WILLS AND SUCCESSIONS

SYNOPSIS OF CONFLICTS RULES

FACTUAL SITUATION
1. Extrinsic Validity of Wills
a) Made by an alien abroad

POINT OF CONTACT
1.

b) Made by a Filipino abroad

a) Lex nationalii OR lex domicilii

OR Philippine law (Art. 816,
Civil Code), OR lex loci
celebrationis (Art. 17, par.
1,Civil Code)

c) Made by an alien in the

Philippines

b) Lex nationalii OR lex loci

celebrationis (Art. 815, Civil
Code)

2. Extrinsic Validity of Joint Wills

(made in the same instrument)
a) Made by Filipinos abroad

b) Made by aliens abroad

c) Made by aliens in the
Philippines

3. Intrinsic Validity of Wills

(including order of succession,
amount of successional rights,
and intrinsic validity of the
provision of the will)
4. Capacity to Succeed

5. Revocation of Wills

c) Lex nationalii OR lex loci

celebrationis (Art. 818, Civil
Code)
2.

a) Lex nationalii (is void, even if

valid where made) (Art. 819,
Civil Code)
b) Valid if valid according to lex
nationalii, or lex domocilii or
lex loci celebrationis
c) Lex loci celebrationis therefore
void even if apparently allowed
by Art. 817 because the
prohibition on joint wills is a
clear expression of our public
policy)
3. lex nationalii of the deceased
regardless of the LOCATION and
NATURE of the property (Art. 16,
par.2, Civil Code)

a) If done IN the Philippines

4. lex nationalii of the deceased
not that of the heir (Art. 1039,
Civil Code)
b) If done OUTSIDE the
Philippines
1. By a NON-DOMICILIARY

2. By a DOMICILIARY of the
Philippines
6. Probate of Wills made abroad
a) If not yet probated abroad

b) If already probated abroad

5.
a) lex loci actus (of the
revocation) (Art. 829, Civil
Code)
b)
1. Lex loci celebrationis (of the
making of will, not the
revocation), OR lex domocilii
(Art. 829, Civil Code).
2. lex domicilii (Philippine law)
OR lex loci actus (of the
revocation) Art. 17, Civil
Code)
6.
a) lex fori of the Philippines
applies as to procedural
aspects that is the will
must be fully probated
here and due execution
must be shown
b) lex fori of the Philippines
again applies as to the
procedural aspects that
is, the will 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.

WILL
A Will is a personal, solemn, revocable and free act by which a capacitated person
disposes of his property and rights and declares or complies with duties to take
effect after his death.
A will is essentially ambulatory; at any time prior to the testators
death, it may be changed or revoked, and until admitted to probate, it
has no effect whatever and no right can be claimed thereunder, the
law being quite explicit: no will shall pass either real or personal
property unless it is proved and allowed in accordance with law.
A will is the testator speaking after death. It is a specie of conveyance
whereby a person is permitted, with the formalities prescribed by law,
to control to a certain degree the disposition of his estate after his
death.

TWO KINDS OF WILLS

1. NOTARIAL WILL executed with the intervention of a notary public and
participation of
attesting witnesses a governed by Articles 804 to 809 of the
Civil Code.
2. HOLOGRAPHIC WILL is one must be entirely written, dated, and signed by
the hand of the
testator himself. (Art. 810, Civil Code)

EXTRINSIC VALIDITY AND INTRINSIC VALIDITY IN

GENERAL

EXTRINSIC VALIDITY of a will deals with the forms and solemnities in the making of
wills (including the age and capacity of the testator to make the will; the number of
witnesses; the form of the will oral, private instrument, public instrument; and so
forth. The extrinsic or formal validity of wills is governed by the law of the place
where they are executed.
Upon the other hand Intrinsic validity concerns itself with the order of succession,
the amount of successional rights, and the intrinsic validity of the provisions of the
will. And it is governed by the national law of the decedent. *

The following are our conflict rules on the extrinsic

validity of wills:
(1) If the will made by an alien abroad, he must comply with the formalities of
the lex nationalii or the lex domicilii or Philippine law (Art. 816, Civil Code) or
the lex loci celebrationis.
(2) If a Filipino makes a will abroad, he may comply with the formalities of lex
nationalii (Philippine law) or the lex loci celebrationis (the law of the place
where he may be and where obviously he makes the will). (Art. 815, Civil
Code)
(3) If an alien makes a will in the Philippines he is allowed to comply with the
formalities of his own country (lex nationalii) or the law of the Philippines (Art.
817, Civil Code).

EXTRINSIC VALIDITY OF JOINT WILLS

JOINT WILLS are those executed in the same instrument by two or more
testators. They are considered by our Civil Code as null and void. Mutual or
reciprocal wills, upon the other hand, are those which contain reciprocal
disposition in favor of the testator.*
Article 818 of the Civil Code says:
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.

THE FOLLOWING ARE OUR CONFLICT RULES ON THE

EXTRINSIC VALIDITY OF JOINT WILLS:
1) If the joint wills were made by Filipinos abroad, the same shall be considered
void in the Philippines, even if they are valid in the place where they are
excuted.

