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Conflicts

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

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b. Split or Scission System
i. Succession as to real property – lex situs (governed by the law on
which the property is located)
ii. Succession as to personal property – lex domicilii


III. Rules in The Philippines in case of Conflict On Extrinsic Validity of Wills

a. Extrinsic Validity of Wills in the Philippines
Under Philippine law, Article 17 of the New Civil Code provides that:

Art. 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.

This rule is likewise enunciated in Articles 815 & 816, to wit:

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. 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.

This is given great importance as the consequence of non-adherence to
the formalities required by law shall be disallowance of the will for
probate as prescribed in Article 839.

Art. 839. The will shall be disallowed in any of the following cases:
(1) If the formalities required by law have not been complied with;
xxx

Rules:

1. If a Filipino makes a will abroad, he may comply with:
a. the formalities of the Philippine law (lex nationalli); or
b. the law of the place when he was at the time of the execution of the
will (lex loci celebrationis).

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Basis: 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 (New Civil Code).

2. If an alien makes a will abroad, he may comply with:
a. the formalities of the law of the country of which he is a citizen (lex
nationalli); or
b. the law of his domicile (lex domicilli); or
Basis: Art. 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 (New Civil Code).

c. the law of the country when he was at the time of the execution of
the will (lex loci celebrationis).
Basis: Art. 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 (New Civil Code).
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.

3. If an alien makes a will in the Philippines, he may comply with:
a. the formalities of his own country (lex nationalli); or
b. the Philippines law (lex loci celebrationis).
Basis: Art. 817. A will made in the Philippines by a citizen or subject of
another country, which is executed in 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 (New Civil Code).

4. As for 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 our out of the Philippines and need not to be witnessed.
Basis: 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

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subject to no other form, and may be made in or out of the Philippines, and
need not be witnessed (New Civil Code).

In addition, the following are additional provisions of the Civil Code dealing
with the formalities of wills:
Art. 817. A will made in the Philippines by a citizen or subject of another
country, which is executed in 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 (New Civil Code).

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 (New Civil Code).

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 (New Civil Code).

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 (New Civil Code).

From the foregoing rules, a Filipino citizen may execute a will according to
the formalities prescribed by the law of the place of execution. For aliens,
they may follow the formalities prescribed by their home countries, or
those prescribed in the place when they have their domicile, or with the
formalities prescribed by the Civil Code.

Hence, if there are certain foreign countries which may be different from
Philippines laws, they will be deemed valid so long as they are not
violative of the Philippines public policy. Those laws or conventions in
foreign countries violative of the Philippine laws are deemed invalid and
ineffectual.

b. Joint Wills
Rules:
1. Filipinos cannot make joint wills whether here or abroad.
BASIS: ART. 818, CIVIL CODE

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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.

Thus, a joint will made by two Filipinos in a foreign country is void
even if valid under the lex loci celebrationis.

BASIS: ART. 819, CIVIL CODE
Wills, prohibited by Art. 818, 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.

A joint will is prohibited because:
a. A will is a purely personal and unilateral act and this is defeated if two
or more persons make their will in the same instrument.
b. It is contrary to the revocable character of a will. If one testator
revokes his will by burning the document, the other testator would
have no instrument left containing her testamentary dispositions.
c. A joint will, if mutual or reciprocal, may expose a testator to undue
influence and may even tempt one of the testators to kill the other.

Reason for prohibition:


To prevent potential overreaching especially between the husband and
wife. When a will is made jointly or in the same instrument, the spouse
who is more aggressive, stronger in will or character and dominant is
liable to dictate the terms of the will for his or her own benefit or for that
third persons whom he or she desires to favor.

2. Joint wills made by aliens abroad shall be considered as valid in the
Philippines if valid according to their lex nationalii or lex domicilii or if
valid under the lex loci celebrationis.

BASIS: ART. 816, CIVIL CODE
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.

ART. 17, CIVIL CODE
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

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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.

