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February 14, 2014




Ms. Lizel Solon
Sitio Kamagayan, Junquera St.,
Cebu City


Dear Ms. Solon:

This legal opinion seeks to answer your question as to the validity of your husband’s
(Mario Solon) last will and testament naming you as the sole heir of his property situated in Tarlac
Philippines.


The Facts:

Per discussion and the documents you shown me, the following are the pertinent facts:

You are a former Filipino citizen who migrated to Canada in 1980 together with your husband
and children (Jose Jr., Carmel and Marie - then minors). Consequently, all members of your family were
granted Canadian citizenship.

In 2011, your husband executed a last will and testament designating you as his sole heir and
executor of his properties situated in Canada or in Philippines.

In 2012, your husband died and the will was probated and approved in Canada. It turns out that
your husband during his lifetime inherited 40 hectares of land in Tarlac, Philippines. In 2013, your
children filed a judicial partition naming you as defendant, for said property to be divided pursuant to
Philippine Laws.


The Applicable Laws:

Having granted Canadian Citizenship, your family is considered “Alien” in laws of the
Philippines – thus prohibited from acquiring land in the country. However, Section 8 of Article XII of the
1987 Constitution. It provides that:

“Notwithstanding the provisions of Section 7 of this Article, a natural-born citizen of the
Philippines who has lost his Philippine citizenship may be a transferee of private lands, subject to
limitations provided by law.” (Italics ours)
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Joseph Alfie A. Logroño
Unit 1005, Insular Life Cebu Business Centre, Mindanao Ave., Cebu Business Park, Cebu City
Tel: (032) 266-2917, Email: jal@llegal.com, Like us on Facebook: www.facebook.com/Llegal


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The said provision allows you and your children to be an owner of land in the Philippines in spite
being a Canadian Citizen because you and your children are natural-born Filipino citizens.

Foreigners can acquire lands in the Philippines in case of hereditary succession. Other modes of
acquiring land to former Filipino citizens are being governed by RA 9225 (Citizenship Retention and Re-
acquisition Act of 2003), BP 185 (Foreign Investment Act of 1991) as amended by RA 8179.

With respect to the last will and testament of your husband, Article 816 of the Civil Code
provides:
“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.” (Italics ours)

Proof that the will conforms to the laws mentioned is imperative (Salud Teodoro Vda. De Perez
vs Hon. Tolete GR 76714 6/2/1994).

Under the Philippine Law, your children are considered compulsory heirs which are entitled of
legitimes to your husband’s estate. However:

When it comes to foreigners, the intrinsic validity of the will shall be governed by the national
law of the decedent as stated in Article 795 of The New Civil Code. So, if in their country there is no
system of legitime, the will is still valid. (Underscoring supplied)

This was squarely applied in the case of Bellis v. Bellis (20 SCRA 358) wherein the Supreme
Court ruled:
”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. Accordingly,
since the intrinsic validity of the provision of the will and the amount of successional rights are to
be determined under Texas law, the Philippine Law on legitimes cannot be applied to the testacy
of Amos G. Bellis.” (Emphasis supplied)

By designating you as the sole heir of your husband’s estate, it goes without saying that your
husband made a revocation to the potential share of your children. Article 829 of The New Civil Code
provides:
“A revocation done outside the Philippines, by a person who does not have his domicile
in this country, is valid when it is done according to the law of the place where the will was
made, or according to the law of the place in which the testator had his domicile at the time; and
if the revocation takes place in this country, when it is in accordance with the provisions of this
Code.” (Italics ours)

Clearly, the revocation made by your husband of your children’s share is not contrary to
Philippine Law because it is not contrary to the Laws of Canada (which is the domicile and the place
where the will was made). Your children have no cause of action to bar the last will and testament of your
husband and pursue the application the rules of succession in the Philippines.



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Plan of Action:

In the instant case it is duly admitted that the will of your husband was probated and approved by
the courts in Canada.

Section 1 of Rule 77 of Rules of Court provides:

“Wills proved and allowed in a foreign country, according to the laws of such country,
may be allowed, filed, and recorded by the proper Court of First Instance in the
Philippines.”(Italics supplied)
A will allowed or probated in a foreign country, must be re-probated in the Philippines. If the
decedent owns properties in different countries, separate administration proceedings must be had in said
countries.

In the case of Suntay vs Suntay, 95 Phil 500, the Supreme Court delineated the evidences
necessary for the reprobate or allowance of wills which have been probated outside of the Philippines are
as follow:

1. foreign court must have jurisdiction over the proceeding;
2. domicile of testator/decedent in the foreign country and not in the Philippines;
3. that the will has been admitted to probate in such country;
4. it was made with the formalities prescribed by the law of the place in which the decedent
resides, or according to the formalities observed in his country, or in conformity with the
formalities prescribed by our Civil Code; and
5. due execution of the will in accordance with the foreign laws.

It is important for you to file a petition for the allowance of your husbands will to the Regional
Trial Court of Tarlac acting as a Probate Court. Then a special proceeding will commence for Ancillary
Administration of the Estate in which the requirements are as follow:

1. there must be a will (inferred from the wordings of Rule 77 of the Rules of Court);
2. filing of:
a) copy of the will executed in foreign country;
b) order or decree of foreign court allowing such will; and
c) authentication of requisites a and b above;
3. notice of time and place of hearing;
4. hearing; and
5. certificate of allowance.



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I based my opinion on the language of the laws involved as well as on settled judicial precedents.
If granted by the court the effects of the allowance of your husband’s will are:

1. the will shall have the same effect as if originally proved and allowed in court of
the Philippines.
2. letters testamentary or administration with a will annexed shall extend to all
estates of the Philippines.
3. Residue of estate after payment of debts, etc. shall be disposed of as provided by
law in cases of estates in Philippines belonging to persons who are inhabitants of
another state or country.

I am confident that, ultimately, the will of your husband will be approved designating you as the
sole heir of his estate.

I appreciate the opportunity to advise you regarding this matter. Please let me know if you wish
to discuss any of these issues further. Thank you.







Yours faithfully,




Joseph Alfie A. Logroño