Wills and Succession

Article 816 EXAMPLES

Situation 1: A Japanese resides in Indonesia. On his way to the Philippines, he makes a stop-over in Malaysia, where he made his will. What law should be followed in making the will?
Answer: In making the will, he may follow the laws of the following countries:

1. Indonesia (the place of residence)
2. Japan (his country)
3. Philippines (as provided by Civil Code)
4. Malaysia (under the doctrine of lex loci celebrationis)

Situation 2: The Japanese wants to revoke the will. What law should be followed in revoking the will?
Answer: In revoking the will, he may follow the laws of the following countries:

1. Malaysia (where the will was made)
2. Indonesia (where he resides)
3. Philippines (if the revocation is made in the Philippines)

NOTE: The Civil Code does not mention that the revocation may be done according to the law of the testator's country (in this case, Japan).

Probate - the act of proving before a competent court, the due execution of a will by a person possessed of testamentary capacity, as well as approval thereof by said court.

2 Kinds of Probate:

1. Ante-Mortem (initiated by the testator himself, during his lifetime)
   
2. Post-Mortem (after the testator's death)

Interested party - one who would be benefited by the estate
Distribution - the division, by order of the court having authority, among those entitled thereto, of the estate of a person, after the payment of debts and charges

When may a final judgment on a probate be set aside?

• By Petition for Relief brought within the legal period (on the ground of FAME). Legal period: (a) 60 days from receipt or notice of final order; or (b) 6 months from entry of order
• Should the period lapse, the judgment now really becomes FINALLY FINAL

Generally, a probate court has no jurisdiction to decide questions of ownership, except:

1. When the parties voluntarily submit this matter to the court
2. When provisionally, the ownership is passed upon to determine whether or not the property involved is part of the estate

Grounds for disallowance (ARt 839):

1. defective formalities
2. insanity at the time of execution
3. force, duress, fear or threat
4. undue and improper pressure and influence
5. fraud and forgery
6. mistake or lack of testamentary intent in so far as the document is concerned

Distinctions between revocation and disallowance:

1. Revocation is a voluntary act made by the testator while disallowance is given by a judicial order.
2. Revocation may be made by the testator with or without any cause while disallowance must always be for a legal cause.
3. Revocation may be partial or total while disallowance is always total except in cases of fraud and undue influence.

Institution of heir - an act whereby the testator designates in his will the person or persons who are to succeed him in his property and transmissible rights and obligations

Requisites for a valid institution:

1. the will must be extrinsically valid (valid as to form)
   
2. the institution must be intrinsically valid
3. the institution must be effective

"unknown person" - one who is known by the testator but cannot be identified from the will (Dean made us distinguish between an unknown person and an unidentified person... Nosebleed!)

Preterition - (or pretermission) is the omission, whether intentional or not, of a compulsory heir in the inheritance of a person. Requisites:

1. there is a TOTAL omission in the inheritance
2. the one omitted must be a compulsory heir
3. the compulsory heir omitted must be in the direct line

Distinguish Art. 848 from Art 1006:

1. Article 848 refers to testamentary succession while Art. 1006 refers to interstate succession.
2. In Art. 848, brothers and sisters of full or half blood shall receive equally, when the inheritance instituted does not specify the shares to be given.
3. In Art. 1006, brothers and sisters of full-blood will receive double the share of half-blood. (Remember, 1006 applies to intestate succession).