3. Joint wills made by aliens in the Philippines are void even if valid
under their lex nationalii or lex domicilii, in order that our public
policy on joint wills may not be militated against.

4. A joint will executed by an alien and a Filipino citizen abroad will be
valid as to the alien (if his national law or law of his domicile, or the
lex loci celebrationis, allows it), but void as to the Filipino, the same
being against our public policy on joint wills.


IV. INTRINSIC VALIDITY OF WILLS
Intrinsic validity concerns itself with the:
a.) order of succession,
b.) amount of successional rights each heir gets, and such other matters that fall
under the term “substance”
c.) intrinsic validity of testamentary dispositions and
d.) capacity to succeed

It also refers to the validity of the dispositions made by the decedent.
- Examples:
1. Provisions of the will as to the terms and conditions of the
dispositions
2. Legitimes of compulsory heir
3. Institution of heirs


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:

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RULE 77, Rules of Court provides that:

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

Under Art. 838, first paragraph, of the new civil code, “no will shall pass either
real or personal property unless it is proved and allowed in accordance with the
Rules of Court”.

There is no period of prescription for the probate of a will. For the probate of a
will is not exclusively established in the interest of the surviving heirs but primarily
for the protection of the testator’s expressed wishes in the disposition of his
properties. Since the probate of validly executed wills is required by public policy,
the State could not have intended the Statute of Limitations to defeat said policy.
(Guevara v. Guevara, GR L-5405, Jan. 31, 1956).

Although a foreign will had already been probated in a foreign country, it still has
to be reprobated in the Philippine in accordance with our procedural law, because
a foreign judgment, no matter how intrinsically meritorious, cannot have, as a

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genera rule, automatic extraterritorial effect. But instead of proving all over again
the due execution of the will, it is ordinarily sufficient to ask for the enforcement
here of the foreign judgment of the probate abroad.

The evidence necessary for the probate or allowance of wills which have been
probated outside the Philippines are:

1. The due execution of the will in accordance with the foreign law because
we cannot take judicial notice of foreign laws;
2. The testator had his domicile in the foreign country where the will was
probated;
3. The will had been admitted to probate in said country;
4. The foreign tribunal is a probate court;
5. The laws of the foreign country on procedure and allowance of wills were
followed.
(Vda. De Perez v. Tolete, 232 SCRA 722).

When these jurisdictional requirements are properly complied with, the will may
then be allowed here as if it were originally probated in our jurisdiction. The will
may then be enforced by the issuance of letter testamentary by the court.

IX. CONFLICTS OF RULES ON ADMINISTRATION OF ESTATE OF DECEASED
PERSONS

By “administration” is meant the process of determining and realizing the assets
of a deceased person, the payment of the debts of the estate, and the actual
distribution of the residue to the heirs.

Like probate, administration is procedural in nature. Therefore, it is the lex fori
that governs not the law that determines how the estate of the deceased is to be
distributed.

In charge of the administration is an executor (if one is appointed by the testator
in his will), an administrator with a will annexed (one who is appointed by the
court if there is a will but no executor is designated therein), or an administrator
(if there is no will, the court appoints an administrator of the estate of the
deceased).

The executor is qualified, and the administrator of the estate is appointed, by the
court of the country where the deceased was domiciled at the time of his death; or
if he was a non-domiciliary, the country where his properties are found.

The rights, powers and duties of the executor or administrator are coextensive
with the territorial jurisdiction of the court that qualified or appointed him. Thus,

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an executor or administrator qualified or appointed by a Philippine court has
jurisdiction only over the properties of the deceased located in the Philippines.

Administration granted int he country of the deceased’s last domicile is called
principal domicilliary administration: administration in other countries where the
decease also left properties, is called ancillary administration.

As held by the Supreme Court in Tayag v. Benguet Consolidated, Inc., 26 SCRA
242, the domiciliary administrator of the estate of a deceased American citizen in
the U.S. has no power over and is not entitled to the possession of the stock
certificates of shares or stock owned by the deceased in the Philippine corporation,
which certificates must be delivered to the ancillary administrator of the
deceased’s estate in the Philippines, to be administered by the latter in the nature
of assets of the deceased liable for his debts or to be distributed among the heirs.