Art. 819 of the Civil Code states that Wills, prohibited by the preceding
article (on joint wills) 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 have been executed.
2) Joint wills made by aliens abroad shall be considered as valid in the
Philippines if valid according to the lex nationalii or lex domicilii or lex
celebrationis. (Arts. 816, and 817, Civil Code).*

3) Joint wills made by aliens in the Philippines, even if valid in accordance with
their national law, will not be countenanced in the Philippines because
otherwise our public policy may be militated against.

LAW ON SUCCESSIONAL
VALIDITY OF WILLS

RIGHTS;

INTRINSIC

The national law of the person whose succession, testate or intestate , is under
consideration governs the following:
1.
2.
3.
4.

The order of succession;

Amount of successional rights;
Intrinsic validity of testamentary disposition;
capacity to succeed.

Article 16. par. 2, Civil Code states that:

However, intestate and testamentary succession, both with respect to the
order of succession and 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 nature of the country wherein said property
may be found.
Philippine Trust Co. V Bonahan, al.
G.R. L-12105, Jan. 30, 1960
FACTS:

Testator was a citizen of Nevada, with properties in the Philippines, who

gave nothing in his will to his Filipino wife, and very little to his
children. Under Nevada law, the wife and the children are not
compulsory heirs, and are, therefore, not entitled to any legitime.

ISSUE:

Can the wife and the children justifiably complain?

HELD:

No, because under Art. 16, par 2 of the Civil Code, the order of
succession, the amount of successional rights (including the right, if
any, to the legitime), and the intrinsic validity of the provision of the
will shall be governed by the national law of the deceased(Nevada law)
regardless of where the property if found, and whether the property be
real or personal. Since under Nevada law, there is NO LEGITIME, the
wife and the children cannot validly complian.
Miciano V Brimo
50 Phil. 867

FACTS:

Joseph G Brimos will provide that even if he was a Turk, still he wanted
his estate in the Philippines disposed of in accordance with Philippine
laws (and not in accordance with Turkish law); and that should any of
his lagatees oppose the intention of his, his or her legacy would be
considered cancelled. Andre Brimo, one of the brothers of the
deceased , did not want this disposition in accordance with Philippine
laws; he wnted Turkish law to be applied. He, therefore opposed
practically every move that would divide the estate in accordance with
Philippine international laws on succession.

ISSUE:

Does, Andre Brimo lose his legacy?

HELD:

No, Andre Brimo does not lose his legacy, because the condition
referred to in the will is CONTRARY to our law. Art. 873 of the Civil
Code says: Impossible conditions and those contrary to law, good
customs shall be considered as not imposed, and shall in no manner
prejudice the heir, even if the testator should otherwise provide.
Indeed, the condition, namely, the disposal of the testators estate in
accordance wit Philippine international law on succession, is against
the second paragraph of Art. 16 of the Civil Code, which insist on the
application of the national law of the deceased. The condition being
disregarded, the legacy to Andre Brimo becomes unconditional, and
therefore, he is entitled to his legacy.

CAPACITY TO SUCCED
Article 1039 of the Civil Code says Capacity to succeed is governed by the
law of the nation of the decedent.*

REVOCATION OF WILLS
1) If the revocation of a will is done in the Philippines, the lex loci actus of the
revocation applies; hence Philippine law will have to be followed. (Art. 829,
Civil Code)

2) If the revocation is done OUTSIDE the Philippines by a NON-DOMICILIARY of

the Philippines, the testator may follow either the law of the place where the
will had been made (lex loci celebrationis of the making and not the revoking)
or the lex domicilii. (Art. 829 Civil Code).
3) If the revocation is done OUTSIDE of the Philippines by a person who is
DOMICILED here, the revocation may be done in accordance with the lex
domicilii (Philippine Law) or the lex loci actus of the revocation not that of the
making. (Art. 17, Civil Code)

PROBATE
PROBATE is the act of proving before a competent court the due execution of a will
possessed of testamentary capacity, as well as approval thereof by said court.
Probate has also been referred to as probation, legalization, protocolization,
authentication.

PROBATE OF WILLS
Probate of a will refers to authentication of a will in a probate proceeding in court
concerning the capacity of the testator and the compliance with those requisites or
solemnities which the law prescribes for its validity. Probate of a will is mandatory
and, unless probated in court, the right of a person to dispose of his property by will
is rendered nugatory.
PROBATE OF WILLS EXECUTED ABROAD
a) If a will is executed abroad has NOT yet been probated in a foreign country,
the ordinary Philippine probate procedure is required; that is the lex fori of
the Philippines applies as to the procedural aspects. It must be shown to the
court that the foreign will has been validly executed in accordance with the
formalities already discussed.
b) If a foreign will has already been probated in a foreign country, does it still
have to be probated here in the Philippines? The answer is affirmative,
because a foreign judgment, no matter how intrinsically meritorious,
generally cannot have automatic extraterritorial effect. The will has still to be
probated here, but instead of proving all over again the due execution of the
will, it is ordinarily sufficient to ask for the ENFORCEMENT here of the foreign
judgment on the probate abroad. Of course, the lex fori of the Philippines
again applies as to the procedural aspects in our courts. The pertinent rules
on the subject are found in Rule 77 of the Rules of Court.