PINK NOTES: Rinchel’s guide to pass your law subjects

CONFLICTS OF LAWS

Conflicts of law - Part of international law which deals with legal problems
involving foreign element concerning the conflict in the application of local and
foreign laws, raised in a proper forum.
That part of municipal law of a state which directs its courts and administrative
agencies, when confronted with a legal problem involving a foreign element,
whether or not they should apply a foreign law/s (Paras).

Elements

I. Legal problem involving foreign element—

--If there is no foreign element, there is no conflict of law.

Foreign elements is a factual situation that cut across territorial lines and affected
by diverse laws of two or more states -- Saudia vs Morada
1. One or both litigant is alien
2. Cause of action arises in foreign state
- location of the res
- place of celebration
- place of the act
- place of the crime

II. Assumption of the proper forum

Cases involving COL, forum may:
1. Refuse - apply forum non conviniens, no COL
2. Assume- forum may apply the following:
a. local law -- lex fori
b. Foreign law - lex causae
c -- apply both -- Cadalin vs POEA

III. Conflict between local and foreign law

- if there is no conflict between the two, there is nothing to resolve.
- court can apply foreign law if properly pleaded and proved, application
discretionary to the court.

IV. Choice of law to be applied

-Which law applies? - depends on the factual situation and connection of
the foreign element, apply characterization process of determining under what
category a certain set of facts or rules falls.
- Purpose - to enable the forum to select the proper law.

SOURCES of COL
Direct sources
Art. 14, 15, 16, 1039, 1183, 1347 at marami pa
Article 26 of Family Code
Section 129 of Corporation Code
Treaties - Hague convention, Warsaw, COGSA
Jurisprudence
International Custom
General Principles of law
lex loci celebrationis
LEx loci actus
LEx rei sitae/lex situs
PINK NOTES: Rinchel’s guide to pass your law subjects
CONFLICTS OF LAWS
lex loci delictus
lex loci contractus
lex domicilli
principle of territoriality
Kilberg doctrine

Indirect sources
foreign jurisprudence
journal of renowned legal writers.

OPTION OF FORUM IN CASE OF COL

1. Refuse - to do so would provide inconvenience to the forum

- if the only link is one of the respondent is a Filipino Citizen - MHC vs
NLRC
- not all cases involving Filipino can be tried in local forum.

2. Assume jurisdiction - exercise of Sovereign Prerogative, if the court has

jurisdiction of over the:
a. res
b. Subject matter
c. person
- court has discretion to proceed on the case.

REQUISITE OF ASSUMPTION of JURISDICTION

1. The Philippine court is one to which the parties may conveniently resolve;
2. That the Philippine court is in the position to make an intelligent decision as to
the laws and facts
3. The Philippine court has likely to have the power to enforce the decision -
MHC vs. NLRC

COURT MAY APPLY

1. Local law - aznar vs. GARcia
2. Foreign law - Bellis vs BEllis
3. Apply both - Cadalin vs .POEA

CHOICE OF LAW

-depends on the factual situation - different case, different application of law.

- there is no hard rule in the application of law.
- Foreign law has no extra-territorial effect- General Rule
there is an exception

1. JUSTIFICATION OF APPLICATION OF LOCAL LAWS

a. matter involving procedural law - apply law of the forum -based on lex
fori
b. if foreign law is contrary to public policy of the forum
c. If application of foreign law or local law which give rights to the foreigner
would result injustice to our national - salvacion vs BCP
d. When court accept the renvoir - aznar vs garcia
e. when most of the factual situation referes to phil jurisdiction- saudia vs
morada.
PINK NOTES: Rinchel’s guide to pass your law subjects
CONFLICTS OF LAWS

JUSTIFICATION OF APPLYING FOREIGN LAWS

1. When cause of action arises in foreign land.
2. If local law so provides - article 16, Bellis vs Bellis - lex domicilli
3. Principle of Comity

Note - Foreign law should be pleaded and proved , if not , presumed to be the
same with the local law - DOCTRINE OF PROCESSUAL PRESUMPTION

