Philippine inheritance and foreign wills

by | Mar 6, 2018 | Estate Law, Wills & Inheritance

A keyring with three keys symbolizing an inheritance.

Some things to think about in a cross country inheritance.

The interplay of Philippine and foreign laws with regard to inheritance deserves more attention.

What follows are introductory considerations for estate or succession cases involving both Philippine and foreign elements.

How do people inherit property in the Philippines?

Inheritance can be testate, intestate, or mixed.

Inheritance is testate if it occurs through a valid will.

A house to symbolize inheritance and succession.

An inheritance can be testate, intestate or mixed.

Inheritance is intestate if:

(1) A person dies without a will, or with an invalid will, or one which has subsequently lost its validity;

(2) When the will does not institute an heir to or dispose of all the property of the testator. In this case, legal succession shall take place only with respect to the property not disposed;

(3) If a condition for an heir does not happen or is not fulfilled, or if the heir dies before the testator, or repudiates the inheritance without a substitute stepping into the heir’s place;

(4) When the heir is disqualified from inheriting.[1]

Inheritance is mixed if only part of the property has been disposed of in a will. In this case, the rules of legal or intestate succession shall be applied with regard to those properties not disposed of.

How is the property divided if there is no will?

In the absence of testamentary heirs, the law vests inheritance in the legitimate and illegitimate relatives of the deceased, in the surviving spouse, and in the State.[2]

Inheritances such as farm land are divided according to guidelines in Philippine law.

The law provides guidelines for how property is divided if there is no will.

The shares of these heirs are allotted by default according to the portions set by the Civil Code of the Philippines.

What is a last will and testament?

A will is an act by which a person is permitted, after following the formalities prescribed by law, to control to a certain degree the disposition of this estate, to take effect after his death.[3]

In the Philippines, a valid will must always be in written form. The will must be either signed and witnessed before a notary or be entirely handwritten and signed by the testator.

A hand written will by the testator or one written and notarized is required for a will to be valid.

A valid will has several conditions.

Testate inheritance is not considered a natural right.[4] Rather, it is a right granted by law. For this reason, the exercise of this right is subject to the conditions set by law.

One of those conditions is that the will must be probated for it to have legal effect.

What is probate?

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

Before any will can have force or validity, it must be probated in court. To probate a will means to prove to the court that the document offered really is the last will and testament of the testator.

Gavel on top of law books to symbolize the court process of probate.

Probate is a court hearing confirming a will is valid.

The presentation of the will for probate is mandatory and is a matter of public policy. It must be proven that the will was executed, attested, and has been published as required by law, and that the testator was of sound and disposing mind.[5]

Can a will be the basis for transferring ownership of property before probate?

Paper cut outs of furniture and personal effect laid out on a wooden desk to show property to be distributed before probate.

Probate is required before any property can be distributed.

No. Until admitted to probate, a will has no effect whatever and no right can be claimed under it. No will shall pass either real or personal property unless it is first proved and allowed in accordance with the Rules of Court.[6]

How is probate initiated?

A petition for probate should be filed with a Regional Trial Court. If the deceased was an inhabitant of the Philippines at the time of his death, it should be the RTC of the city/province where he resided at the time of his death. If the deceased was an inhabitant of a foreign country, the RTC of any city/province in which he had estate.

The entrance to a house which is a likely part of an estate's inventory.

Include an inventory of property in your petition to the court.

A petition for the allowance of a will must show, so far as known to the petitioner:

a The jurisdictional facts;

b The names, ages, and residences of the heirs, legatees, and devisees of the testator or decedent;

c The probable value and character of the property of the estate;

d The name of the person for whom letters are prayed;

e If the will has not been delivered to the court, the name of the person having custody of it.

The court shall calendar the probate for hearing so that all concerned may appear to contest the allowance of the will. Notice of the time and place of the hearing will be published in a local newspaper for three (3) weeks prior to the hearing date.

A coffee cup over a newspaper to indicate that publication in a newspaper is one of the requirements of probate.

You’ll need to publish the hearing’s time and date 3 weeks before.

(But no newspaper publication need be made where the petition for probate has been filed by the testator himself while still alive.)

The court shall also cause copies of the notice of the hearing to be sent to the designated or other known heirs, legatees, and devisees of the testator resident in the Philippines at least twenty (20) days before the hearing. Personal service of copies of the notice at least (10) days before the day of hearing shall be equivalent to mailing.

(But if the testator filed for the probate of his own will, notice shall be sent only to his compulsory heirs.)

What are the grounds for disallowing a will?

A signature on a will must be one created without trickery.

A valid signature is required.

The will shall be disallowed:

a If not executed and attested as required by law;

b If the testator was insane, or otherwise mentally incapable to make a will, at the time of its execution;

c If it was executed under duress, or the influence of fear, or threats;

d If it was procured by undue and improper pressure and influence, on the part of the beneficiary, or of some other person for his benefit;

e If the signature of the testator was procured by fraud or trick, and he did not intend that the instrument should be his will at the time of fixing his signature thereto.

