CONFLICTS of LAWS

in WILLS and SUCCESSION SUCCESSIONAL RIGHTS AND CAPACITY TO SUCCEED

Philippine Conflicts Rules

- In Philippine jurisdiction the term “succession” has been
- In intestate and testamentary succession, the national law
defined as “the mode of acquisition by virtue of which the
of the decedent governs the order of succession, amount
property, rights, and obligations to the extent of the value
of successional rights, and intrinsic validity of
of the inheritance, of a person are transmitted through his
testamentary provisions, whatever may be the nature of
death to another or others either by his will or by
the property and regardless of the country wherein said
operation of law.”
property may be found, as well as capacity to succeed. The
- A conflict of laws situation arises where there is a foreign
rights to the succession of a person are deemed
element involved in a succession problem.
transmitted from the moment of death. The Philippine
view that the entire property of the deceased passes
Theories in Determining the Proper Law for the Transmission of
directly to the heirs, testate or intestate, has its origin in
Successional Rights:
Roman Law and is observed in civil countries in Europe.
1. Universal Succession or Unitary System
Civil law and common law conflicts rules
- Assumes that the individuality of the decedent
- Under the common law system, in so far as personalty is
continues to exist after his death in the person of
concerned, distribution of the decedent’s property is
his heir, for juridical purposes. Thus, whatever
governed by the law of the last domicile of the decedent
personal law governed the decedent governs the
at the time of death. As regards immovable property, the
succession to his entire estate after his death.
proper law is the lex situs. Moreover, in English law, no
The national law of a decedent whose country of
such transmission of successional rights upon death
nationality adopts the nationality principle
occurs. The only person entitled to deal with the property
applies while the domiciliary law of the decedent
is he who has been granted the right of administration by
whose country of domicile adopts domiciliary
public authority, i.e. either the executor or administrators.
principle. Countries that follow this system
include Italy, Spain, and the Philippines.
Philippine conflicts rule on succession has a civil
CAPACITY TO SUCCEED
law derivation, but rules on probate of wills and
the settlement and administration of estates are
Philippine Conflicts Rules
Anglo-American origin.
- Article 1039 of the Civil Code provides that capacity to
succeed is governed by the national law of the decedent.
2. Split or Division System
Persons not incapacitated by law may succeed, be it by will
- Has its roots in the feudalistic system of law.
or by intestacy. In order to be capacitated to inherit,
Under that system, feudal lords could not permit
paragraph I of Article 1025 of the Civil Code provides that
the rights of succession to their land to be
the heir, devisee, or legatee must be living at the moment
affected should their vassals acquire a foreign
the succession opens, except in case of representation,
domicile. Thus, the split system seeks to
when it is proper. However, a child already conceived at
distinguish between immovables and movables.
the time of the death of the decedent is capable of
Countries that adopt this system are England,
succeeding provided it be born later under the conditions
US, and France. In the US, succession to land
prescribed in Article 41.
upon the death of the owner is governed by the
- The national law of the decedent governs such questions
law of the place where the land is situated, while
as to whether a given person is unworthy to succeed on
the devolution of personalty is governed by the
the ground of certain crimes committed by him against the
law of the domicile of the testator at the time of
deceased, whether a corporation or unborn child can
his death.
acquire property by succession, and whether an heir can
- Lex situs should be applied in succession to land
validly renounce his rights to succession by a solemn
because the state of the situs has an obvious
agreement of renunciation executed between the heir and
interest in having interests in local land decided
the deceased during the latter’s lifetime.
in a manner that complies with its notion of
what is reasonable and just. On the other hand,
Civil law and common law conflicts rules
the law of the domicile should be applied to
-In the US, the law of the state where the land is determines who is
movables because it is desirable insofar as an
an heir, and his interests, duties, and liabilities. Questions
estate would be treated as a unit, and the state
concerning a will disposing of personal estate at the death of the
that has the dominant interest in the application
owner are in general, governed by the law of the decedent at the
of its laws is the state of the decedent’s domicile
time of his death; this is applicable to questions of capacity, forms,
at the time of his death. The domicile is the law
substantive, validity, and construction.
which the decedent is most familiar with and its
application coincides with the expectations of
the decedent and his family.