4. If There Is A Treaty - Warsaw, Santos Vs Northwest Orient Airline

DISTINGUISHED FROM PUBLIC INTERNATIONAL LAW

BASIS CONFLICT OF LAW LAW OF NATIONS
1 Nature Municipal in character International in character
2 Persons Dealt with by privateSovereign states and other
involved individuals; governs entities possessing
individuals in their private international personality, e.g.,
transactions which involve a UN; governs states in their
foreign element relationships amongst
themselves
3 Transactions Private transactions between Generally affected by public
involved private individuals interest; those in general are
of interest only to sovereign
states
4 Remedies Resort to municipal tribunals May be peaceful or forcible
and Peaceful: includes diplomatic
Sanctions negotiation, tender & exercise
of good offices, mediation,
inquiry & conciliation,
arbitration, judicial settlement
by ICJ, reference to regional
agencies
Forcible: includes severance
of diplomatic relations,
retorsions, reprisals,
embargo, boycott, non-
intercourse, pacific
blockades, collective
measures under the UN
Charter, and war.
PINK NOTES: Rinchel’s guide to pass your law subjects
CONFLICTS OF LAWS
TERMS:
LEX DOMICILII - law of the domicile; in conflicts, the law of one's domicile applied in
the choice of law questions
LEX FORI - law of the forum; that is, the positive law of the state, country or
jurisdiction of whose judicial system of the court where the suit is brought or
remedy is sought is an integral part. Substantive rights are determined by the law
where the action arose (lex loci) while the procedural rights are governed by the
law of the place of the forum (lex fori)
LEX LOCI - law of the place
LEX LOCI CONTRACTUS - the law of the place where the contract was made or law of
the place where the contract is to be governed (place of performance) which may
or may not be the same as that of the place where it was made
LEX LOCI REI SITAE - law of the place where the thing or subject matter is situated;
the title to realty or question of real estate law can be affected only by the law of
the place where it is situated
LEX SITUS - law of the place where property is situated; the general rule is that
lands and other immovables are governed by the law of the state where they are
situated
LEX LOCI ACTUS - law of the place where the act was done
LEX LOCI CELEBRATIONIS - law of the place where the contract is made
LEX LOCI SOLUTIONIS - law of the place of solution; the law of the place where
payment or performance of a contract is to be made
LEX LOCI DELICTI COMMISSI - law of the place where the crime took place
LEX MEREATORIA - law merchant; commercial law; that system of laws which is
adopted by all commercial nations and constitute as part of the law of the land;
part of common law
LEX NON SCRIPTA - the unwritten common law, which includes general and
particular customs and particular local laws
LEX PATRIAE - national law
RENVOI DOCTRINE - doctrine whereby a jural matter is presented which the conflict
of laws rules of the forum refer to a foreign law which in turn, refers the matter
back to the law of the forum or a third state. When reference is made back to the
law of the forum, this is said to be "remission" while reference to a third state is
called "transmission."
NATIONALITY THEORY - by virtue of which the status and capacity of an individual are
generally governed by the law of his nationality. This is principally adopted in the
RP
DOMICILIARY THEORY - in general, the status, condition, rights, obligations, &
capacity of a person should be governed by the law of his domicile.
LONG ARM STATUTES - Statutes allowing the courts to exercise jurisdiction when
there are minimum contacts between the non-resident defendant and the forum.

WAYS OF DEALING WITH A CONFLICTS PROBLEM:

PINK NOTES: Rinchel’s guide to pass your law subjects
CONFLICTS OF LAWS
1. Dismiss the case for lack of jurisdiction, or on the ground of forum non-
conveniens
DOCTRINE OF FORUM NON CONVENIENS - the forum is inconvenient; the
ends of justice would be best served by trial in another forum; the controversy
may be more suitably tried elsewhere
2. Assume jurisdiction and apply either the law of the forum or of another state
a. APPLY INTERNAL LAW - forum law should be applied whenever there is
good reason to do so; there is a good reason when any one of the
following factors is present:
i. A specific law of the forum decrees that internal law should
apply
Examples:
• Article. 16 of the Civil Code - real and personal property
subject to the law of the country where they are situated and
testamentary succession governed by lex nationalii
• Article 829 of the Civil Code - makes revocation done
outside Philippines valid according to law of the place where will
was made or lex domicilii
• Article 819 of the Civil Code - prohibits Filipinos from making
joint wills even if valid in foreign country
ii. The proper foreign law was not properly pleaded and proved
PINK NOTES: Rinchel’s guide to pass your law subjects
CONFLICTS OF LAWS
NOTICE AND PROOF OF FOREIGN LAW
• As a general rule, courts do not take judicial notice of foreign
laws; Foreign laws must be pleaded and proved
• Effect of failure to plead and prove foreign law (3
alternatives) of the forum court:
(a) Dismiss the case for inability to establish cause of action
(b) Assume that the foreign law of the same as the law of the
forum
(c) Apply the law of the forum
iii. The case falls under any of the exceptions to the application of
foreign law
Exceptions to application of foreign law:
(a) The foreign law is contrary to the public policy of the forum
(b) The foreign law is procedural in nature
(c) The case involves issues related to property, real or
personal (lex situs)
(d) The issue involved in the enforcement of foreign claim is
fiscal or administrative
(e) The foreign law or judgment is contrary to good morals
(contra bonos mores)
(f) The foreign law is penal in character
(g) When application of the foreign law may work undeniable
injustice to the citizens of the forum
(h) When application of the foreign law might endanger the vital
interest of the state
b. APPLY FOREIGN LAW - when properly pleaded and proved

THEORIES WHY FOREIGN LAW SHOULD BE GIVEN EFFECT

1. Theory of Comity – foreign law is applied because of its convenience &
because we want to give protection to our citizens, residents, & transients in
our land
2. Theory of Vested Rights – we seek to enforce not foreign law itself but the
rights that have been vested under such foreign law; an act done in another
state may give rise to the existence of a right if the laws of that state crated
such right.
3. Theory of Local Law- adherents of this school of thought believe that we
apply foreign law not because it is foreign, but because our laws, by applying
similar rules, require us to do so; hence, it is as if the foreign law has become
part & parcel of our local law
4. Theory of Harmony of Laws – theorists here insist that in many cases we
have to apply the foreign laws so that wherever a case is decided, that is,
irrespective of the forum, the solution should be approximately the same;
thus, identical or similar solutions anywhere & everywhere. When the goal is
realized, there will be “harmony of laws”
5. Theory of Justice – the purpose of all laws, including Conflict of Laws, is the
dispensing of justice; if this can be attained in may cases applying the proper
foreign law, we must do so
 PINK NOTES: Rinchel’s guide to pass your law subjects
CONFLICTS OF LAWS

RULES ON STATUS IN GENERAL

FACTUAL SITUATION POINT OF CONTACT
1 Beginning of personality of natural National law of the child (Article 15,
person CC)
2 Ways & effects of emancipation Same
3 Age of majority Same
4 Use of names and surnames Same
5 Use of titles of nobility Same
6 Absence Same
7 Presumptive death & survivorship Lex fori (Article 43, 390, 391, CC;
Rule 131 §5 [jj], Rules of Court)
RULES ON MARRIAGE AS A CONTRACT
FACTUAL SITUATION POINT OF CONTACT
Celebrated Abroad