X. CASES

Probate of Will of the late William R. Giberson,
G.R. No. L-4113, June 30, 1952.


FACTS:
Lela G. Dalton presented on February 10, 1949 an application with
the Court of First Instance of Cebu for the probate of the holographic
will of William R. Giberson, a citizen of the State of Illinois, United
States, dated April 29, 1920 in San Francisco, California. Spring
Giberson, legitimate son of William R. Giberson, presented an
opposition alleging that the will is apocrypha (with questionable
authenticity), it does not represent the true will of the late Giberson,
and has not been granted according to the law.


ISSUE:
Whether the wills executed outside the Philippines may be probated
without being first probated in the country of its execution.

RULING:
YES. Section 635 of the Code of Civil Procedure stating that “a will
made out of the Philippine Islands… may be proved, allowed, and
recorded in the Philippine Islands, and shall have the same effect as if
executed according to the laws of these Islands” is still in force and
has not been abrogated by Rule 78 of the Rules of Court. Here, the
will of William Giberson need not be probated first in the State of
Illinois, USA before it may be probated here in the Philippines. The
Court opined that Section 635 of the Code of Civil Procedure is

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substantive in nature and therefore could not have been repealed by
the Rules of Court which are only procedural in nature.

Testate Estate of Joseph G. Brimo, JUAN MICIANO, v. Andre Brimo
G.R. No. L-22595 November 1, 1927

FACTS:
Joseph Brimo, a Turkish national, died. A scheme of partition of
the estate left by him was filed by Juan Miciano, a judicial
administrator who was opposed by Andre Brimo, one of the brothers
of Joseph.

Andre’s opposition was based on the fact that the partition in
question puts into effect the provisions of Joseph’s will which are not
in accordance with the laws of his Turkish nationality and is void as
such being violative of Art. 10 (Art. 16, par. 2) of the Civil Code which
provides that:
Nevertheless, legal and testamentary successions, in respect to
the order of succession as well as to the amount of the successional
rights and the intrinsic validity of their provisions, shall be regulated
by the national law of the person whose succession is in question,
whatever may be the nature of the property or the country in which it
may be situated.
Andre did not prove that the testamentary disposition are not in
accordance with the Turkish laws because he failed to present any
evidence showing what the Turkish laws are, and in the absence on
such laws, they are presumed to be the same as those of the
Philippines.
The second clause in Joseph’s will excluded Andre as a legatee,
which says:
Second. I like desire to state that although by law, I am a Turkish
citizen, this citizenship having been conferred upon me by conquest
and not by free choice, nor by nationality and, on the other hand,
having resided for a considerable length of time in the Philippine
Islands where I succeeded in acquiring all of the property that I now
possess, it is my wish that the distribution of my property and
everything in connection with this, my will, be made and disposed of
in accordance with the laws in force in the Philippine islands,
requesting all of my relatives to respect this wish, otherwise, I annul
and cancel beforehand whatever disposition found in this will
favorable to the person or persons who fail to comply with this
request.

ISSUE:
Whether or not the condition is valid.

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HELD:
NO. The institution of legatees is conditional, and the condition is
that the instituted legatees must respect the testator's will to
distribute his property, not in accordance with the laws of his
nationality, but in accordance with the laws of the Philippines.

The said condition is void, being contrary to law, for article 792 of
the civil Code provides the following:

Impossible conditions and those contrary to law or good morals
shall be considered as not imposed and shall not prejudice the heir or
legatee in any manner whatsoever, even should the testator
otherwise provide.
And said condition is contrary to law because it expressly ignores
the testator's national law when, according to article 10 of the civil
Code above quoted, such national law of the testator is the one to
govern his testamentary dispositions.

Said condition then, in the light of the legal provisions above cited,
is considered unwritten, and the institution of legatees in said will is
unconditional and consequently valid and effective even as to the
herein oppositor.