EXTRINSIC OR FORMAL VALIDITY OF WILLS
- Refers to the forms and solemnities in the making of wills
- Includes the age and testamentary capacity of the testator and the
form of the will
RULE: Wills are governed by the laws of the country in which they
are executed.
Art. 17 of the NCC:
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 Philippnes in a foreign country,
the solemnities established by the Philippine
laws shall be observed in their execution.
Other provisions on the NCC pertaining to extrinsic validity of wills:
Article 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.
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 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.
Article 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.
Article 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.
Article 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.
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.
Conflicts Rules in the Philippines on Extrinsic Validity of Wills:
1. If a Filipino makes a will abroad, he may comply with the
formalities of:
 Philippine law (lex nationalii), or
 Law of the place where he was at the time of the
execution of the will (lex loci celebrationis, Art.
815 NCC)
2. If an alien makes a will abroad, he may comply with the
formalities of the:
 Law of the country of which he is a citizen (lex
nationalii), or
 Law of his domicile (lex domicilii, Art. 816 NCC),
or
 Law of the country where he was at the time of
the execution of the will (lex loci celebrationis,
Art. 17 NCC)
3. If an alien makes a will in the Philippines, he may comply
with the formalities of:
 His own country (lex nationalii), or
 Philippine law (lex loci celebrationis)
4. Holographic will which must be entirely written, dated,
and signed by the hand of the testator himself (Art. 810
NCC)
- Subject to no other form
- May be made in or out of the Philippines
- Need not be witnessed
JOINT WILL
- 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
Kinds:
1. Mutual wills- executed pursuant to an agreement between
two or more persons to dispose of their property in a
particular manner, each in consideration of the other
2. Reciprocal wills- testator name each other as beneficiaries
under similar testamentary plans
Provisions on the NCC pertaining to joint wills:
Article 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.
Article 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.
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.
Conflicts Rules on Joint Wills:
1. Filipinos
- cannot make joint wills, whether executed in the
Philippines or abroad – even if authorized by the laws
of the country in which they may have been executed
(Art. 819, Civil Code)
2. Joint wills by aliens
- made abroad may be recognized as valid in the
Philippines if valid according to their lex nationalii, lex
domicilii or lex loci celebrationis (Arts. 816 and 17, NCC)
- made in the Philippines, void for being against public
policy
3. Joint wills by an alien and Filipino
- made abroad may be considered as valid as to the
alien (if allowed by his national law, law of his
domicile, or lex loci celebrationis), but void as to the
Filipino for being against public policy
- if such joint will is made in the Philippines, it is void
for being against public policy
INTRINSIC VALIDITY OF WILL
- Validity of the dispositions made by the decedent
What does the intrinsic validity of wills include?
1. Order of Succession
2. Amount of successional rights
3. Other matters of substance
What law governs the intrinsic validity of wills?
- Lex Nationalii or the law of the nationality of the
decedent, regardless of the location and nature of
property and notwithstanding the fact that the testator
provided otherwise.
- The New Civil Code applies the lex nationalii of the
decedent in par. 2 of its Art. 16.
ARTICLE 16:
xxx 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.
CASE: MICIANO v. BRIMO G.R. No. L-22595; November 1, 1927
FACTS:
Joseph Brimo, a Turkish national, executed a will providing
that his properties shall be disposed of in accordance with Philippine
law. His will provided:
“Second. I like to 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 stipulation is valid?
RULING:
No, the stipulation is not valid because the disposition of
his estate should be in accordance with his national law.
The institution of legatees in this will 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. xxx
The fact is, however, that 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.
Conflicts Rules on the Intrinsic Validity of Wills:
- As a general proposition, conflicts rules on the intrinsic
validity of wills are 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.
- In case of CONFLICT between the NATIONALITY theory and
the DOMICILIARY theory:
o The court can treat the case as one of “renvoi”
(referred back), so that it can still apply
Philippine law even if the deceased was a citizen
of another country.
