Jonathan De la Cruz

Miguel Sandico
Choice of Law in Wills, Succession and Administration of Estates
According to Article 783 of the New Civil Code, 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
his estate, to take effect after his death. The making of a will is a purely personal act. It is an
exercise of the disposing power of the testator which cannot be delegated to anyone. As
mentioned in Osorio vs. Posadas (1929), this is a disposition made by a competent testator in the
form prescribed by law of property over which he has legal power of disposition.
The act of executing ones last will and testament is a voluntary act, but this in itself,
does not transfer title. The right to the succession vests only upon the moment of the death of the
decendent. From the moment of death, the heirs become the absolute owners of the property, but
subject to the rights and obligations of the decedent. This moment of death is the determining
factor when the heirs acquire the definite right to the inheritance, whether such right be pure or
contingent.
1
From a conflict of laws perspective, the disposition of the will can be governed by
the proper law deemed applicable. As in common law countries, this proper law that should
govern is the law of the domicile of the testator. In civil law countries on the other hand, the
national law of the testator should govern the disposition of the will.
2

Before the estate of the deceased is to be distributed to the heirs, the will of the deceased,
if any, should first be presented to the probate court in order to examine the wills extrinsic
validity. In examining for the extrinisic validity of the will, the court must look into whether or
not the will complies with the prescribed formalities for its due execution. On the matter of
extrinsic validity, if a Filipino national writes a will abroad, he may comply with the formalities
prescribed under the Philippine law (lex nationalii) or those established by the law where the will
is executed (lex loci celebrationis).
3
The important conflict-of-law rules are found in Article 17
and Article 815 of the New Civil Code. These both refer to the law of the place where the will
was executed as the law governing the forms and solemnities of the will.
4

Extrinsic Validity of Wills
Article 17 of the New Civil Code says that the formal validity of a will shall be governed
by the law of the country in which it is executed. As regards the extrinsic validity of wills,
Articles 815 to 817 point out the rules in order to make a will extrinsically valid. For a Filipino
testator, if he executed a will in the Philippines, Philippine law should govern as regards its
extrinsic validity. On the other hand, if he executes a will outside the Philippines, the law that

1
Bonnilla vs. Barcena, No. L-41715, June 18, 1976.
2
Conflicts of Laws, Jorge R. Coquia at 380.
3
Id.
4
Id.
could govern as regards its extrinsic validity could either be the law of the country in which it
was executed, or the law of the Philippines, his national law. For an alien testator, if he executed
a will in the Philippines, that law that could govern can either be the law of the Philippines, or
the law of the country which he is a citizen or subject. If the alien testator executes a will outside
the Philippines, the law that could govern can either be: the law of the place where the will was
executed; the law of the place in which he resides; the law of his country; or the law of the
Philippines.
In the case of In re: Estate of Johnson (1918), Emil Johnson executed a will in Illinois,
where he intended to distribute his Illinois properties for his second family back in Manila. The
will was submitted for probate in a court in Manila. Upon probate, the Chicago-based daughter
of Emil Johnson challenged the probate of her fathers will in Manila on the ground that her
father was allegedly already a resident of Manila and no longer a resident of the State of Illinois.
She wanted to be declared as the sole legitimate heir of her father to the deprivation of the
second family of Emil Johnson in Manila. The Court held here that the daughter could not
oppose the probate because she did not state any fact from which it would appear that the law of
Illinois is different from that of the Philippines. The will was still admitted for probate in Manila,
having found that the will complied with the formal requisites necessary for its lawful execution
made in Illinois.
In the case of Babcock Templeton vs. Rider Babcock (1928), the brother of the testator
opposed the probate of Jennies will in Manila on the ground that Jennie had never acquired a
legal domicile in the State of California, (or that her domicile had already been lost due to her
constant moving from one US state to another), thus making her will not provable as a will of a
citizen of another country under the Section 636 of our Code of Civil Procedure, where a legal
domicile is required. The Court admitted the will to probate. It was found that Jennie never really
lost her domicile in the State of California. She had repeated declarations revealing a fixed
intention of returning ultimately to the United States. She even exercised her right to vote in the
said state, it being one of the highest prerogatives of citizenship. She was found to have never
intended to reside in the Philippines permanently.
Intrinsic Validity of Wills
On the matter of the intrinsic validity of wills, Article 16 of the New Civil Code provides
the rules: Real property as well as personal property is subject to the law of the country where
it is situated. 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. This article sums up the rules as regards the intrinsic validity of
wills on the matters of the order of succession, amount of successional rights, and on the capacity
to succeed. The national law of the decedent should govern, regardless of the location and nature
of the property.
The case of Cayetano vs. Leonidas (1984) reiterated this doctrine. In this case, the
testator was a citizen of the US. The issue arose when the compulsory heir of the testator was
omitted from the will. The heir challenged the wills intrinsic provisions, saying that its
provisions were against public policy and that it runs counter to the specific provisions of
Philippine law. The Court held here that the testators national law should applythe law of
Pennsylvania, U.S.A. The law in that state does not provide for legitimes and that the estate may
be given away by the testator to anyone, even to a complete stranger. It further elucidated that: It
is therefore evident that whatever public policy or good customs may be involved in our system of
legitimes, Congress has not intended to extend the same to the succession of foreign nationals. For it
has specifically chosen to leave, inter alia, the amount of successional rights, to the decedent's
national law. Specific provisions must prevail over general ones.
Interpretation of Wills
According to our Civil Codes Nationality Principle, a will or testaments interpretation
must be governed by the rules of interpretation of the decedents national law. Like the rules in
the interpretation of contracts, where the terms of the will are clear and unambiguous, the lex
intentionis of the party should be followed. But when there are unclear stipulations, the intention
of the party or the exact meaning he may have ascribed to them can be inferred by referring to
the context of the instrument itself or the testators contemporaneous and subsequent acts in
keeping with the nature and object of the document.
5
It can be noted that that if none of these can
give the absolute assurance that indeed the intention of the testator has been ascertained, settled
presumptions of law can be resorted to.
6