Between Filipinos Lex loci celebrationis is without

prejudice to the exceptions under
Articles 25, 35 (1, 4, 5 & 6), 36, 37 &
38 of the Family Code (bigamous &
incestuous marriages) & consular
marriages
Between Foreigners Lex loci celebrationis EXCEPT if the
marriage is:
a. Highly immoral (like
bigamous/ polygamous
marriages)
b. Universally considered
incestuous (between brother-
sister, and ascendants-
descendants)
Mixed Apply 1 (b) to uphold validity of
marriage
Celebrated in RP

Between Foreigners National law (Article 21, FC)

PROVIDED the marriage is not
highly immoral or universally
considered incestuous)
Mixed National law of Filipino (otherwise
public policy may be militated
against)
Marriage by proxy (NOTE: a Lex loci celebrationis (with prejudice
marriage by proxy is considered to the foregoing rules)
celebrated where the proxy appears

RULES ON MARRIAGE AS A STATUS

FACTUAL SITUATION POINT OF CONTACT
1 Personal rights & obligations National of husband
between husband & wife (Note: Effect of subsequent change
of nationality:
a. If both will have a new
nationality – the new one
b. If only one will change – the
last common nationality
PINK NOTES: Rinchel’s guide to pass your law subjects
CONFLICTS OF LAWS
c. If no common nationality –
nationality of husband at the time
of wedding)
2 Property relations bet husband & National law of husband without
wife prejudice to what the CC provides
concerning REAL property located in
the RP (Article 80) (NOTE: Change
of nationality has NO EFFECT. This
is the DOCTRINE OF
IMMUTABILITY IN THE
MATRIMONIAL PROPERTY
REGIME)
PINK NOTES: Rinchel’s guide to pass your law subjects
CONFLICTS OF LAWS
RULES ON PROPERTY
FACTUAL SITUATION POINT OF CONTACT
REAL PROPERTY Lex rei sitae (Article 16, CC)
Successional rights National law of decedent (Article 16
Exceptions

par. 2, CC)

Capacity to succeed National law of decedent (Article.

1039)

Contracts involving real property The law intended will be the proper
which do not deal with the title law of the contract (lex loci
thereto voluntantis or lex loci intentionis)

Contracts where the real property is The principal contract (usually loan)
given as security is governed by the proper law oft the
contract – (lex loci voluntatis or lex
loci intentionis)
NOTE: the mortgage itself is
governed by lex rei sitae. There is a
possibility that the principal contract
is valid but the mortgage is void; or it
may be the other way around. If the
principal contract is void, the
mortgage will also be void (for lack of
proper cause or consideration),
although by itself, the mortgage
could have been valid.
TANGIBLE PERSONAL PROPERTY (CHOSES IN POSSESSION)
1 IN GENERAL Lex rei sitae (Article. 16, CC)

Exceptions: same as those for real EXCEPTION: same as those for real
property property EXCEPT that in the
example concerning mortgage, the
same must be changed to pledge of
personal property)
2 MEANS OF TRANSPORTATION

Vessels Law of the flag (or in some cases,

place of registry)

Other means Law of the depot (storage place for

supplies or resting place)
3 THINGS IN TRANSITU (THESE THINGS HAVE A
CHANGING STATUS BECAUSE THEY MOVE)

Loss, destruction, deterioration Law of the destination (Article. 1753,

CC)
Validity & effect of the seizure of the Locus regit actum (where seized) –
goods because said place is their
temporary situs

Disposition or alienage of the goods Lex loci volutantis or lex loci

intentionis – because here there is a
contract
PINK NOTES: Rinchel’s guide to pass your law subjects
CONFLICTS OF LAWS

FACTUAL SITUATION POINT OF CONTACT

INTANGIBLE PERSONAL PROPERTY
(CHOSES IN ACTION)
1 Recovery of debts or involuntary Where debtor may be effectively
assignment of debts (garnishment) served with summons (usually the
domicile)
2 Voluntary assignment of debts Lex loci voluntatis or lex loci
intentionis (proper law of the
contract)

OTHER THEORIES:
a. National law of the debtor or creditor
b. Domicile of the debtor or creditor
c. Lex loci celebrationis
d. Lex loci solutionis
3 Taxation of debts Domicile of creditor
4 Administration of debts Lex situs of assets of the debtor (for
these assets can be held liable for
the debts)
5 Negotiability or non-negotiability of The right embodied in the instrument
an instrument (for example, in the case of a
Swedish bill of exchange, Swedish
law determines its negotiability)
6 Validity of transfer, delivery or In general, situs of the instrument at
negotiation of the instrument the time of transfer, delivery or
negotiation
7 Effect on a corporation of the sale of Law of the place incorporation
corporate shares
8 Effect between the parties of the sale Lex loci voluntatis or lex loci
of corporate shares intentionis (proper law of the
contract) – for this is really a
contract; usually this is the place
where the certificate is delivered)
9 Taxation on the dividends of Law of the place of incorporation
corporate shares
10 Taxation on the income from the sale Law of the place where the sale was
of corporate shares consummated
11 Franchises Law of the place that granted them
12 Goodwill of the business & taxation Law of the place where the business
thereto is carried on
13 Patents, copyrights, trademarks, In the absence of a treaty, they are
trade names protected only by the state that
granted them
NOTE: foreigners may sue for
infringement of trademarks and trade
names in the RP ONLY IF Filipinos
are granted reciprocal concessions in
the state of the foreigners
PINK NOTES: Rinchel’s guide to pass your law subjects
CONFLICTS OF LAWS
Wills, Succession & Administration of Conflict Rules
FACTUAL SITUATION POINT OF CONTACT
EXTRINSIC VALIDITY OF WILLS
1 Made by an alien abroad Lex nationalii OR lex domicilii OR RP
law (Article 816, CC), OR lex loci
celebrationis (Article 17(1))
2 Made by a Filipino abroad Lex nationalii OR lex loci
celebrationis (Article 815)
3 Made by an alien in the RP Lex nationalii OR lex loci
celebrationis (Article 817)

