December 31, 2016

MRS. MYRNA DELA CRUZ,

CANADA

DEAR MRS. DELA CRUZ,

This legal opinion seeks to address your question regarding your rights and
liabilities involved in the suit for judicial partition filed by your children Jose Jr.,
Carmel and Marie over a parcel of land and other several properties left by your
deceased husband Jose Dela Cruz located in Tarlac.

FACTS:
You and your husband Jose dela Cruz are formerly Filipino citizens now residing in
Canada. You and your husband migrated to Canada from the Philippines last June
1980 together with your children Jose Jr., Carmel and Marie who were then minors in
1980. The children automatically acquired Canadian citizenship upon the grant of
the State of Canada of Canadian Citizenship to their parents.
In 2011, Jose dela Cruz, executed a Last Will and Testament designating you as his
sole heir and executor. The will stated that she is to own all of Joses properties
whether situated in Canada or in Philippines. In 2012, Jose deal Cruz died and the
will was probated and approved by the courts in Canada.
However, during his lifetime, your husband inherited 40 hectares of land in Tarlac.
In 2013, your children, Jose Jr., Carmel and Marie all filed a Judicial Partition before
the courts of Tarlac with you as Defendant. They prayed that the property be
divided into four parts to compromise all the heirs pursuant to Philippine laws.

LAWS APPLICABLE:
There are several applicable laws, namely:
1.

The 1987 Constitution

Article XII on National Economy and Patrimony:

Section 7. Save in cases of hereditary succession, no private lands shall be
transferred or conveyed except to individuals, corporations, or associations qualified
to acquire or hold lands of the public domain.

Section 8. 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.
2.

The New Civil Code of the Philippines

Article 16. Real property as well as personal property is subject to the law of the
country where it is stipulated.
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.
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.
When the acts referred to are executed before the diplomatic or consular officials of
the Republic of the Philippines in a foreign country, the solemnities established by
Philippine laws shall be observed in their execution.
Prohibitive laws concerning persons, their acts or property, and those which have
for their object 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.
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 838. No will shall pass either real or personal property unless it is proved
and allowed in accordance with the Rules of Court.
The testator himself may, during his lifetime, petition the court having jurisdiction
for the allowance of his will. In such case, the pertinent provisions of the Rules of
Court for the allowance of wills after the testator's a death shall govern.
The Supreme Court shall formulate such additional Rules of Court as may be
necessary for the allowance of wills on petition of the testator.
Subject to the right of appeal, the allowance of the will, either during the lifetime of
the testator or after his death, shall be conclusive as to its due execution.

Article 886. Legitime is that part of the testator's property which he cannot dispose
of because the law has reserved it for certain heirs who are, therefore, called
compulsory heirs.
Article 887. The following are compulsory heirs:
(1) Legitimate children and descendants, with respect to their legitimate parents
and ascendants;
(2) In default of the foregoing, legitimate parents and ascendants, with respect to
their legitimate children and descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural children by legal fiction;
(5) Other illegitimate children referred to in article 287.
Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by those in Nos. 1
and 2; neither do they exclude one another.
In all cases of illegitimate children, their filiation must be duly proved.
The father or mother of illegitimate children of the three classes mentioned, shall
inherit from them in the manner and to the extent established by this Code.
Article 888. The legitime of legitimate children and descendants consists of onehalf of the hereditary estate of the father and of the mother.
The latter may freely dispose of the remaining half, subject to the rights of
illegitimate children and of the surviving spouse as hereinafter provided.
Article 892. If only one legitimate child or descendant of the deceased survives,
the widow or widower shall be entitled to one-fourth of the hereditary estate. In
case of a legal separation, the surviving spouse may inherit if it was the deceased
who had given cause for the same.
If there are two or more legitimate children or descendants, the surviving spouse
shall be entitled to a portion equal to the legitime of each of the legitimate children
or descendants.
In both cases, the legitime of the surviving spouse shall be taken from the portion
that can be freely disposed of by the testator.
Article 904. The testator cannot deprive his compulsory heirs of their legitime,
except in cases expressly specified by law.
Neither can he impose upon the same any burden, encumbrance, condition, or
substitution of any kind whatsoever.