It results from all this that the second clause of the will regarding
the law which shall govern it, and to the condition imposed upon the
legatees, is null and void, being contrary to law.
All of the remaining clauses of said will with all their dispositions
and requests are perfectly valid and effective it not appearing that
said clauses are contrary to the testator's national law.

TESTATE ESTATE OF C. O. BOHANAN, PHILIPPINE TRUST CO., v.
MAGDALENA C. BOHANAN, EDWARD C. BOHANAN, and MARY LYDIA
BOHANAN
G.R. No. L-12105 January 30, 1960

FACTS:
C.O. Bohanan, a citizen of the US and Nevada, executed a will in
Manila on April 23, 1944.

Philippine Trust Co. was named as the executor of the will.

The testator gave his grandson P90,819.67 and one-half of all
shares of stock of several mining companies and to his brother and

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sister the same amount. To his children he gave a legacy of only
P6,000 each, or a total of P12,000.

The wife Magadalena C. Bohanan and her two children question
the validity of the testamentary provisions disposing of the estate in
the manner above indicated, claiming that they have been deprived of
the legitimate that the laws of the form concede to them. The will has
not given her any share in the estate left by the testator. It is argued
that it was error for the trial court to have recognized the Reno
divorce secured by the testator from his Filipino wife Magdalena C.
Bohanan, and that said divorce should be declared a nullity in this
jurisdiction.

The court below refused to recognize the claim of the widow on
the ground that the laws of Nevada, of which the deceased was a
citizen, allow him to dispose of all of his properties without requiring
him to leave any portion of his estate to his wife. Section 9905 of
Nevada Compiled Laws of 1925 provides:

Every person over the age of eighteen years, of sound mind, may,
by last will, dispose of all his or her estate, real and personal, the
same being chargeable with the payment of the testator's debts.

APPELLANTS’ CLAIM:
the testator's children, Edward and Mary Lydia, who had received
legacies in the amount of P6,000 each only, and, therefore, have not
been given their shares in the estate which, in accordance with the
laws of the forum, should be two-thirds of the estate left by the
testator.

ISSUE:
A. Whether or not the failure of the testator to give his children two-
thirds of the estate left by him at the time of his death, in accordance
with the laws of the forum valid.
B. Whether the testamentary dispositions, especially those for the
children which are short of the legitime given them by the Civil Code
of the Philippines, are valid

HELD:
YES FOR BOTH. The successional rights to personal property are to
be earned by the national law of the person whose succession is in
question. Art. 10 ( art. 16, par., 2) of the Civil Code provides:

Nevertheless, legal and testamentary successions, in respect to
the order of succession as well as to the extent of the successional

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rights and the intrinsic validity of their provisions, shall be regulated
by the national law of the person whose succession is in question,
whatever may be the nature of the property and the country in which
it is found.

The testator was a citizen of the State of Nevada because he had
selected this as his domicile and his permanent residence.

It is not disputed that the laws of Nevada allow a testator to
dispose of all his properties by will.

The pertinent law of Nevada, especially Section 9905 of the
Compiled Nevada Laws of 1925, can be taken judicial notice of by us,
without proof of such law having been offered at the hearing of the
project of partition.

As in accordance with Article 10 of the old Civil Code, the validity
of testamentary dispositions are to be governed by the national law of
the testator, and as it has been decided and it is not disputed that the
national law of the testator is that of the State of Nevada, already
indicated above, which allows a testator to dispose of all his property
according to his will, as in the case at bar.