Wills & Estates

Lecture Notes – No. 1
Topics:
Introduction
Intestate Succession
Distribution on Intestacy
Partial Intestacy
Contractual Surrender of Rights in an Intestacy
Advancement
1. Introduction
This course deals with the law of succession. That is, the law governing the
transfer of the
property of a person who has died to another through a Will, a Will-substitute
(like life
insurance), or through the rules that govern the distribution of the
deceased’s assets where
there is no such instrument (‘the intestacy rules’). We will also consider
claims by and
against the Estate of the deceased and the administration of the Estate by
the Estate
Trustee. It’s not as much a complicated area of law as much as a detailed
one. Given its
practical importance, there is much law on any given point and the courts
strive to ensure
that doctrine achieves a high degree of stability and predictability. In this
way, one can plan
and disputes can be resolved relatively quickly.
The main statutes with direct relevance that you should familiarize yourself
with are:
(i) Succession Law Reform Act
In Ontario, the provisions of the Succession Law Reform Act, R.S.O. 1990, c.
S.26 govern
the general law of succession.
This statute was produced after a long period of consultation and study and
modernized the
Ontario law of succession. The statute sets out the rules respecting
formalities and
testamentary instruments, the rules of intestate succession, the jurisdiction
of the court to
order provision for dependants out of the deceased’s estate, and the
administration of the
estate generally.
Part I deals with the execution of Wills and various matters respecting
testate
succession
Part II deals with intestate succession
PINK NOTES: Rinchel’s guide to pass your law subjects
CONFLICTS OF LAWS
Part III deals with the designation of beneficiaries under certain types of
plans
Part IV deals with survivorship (the rules that govern where two people die
at the
same time)
Part V deals with dependant’s relief claims.
(ii) Estates Act
The Estates Act, R.S.O. 1990, Chapter E.21, deals with the process usually
called probate
or administration of an estate – that is, the right of a living person to deal
with the assets and
affairs of a deceased person.
2
(iii) Estates Administration Act
The Estates Administration Act, R.S.O. 1990, Chapter E.22, deals with the
administration of
land and personal property that belonged to the deceased as well as such
matters as
advancement to a beneficiary during the life of the deceased who dies
intestate. The
provisions of the statute are especially useful in allowing the personal
representative of the
deceased to deal with land in a manner that is not complicated by common
law rules
respecting land.
There are a host of other statutes and regulations that can also become
relevant, usually
dependant on the type of claim that is made (say by a surviving spouse) or
the type of asset
(like benefits under the Canada Pension Plan).
2. Intestate Succession
A person who dies leaving a Will is said to have died testate. Traditionally, we
refer to the
deceased as the testator or testatrix. The Will is one type of testamentary
instrument.
A person who leaves no Will (or where the Will has been revoked or is invalid)
dies
intestate. A person who leaves a Will that is partially void and thus does not
provide for
complete distribution of the Estate (for example, there is no clause disposing
of the residue
of the Estate or that clause is invalid) dies partially intestate. In such cases,
Part II of the
Succession Law Reform Act provides a scheme (‘the intestacy rules’) for the
distribution of
the deceased’s property.
The intestacy rules themselves owe their genesis to the complexity of
medieval English
property law. After the Norman conquest and the evolution of the feudal
system, land was
passed by the principle of primogeniture. Real property then was inherited
without reference
to the intention of the deceased. It passed according to the type of common
law right in the
property. Personal property was not the subject of inheritance rules. It passed
to a married
man’s widow and children according to local custom. The Statute of
Distribution was
enacted in 1670 and started the evolution of modern succession law
including more uniform
PINK NOTES: Rinchel’s guide to pass your law subjects
CONFLICTS OF LAWS
intestacy rules that applied to personalty. This dichotomy was present in
English law (in
theory at any rate) until the wholesale reforms of the Law of Property Act
1925.
In Canada, primogeniture was abolished earlier than in England (in 1851 in
Upper Canada).
The intestacy rules thereafter applied to both real and personal property.
Distribution on Intestacy
Please refer to the Succession Law Reform Act, ss. 44-47.
Operation of the rules:
1. If the deceased is survived by only his or her spouse, the spouse takes the
whole of
the Estate.
2. If the deceased is survived by spouse and issue (‘issue includes a
descendant
conceived before and born alive after the person’s death’):
3
a. The spouse takes the first $200,000 of the Estate (his or her ‘preferential
share’ as currently valued by Regulation to the SLRA);
b. The spouse and children split the remainder of the Estate – equally (if there
is
only one child) or in shares (1/3 to the spouse, and, 2/3 split equally amongst
the deceased’s children). If the child dies before a parent, and leaves issue,
then his or her children inherit the share of their deceased parent equally;
c. If the deceased is survived his or her children (and no spouse), then the
children split the remainder of the Estate equally. If the child dies before a
parent and leaves issue, then his or her children inherit the share of their
deceased parent equally.
3. If the deceased is not survived by spouse or issue, the Estate is distributed
as
follows (in order of priority):
a. Surviving parent(s) in equal shares;
b. Surviving brothers or sisters. If the sibling dies before the deceased, and
leaves issue, then his or her children inherit the share of their deceased
parent equally;
c. Surviving nephews and nieces equally;
d. ‘Where a person dies intestate in respect of property and there is no
surviving
spouse, issue, parent, brother, sister, nephew or niece, the property shall be
distributed among the next of kin of equal degree of consanguinity to the
intestate equally without representation;’ s.47(6) [Refer to chart of
consanguinity / kinship on p.4 of these Notes];
e. Escheat to the Crown (the ownership interest in the property is
extinguished
in principle and is considered as ‘bona vacantia’ and thus reverts to the
Crown).
Contractual Surrender of Rights in an Intestacy
Re Saylor
(1983), 44 OR (2d) 188 (HCJ); cb, p.86
Here a husband and wife executed a separation agreement. The husband
agreed to
pay the wife a sum of money, and, in exchange, she agreed to transfer her
interest in