For instance, it is presumed that the interpretations of ambiguous phrases should be
determined in accordance with the laws and customs of the state most probably in mind of the
grantor or testator when he used the words, and which he is to be presumed to be most familiar.
7

Another presumption of law is found in Article 788 of the New Civil Code. It says that in the
event that the will admits of different dispositions, the interpretation by which the disposition is
to be operative shall be preferred. The will should always be given a favorable construction in
order to accomplish the intention of the testator in his will.
Revocation
According to Article 828 of the New Civil Code, a will may be revoked by the testator at
any time before his death, and that any waiver or restriction of this right is void, with will-

5
Conflicts of Laws, Jorge R. Coquia at 394.
6
Id.
7
Id.
making, being a unilateral and purely personal act. In the Philippine law, wills are not deemed
revoked except in the following cases: by implication of law; or by some will, codicil, or other
writing, executed as provided in the case of wills, or by burning, tearing, cancelling, or
obliterating the will with the intention of revoking it, by the testator himself, or by some other
persons in his presence, and by his express direction, pursuant to Article 830.
If the revocation of the will takes place in the Philippines, whether the testator is
domiciled in the Philippines or in some other country, it is valid when it is done in accordance
with the laws of the Philippines. If the revocation takes place outside the Philippines, by a
testator who is domiciled in the Philippines, it is valid when it is done in accordance with the
laws of the Philippines or of the place of the revocation (lex loci actus) controls.
8
Under Article
829 of the New Civil Code, a revocation done outside the Philippines, by a testator who does not
have a domicile in the country, is valid when it is done in accordance with: (1) the law of the
place where the will was made (lex loci celebrationis), or (2) the law of the place where the
testator had his domicile at the time (lex domicilii).
Probate
Probate is an adjudication that the last will and testament of a person was executed with
all the formalities required by law. It does not pass upon the validity of the provisions of the
will.
9
When the will is executed abroad, it may be probated in the Philippines after sufficient
proof is presented showing that the will was duly executed in a manner required by law and that
the testator had the testamentary capacity at the time he executed the will. On the other hand, a
will proved and allowed in a foreign country in accordance with the laws of that country may be
allowed, filed, and recorded in the proper RTC in the Philippines, as per Rules of Court, Rule 77,
Sec. 1.
10
If the judge finds that the foreign probated will should be allowed in the country, he will
issue a certificate of allowance which will give the will the same effect as one originally
probated in that court.
11
This is established by Article 817 of the New Civil Code, which states
that: 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.
In the case of Suntay vs. Suntay (1954), Jose Suntay, a Filipino citizen and resident of the
Philippines, died in the city of Amoy, Fookien province, Republic of China in 1934, leaving real
and personal properties in the Philippines and a house in China. He had nine children in his first
marriage, and one child named Silvino in his second marriage with Maria Billian. Silvino and
Maria claimed to have found among the files, records and documents of Jose Suntay a will and