Chapter X: Adoption

I. Concept
- Adoption is governed by the law of the place where the adoption is made.
- The validity of an adoption usually hinges on the adoption’s compliance with the
laws of the place where the adoption proceedings are instituted.
- Since the right to adopt vested in the place where the adoption is made, it is but
the proper that the law of that place govern the validity of the adoption.
- For this reason, made in one jurisdiction are usually recognized in other
jurisdictions. This is one way of giving full faith and credit to legal processes
adopted in other countries.
- This is also a form of comity which is accorded to co-equal sovereigns.
Adoption overseas
- Adoption made overseas are considered valid in our country so long as they are
compliant with the laws of the place where the adoption is made. Since the
foreign adoptions are recognized in our civil registry.
- It is not only local adoptions that are entitled to recording bur also foreign
adoptions.
Case:

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Ramirez Marcaida vs Aglubat, 21 SCRA 1033, 1962
FACTS:
Prior to October 21, 1958, proceedings for adoption were started
before the CFI- Madrid, Spain by Maria Garnier Garreau, then 84 years
of age, adopting Josefina Juana de Dios Ramirez Marcaida, 55 years, a
citizen of the Philippines. Both were residents of Madrid, Spain.

The court granted the application for adoption and gave the
necessary judicial authority, once the judgment becomes final, to
execute the corresponding adoption document.

On November 29, 1958, the notarial document of adoption — which
embodies the court order of adoption — whereunder Maria Garnier
Garreau formally adopted petitioner, was executed before Notary
Public Braulio Velasco Carrasquedo of Madrid.

In that document, Maria Gernier Garreau instituted petitioner,
amongst other conditions as here unica y universal heredera de todos
sus bienes, derechos y acciones, presentes y futuros. In conformity
with our law, this escritura de adopcion (deed of adoption) was, on
December 10, 1953, authenticated by Emilio S. Martinez, Philippine
Vice Consul, Philippine Embassy, Madrid, who issued the
corresponding certificate of authentication.

The document of adoption was filed in the Office of the Local Civil
Registrar of Manila. The Registrar refused to register it on the ground
that under Philippine law, adoption can only be had through judicial
proceeding. And since the notarial document of adoption is not a
judicial proceeding, it is not entitled to registration. Petitioner went to
CFI- Manila on mandamus.

The lower court dismissed said petition and decided that what is
registrable is only adoption obtained through a judgment rendered by
a Philippine court.

Solicitor General argues that petitioner’s case does not come within
the purview of Article 409 of the Civil Code, which states that:
“In cases of legal separation, adoption, naturalization and other
judicial orders mentioned in the preceding article it shall be the duty
of the clerk of the court which issued the decree to ascertain whether
the same has been registered, and if this has not been done, to send a
copy of said decree to the civil registry of the city or municipality
where the court is functioning”, and Section 11 of Act 3753, which
reads:

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“Duties of clerks of court to register certain decisions. — In cases
of legitimation, acknowledgment, adoption, naturalization, and
change of given or family name, or both, upon the decree of the
court becoming final, it shall be the duty of the clerk of the court
which issued the decree to ascertain whether the same has been
registered, and if this has not been done, to have said decree
recorded in the office of the civil registrar of the municipality
where the court is functioning.:”
ISSUE:

WON the order of adoption issued by the CFI- Madrid can be
registered in the Philippines.
RULING:

Yes. The cited provisions refer to adoptions effected in the
Philippines.Article 409 of the Civil Code and Section 10 of the Registry
Law speak of adoption which shall be registered in the municipality or
city where the court issuing the adoption decree is functioning.

We perceive that Article 409 and Section 10 aforesaid were
incorporated into the statute books merely to give effect to our law
which required judicial proceedings for adoption. Limitation of
registration of adoptions to those granted by Philippine courts is a
misconception which a broader view allows us now to correct. For, if
registration is to be narrowed down to local adoptions, it is the
function of Congress, not of this Court, to spell out such limitation.
We cannot carve out a prohibition where the law does not so state.
Excessive rigidity serves no purpose. And, by Articles 407 and 408 of
our Civil Code, the disputed document of adoption is registrable.

