I.

Legal Opinion
A legal opinion in the broad sense refers to a statement by a court, judicial officer, or
legal expert as to the legality or illegality of an action, condition, or intent. It can be a
written document in which an attorney provides his or her understanding of the law as
applied to assumed facts. The attorney may be a private attorney or attorney
representing the state or other governmental entity. (US Legal)

It is often accompanied by an order or ruling in a case, laying out the rationale and legal
principles for the ruling.

Purpose of Legal Opinion

 To inform the addressee of the legal effect of a transaction or matter.

 To identify legal risks that the addressee should consider further and evaluate.

How to Write a Legal Opinion/Opinion Letter

 Address all the questions that the client wants to be answered.

 Answer based on the facts given.
 There must be a legal basis.
 Clear and concise.
 Put a disclaimer in the end
 Addressee

Query

Opinion citing
legal basis.
Either law or
jurisprudence
Officer / Legal Expert
who is credible to give
such opinion on the
matter.
 Query lodged
before the
Public
Attorney’s
Office

Dear Luisa,
To answer your question, we shall refer to Articles 75, 91 and 96 of the Family Code,
which read as follows:

“ART. 75. The future spouses may, in the marriage settlements, agree upon the regime of
absolute community, conjugal partnership of gains, complete separation of property, or
any other regime. In the absence of a marriage settlement, or when the regime agreed
upon is void, the system of absolute community of property as established in this Code
shall govern.

“Art. 91. Unless otherwise provided in this Chapter or in the marriage settlements, the
Legal community property shall consist of all the property owned by the spouses at the time of
Basis the celebration of the marriage or acquired thereafter.

Art. 96. xxx

“In the event that one spouse is incapacitated or otherwise unable to participate in the
administration of the common properties, the other spouse may assume sole powers of
administration. These powers do not include disposition or encumbrance without
authority of the court or the written consent of the other spouse. In the absence of such
authority or consent, the disposition or encumbrance shall be void. xxx (Emphases
supplied)

Applying the said law in your situation, the sale of the property you made is void. The
marriage between you and your husband was celebrated during the effectivity of the
Application/ Family Code. Thus, absent a marriage settlement, the property regime between you and
Explanation your spouse is the absolute community of property. Under Article 91 of the said law, the
of the law to community property shall consist of all the property owned by the spouses at the time of
the given the celebration of marriage. Hence, the property you sold which you brought into your
situation marriage and was registered under your name, belongs to the community property.

Further, the sale is void because it was executed without the authority of the court or the
written consent of the other spouse as mandated under Article 96 of the same law.

We hope that we were able to answer your queries. This advice is based solely on the
Disclaimer facts you have narrated and our appreciation of the same. Our opinion may vary when
other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief
Acosta may be sent to dearpao@manilatimes.net
 II.
Settlement of Estate
Last Will and Testament

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. (Art. 783, New Civil Code)

Every will must be in writing and executed in a language or dialect known to the
testator. (Art. 804, New Civil Code)

Kinds of Last Will and Testament

1. Notarial Wills
2. Holographic Wills

Notarial Will
Every will, other than a holographic will, must be subscribed at the end thereof by
the testator himself 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 one another.

The testator or the person requested b him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each and every page
thereof, except the last, on the left margin, and all the pages shall be numbered
correlatively in letters placed on the upper part of each page.

The attestation shall state the number of pages used upon which the will is
written, and the fact that the testator signed the will and every page thereof, or caused
some other person to write his name, under his express direction, in the presence of the
instrumental witnesses, and that the latter witnessed and signed the will and all the ages
thereof in the presence of the testator and of one another.

If the attestation clause is in a language not known to the witnesses, it shall be

interpreted to them. (Art. 805, New Civil Code)

Every will must be acknowledged before a notary public by the testator and the
witnesses. The notary public shall not be required to retain a copy of the will, or file
another with the office of the Clerk of Court. (Art. 806, New Civil Code)

Requirements for a Notarial Will (Art. 804 & Art. 805)

1. The will must be in writing. (handwritten/typed/printed; material on which it
is written is immaterial);

2. The will must be executed in a language or dialect known to the testator;

3. The will must be subscribed at the end thereof by the testator himself or
by the testator’s name written by another person in his presence, and
by his express direction;
4. The will must be attested and subscribed by three or more credible
witnesses in the presence of the testator and of one another.
5. The testator or the person requested by him to write his name, and the
instrumental witnesses of the will shall sign each and every page thereof
except the last, on the left margin. (Including front and reverse sides if
both are used).