the matrimonial home to the husband. The agreement also contained the
following
release:
the parties agree that the terms of the agreement operate in satisfaction of
all
claims and causes of action each now has ... including ... claims and causes
of action for ... possession of or title to property, and any other claims arising
out of the marriage of the husband and the wife.
PINK NOTES: Rinchel’s guide to pass your law subjects
CONFLICTS OF LAWS
The husband died intestate.
4
The wife claimed the matrimonial home under the terms of the Succession
Law
Reform Act, s.44. The claim was successful. It was held that the separation
agreement
did not bar the wife's claim because the language of the agreement was not
clear
enough. The test for whether a statutory right such as an interest in
an intestacy
has been surrendered is simply one of contractual interpretation –
but the
language must be clear and unambiguous using ‘direct and cogent’
words.
See also Brant v. Brant (1997), 16 E.T.R. (2d) 134 (Ont GD); cb, p.85
per Lofchik J
at para. 10:
The decision in Saylor has been subsequently applied by the courts in such
cases as Re: Cairns Estate: Cairns vs. Cairns (1990), 25 R.F.L. (3d) 373,
H.C. and Frye vs. Frye (1992), 41 R.F.L. (3d) 145 (Gen. Div). In the case of
Re; Dyer vs. Dyer (1984), 18 E.T.R., 44, (Ont. Surr. Ct.), a case dealing with
the right of a wife to claim against a deceased husband's estate for support
in spite of having entered into a separation agreement, reference is made to
the Saylor case by Scott, J., holding that section 44 (now section 45) of The
Succession Law Reform Act is a mandatory section, thereby reinforcing the
argument that there must be clear and cogent language by which a
wife
releases her statutory entitlement to the preferential share in her
husband's estate before she will be held to have done so.
Advancement
Whether through a Will or the intestacy rules, the law seeks to implement the
relevant
distribution scheme (i.e. the one created by the testator or testatrix, or the
statutory scheme
set out in default). There are rules to prevent a child of the testator or
testatrix receiving
more than the share of the Estate that was intended; thus, substantial gifts
received inter
vivos can be taken into account in determining that child’s entitlement.
‘Hotchpotch’: a mixture (in North America, usually ‘hodgepodge’)
‘Hotchpot’ [clause]: a legal term of art referring to a rule or clause that
operates to bring inter
vivos gifts back into the Estate to determine the proper quantum of a
legatee’s entitlement.
In other words, a claw-back of gifts made by the deceased during his or her
lifetime that
were intended to be counted towards the donee’s inheritance.
‘Advancement’: an equitable presumption to the same effect
The Estates Administration Act, s.25 brings the principle into the intestacy
rules but qualifies
it:
25. (1) If a child of an intestate has been advanced by the intestate by
settlement or portion of real or personal property or both, and the same
has
been so expressed by the intestate in writing or so acknowledged in
writing by the child, the value thereof shall be reckoned, for the purposes
of
this section only, as part of the real and personal property of the intestate to
be distributed under this Act, and if the advancement is equal to or greater
than the amount of the share that the child would be entitled to receive of
the
PINK NOTES: Rinchel’s guide to pass your law subjects
CONFLICTS OF LAWS
5
real and personal property of the intestate, as so reckoned, then the child
and his or her descendants shall be excluded from any share in the real and
personal property of the intestate.
If advancement is not equal
(2) If the advancement is less than the share, the child and his or her
descendants are entitled to so much only of the real and personal property
as is sufficient to make all the shares of the children in the real and personal
property and advancement to be equal, as nearly as can be estimated.
Value of property advanced, how estimated
(3) The value of any real or personal property so advanced shall be deemed
to be that, if any, which has been acknowledged by the child by an
instrument in writing, otherwise the value shall be estimated according to the
value of the property when given.
Education, etc., not advancement
(4) The maintaining or educating of, or the giving of money to, a
child
without a view to a portion or settlement in life shall not be deemed
an
advancement within the meaning of this Act.
An advancement that is recognized under the statute is recognized when the
claim is made
by entitled person or through him; Re Lewis [1898] 29 O.R. 609 (HC); cb,
p.91.
6
Degrees of Kinship
PINK NOTES: Rinchel’s guide to pass your law subjects
CONFLICTS OF LAWS
FACTUAL SITUATION
EXTRINSIC VALIDITY OF JOINT WILLS (MADE
SAME INSTRUMENT)
1 Made by Filipinos abroad
2 Made by aliens abroad
3 Made by aliens in the RP
INTRINSIC VALIDITY OF WILLS
CAPACITY TO SUCCEED
REVOCATION OF WILLS
1 If done in the RP
2 If done OUTSIDE the RP
a. By a NON-DOMICILIARY
b. By a DOMICILIARY of the RP
PROBATE OF WILLS MADE ABROAD
1 If not yet probated abroad
2 If already probated abroad
EXECUTORS AND ADMINISTRATORS
1 Where appointed
2 Powers
POINT OF CONTACT
IN THE
Lex nationalii (void, even if valid
where made) (Article 819)
Valid if valid according to lex domicilii
or lex loci celebrationis (Article 819)
Lex loci celebrationis therefore void
even if apparently allowed by Article
817 because the prohibition on joint
wills is a clear expression of public
policy
Lex nationalii of the deceased –
regardless of the LOCATION &
NATURE of the property (Article 16
(2))
Lex nationalii of the deceased – not
of the heir (Article 1039)
Lex loci actus (of the revocation)
(Article. 829)
Lex loci celebrationis (of the making
of the will, NOT revocation), OR lex
domicilii (Article 829)
Lex domicilii (RP law) OR lex loci
actus (of the revocation) (Article 17)
Lex fori of the RP applies as to the
procedural aspects, i.e., the will must
be fully probated here & due
execution must be shown
Lex fori of the RP again applies as to
the procedural aspects; must also be
probated here, but instead of proving
due execution, generally it is enough
to ask for the enforcement here of
the foreign judgment on the probate
abroad
Place where domiciled at death or
incase of non-domiciliary, where
assets are found
Co-extensive with the qualifying of
the appointing court – powers may
only be exercised within the territorial
jurisdiction of the court concerned
NOTE: these rules also apply to
principal, domiciliary, or ancillary
administrators & receivers even in
non-successive cases
PINK NOTES: Rinchel’s guide to pass your law subjects
CONFLICTS OF LAWS
RULES ON OBLIGATION AND CONTRACTS
FACTUAL SITUATION POINT OF CONTACT
FORMAL OR EXTRINSIC VALIDITY Lex loci celebrationis (Article 17 {1})
Exceptions