No suggestion there is in the record that prejudice to State and
adoptee, or any other person for that matter, would ensue from the
adoption here involved. The validity thereof is not under attack. At
any rate, whatever may be the effect of adoption, the rights of the
State and adoptee and other persons interested are fully safeguarded
by Article 15 of our Civil Code which, in terms explicit, provides that:
“Laws relating to family rights and duties, or to the status, condition
and legal capacity of persons are binding upon citizens of the
Philippines even though living abroad.”
Private international law offers no obstacle to recognition of foreign
adoption. This rests on the principle that the status of adoption,
created by the law of a State having jurisdiction to create it, will be
given the same effect in another state as is given by the latter state to
the status of adoption when created by its own law. It is quite obvious
then that the status of adoption, once created under the proper

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foreign law, will be recognized in this country, except where public
policy or the interests of its inhabitants forbid its enforcement and
demand the substitution of the lex fori. Indeed, implicit in Article 15
of our Civil Code just quoted, is that the exercise of incidents to
foreign adoption “remains subject to local law.”

We hold that an adoption created under the law of a foreign country
is entitled to registration in the corresponding civil register of the
Philippines.

It is to be understood, however, that the effects of such adoption
shall be governed by the laws of this country.

The lower court’s decision is hereby reversed; and the Local Civil
Registrar of Manila is hereby directed to register the deed of adoption
(Escritura de Adopcion) by Maria Garnier Garreau in favor of
petitioner Josefina de Dios Ramirez Marcaida.

II. Applicable Law at time of Adoption
- Under the Child and Youth Welfare Code, an alien had the right to adopt in our
jurisdiction.
- However, all this was changed on August 3, 1988, when the family code took
effect.
- Under Section 184 (3) thereof, aliens were not allowed to adopt in our country.
What about petitions for adoption instituted before August 3, 1988?
- On the theory of vested right and non-retroactivity of laws, adoptions granted
prior to August 3, 1988 are considered valid and petitions filed before such date
shall be processed under the Child and Youth Welfare Code.
III. Procedure of Adoption in the Philippines
Who can adopt in the Philippines?
According to this law, any person can adopt provided he or she is a Filipino or alien
residing in the Philippines who:

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.

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G. An alien may adopt if he/she has diplomatic relations with the Philippines,
has been certified by his/her diplomatic or consular office or any
appropriated agency that he/she is qualified to adopt in his country, and that
his/her government will allow the adoption.
H. An alien has been living in the Philippines for at least three (3) continuous
years prior to the filing of the application for adoption and maintains such
residence until the adoption decree is entered

Who can be adopted in the Philippines?

A. Any person below 18 who has been administratively or judicially declared


available for adoption.
B. Legitimate son/daughter of one spouse by the other spouse.
C. An illegitimate son/daughter by a qualified adopter/s to improve his/her status
to that of legitimacy.
D. A person of legal age if, prior to the adoption, said person has been consistently
considered and treated by the adopter/s as his/her own child since minority.
E. A child whose adoption has been previously rescinded.
F. A child whose biological parent/s has died provided that no proceedings shall be
initiated within 6 months from the time of death of the said parent/s.

Adoption Requirements in the Philippines:


If you are a foster parent or a couple interested to adopt a qualified person, you may
prepare the following documents.

• Authenticated Birth Certificate


• Authenticated Marriage Certificate
• Written consent to the adoption of the legitimate, adopted or illegitimate children
living with the applicant who are aged 10 years old and above.
• Health Certificates of Couple and family members
• NBI Clearance or Police Clearance
• Latest ITR (Income Tax Return) or any proof of income
• Three Character References
• Statement of Acceptance from Designated Guardian
• Latest Family Picture and Home Picture
• Home Study Report
• Attendance to Adoption Counseling
• Application
• Preparation of Home Study Report
• Approval/Disapproval of application
• Matching or Family Selection
• Pre-placement of the child with the prospective adoptive parents
• Placement
• Supervised Trial Custody
• Finalization of Child’s Adoption

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• Issuance of the Adoption Decree/Certificate of Finality
• Issuance of Amended Birth Certificate
• Provision of Post-Adoptive Services

IV. Pertinent Laws in Adoption

A. PRESIDENTIAL DECREE NO. 603 December 10, 1974


THE CHILD AND YOUTH WELFARE CODE
Adoption

Art. 27. Who May Adopt. –
Any person of age and in full possession of his civil rights may adopt: Provided, That he is
in a position to support and care for his legitimate, legitimated, acknowledged natural
children, or natural children by legal fiction, or other illegitimate children, in keeping
with the means, both material and otherwise, of the family. In all cases of adoption the
adopter must be at least fifteen years older than the person to be adopted.