8
Id. at 395.
9
Id.
10
Id. at 396.
11
Id.
testament in Chinese characters executed and signed by the deceased in Amoy, Fookien, China,
it also included a document allegedly from the municipal district court in Amoy, admitting the
will for probate. Silvino filed a petition praying for the probate of the will allegedly executed in
China.
The Court here held that the alleged will cannot be probated in the Philippines in the
absence of proof that the municipal district court of Amoy is a probate court. 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 was no proof of these points. But it appears on the record that all the
proceedings in the district court of Amoy were for the purpose of taking the testimony two
attesting witnesses to the will and that the order of the district court 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, the Court said that 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. The Court found in the record that what happened
in the district court in Amoy was actually a proceeding in rem. For the validity of such
proceedings, personal notice or by publication or both to all interested parties must be made. The
interested parties in the case were known to reside in the Philippines. The evidence shows that no
such notice was received by the interested parties residing in the Philippines. The proceedings
had in the municipal district court of Amoy, China, may be likened to or come up to the standard
of such proceedings in the Philippines for lack of notice to all interested parties and the
proceedings were held at the back of such interested parties.
The Court here found that the order of the district court in Amoy does not purport to
probate or allow the will which was the subject of the proceedings. As such, the will and the
alleged probate of it cannot be said to have been done in accordance with the accepted basic and
fundamental concepts and principles followed in the probate and allowance of wills.
Consequently, the authenticated transcript of proceedings held in the municipal district court of
Amoy, China, cannot be deemed and accepted as proceedings leading to the probate or
allowance of a will and, therefore, the will referred to therein cannot be allowed, filed and
recorded by a competent court of this country.
In the case of Vda. De Perez vs. Tolete (1994), the Cunanan spouses died in a fire
accident in the US. At the time of their death, they were already US citizens. Rafael Cunanan had
the will probated in the courts of New York. The mother of Evelyn Cunanan, wanted the will to
be probated once again in the Philippines. This was opposed by Rafael. Rafael asserted that
Salud Perez was not an heir of either of the wills.
Article 816 explains that a will of an alien who is abroad produces effect in the
Philippines if it is made with the formalities prescribed by law of the place in which he resides,
or according to the formalities observed in his country, or in conformity with those prescribed in
the Code.
These are the evidence needed for reprobate or allowance of wills which have been
probated outside of the Philippines: (1) due execution of the will in accordance with foreign law;
(2) the testator has his domicile in the foreign country and not in the Philippines; (3) the will has
been admitted to probate in such country; (4) the fact that the foreign tribunal is a probate court.;
and (5) the laws of a foreign country on procedure and allowance of wills.
Why is there a need to prove the foreign law? This is because our courts cannot take
judicial notice of foreign law. The Supreme Court ruled in this case that a will probated in the
US can still be reprobated in the Philippines. There is no such prohibition from reprobating the
will. However, the will ,to be reprobated must be treated as if it were an original will, or a will
that is to be presented for the very first time.
This case also explained that the Cunanan spouses executed separate wills. Although
each will contains almost identical stipulations, it is still distinct from each other. In this case the
probate merely allowed the joint probate of the will mainly because of convenience and practical
considerations.
Administration of Estates and Trusts
It is a rule that the administration of estates is governed by the law of the country where
the administration takes place, and from which the administrator derives his authority. Before
there can be an actual distribution of the estate of a deceased person, the assets of that estate
must first be realized and the debts of the estate settled. The process by which this is carried out
is called administration.
12
The administration of the estate of the deceased consists of the duties
to manage and settle the decedents debts and distribute the residuum of the estate to the
deceaseds heirs. When the will has been proved and allowed, it is the duty of the probate court
to issue letters testamentary thereon to the person to be named in the will upon the latters
application, according to the Rules of Court, Rule 79, Sec. 4.
On the other hand, when there is no will, the court may appoint an administrator. A rule
universally recognized is that the administration extends only to the assets of the decedent found
within the state or country where it was granted, so that an administrator appointed in one state
or country has no power over property in another state or country, as per Rule 73, Sec. 1, Rules
of Court. An administrator appointed in one state has no power over properties in another

12
Private International Law, Jovito Salonga at 479.
country. An ancilliary administrator is one appointed in the court of the foreign country where
the assets or property are located.
13