6. All pages shall be numbered correlatively in letters placed on the upper

part of each page;

7. The attestation clause shall provide the following:

1. Number of pages used – upon which the will is written;

2. The fact that the testator signed or expressly caused another person to sign
the will and every page thereof in the presence of the instrumental witnesses;

3. That the instrumental witnesses witnessed and signed the will and all the
pages thereof in the presence of the testator and of one another.

Note: The absence of the attestation clause is a fatal defect, as well as the failure
to state the number of pages.

8. Acknowledgement before a notary public by the testator and the witnesses.

Note: The notary public before whom the will is acknowledged cannot be one of
the three witnesses to the said will, in view of the absurdity of one person
acknowledging something before himself, unless there are three other
witnesses. (Cruz vs. Villasor)
The testator or the person requested by
him to write his name, and the
instrumental witnesses shall sign each and
every page thereof except the last, on the
left margin.
jurat

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Series 2021
 Extrajudicial Partition of Real Estate

Extrajudicial Deed of Partition

Extrajudicial Settlement

What is an Extrajudicial Partition of Real Estate/Extrajudicial

Partition/Extrajudicial Settlement?

It is the settling of an estate via the drafting of a contract, which indicates how a
deceased owner’s properties will be divided among the heirs as they see fit. The
properties left by the deceased listed in the contract is collectively recognized as the
“estate.”

The settlement is considered “extrajudicial,” or “out of court,” as the heirs do not go to

trial to divide the properties left by the deceased property owner.

Sec. 1. Extrajudicial settlement by agreement between heirs. – If the

decedent left no will and no debts and the heirs are all of age, or the minors
are represented by their judicial or legal representatives duly authorized
for the purpose, the parties may, without securing letters of
administration, divide the estate among themselves as they see fit by means
of a public instrument filed in the office of the register of deeds, and should
they disagree, they may do so in an ordinary action of partition. If there is
only one heir, he may adjudicate to himself the entire estate by means of an affidavit
filed in the office of the register of deeds. The parties to an extrajudicial settlement,
whether by public instrument or by stipulation in a pending action for partition, or the
sole heir who adjudicates the entire estate to himself by means of an affidavit shall file,
simultaneously with and as a condition precedent to the filing of the public instrument,
or stipulation in the action for partition, or of the affidavit in the office of the register of
deeds, a bond with the said register of deeds, in an amount equivalent to the value of the
personal property involved as certified to under oath by the parties concerned and
conditioned upon the payment of any just claim that may be filed under Section 4 of this
rule. It shall be presumed that the decedent left no debts if no creditor files a petition for
letters of administration within two (2) years after the death of the decedent. (Rule 74,
Rules of Court)

Requirements of an extrajudicial settlement/partition

1. Decedent died intestate or absence of a will;
2. There are no outstanding debts at the time of the settlement;
3. The heirs are all of legal age or minors represented by judicial guardians or legal
representatives;
4. The settlement is made in a public instrument or by means of an affidavit, in case
of a sole heir, duly filed with the Register of Deeds;
5. Publication of extrajudicial settlement in a newspaper of general circulation in
the province once a week for three consecutive weeks; and
6. Filing of a bond equivalent to the value of personal property posted with Register
of Deeds.
 Affidavit of Self –Adjudication

An Affidavit of Self-Adjudication is a written statement under oath by a sole heir

(the “affiant”) where he declares that he is the only heir of the deceased and is
adjudicating the entire inheritance to himself.

Sec. 1. Extrajudicial settlement by agreement between heirs. – If the

decedent left no will and no debts and the heirs are all of age, or the minors are
represented by their judicial or legal representatives duly authorized for the
purpose, the parties may, without securing letters of administration, divide the
estate among themselves as they see fit by means of a public instrument filed in
the office of the register of deeds, and should they disagree, they may do so in an
ordinary action of partition. If there is only one heir, he may adjudicate to
himself the entire estate by means of an affidavit filed in the office of
the register of deeds. The parties to an extrajudicial settlement, whether by
public instrument or by stipulation in a pending action for partition, or the sole
heir who adjudicates the entire estate to himself by means of an affidavit shall
file, simultaneously with and as a condition precedent to the filing of the public
instrument, or stipulation in the action for partition, or of the affidavit in the
office of the register of deeds, a bond with the said register of deeds, in an amount
equivalent to the value of the personal property involved as certified to under
oath by the parties concerned and conditioned upon the payment of any just
claim that may be filed under Section 4 of this rule. It shall be presumed that the
decedent left no debts if no creditor files a petition for letters of administration
within two (2) years after the death of the decedent. (Rule 74, Rules of Court)
 III.
Mortgage Contracts
Real Estate Mortgage

Mortgage is a contract whereby the debtor secures to the creditor the fulfillment of a
principal obligation, specially subjecting to such security immovable property or real
rights over immovable property which obligation shall be satisfied with the proceeds of
the sale of said property or rights in case the said obligation is not complied with at the
time stipulated.