Art. 28. Who May Not Adopt. –


The following persons may not adopt:
(1) A married person without the written consent of the spouse;
(2) The guardian with respect to the ward prior to final approval of his accounts;
(3) Any person who has been convicted of a crime involving moral turpitude;
(4) An alien who is disqualified to adopt according to the laws of his own country or one
with whose government the Republic of the Philippines has broken diplomatic relations.

Art. 29. Adoption by Husband and Wife. –
Husband and Wife may jointly adopt. In such case, parental authority shall be exercised
as if the child were their own by nature.
Art. 30. Who May Not Be Adopted. –
The following may not be adopted:
(1) A married person, without the written consent of the spouse;
(2) An alien with whose government the Republic of the Philippines has broken
diplomatic relations;
(3) A person who has already been adopted unless the adoption has been previously
revoked or rescinded in accordance with this Chapter.

Art. 31. Whose Consent is Necessary. –
The written consent of the following to the adoption shall be necessary:
(1) The person to be adopted, if fourteen years of age or over;
(2) The natural parents of the child or his legal guardian of the Department of Social
Welfare or any duly licensed child placement agency under whose care the child may be;
(3) The natural children, fourteen years and above, of the adopting parents.

Art. 39. Effects of Adoption. - The adoption shall:

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(1) Give to the adopted person the same rights and duties as if he were a legitimate child
of the adopter: Provided, That an adopted child cannot acquire Philippine citizenship by
virtue of such adoption:
(2) Dissolve the authority vested in the natural parent or parents, except where the
adopter is the spouse of the surviving natural parent;
(3) Entitle the adopted person to use the adopter's surname; and
(4) Make the adopted person a legal heir of the adopter: Provided, That if the adopter is
survived by legitimate parents or ascendants and by an adopted person, the latter shall
not have more successional rights than an acknowledged natural child: Provided,
further, That any property received gratuitously by the adopted from the adopter shall
revert to the adopter should the former predecease the latter without legitimate issue
unless the adopted has, during his lifetime, alienated such property: Provided, finally,
That in the last case, should the adopted leave no property other than that received
from the adopter, and he is survived by illegitimate issue or a spouse, such illegitimate
issue collectively or the spouse shall receive one-fourth of such property; if the adopted
is survived by illegitimate issue and a spouse, then the former collectively shall receive
one-fourth and the latter also one-fourth, the rest in any case reverting to the adopter,
observing in the case of the illegitimate issue the proportion provided for in Article 895
of the Civil Code.
The adopter shall not be a legal heir of the adopted person, whose parents by nature
shall inherit from him, except that if the latter are both dead, the adopting parent or
parents take the place of the natural parents in the line of succession, whether testate
or interstate.

Case: Republic vs Miller

FACTS: On July 29, 1988, the spouses Claude A. Miller and Jumrus S.
Miller, filed with the Regional Trial Court, Branch 59, Angeles City,
a verified petition to adopt the minor Michael Magno Madayag.
The Department of Social Welfare and Development
recommended approval of the petition on the basis of its
evaluation that respondents were “morally, emotionally and
financially fit to be adoptive parents and that the adoption would
be to the minor's best interest and welfare." The Trial Court
granted the petition for adoption.

Issue: Whether or not the court may allow aliens to adopt a Filipino child
despite the prohibition under the Family Code, effective on August
3, 1988 when the petition for adoption was filed on July 29, 1988,
under the provision of the Child and Youth Welfare Code which
allowed aliens to adopt.

HELD: Yes.

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The enactment of the Family Code, effective August 3, 1988, will
not impair the right of respondents who are aliens to adopt a
Filipino child because the right has become vested at the time of
filing of the petition for adoption and shall be governed by the law
then in force.