Conflicts Rules in case of Intestate Succession:
- Civil law countries – national law of the deceased applies
(i.e. Philippines)
- Common law countries (follow the split and scission
system; i.e. U.S. and Great Britain)
o Lex domicilii of the deceased at the time of
death applies with respect to personal
properties
o Lex situs applies with respect to real properties
PROBATE OF A WILL
The Concept of Lex Fori:
 “The law of the forum applies.”
 A Probate proceeding is necessary to determine whether
the Will shall be allowed or disallowed. Probate being
purely procedural matter, the principle of Lex Fori is to be
observed.
The Concept of Probate:
ART. 783 of the NCC: “An act whereby a person
is permitted, with the formalities prescribed by
the law to control to a certain degree the
disposition of his estate, to take effect after his
death. ”
ART. 838 of the NCC: “No will shall pass either
real or personal property unless it is proved and
allowed in accordance with the Rules of Court.”
 Since the law of the forum is to be observed, regard is to
be had to the pertinent provisions of the Rules of Court.
 Probate is the process of proving before a competent
court:
a. Due execution of will;
b. Testamentary capacity
 Wills proved and allowed in a foreign country, may be
allowed, filed and recorded in the Philippines in
accordance with Rule 77 of the Rules of Court. Although a
will had already been probated in a foreign country, it has
to be reprobated in the Philippines in accordance with our
procedural laws, because a foreign judgment no matter
how instrinsically meritorious cannot have an automatic
extraterritorial effect.
CASE: SUNTAY v. SUNTAY 95 Phil 500
FACTS:
Jose B. Suntay, a Filipino citizen and resident of the
Philippines, died in China, leaving real and personal properties in the
Philippines and a house China, children by the first marriage and a
child named Silvino by the second marriage with Maria Natividad
Lim Billian who survived him. Intestate proceedings were instituted
in the and after hearing letters of administration were issued to
Apolonio Suntay. The surviving widow filed a petition for the
probate of a last will and testament claimed to have been executed
and signed in the Philippines. This petition was denied because of
the loss of said will. An appeal was taken from said order denying
the probate of the will. It was contented that a will is subsisting and
was proved in China.
ISSUE: Whether the will executed and probated in China be allowed
in the probate proceedings in the Philippines.
RULING:
The fact that the municipal district court of Amoy, China, is
a probate court must be proved. The law of China on procedure in
the probate or allowance of wills must also be proved. The legal
requirements for the execution of a valid will in China in 1931 should
also be established by competent evidence. There is no proof on
these points. The unverified answers to the questions propounded
by counsel for the appellant to the Consul General of the Republic of
China set forth in Exhibits R-1 and R-2, objected to by counsel for the
appellee, are inadmissible, because apart from the fact that the
office of Consul General does not qualify and make the person who
holds it an expert on the Chinese law on procedure in probate
matters, if the same be admitted, the adverse party would be
deprived of his right to confront and cross-examine the witness.
Consuls are appointed to attend to trade matters. Moreover, it
appears that all the proceedings had in the municipal district court
of Amoy were for the purpose of taking the testimony of two
attesting witnesses to the will and that the order of the municipal
district court of Amoy does not purport to probate the will. In the
absence of proof that the municipal district court of Amoy is a
probate court and on the Chinese law of procedure in probate
matters, it may be presumed that the proceedings in the matter of
probating or allowing a will in the Chinese courts are the a
deposition or to a perpetuation of testimony, and even if it were so
it does not measure same as those provided for in our laws on the
subject.
 Evidence necessary for the probate of a will
1. Due execution of the will in accordance with foreign
law;
2. Domicile of the testator in the foreign country;
3. Will has been admitted probate in the probate
country;
4. Foreign tribunal is the probate court;
5. Compliance with what is prescribed by the foreign
law. (See: Vda. De Perez v. Tolete, 232 SCRA 722)
No Prescription as to Probate
 Probate of a will is exclusively established for the
protection of the testator’s express wishes in the
disposition of his properties. Thus, the State could not
have intended the Statute of Limitations to apply to defeat
its policy. (See: Guevara v. Guevara, 1956 January 31.)