Essential requisites to a contract of mortgage:

1. That they be constituted to secure the fulfillment of a principal
obligation;

(Art. 2. That the mortgagor be the absolute owner of the thing mortgaged;
2085,
Civil
3. That the persons constituting mortgage have the free disposal of their
property, and in the absence thereof, that they be legally authorized for the
purpose;
4. The instrument must be recorded in the Registry of Property. If the
instrument is not recorded, the mortgage is nevertheless binding between the
parties. (Art. 2125, Civil Code)

Note: Registration only operates as a notice of the mortgage to others but

neither adds to its validity nor convers an invalid mortgage into a valid one
between the parties. (Samanilla vs. Cajucom 107 Phil 432)

Hence, an order for foreclosure cannot be refused on the ground that the
mortgage had not been registered. (Mobil Philippines, Inc. vs. Diocares, 29
SCRA 656)

What is the remedy of the mortgage is not paid?

When the principal obligation becomes due, the things in which the mortgage consists
may be alienated for the payment to the creditor. (Art. 2087, Civil Code)

Effect of Mortgage
Article 2126. The mortgage directly and immediately subjects the property upon which
it is imposed, whoever the possessor may be, to the fulfillment of the obligation for
whose security it was constituted.

(1) Creates Real Right – a registered mortgage creates right in rem, a real right, a
lien inseparable from the property mortgaged, which is enforceable against the
whole world, affording specific security for the satisfaction of a debt.
(2) Creates merely an encumbrance – it is merely a security for a debt, an
encumbrance upon the property and does not extinguish the title of the debtor
who does not lose his principal attribute as owner, that is, the right to dispose.
Extent of Mortgage
Article 2127. The mortgage extends to the natural accessions, to the improvements,
growing fruits, and the rents or income not yet received when the obligation becomes
due, and to the amount of the indemnity granted or owing to the proprietor from the
insurers of the property mortgaged, or in virtue of expropriation for public use, with
the declarations, amplifications and limitations established by law, whether the
estate remains in the possession of the mortgagor, or it passes into the hands of a
third person.
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Chattel Mortgage

Chattel Mortgage is a conditional sale of personal property as security for the payment of a
debt, or the performance of some other obligation specified therein, the condition being that the
sale shall be void upon the seller paying to the purchaser a sum of money or doing some other
act named. If the condition is performed according to its terms the mortgage and sale
immediately become void, and the mortgagee is thereby divested of his title.

The subject matter of chattel mortgage must always be personal or movable property. (Art.
2140; Sec.2, Act. No. 1508)

Extent of Chattel Mortgage

“A chattel mortgage shall be deemed to cover only the property described therein and not like or
substituted property thereafter acquired by the mortgagor and placed in the same depositary as
the property originally mortgaged, anything in the mortgage to the contrary notwithstanding.”
(Sec. 7, par. 4 of Act No. 1508)

Affidavit of Good Faith

The affidavit of good faith is an oath in a contract of chattel mortgage wherein the parties
“severally swear that the mortgage is made for the purpose of securing the obligation specified in
the conditions thereof and for no other purposes and that the same is a just and valid obligation
and one not entered into for the purpose of fraud.

REGISTRATION

 Registration shall be done in the Register of Deeds where the mortgagor resides

 When  the  property  is  situated  somewhere  else,  it needs to be registered also in the
Register of Deeds of the area where the property is situated.

 Chattel  mortgage  would  not  be  valid  and  binding  as against third persons absent any
registration.

 If what is mortgaged is a car, registration with the LTO is also needed.   Absent this, 

again,  it  would  not  be  binding and invalid as against third persons.
 Deed of Release of Real Estate Mortgage

A deed of release literally releases the parties to a deal from previous obligations, such as
payments under the term of a mortgage because the loan has been paid off. The lender holds the
title to real property until the mortgage's terms have been satisfied when a deed of release is
commonly entered into.

BEFORE ME, a Notary Public, for and in the City

of Davao, this 30th day of August 2021 personally appeared:

IV.
Pre-Nuptial Agreements
Pre-Nuptial Agreement is an agreement between future husband and wife insofar as
the property relations that will govern their properties during the existence of their
marriage.
Requisites of a Pre-nuptial agreement:
Art. 75. The future spouses may, in the marriage settlements, agree
upon the regime of absolute community, conjugal partnership of gains,
complete separation of property, or any other regime. In the absence of a
marriage settlement, or when the regime agreed upon is void, the system of absolute
community of property as established in this Code shall govern. (Family Code of the
Philippines)
Art. 76. In order that any modification in the marriage settlements may
be valid, it must be made before the celebration of the marriage, subject to the
provisions of Articles 66, 67, 128, 135 and 136.
Art. 77. The marriage settlements and any modification thereof shall be
in writing, signed by the parties and executed before the celebration of the
marriage. They shall not prejudice third persons unless they are registered in the local
civil registry where the marriage contract is recorded as well as in the proper registries
of properties.
NOTE: Notarization in a prenuptial agreement is not a requirement for its validity, it
should be notarized for the purpose of registration. If the prenuptial agreement is not
registered, it will not prejudice third persons, and the absolute community regime will
apply as to them.

