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CHOICE OF LAW IN WILLS, SUCCESSION AND ADMINISTRATION OF ESTATES

Introduction

A will or testament is an act where a person is permitted to determine to a certain extent


the distribution of his estate to take effect after his death
From a conflict of laws perspective, a will is an involuntary transfer if property because
although the acts of executing ones last will and testament is a voluntary act, that in itself
does not transfer title
It is only upon death of the owner that the will comes into effect and since death is
involuntary, making a will becomes an involuntary transfer of property
As such it is governed by the proper law which, in common law countries, is the law of
the domicile of the testator and in civil law countries, his national law
Extrinsic Validity of wills
If a Filipino national makes a will abroad, he may comply with the formalities under
Philippine law (lex nationalii) or
Those established by the law of the country where that will was executed (lex loci
celebrationis)
The pertinent conflict of law rules are found in Art 17, and 815 of the Civil Code
Article 17. The forms and solemnities of contracts, wills, and other public
instruments shall be governed by the laws of the country in which they are
executed.
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

In Re Estate of Johnson
Emil Johnson, a native of Sweden and a naturalized US citizen died in Manila, leaving a
holographic will where he disposed of his estate
The will was signed by the testator and two witnesses, instead of three as required by
Sec. 618 of the Code of Civil Procedure thus could not be proved under this provision
No will, except as provided in the preceding section, shall be valid to pass any
estate, real or personal, nor charge or affect the same, unless it be in writing and
signed by the testator, or by the testator's name written by some other person in
his presence, and by his express direction, and attested and subscribed by three
or more credible witnesses in the presence of the testator and of each other
A petition was filed with the CFI in Manila for the probate of this will on the groun that
Johnson was, at the time of his death, a citizen of Illinois, USA
His will was duly executed in accordance with the laws of that state and could be properly
probated under Sec. 636 of the Code of Civil Procedure
Will made here by alien. A will made within the Philippine Islands by a
citizen or subject of another state or country, which is executed in
accordance with the law of the state or country of which he is a citizen or
subject, and which might be proved and allowed by the law of his own
state or country, may be proved, allowed, and recorded in the Philippine
Islands, and shall have the same effect as if executed according to the laws
of these Islands.

Extrinsic validity of joint wills


Art. 818 of the Civil Code states:
Two or more persons cannot make a will jointly or in the same instrument either
for their reciprocal benefit of for the benefit of a third person.
Joint wills whether executed by Filipinos in the Philippines or abroad, even if such foreign
country allows it, are considered void in the Philippines
A joint will is prohibited because:
A will is purely personal and unilateral act and this is defeated if two or more
persons make their will in the same instrument
It is contrary to the revocable character of the will
A joint will, if mutual or reciprocal, may expose a testator to undue influence

Extrinsic validity of holographic wills


A holographic will is one entirely written, dated and signed by the hand of the testator
himself
This is the most simple and most convenient method of making a last will and testament
The rules contained in Art. 816 and 817 on wills made by aliens abroad or in the
Philippines apply to holographic wills:
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.

Babcock Templeton v. Rider Babcock


Beatrice Babcock Templeton filed a petition to secure probate of a paper writing
purporting to be the wishes of Jennie Rider Babcock with reference to the post mortem
disposition of all of her property
The handwritten statement was not executed as a will under the provisions of the
Philippines and so was not offered for probate under Sec. 618 of the Code of Civil
Procedure but under Sec. 636
Sec 636 authorizes probate by our courts of a will made within the Philippines by a citizen
of another country, when such will is executed in accordance with the law of the country
of which the testator is a citizen and which might be proved under the law of such country
It was alleged that at the time of her death Jennie Rider Babcock was a resident of
California, through temporarily residing in Manila, and that the parties have agreed that
the paper could be proved in California as her holographic will

Babcock Templeton v. Rider Babcock

Issue: Was Jennie Rider Babcock a citizen of California at the time the will was made?

Held: YES.
It is a well settled rule that a citizen of United States cannot acquire citizenship in the
Philippine Islands by residence, however long continued
The Court ruled that the testatrix remained a citizen of California and that her domicile
acquired in California was never lost

Intrinsic validity of wills


Intrinsic validity of wills is governed by the national law of the decedent
Art. 16 (2) of the Civil Code reads;
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.
Miciano v. Brimo
Andre Brimo opposed his brothers intention to have Philippine laws apply
The mot significant relationship approach should be used
Since the decedent was a resident of the Philippines, executed his will here,
intended the Philippine law to govern, and the will concerned properties in the
Philippines, the court could very well have justified applying the Philippine law
The Philippines was where the case had its most significant contacts
Interpretation of wills

Pursuant to the nationality principle in our Civil Code, the interpretation of a will of
testament must be governed by the rules of interpretation of the decedents national law
As in contracts, the rule is that where the terms of the will are clear and unambiguous,
the lex intentionis of the party should be followed
Where the terms are ambiguous, the intention can be inferred from the context of the
instrument itself
If none of these can give absolute assurance that indeed the intention of the testator has
been ascertained, settled presumption of law may be resorted to
It is presumed that the interpretations of ambiguous phrase should be determined in
accordance with the laws and customs of the state most probably in the mind of the
testator

Revocation
Being a unilateral and purely personal act, a will is revocable at any time before the death
of the testator
Any waiver or restriction of this right is void
Under Art. 829 of the Civil Code
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 (lex celebrationis), or according to the law of the place
in which the testator had his domicile at the time (lex domicilii); and if the
revocation takes place in this country, when it is in accordance with the provisions
of this Code.
Under Philippine laws, wills are not deemed revoked except in the following cases;
By implication of law
By some will, codicil or other writing
By burning, tearing, cancelling or obliterating the will with the intention of
revoking it

QUESTION
Differentiate Lex loci celebrationis and Lex nationalii

ANSWER
Lex loci celebrationis means the law of the place where the contract is made is to be
followed
Lex nationalii means the personal law of the person should be followed

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