs when a person dies without leaving a will.
Art. 783. A will is an act whereby a person is permitted, with the formalities
prescribed by law, to control to a certain degree the disposition of this estate,
to take effect after his death.
Art. 810. A person may execute a holographic will which 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.
II. Determination of Proper Law for the Transmission of Successional Rights:
a. Unitary or Single System – only one law determines the transmission of
real and personal properties
i. Lex nationalii – deceased’s national law governs
ii. Lex domicilii – law on deceased’s domicile governs
**Note: The Philippines practices lex nationalii, as enunciated in Article
16 of the NCC
Art. 16, par. 2, of the Civil Code provides that:
“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 maybe found.”
Art. 1039 of the Civil Code provides that
“Capacity to succeed is governed by the law of the nation of the
decedent.”
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CONFLICTS RULE:
Usually determined by the lex nationalii of the deceased in countries that
follow the nationality theory, and by the lex domicilii at the time of death,
in countries that follow the domiciliary theory.
The New Civil Code applies the lex nationalii of the decedent in par. 2 of its Art.
16.
In case of conflict between the nationality theory and the domiciliary
theory, we can treat the case as one of renvoi as in the Christensen case
so that we can still apply Philippine law even if the deceased was a citizen
of another country.
RULES:
1. The national law of the decedent shall govern the intrinsic validity of
the will.
2. If a person who is a citizen of another country dies in the Philippines,
the manner of the distribution of the estate as well as to the amount
of successional rights of his heirs are matters which are governed by
his national law.
3. The foreign law has to be properly proved, otherwise, processual
presumption will apply, making Philippine law applicable.
V. Rules as to Legitime
Art. 904 of the Civil Code provides that “the testator cannot deprive his
compulsory heirs of their legitime” and neither can he impose any burden,
encumbrance, or condition on the right to receive the legitime.
LEGITIME is that part of the testator’s property which he cannot dispose of
because the law has reserved it for certain heirs consisting of the legitimate
children, legitimate parents, surviving spouse, and illegitimate children.
VI. INTERPRETATION OF WILLS
Pursuant to the nationality principle in our Civil Code, the interpretation of a will
or testament must be governed by the rules of interpretation of the decedent’s
national law. As in contracts, the provisions of a will shall be interpreted in
accordance with the testator’s intention. If the terms are clear and unambiguous,
the literal meaning of the stipulations shall control. Otherwise, the evident
intention of the testator must prevail by not only referring to the context of the
will but also taking into account the contemporaneous and subsequent acts of the
testator.
If the testator’s intention cannot be ascertained by the preceding rules, the
interpretation of ambiguous words must be made in accordance with the law
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which was most probably in the mind of the testator when he used those words
and with which he is presumed to be most familiar.
If the will admits of different interpretations, that which will make the disposition
operative shall be preferred. The interpretation that will give the will the most
favorable construction to accomplish its purpose shall be made.
Every effort should be made to prevent intestacy in keeping with the policy of
respecting the will of the testator, provided that this can be ascertained.
VII. REVOCATION OF WILLS
Being a unilateral and purely personal act, a will is revocable at any time before
the death of the testator. Under Article 829 of the New Civil Code, a revocation
done outside the Philippines by a person who does not have his domicile here, is
valid if done according to:
1. The law of the place where the will was made (lex loci celebrationis); or
2. The law of his domicile at the time of revocation (lex domicilli).
If revocation is done in the Philippines, it is valid if made in accordance with the
provisions of our Civil Code. Under Article 830 of the New Civil Code, no will shall
be revoked except in the following cases:
1. By implication of law; or
2. By some will, codicil, or other writing executed as provided in case of
wills; or
3. By burning, tearing, cancelling, or obliterating the will with the
intention of revoking it, by the testator himself, or by some other person
in his presence, and by his express direction.
If the revocation is done outside the Philippines by a person who is domiciled
here, it is valid if made in accordance with our law (the lex domicilli) or the lex loci
acts of the revocation (the place where the revocation was made).
VIII. ALLOWANCE OF WILL PROVED OUTSIDE OF PHILIPPINES AND
ADMINISTRATION OF ESTATE
Probate is the process of proving before a competent court the due execution of
a will, that the testator was possessed of testamentary capacity and the approval
by the said court of the will.
The allowance or disallowance of a will is essentially procedural, so that the law
of the forum applies to all procedural matters:
A. Is of legal age.
B. Is at least 16 years older than adoptee, except when the adopter is the
biological parent.
C. Has the capacity to act and assume all the rights and duties incident to the
exercise of parental authority.
D. Is of good moral character and has not been convicted of any crime involving
moral turpitude.
E. Is in a good position to support, educate and care for his/her legitimate and
illegitimate children and the child to be adopted.
F. Has undergone the pre-adoption services.