An illustrative case in this topic is the case of Tayag vs. Benguet Consolidated (1968). In
this case, Perkins left behind 2 stock certificates covering 33, 002 shares of benguet
consolidated. The certificates were in the possession of county trust company of New York
which was the domiciliary administrator of the estate of the deceased. The ancillary
administrator was Renato Tayag. A dispute arose between the domiciliary and anciliary
administrators as to which of them was entitled to the possession of the stock certificates. Tayag
petitioned the court to issue an order declaring the certificates of stock as lost. This petition was
granted. Thus there was an appeal by Benguet Consolidated.
The doctrine of this case is that the administrator of an estate of a decedent may only
exercise his powers within the state or country where he was appointed. This means that when a
decedent owned properties in New York and the Philippines. The administrator in the Philippines
may only exercise his powers for properties located in the Philippines. Administration whether
principal or ancillary, certainly extends to the assets of a decedent found within the state or
country where it was granted. An administrator appointed in one state has no power over
property in another state.
Two important cases in this topic are the cases of Bellis vs. Bellis (1967) and Aznar vs.
Christensen (1963). In the case of Bellis, the heirs of Amos Bellis in the Philippines were saying
that they were being deprived of their correct legitimes because of the current partition of the
property of their dead father. However the Supreme Court ruled that the Texas law does not
provide for legitimes. Since Amos Bellis is a citizen of Texs and domiciled in Texas, Texas law
will apply. Furthermore, it was ruled upon that the doctrine of renvoi will not apply. This is
because Bellis is not domiciled in the Philippines.
The case that applied the doctrine of renvoi is the case of Aznar vs. Christensen. In this
case, one of the illegitimate children of the decedent was saying that she was pretirited from her
legitime. She was mainly objecting with respect to the current partition of the properties of her
dead father. The issue in this case is which law would apply, whether Philippine law or
California law. At first it would seem that the national law of the decedent should apply. But the
peculiar thing about this case is that the decedent was actually domiciled in the Philippines. The
California law has a conflict of laws rule which provides that the law of the domicile of the
decedent must be applied. Hence the Supreme Court applied the doctrine of renvoi and applied
the Philippine law.
On the concept of trusts, it must be noted that a trust may be established by express
provision made in a will or by means of transactions inter vivos.
14
A trust is a right of property,

13
Conflicts of Laws, Jorge R. Coquia at 404.
real or personal, held by one party, for the benefit of another.
15
The New Civil Code of the
Philippines recognizes two kinds of trust, namely express and implied trusts, pursuant to Article
1441. An express trust is one that is created by the intention of the trustor or of the parties; while
an implied trust arises only by operation of law. Whether the creation of trust may be implied
from a particular transaction is apprently a question for the law of the place where the transaction
occurs to answer. When a trust is created by will, it is clear that there ought to be a testamentary
disposition. Hence, the proper law of succession must be consulted as circumstances warrant.
16

Testamentary trusts depend for their extrinsic validity on the will which created them. The rules
governing will with regard to the capacity and extrinsic requirements apply.
17
Since a trust
involves property, what myst be considered is the rule of lex situs. This rule determines the
validity of a trust created by a last will and testament.
18


***

Concepts
Wills: an act whereby a person is permitted, with the formalities prescribed by law, to determine
to a certain extent the distribution of his estate, to take effect after his death.
Testament: it is a form of disposition made by competent testator in the form prescribed by law
of the property over which he has legal power of disposition.
Extrinsic validity of wills: deals with the formalities of will making. As to whether there was
compliance with the formalities prescribed by law.
Joint wills: are prohibited under philippine law. It shall not be recognized even if such will is
allowed in the place where the will was made.
Holographic wills: it is a will entirely written, dated, and signed by the testator.
Intrinsic validity of wills: the intrinsic validity of wills are governed by the national law of the
decedent.
Processual presumption: the failure to prove foreign law, the foreign law will then be presumed
to be the same as philippine law.
Revocation: a will can be revoked anytime before the death of the decedent.
Probate: adjudication that the last will and testament of a person was executed with all the
formalities required by law.
Trusts: refers to the right of property, real or personal, held by one party for the benefit of
another. There is a trustor, trustee, and a beneficiary.

14
Private International Law, Jovito Salonga at 483.
15
Conflicts of Laws, Jorge R. Coquia at 406.
16
Private International Law, Jovito Salonga at 484.
17
Conflicts of Laws, Jorge R. Coquia at 406.
18
Id.