As long as the petition for adoption was sufficient in form and
substance in accordance with the law in governance at the time it
was filed, the court acquires jurisdiction and retains it until it fully
disposes of the case. The jurisdiction of the court is determined by
the statute in force at the time of the commencement of the
action. Such jurisdiction of a court, whether in criminal or civil
cases, once it attaches cannot be ousted by a subsequent
happenings or events, although of a character which would have
prevented jurisdiction from attaching in the first instance.


V. Domestic and Inter-country Adoption

Applicable Philippine Laws:
1. On Domestic Adoptions: Republic Act No. 8552 (Domestic Adoption Act of 1998)
2. On Foreign Adoptions: Republic Act No. 8043 (Inter Country Adoption Act of
1995)


RA No. 8043 – Inter Country Adoption Act of 1995

RA No. 8043 defines inter-country adoption as: “the socio-legal process of adopting a
Filipino child by a foreigner of a Filipino citizen permanently residing abroad where the
petition is filed, the supervised trial custody is undertaken, and the decree of adoption is
issued outside the Philippines.” While allowing foreigners to adopt, however, Section 7
of RA No. 8043 provides that inter-country adoption should be the last resort and that
domestic adoption is still preferred.

Who may adopt? An alien or a Filipino citizen permanently residing abroad may file an
application for inter-country adoption of a Filipino child if he/she:

(a) is at least twenty-seven (27) years of age and at least sixteen (16) years older than
the child to be adopted, at the time of application unless the adopter is the parent
by nature of the child to be adopted or the spouse of such parent:
(b) if married, his/her spouse must jointly file for the adoption;
(c) has the capacity to act and assume all rights and responsibilities of parental
authority under his national laws, and has undergone the appropriate counseling
from an accredited counselor in his/her country;
(d) has not been convicted of a crime involving moral turpitude;

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(e) is eligible to adopt under his/her national law;
(f) is in a position to provide the proper care and support and to give the necessary
moral values and example to all his children, including the child to be adopted;
(g) agrees to uphold the basic rights of the child as embodied under Philippine laws,
the U.N. Convention on the Rights of the Child, and to abide by the rules and
regulations issued to implement the provisions of this Act;
(h) comes from a country with whom the Philippines has diplomatic relations and
whose government maintains a similarly authorized and accredited agency and
that adoption is allowed under his/her national laws; and
(i) possesses all the qualifications and none of the disqualifications provided herein
and in other applicable Philippine laws.

Where to file the application? The application shall be filed either with the Philippine
Regional Trial Court having jurisdiction over the child, or with the Inter-Country
Adoption Board, through an intermediate agency, whether governmental or an
authorized and accredited agency, in the country of the prospective adoptive parents.

If the trial custody and the pre-adoptive relationship between the applicant/s and the
child prove satisfactory, the applicant shall file a petition for adoption with the court or
tribunal in the country where the applicant resides. When a decree of adoption is issued
by the foreign court, the same shall be recorded with the appropriate foreign and local
civil register. Such recording is an effective way of recognizing the adoption of the child
both locally and internationally.





















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REFERENCES:
Pe Benito, Galahad. Conflict of Laws. Manila: Rex Book Store, (2016)

LIST OF CASES:
1. Dalton Vs Giberson, 91 Phil. 542 (1952)

2. Testate Estate of Joseph G. Brimo, Juan Miciano, Administrator V. Andre Brimo,
G.R. No. L-22595 November 1, 1927

3. Testate Estate of C. O. Bohanan, Deceased. Philippine Trust Co., V. Magdalena C.
Bohanan, Edward C. Bohanan, And Mary Lydia Bohanan, G.R. No. L-12105
January 30, 1960

4. JOSEFINA JUANA DE DIOS RAMIREZ MARCAIDA vs. LEONCIO V. AGLUBAT, G.R.
No. L-24006, November 25, 1967

5. Republic vs. Miller, GR No. 125932, April 22, 1999

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