ADMINISTRATION OF THE ESTATE
Application of the concept of Lex Fori
 Like probate, administration is procedural in nature.
Therefore it is the law of the forum governs and not the
 law that determines how the estate of the deceased
should be distributed.
 By “Administration” is meant the process determining and
realizing the assets of a deceased person, the payment of
the debts of the estate, and the distribution of the residue
to the heirs.
 Executor, Administrator of a will annexed, Administrator,
as the case may be, is in charge of the administration of
the estate of the deceased.
- Appointed by the court of the country where the
deceased was domiciled at the time of his death
(Principal Domiciliary Administration); or if a non-
domicilliary, the court of the country where the
properties are located (Ancillary Administration).
 The rights, powers and duties are coextensive with the
territorial jurisdiction of the court that qualified or
appointed him.
CASE: TAYAG v. BENGUET CONSOLIDATED INC. 26 SCRA 242
FACTS:
Perkins died leaving two stock certificates in the Benguet
Consolidated Inc., a Phil. Corporation. The certificates were in
possession of Country Trust Co. of New York, which was the
domiciliary adminstrator of the estate of the deceased. Meanwhile,
ancillary administration proceedings in the CFI of Manila were
instituted and the court appointed Lazaro Marquez as ancillary
administrator, who was subsequently substituted by Renato Tayag.
A dispute arose between the domiciliary and ancillary administrators
as to which of them was entitled to the possession of the stock
certificates. The CFI ordered the domiciliary administrator to
produce and deposit the certificates with Tayag or with the Cerk of
Court, but the former did not comply with the said order. Tayag
petitioned the Court to issue an order declaring the stocks
certificates as lost, which the court granted. Hence, this appeal by
the oppositor Benguet Consolidated Inc.
ISSUE: Whether or not ancillary administrator is entitled to the
possession of the stock certificates.
RULING:
Yes. The domiciliary administrator of the estate of the
deceased American Citizen who resided and died in the United
Stated has no power over and is not entitled to the possession of the
stock certificates, of shares of stock owned by the deceased in a
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 his heirs.
REVOCATION OF WILLS
Revocation – an act of the mind terminating the potential capacity
of the will to operate at the death of the testator, manifested by
some outward and visible act or sign symbolic thereof.
RULE: Testator must have testamentary capacity at time of
revocation. The same degree of mental capacity is necessary to
revoke a will as to make one.
Art. 828 of the NCC: A will may be revoked by
the testator at any time before his death. Any
waiver or restriction of this right is void.
Until the death of the testator, the will is said to be ambulatory and
may be revoked by him at will at any time with or without reason.
After a will has been probated during the lifetime of the testator
(Art. 838, par 2.), it does not necessarily mean that he cannot alter
or revoke the same. So inherent is this quality of revocability in a will
that a provision in the instrument declaring it irrevocable will be null
and void.
No waiver or restriction can be made as to the absolute freedom of
the testator to revoke a will he has previously made for any reason
or cause.
Conflict Rules in Revocation:
Art. 829 of the NCC: A revocation done outside
the Philippines by a person who does not have
his domicile here is valid if 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.
If done in the Philippines Lex loci actus (of the
revocation) (Article 829)
If done outside the Philippines
1. By a NON-DOMICILIARY Lex loci celebrationis (of the
making of the will, not
revocation), OR lex domicilii
(Article 829)
2. By a DOMICILIARY of the Lex domicilii (Phil. Law) OR lex
Philippines loci actus (of the revocation)
(Article 17)
1. If the revocation was done IN the Philippines regardless if
he is domiciled or not in the Philippines, it is valid when it is in
accordance with Philippine laws.
2. If the revocation was done OUTSIDE the Philippines and
the person is NOT DOMICILED in the country, then the law of the
place where the will was made (Lex Loci Celebrationis) OR the law
of the place where the person is domiciled (lex domicilii) will
govern.
3. If the revocation was done OUTSIDE the Philippines by a
testator who is DOMICILED in the Philippines, it is the law of the
place where the person is domiciled (lex domicilii) or the laws of
the place where the action – the revocation occurred (lex loci
actus) will govern pursuant to Article 17 of the New Civil Code.
