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NOTE: These conflicts rules are important only if the probate proceeding shall be conducted

in the Philippines. If the probate shall be conducted in a foreign jurisdiction, then the conflicts
rules of that foreign nation must be observed.

Law Which Governs Extrinsic Validity of Wills

Extrinsic validity refers only to formal validity which the law requires that is, a will
be in proper form and made by one with testamentary capacity.

Art. 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.

As a general rule, the formal validity of a will shall be governed by the law of
the country in which it is executed. This rule is expressed in the first paragraph of Art.
17 of the Code, which provides that 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. This rule, however, is reiterated or supplemented by the provisions of
Arts. 815 to 819.

1. Where testator is a Filipino

If the testator is a Filipino citizen and he executes a will in the Philippines, the
law which governs the formal validity of the will shall be the law of the Philippines. If
he executes a will outside of the Philippines, the law which governs shall be the law
of the country in which it is executed. Both of these rules are in accordance with the
general rule prescribed in the first paragraph of Art. 17. Moreover, Art. 815 provides:

Art. 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.

2. Where testator is an alien

If the testator is an alien and he executes a will in the Philippines, the laws
which govern the formal validity of the will shall be either;(1) the law of the Philippines
in accordance with the general rule established in Art. 17, or (2) the law of the
country of which he is a citizen or subject in accordance with the special rule
established in Art. 817. In the latter case, it is a prerequisite that the will which is
presented for probate could have been proved and allowed by the law of his own
country. If he executes a will outside of the Philippines, the laws which govern shall
be either: (1) the law of the place where the will is executed in accordance with the
general rule established in Art. 17, or (2) the law of the place in which he resides in
accordance with the special rule established in Art. 816, or (3) the law of his country
in accordance with the special rule established in Art. 816, or (4) the law of the
Philippines again in accordance with the special rule established in Art. 816.

Art. 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.

Art. 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.

3. Joint Wills

A joint will is defined as a single testamentary instrument which contains the


wills of two or more persons, jointly executed by them, either for their reciprocal
benefit or for the benefit of a third person.

a. Executed by Filipinos in the Philippines - VOID

In practice, husband and wife ordinarily make mutual or reciprocal wills contained
in separate instruments. Such a practice is not prohibited by the provisions of Art.
818. What is prohibited is the execution of a joint will or a will contained in the same
instrument, either for their reciprocal benefit or for the benefit of a third person. The
reason for the prohibition, especially as regards husband and wife, is that when a
will is made jointly or in the same instrument, the spouse who is more aggressive,
stronger in will or character and dominant is liable to dictate the terms of the will for
his or her own benefit or for that of third persons whom he or she desires to favor."

Art. 818. 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.

b. Executed by Filipinos abroad - VOID

Art. 819. Wills, prohibited by the preceding article, 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 may have been executed.

Under Art. 819 of the Code 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 may have been executed. It is evident that this rule is an
exception to the rule stated in Art. 815. It is, however, in conformity with the provision
of the third paragraph of Art. 17 of the Civil Code which states:
Prohibitive laws concerning persons, their acts or property, and those which have for their
objects public order, public policy and good customs shall not be rendered ineffective by laws
or judgments promulgated, or by determinations or conventions agreed upon in a foreign
country.

It must be noted that the provision of Art. 819 is applicable only to joint wills
executed by Filipinos in a foreign country; it does not apply to joint wills executed by
aliens.

C. Executed by aliens abroad - GOVERNED BY ART. 816

Art. 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.

D. Executed by aliens in the Philippines - TWO CONTENDING VIEWS


One view: Void by reason of public policy

Another view: Art. 817 governs

Art. 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.

E. Executed by a Filipino AND an alien

As to the Filipino: Always void

As to the alien: Letter C or D would apply

Law Which Governs Intrinsic Validity of Wills

Intrinsic validity is concerned with substantive validity such as issues concerning


legitimes, capacity of the heirs, those involving disqualification of certain heirs,
preterition, collation, representation and validity of substitution.

The intrinsic validity of wills is governed by the national law of the person whose
succession is under consideration. Article 16, par. 2 of the Civil Code render
applicable the national law of the decedent, in intestate or testamentary succession,
with regard to four items:
(a) the order of succession;

(b) the amount of successional rights;

(c) the intrinsic validity of the provisions of the will; and

(d) the capacity to succeed.

Art. 16. 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.

Art. 1039. Capacity to succeed is governed by the law of the nation of the decedent.

Exception: Renvoi Doctrine

A jural matter is presented which the conflict-of-laws rule of the forum refers to
a foreign law, the conflict-of-laws rule of which, in turn, refers the matter back again
to the law of the forum.

Law Which Governs Revocation


Art. 829. 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.