Can a foreign will be given effect in the Philippines?

A foreign will can be given legal effect here. This requires proving in court that the will was made in accordance with the formalities and law of the place where the testator resided or those of his country.[7]

Additionally, a foreign will can be directly submitted for probate in a Philippine court. It does not need to be first probated in the foreign country.

A rule to the contrary would be fraught with impracticality.

Does a last will and testament executed abroad need to first be proved at the foreign court before it can be given effect in the Philippines?

A foreign will need to be taken to a Philippine court for it to have effect in the Philippines.

Yes, a foreign will can have effect in the Philippines and it can be submitted directly to a Philippine court for probate.

If the instituted heirs do not have the means to go abroad for the probate of the will, it is as good as depriving them outright of their inheritance, since our law requires that no will shall pass either real or personal property unless the will has been proved and allowed by the proper court.[8]

However, the foreign probate of a will can also be given recognition and effect and in the Philippines.[9] This is called reprobate. In reprobate, the local court acknowledges as binding the findings of the foreign probate court provided its jurisdiction over the matter can be established.[10]

Which country’s law will govern the estate of a deceased foreigner?

What if a foreigner dies leaving property in the Philippines?

The foreign citizen’s national law governs both intestate and testate succession. This is with respect to the order of succession, and also as to the amount of successional rights, as well as the intrinsic validity of the testamentary provisions.

Texas court cases as an example of foreign law that may govern the estate of a foreigner.

A foreigner’s law will determine how his estate is divided.

This means that who gets to inherit, in what order, and how much, as well as the legality of the provisions of the will, are all referred by the Philippine court to the national law of the foreigner.

Article 16 of the Civil Code provides:

Several necklaces and small pieces of jewelry symbolizing the personal property of an estate.

For all items in an estate – even jewelry – the foreign law on inheritance governs.

Article 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.

This provision is reinforced by Article 1039:

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

The estate of the foreign decedent or testator will be governed by his national law. For this reason, dissatisfied heirs of a foreign citizen generally cannot assail a will or its provisions for being violative of Philippine law.

Different national flags to illustrate different national laws on succession.

A foreigner’s estate will reference his national law.

The Philippine system of legitime (the legitime is that part of the testator’s estate which the law reserves to certain heirs) was not intended by Congress to extend to the succession of foreign nationals.[11]

Which court will give effect to or enforce the foreign law in the Philippines?

This is where it gets tricky. It is still a Philippine court which has to rule on these issues even though foreign laws on inheritance will be referred to.

But a Philippine court cannot be expected to know foreign laws.

An American courtroom as an example of a foreign court.

It is the Philippine court and not the foreign court that will give effect to a foreigner’s will.

For this reason, the foreign law in question will need to be properly submitted in evidence at the Philippine court case. Otherwise, it cannot be given effect.[12]

Proving a foreign law for purposes of enforcement by a Philippine court can be an arcane process which requires a lawyer to be versed in its particular complications.

 

Atty. Francesco C. Britanico

References

[1] Article 960 of the Civil Code
[2] Article 961 of the Civil Code
[3] Article 783 of the Civil Code
[4] Nuguid vs. Nuguid, G.R. No. L-23445, June 23, 1966
[5] Heirs of Lasam vs. Umengan, G.R. No. 168156, December 6, 2006 citing Tolentino, III Civil Code of the Philippines, p. 151.
[6] Heirs of Lasam vs. Umengan, G.R. No. 168156, December 6, 2006 citing Article 838 of the Civil Code.
[7] In re: In the matter of the Petition to approve the will of Ruperta Palaganas with prayer for the appointment of special administrator, Manuel Miguel Palaganas and Benjamin Gregorio Palaganas, G.R. No. 169144, January 26, 2011, citing Article 816 of the Civil Code.
[8] In re: In the matter of the Petition to approve the will of Ruperta Palaganas with prayer for the appointment of special administrator, Manuel Miguel Palaganas and Benjamin Gregorio Palaganas, G.R. No. 169144, January 26, 2011, citing Article 816 of the Civil Code.
[9] Rule 77
[10] In re: In the matter of the Petition to approve the will of Ruperta Palaganas with prayer for the appointment of special administrator, Manuel Miguel Palaganas and Benjamin Gregorio Palaganas, G.R. No. 169144, January 26, 2011
[11] Ancheta vs. Guersey-Dalaygon, G.R. No. 139868, June 8, 2006, citing Bellis vs. Bellis, 126 Phil. 726 (1967).
[12] Noveras vs. Noveras, G.R. No. 188289, August 20, 2014, citing EDI-Staffbuilders International, Inc. vs. NLRC, G.R. No. 145587, October 26, 2007

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