V.
Deed of Assignment of Credit
Assignment of credit is an agreement by virtue of which the owner of a credit, known
as the assignor, by a legal cause, such as sale, dation in payment, exchange or donation,
and without the need of the consent of the debtor, transfers his credit and its accessory
rights to another, known as the assignee, who acquires the power to enforce it to the
same extent as the assignor could have enforced it against the debtor.

Parts of a Deed of Assignment and Transfer of Rights

[1] Title of Deed. As implied above, deeds come in different forms and types. Check if
the document and the first section displays the title – Deed of Assignment and Transfer
of Rights. Conventionally, the first paragraph runs:
 KNOW ALL MEN BY THESE PRESENTS:
This deed, made and entered made and entered into this 13 rd day of January 2018 at
the City of Manila, by and between:
[2] Parties Involved. A Deed of Assignment and Transfer of Rights must contain
accurate information about the identities of the assigning and assigned parties. Other
information such as age legality, citizenship, and postal address must be included, just
as seen below:
Juan De la Cruz, Filipino citizen, of legal age, married to Josefina De la Cruz, and with
residence and postal address at 123 Kasiglahan Street, Karangalan Village, Dela Paz,
Pasig City, Philippines, hereinafter referred to as the “ASSIGNOR/TRANSFEROR”
—and—
Sebastian Maliksi, Filipino citizen, of legal age, single, and with residence and postal
address at 456 Kasimanwa Street, Karangalan Village, Dela Paz, Pasig City,
Philippines, hereinafter referred to as the “ASSIGNEE/TRANSFEREE”
[3] Contract Details. A Deed of Assignment and Transfer of Rights must contain a
detailed description of the contract, hence in the context here – St. Peter Traditional
Life Plan (St. Anne) contract and the Life Plan Agreement (LPA) Number:
WITNESSETH
WHEREAS, the ASSIGNOR/TRANSFEROR is the owner of life / memorial plan
contract which is identified as St. Peter Traditional Life Plan (St. Anne), with Life Plan
Agreement No. 123456;
[4] Contract Assignment and Transfer Agreement. As one of the most important
and critical parts, this specifies the terms and conditions of the agreement. See sample
below:
WHEREAS, for and in consideration of the value of the plan and out of
accommodation and assistance for the ASSIGNEE/TRANSFEREE, the
ASSIGNOR/TRANSFEROR is assigning and transferring all his/her rights and
interests over the Life Plan mentioned in the immediately preceding paragraph to the
ASSIGNEE/TRANSFEREE;
NOW, therefore for and in consideration of forgoing premises, the parties hereto have
agreed on the following terms and conditions, to wit;
THE ASSIGNOR/TRANSFEROR, hereby waives all his / her rights and interests in the
subject life plan in favor of the ASSIGNEE/TRANSFEREE. It is understood that when
the Life Plan is assigned / availed of, then all obligations of St. Peter Life Plan, Inc. are
fulfilled and discharged.
As a consequence of this assignment / transfer of rights, the
ASSIGNEE/TRANSFEREE hereby assumes all the obligations and accountabilities of
the ASSIGNOR/TRANSFEROR to St. Peter Life Plan, Inc. in connection with the life
plan contract which it issued to the latter.
The ASSIGNEE/TRANSFEREE obligates and / or undertakes to comply with and
abide by the requirements which St. Peter Life Plan Inc. may impose in connection
with the purchase, possession, and use of the said Life Plan particularly the
requirement that it should be fully paid before the memorial service could be availed of
pursuant to the Life Plan.
[5] Execution. Once the Deed of Assignment and Transfer of Rights is drafted, the
parties involved shall execute it by affixing their signatures. Other than the assigning
and assigned parties, witnesses should also sign all the pages of the document. In
addition, the deed shall be acknowledged and notarized by a legal practitioner.
IN WITNESS WHEREOF the parties have hereunto set their hands on the date and
place first above written.
[ Assignor/Transferor]                           [Assignee/Transferee]
SIGNED IN THE PRESENCE OF:
[Witness]                                                    [Witness]