a. Alienation & encumbrance of Lex situs (Article 16 [1])

property

b. Consular contracts Law of the RP (if made in RP

consulates)
CAPACITY OF CONTRACTING PARTIES National law (Article 15) without
prejudice to the case of Insular
Government v Frank 13 P 236,
where the SC adhered to the theory
of lex loci celebrationis
Exception

Alienation & encumbrance of Lex situs (Article 16 {1})

property
INTRINSIC VALIDITY (INCLUDING INTERPRETATION OF Proper law of the contract – lex
THE INSTRUMENTS, AND AMT. OF DAMAGES FOR contractus (in the broad sense),
BREACH) meaning the lex voluntatis or lex loci
intentionis

OTHER THEORIES ARE:

a. Lex loci celebrationis (defect: this makes possible the evasion of the
national law)
b. Lex nationalii (defect: this may impede commercial transactions)
c. Lex loci solutionis (law of the place of performance) (defect: there may be
several places of performance
d. Prof Minor’s solution:
i. Perfection – lex loci celebrationis
ii. Cause or consideration – lex loci considerations
iii. Performance – lex loci solutionis (defect: this theory combines the
defect of the others)

RULES ON TORTS
FACTUAL SITUATION POINT OF CONTACT
Liability & damages for torts in general Lex loci delicti (law of the place where
the delict was committed)
NOTE: The locus delicti (place of
commission of torts) is faced by the NOTE: liability for foreign torts may be
problem of characterization. In civil law enforced in the RP if:
countries, the locus delicti is generally a. The tort is not penal in character
where the act began; in common law b. If the enforcement of the tortious
countries, it is where the act first liability won’t contravene our public
became effective policy
c. If our judicial machinery is
adequate for such enforcement

RULES ON CRIMES
FACTUAL SITUATION POINT OF CONTACT
ESSENTIAL ELEMENTS OF A CRIME AND PENALTIES Generally where committed (locus
regit actum)
PINK NOTES: Rinchel’s guide to pass your law subjects
CONFLICTS OF LAWS
THEORIES AS TO WHAT COURT HAS JURISDICTION:
a. Territoriality theory – where the crime was committed
b. Nationality theory – country which the criminal is citizen or a subject
c. Real theory – any state whose penal code has been violated has
jurisdiction, where the crime was committed inside or outside its territory
d. Protective theory – any state whose national interests may be jeopardized
has jurisdiction so that it may protect itself
e. Cosmopolitan or universality theory – state where the criminal is found or
which has his custody has jurisdiction
f. Passive personality theory – the state of which the victim is a citizen or
subject has jurisdiction

NOTE: In the RP, we follow the territoriality theory in general; exception: Article
2, RPC, stresses the protective theory
THE LOCUS DELICTI OF CERTAIN CRIMES
1 Frustrated an consummated, Where the victim was injured (not
homicide, murder, infanticide & where the aggressor wielded his
parricide weapon)
2 Attempted homicide, etc. Where the intended victim was (not
where the aggressor was situated) –
so long as the weapon or the bullet
either touched him or fell inside the
territory where he was
3 Bigamy Where the illegal marriage was
performed
4 Theft & robbery Where the property was unlawfully
taken from the victim (not the place to
which the criminal went after the
commission of the crime)
5 Estafa or swindling thru false Where the object of the crime was
representation received (not where the false
representations were made)
6 Conspiracy to commit treason, Where the conspiracy was formed
rebellion, or sedition (not where the overt act of treason,
NOTE: Other conspiracies are NOT rebellion or sedition was committed)
penalized by our laws
7 Libel Where published or circulated
8 Continuing crime Any place where the offense begins,
exists or continues
9 Complex crime Any place where any of the essential
elements of the crime took place