It is evident from the provisions of Art. 829 that the only time when the testator
may revoke his will either in accordance with the law of the place where the will was
made or in accordance with the law of the place in which he had his domicile at the
time is when he is not domiciled in the Philippines. In all other cases, the law which
governs the revocation is the law of the Philippines. Consequently, the rules may be
restated as follows:
1. If the act of revocation takes place in the Philippines, it is essential that it must be
done in accordance with the laws of the Philippines. This is true whether the testator
is domiciled in this country or in some other country.
2. If the act of revocation takes place outside of the Philippines by a testator who is
domiciled in the Philippines, it is essential that it must be done in accordance with the
laws of the Philippines.
3. If the act of revocation takes place outside of the Philippines by a testator who is
not domiciled in the Philippines, it is essential that it must be done either in
accordance with the laws of the place where the will was made or in accordance with
the laws of the place where the testator had his domicile at the time of revocation.

Effect of Change of Nationality

1. Extrinsic Validity - NATIONALITY OF THE TESTATOR AT THE TIME OF THE


EXECUTION OF THE WILL SHOULD CONTROL

The law enforced at the time of the execution of the will is the governing law
because this is a fundamental requirement of due process. One cannot be required
to anticipate future law when making a will, otherwise, it would be very unreasonable
and would not pass the test of due process.

Art. 795. The validity of a will as to its form depends upon the observance of the law in force
at the time it is made.

2. Intrinsic Validity - NATIONALITY OF THE TESTATOR AT THE TIME OF HIS


DEATH SHOULD CONTROL
The law operating at the time of the death shall be the governing law, because
at the time of the execution of the will no right has yet accrued to those who were
designated as beneficiaries in the will since the inheritance of a person is opened
only at the time of his death. When a person was designated as beneficiary in the
will, no vested right accrued to him which may be violated by the subsequent
amendment of the law.

Probate of Wills Executed Abroad

Probate is a special proceeding to establish the validity of a will. Probate is


mandatory, which means that no will passes either real or personal property unless it
is proved and allowed in a proper court.
1. If not yet probated abroad
-Procedural laws of the Philippines shall apply

2. If already probated abroad

-It still has to be reprobated in the Philippines


-Procedural laws of the Philippines shall apply

Reprobate of Wills Proved Outside the Philippines

A will allowed or probated in a foreign country must be reprobated in the


Philippines (Sec. 1, Rule 77, RoC).

Section 1. Will proved outside Philippines may be allowed here. 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.

Reprobate means the re-authentication of a will already probated and allowed


in a foreign country. It is specifically governed by Rule 77 of the Rules of Court.
In reprobate, the local court acknowledges as binding the findings of the foreign
probate court provided its jurisdiction over the matter can be established (Palaganas
v. Palaganas, GR 169144. Jan. 26, 2011, 640 SCRA 538).

1. Procedure
a. A will proved outside Philippines may be allowed here. Wills proved and allowed in
a foreign country according to its laws may be allowed, filed and recorded by the
proper Regional Trial Court in the Philippines (Sec. 1, Rule 77, RoC);

b. The court having jurisdiction over the reprobate of a will shall cause notice thereof
to be given as in case of an original will presented for allowance. With regard to
notices, the will probated abroad should be treated as if it were a will that is
presented for probate for the first time (Sec. 2, Rule 77, RoC). Accordingly,
compliance with sections 3 and 4 of Rule 76, which require publication and notice by
mail or personally to the known heirs, legatees, and devisees of the testator resident
in the Philippines and to the executor, if he is not the petitioner are required
(Philippine Commercial and Industrial Bank v. Escolin).
c. If it appears at the hearing that the will should be allowed in the Philippines, the
court shall so allow it and a certificate of its allowance signed by the judge and
attested by the seal of the court to which shall be attached a copy of the will shall be
filed and recorded by the clerk and the will shall have the same effect as if originally
proved and allowed in such court (Sec. 3, Rule 77, RoC);
c. When a will is thus allowed, the court shall grant letters testamentary or letters of
administration with the will annexed and such letters testamentary or of
administration shall extend to all the estate of the testator in the Philippines. Such
estate, after the payment of just debts and expenses of administration, shall be
disposed of according to such will so far as such will may operate upon it. The
residue, if any, shall be disposed of as is provided by law in cases of estates in the
Philippines belonging to persons who are inhabitants of another state or country
(Sec. 4, Rule 77, RoC);
d. If the court is satisfied, upon proof taken and filed, that the will was duly executed
and that the testator at the time of its execution was of sound and disposing mind,
and not acting under duress, menace and undue influence or fraud, a certificate of its
allowance signed by the judge and attested to by the seal of the court shall be
attached to the will and the will and certificate filed and recorded by the clerk.
Attested copies of the will devising real estate and of certificate of allowance thereof
shall be recorded in the register of deeds of the province in which the lands lie (Sec.
13, Rule 76, RoC);

Although a foreign will had already been probated in a foreign country, it still
has to be reprobated in the Philippines in accordance with our procedural law,
because a foreign judgement, no matter how intrinsically meritorious, cannot have, as
a general rule, automatic extraterritorial effect. 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 judgement of the probate abroad.

2. Evidence

The evidence necessary for the probate or allowance of wills which have been
probated outside the Philippines are:

a. The due execution of the will in accordance with the foreign law because we
cannot take judicial notice of foreign laws.

b. The testator had his domicile in the foreign country where the will was probated;

c. The will had been admitted to probate in the said country.

d. The foreign tribunal is a probate court.

e. The laws of the foreign country on procedure and allowance of wills were followed.