Article 960. Legal or intestate succession takes place:

(1) If a person dies without a will, or with a void 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
belonging to the testator. In such case, legal succession shall take place only with
respect to the property of which the testator has not disposed;
(3) If the suspensive condition attached to the institution of heir does not happen or
is not fulfilled, or if the heir dies before the testator, or repudiates the inheritance,
there being no substitution, and no right of accretion takes place;
(4) When the heir instituted is incapable of succeeding, except in cases provided in
this Code.
Article 961. In default of testamentary heirs, the law vests the inheritance, in
accordance with the rules hereinafter set forth, in the legitimate and illegitimate
relatives of the deceased, in the surviving spouse, and in the State.
Article 979. Legitimate children and their descendants succeed the parents and
other ascendants, without distinction as to sex or age, and even if they should come
from different marriages.
An adopted child succeeds to the property of the adopting parents in the same
manner as a legitimate child.
Article 980. The children of the deceased shall always inherit from him in their own
right, dividing the inheritance in equal shares.
Article 996. If a widow or widower and legitimate children or descendants are left,
the surviving spouse has in the succession the same share as that of each of the
children.
Article 1039. Capacity to succeed is governed by the law of the nation of the
decedent.
1997 Rules of Court
Rule 77. Allowance of Will Proved Outside of Philippines and Administration of Estate
Thereunder
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.
Section 2. Notice of hearing for allowance. When a copy of such will and of the
order or decree of the allowance thereof, both duly authenticated, are filed with a

petition for allowance in the Philippines, by the executor or other person interested,
in the court having jurisdiction, such court shall fix a time and place for the hearing,
and cause notice thereof to be given as in case of an original will presented for
allowance.
Section 3. When will allowed, and effect thereof. If it appears at the hearing
that the will should be allowed in the Philippines, the 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 proves and allowed
in such court.
Section 4. Estate, how administered. 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; and 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.
OWNERSHIP OF PRIVATE LANDS
The capacity to acquire private land is made dependent upon the capacity to
acquire or hold lands of the public domain. Private land may be transferred or
conveyed only to individuals or entities qualified to acquire or hold lands of public
domain. Therefore, aliens are disqualified from acquiring or in any way holding
lands of the public domain. Moreover, the time to determine whether the person
acquiring land is qualified is the time the right to own it is acquired. On the other
hand, Section 7 contains an exception: aliens may acquire private land in cases of
hereditary succession. In the case of Ramirez v. Vda. De Ramirez, the court had
occasion to say that We are of the opinion that the constitutional provision does
not extend to testamentary succession for otherwise the provision will be for naught
and meaningless.1
Qualification of Jose
Therefore, the capacity of Jose dela Cruz to inherit the Tarlac property will depend
on whether he is qualified at the time he inherited such. If he acquired the land prior
to 1980 when he was still a citizen of the Philippines, then he is qualified. If he
acquired the land after his naturalization as a Canadian citizen, he is qualified as an
alien but only thru intestate succession.
Your qualification
1 111 SCRA 704, 714 (February 15, 1992)

At the time of Joses death, you were already a naturalized Canadian citizen. By the
express provision of the Constitution, private lands may be acquired by aliens only
by legal succession.
Thus, the will of Jose bequeathing all his properties including his properties in the
Philippines to you as his sole heir cannot be given effect with respect to the
property in Tarlac.

LAW ON SUCCESSION
If based on the premises mentioned above, Jose is qualified to inherit the
Tarlac property, then the next issue is whether the last will and testament of Jose is
extrinsically and intrinsically valid.
Extrinsic validity
Art. 838 of the Civil Code states that no will shall pass either real or personal
property unless it is proved in accordance with the Rules of Court. This is the
proceeding called probate. The probate of a will may be defined as a special
proceeding for establishing the validity of the will. It may also be defiend as a
special proceeding for the purpose of proving that the instrument offered for
probate is the last will and testament of the testator, that it has been executed in
accordance with the formalities prescribed by law, and that the testator had the
necessary testamentary capacity at the time of the execution of the will. In one
case, the Supreme Court enumerated the questions determinable during probate as
follows:
a. Whether or not the instrument which is offered for probate is the last will and
testament of the decedent, in other words, the question is one of identity.
b. Whether or not the will has been executed in accordance with the formalities
prescribed by law; in other words, the question is one of due execution.
c. Whether the testator had testamentary capacity at the time of exectution; in
other words, the question is one of capacity. 2
As a 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 Civil 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. However, in case where the testator or the person
who made the will is an alien, Art. 816 of the Civil Code applies. If the testator is
an alien, and he executes a will outside of the Philippines, the laws which govern
shall either be
2 Castaneda vs. Alemany, 3 Phil. 427; Palacios v. Palacios 106 Phil. 739; Nuguid vs.
Nuguid, G.R. No. L- 23445,June 23, 1966