Rules on Juridical Persons

FACTUAL SITUATION POINT OF CONTACT
CORPORATIONS
Powers and liabilities General rule: the law of the place of
incorporation
EXCEPTIONS:
a. For constitutional purposes –
even of the corporation was
incorporated in the RP, it is nor
deemed a Filipino corporation &
therefore can’t acquire land,
exploit our natural resources, 7
operate public utilities unless
60% of capital if Filipino owned
PINK NOTES: Rinchel’s guide to pass your law subjects
CONFLICTS OF LAWS
b. For wartime purposes – we
pierce the corporation veil & go to
the nationality of the controlling
stockholders to determine if the
corporation is an enemy
(CONTROL TEST)
Formation of the corporation Law of the place of incorporation
(requisites); kind of stocks, transfer
of stocks to bind the corporation,
issuance, amount & legality &
dividends, powers & duties of
members, stockholders and officers
Validity of corporate acts & contracts Law of the place of incorporation &
(including ultra vires acts) law of the place of performance (the
act or contract must be authorized
by BOTH laws)
Right to sue & amenability to court Lex fori
processes & suits against it
Manner & effect of dissolution Law of the place of incorporation
provided that the public policy of the
forum is not militated against
Domicile If not fixed by the law creating or
recognizing the corporation or by
any other provision – the domicile is
where it is legal representation is
established or where it exercises its
principal functions (Article. 15)
Receivers (appointment & powers) Principal receiver is appointed by the
courts of the state of incorporation;
ancillary receivers, by the courts of
any state where the corporation has
assets (authority is CO-EXTENSIVE)
w/ the authority of the appointing
court
NOTE: Theories on the personal and/or governing law of corporations:
a. Law of the place of incorporation (this is generally the RP rule)
b. Law of the place or center of management (center for administration or
siege social) (center office principle)
c. Law of the place of exploitation (exploitation centre or siege d’ exploitation)
PARTNERSHIPS
The existence or non-existence of The personal law of the partnership,
legal personality of the firm; the i.e., the law of the place where it was
capacity to contract; liability of the created (Article 15 of the Code of
firm & the partners to 3rd persons Commerce) (Subject to the
exceptions given above as in the
case of corps.)
Creation of branches in the RP; RP law (law of the place where
validity & effect of the branches’ branches were created) (Article 15,
commercial transaction; & the Code of Commerce)
jurisdiction of the court
Dissolution, winding up, & RP law (Article 15, Code of
termination of branches in the RP Commerce)
Domicile If not fixed by the law creating or
recognizing the partnership or by
any other provision – the domicile is
where it is legal representation is
PINK NOTES: Rinchel’s guide to pass your law subjects
CONFLICTS OF LAWS
established or where it exercises its
principal functions (Article. 15)
Receivers RP law insofar as the assets in the
RP are concerned can be exercised
as such only in the RP
FOUNDATIONS (COMBINATION OF CAPITAL Personal law of the foundation
INDEPENDENT OF INDIVIDUALS, USUALLY NOT FOR (place of principal center of
PROFIT) administration)

1. CASES

1. CADALIN VS POEA - 12-5-94 - court of forum will not enforce any

foreign claim obnoxious to the public policy of the forum.
-- foreign procedural law is inapplicable in the forum. Procedural matter
are governed by the law of the forum even if the action is based on foreign
law.

2. HSBC VS SHERMAN - an agreement to sue and be sued is a specific

court does not preclude the filing of suit in the residence of plaintiff or
defendant - renuncio non prasunitur

3. SALVACION VS BVP - When the local law gives protection to the

foreigner with prejudice against a national, , interpretation should be in
favor of the national.

4. LAUREL VS GARCIA - lex situs is applicable only in a dispute over the

title of an immovable such that capacity to take and transfer, or the
interpretation and effect of conveyance and the essential validity of
transfer not when the issue is tether authority of the government to sue the
immovable is in question.

5. AZNAR VS GARCIA - Renvoi - when the nationality of the deceased

(foreigner) states that the law of the domicile (Phil) should govern, then
the successional rights of the heir is govern by the Phil law.

6. SAUDI ARABIAN AIRLINE VS CA 10-8-98 - when the factual situation

of the case has significant relation to the place of the forum, and the
defendant is a foreign corporation engaged in doing in business in the Phil
and the plaintiff is a resident therein, the court can acquire jurisdiction over
the case.

8. PAKISTAN VS OPLE - if respondent did not present evidence of foreign

law, it is presumed that the foreign law is the same as the law of the
forum.
- stipulation of the parties does not deprive the forum of its jurisdiction

REBUS SiC INSTANTIBUS - opposite of pacta sunt servanda - justify the

non performance of the treaty - requires political act

9. BANCO DE BRAZIL VS CA 6-16-00 - an action for damages iis an

action in personam.

- summon by publication or service of summon to the ambassador of

Brazil does not acquire jurisdiction to the petitioner.
PINK NOTES: Rinchel’s guide to pass your law subjects
CONFLICTS OF LAWS
non-resident corporation - cannot acquire jurisdiction in personal action

10. MHC vs NLRC 10-13-00 - if the only link it has with the case is that the
respondent is a Filipino Resident, case cannot be tried.

- if case involve purely foreign element - court ca refuse to assume

jurisdiction - forum non conviniens

Court can assume if the ff requirements are present

1. Phil court is one the which the parties may conveniently resolve;
2. The Phil court is in the position to make an intelligent decision as
to the law and fact.
3. The Phil court has likely to enforce the decision.