ART. 17 of the NCC: 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. xxx
Modes of Revocation:
Art. 830 of the NCC: 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 burned, torn, cancelled, or obliterated by
some other person, without the express direction of the
testator, the will may still be established, and the estate
distributed in accordance therewith, if its contents, and
due execution, and the fact of its unauthorized
destruction, cancellation, or obliteration are established
according to the Rules of Court. (n)
Three Ways of Revoking a Will:
1. By Operation of Law
a. Art. 1032 – Unworthiness to succeed, e.g., I instituted P
as heiress, after which she killed my parents. The will
instituting her as heiress is revoked by implication of law.
b. Art. 957 – Alienation, transformation, or loss of
bequeathed property revokes a legacy of such property.
Deals w/ the devise or legacy.-- transformation of the
property by the testator, e.g., If I converted to a
subdivision the fishpond w/c I gave to T as devise.
c. Art. 63 (4), FC – Legal separation. The guilty spouse, who
gave the ground for legal separation, will not inherit and
anything given to her is impliedly taken away by law.
d. Art. 854 – Preterition annuls the institution of heirs.
e. Art. 50, FC – Annulled or void ab initio marriages revoke
testamentary dispositions made by one spouse in favor of
the other.
f. Art. 44, FC – If both spouses of the subsequent marriage
acted in bad faith, said marriage shall be void ab initio and
testamentary dispositions made by one in favor of the
other are revoked by operation of law.
2. By Subsequent Instrument, Will or Codicil:
Revocation may either be:
a. Express – Contains an express revocatory clause
b. Implied – Provisions of subsequent will are
incompatible with the provisions of the prior
will. It may either be:
 Total when all the provisions are
incompatible; or
 Partial when only some provisions are
incompatible.
Requisites:
1. Capacity to revoke.-- Insane persons cannot
revoke
2. Revoking instrument, will or codicil must be valid
3. Revoking instrument, will or codicil must contain
either a revoking clause (express) or be incompatible
(implied)
4. Revoking will must be probated because without
probating, it cannot have the effect of
revocation.
According to De Leon and De Leon, Jr. (2012), it is immaterial that
the intention of the testator is to revoke a will, if he has not
complied with the law.
3. By Destruction
- Act of burning, tearing, cancelling, or obliterating the will
Requisites:
1. Completion of the subjective phase
2. Actual-physical act of destruction
3. Testamentary capacity at the time of performing the
destruction
4. Performed by the testator himself or by some other
person in his presences, and by his direction
5. Intent to revoke (Animus revocandi)
 Burning - at least a burning part of the paper on which the
will is written
 Tearing- a slight act of tearing is generally held sufficient;
this includes cutting.
 Cancelling - diagonal or horizontal lines or criss-crossers or
the word “cancelled”
 Obliterating- erasing or scraping off any word or
disposition which the testator intends to revoke
We must note that it is not only the testator who can destroy the
will. Under Article 830, the following are allowed to revoke the will:
(1) The testator, or (2) another person under the express direction
and in the presence of the testator is allowed to revoke the will.
The effect of revocation is final. The remedy of the testator in order
to re-establish his old will is to create a new one.
Art. 832 of the NCC: A revocation made in a
subsequent will shall take effect, even if the new
will should become inoperative by reason of the
incapacity of the heirs, devisees or legatees
designated therein, or by their renunciation.
General Rule: Doctrine of Absolute Revocation – The revocation of a
prior will by means of a subsequent will is absolute. Such revocation
does not depend on:
1. Capacity of heirs, devisees, and legatees in the 2nd will; or
2. On their acceptance.
The revocation will be operative even the heirs, devisees, or
legatees named in the revoking will are disqualified or they
renounce.

Exception: Doctrine of Dependent Relative Revocation.

According to Aquino (2014), under this doctrine, the revocation itself

is subject to the condition that the new will remain operative. The
intention of the testator is to make the revocation effective only if
the new revoking will is valid. Hence, it is can be provided for by the
testator that if the new will becomes inoperative by reason of
incapacity or renunciation, the previous will remains effective and
the revocation is also inoperative.