OTHER CASES
2. Phil aluminium vs RTC of Pasig - 10-12-00 GRN 137378
3. Nagarmull vs binalbagan GRN L-22478, 5-28/78
4. NW Orient airline vs Ca - GRN 112573, 2-9-95
5. Perkins vs Dizon
6. Boudard vs Tait
7. Perkins vs Benguet Consolidated Mining
8. Philsec vs Ca
9. Inghenoil vs Walter and olsen GRN 22288 1-12-25
10. Asiavest vs CA 110263 7-20-01

Dependent Relative Revocation II

Bill Long 11/26/05

The Origin and Development of the Law

As mentioned in the previous essay, the purpose of DRR is to save or

revive an earlier version of a will that has been revoked by a later will
in order to "save" a testator from intestacy. Most modern scholars
point to the 1716 case of Onions v. Tyrer* as inaugurating the doctrine. I
draw the summary from a 1999 law
[*The proper citation for this case is 2 Vern. 741. The word "Vernon" is he so-called
"nominate reporter" for early common law cases. Almost all these cases are now
collected in the 175-volume reprint of English cases. This series has a two volume case
index which directs you to the specific volume where the case can be found. Onioins is
reprinted at 23 Eng. Rep. 1085).

review article. "Tyrer made a properly executed will detailing the

testamentary disposition of his realty. He later made a second
will that revoked the first and effected minor changes as to the
disposition of his real estate. However, as Tyrer was bedridden
when he drafted his second will and there was no place in his
room for the three witnesses to sign, they signed out of sight of
the testator. The failure to sign in the testator's presence
invalidated the will. Tyrer then had his wife destroy the first will.
The court held that since Tyrer's second will was invalid, the
revocation clause therein was also invalid. The court also held that
owing to the similarity between Tyrer's two wills, Tyrer most
likely would have preferred his first will to intestacy. In
reaching this conclusion, the Tyrer court found it clear that
PINK NOTES: Rinchel’s guide to pass your law subjects
CONFLICTS OF LAWS
Tyrer revoked his first will 'only upon a supposition that he had
made a latter will at the same time, and both wills, as to the
main, were much to the same effect.' As such, the court set
aside Tyrer's revocation of the first will and allowed it to
stand."

DRR is the doctrine described in the second of the court's holdings just
given. Thus, the Onions case had to do with the continued
applicability of an invalidated will once a subsequent will was
itself declared invalid. If you are a clever and careful reader,
however, you might just ask why the first holding the court suggests
won't handle nearly all the subsequent cases (i.e., since the revocation
clause itself is invalid, why not just resuscitate the first will?)? In this
case, however, the first holding really won't help much because
the cancellation of the first will was done by act rather than by a
subsequent will. All will statutes provide that if you tear it up with a
so-called animus revocandi (mind to revoke), it is revoked. Since the
combination of intent and act was here, the first will was (seemingly)
revoked. But because the court posited that the testator would have
preferred the first will to intestacy, it revived the first will.

A Court Finds Intestacy

Even though the basic principle of Onions is clear--that the intention of

the testator was not to become intestate but only minimally to change
the will-- the result might be different if a more dramatic change
occurs between the first and second wills. The 1855 case of
Tupper v. Tupper illustrates the problem (69 Eng. Rep. 627). In this
case a testator, a priest, made out an 1851 will leaving bequests to
various charities. In 1853 he executed a codicil changing the
beneficiaries. What is interesting however, is that the gifts
described in the codicil, though valid, could not be delivered to
the charity because the priest died before the gift could take
effect.* The court was faced with the problem of whether to
use
[*Mortmain statutes required effective gifts to occur more than three months before the
testator's death. In this case, he died within that three-month window. That these statutes
still could invalidate a later bequest is seen in the 1973 case Crosby v. Alton Ochsner
Medical Center, 276 So2d 661 (MS 1973)]

the doctrine of DRR and award under the 1851 will, which
seemingly was revoked according to the valid 1853 codicil, or
to declare that no will was valid, which seemed to run against
the testator's intention and would lead to the undesirable
situation of intestacy (the common law wanted to avoid
intestate gifts if it was possible to do so). The court invalidated
the 1851 will as well as the 1853 codicil.

DRR with a Twist

While DRR was growing in the 19th and 20th century primarily
with respect to reviving wills that were destroyed or cancelled
when their replacement wills were found invalid, it also
branched out in two other areas. It became applied to certain
cases where the testator revoked a valid second will intending to revive
PINK NOTES: Rinchel’s guide to pass your law subjects
CONFLICTS OF LAWS
the first will. For example, in Estate of Alburn the defendant had
executed a 1955 will in Milwaukee and a 1959 will in Kankakee.
The wills had dramatically different provisions. In 1960 the testator
tore up the Kankakee will and stated that she "got rid of it" and that
she wanted the 1955 Milwaukee will "to stand." But this isn't the way
you revive an old will, because once the 1959 will was validly executed
it invalidated the older one. Nevertheless, the court applied DRR
to revive the Milwaukee will so the testator wouldn't die
intestate (118 NW2d 919 (WI 1963)). Once the principle of DRR
seemed to be established, of a "connection" or "bond" between two
wills, it seemed like courts could revive either of the two wills as it
desired.

Finally, there was expansion in the doctrine through a few

cases that held that even if there was no second document,
DRR could apply. For example, in one 1905 case an attorney began
adding additional notes to his will which would, apparently, form the
basis of a new will. Yet, he died before a new will was drafted.
Nevertheless, the court didn't interpret these inconsistent notes as a
sign of intention to revoke. The court brought in the bogey-man of
intestacy again:

"It is clear that the [testator] did not intend to die

intestate...we can see in the mind of the testator an intention
to hold to the old will until the new one was an accomplished
fact...The circumstances would seem to justify the application
of the rule of dependent relative revocation," In the Matter of
Raisbeck's Will (102 NYS 2d 967, 969-970 (1906)).

Conclusion

Thus, by the mid-20th century we have a doctrine of fairly broad scope

that can seemingly be invoked by a court in a variety of circumstances
but perhaps not with the doctrinal consistency that law professors and
judges would like to see.

The final essay asks if we can do anything about this.

1531