An act whereby a person is permitted, with the

formalities prescribed by law to determine to a

certain extent the distribution of his estate to
take effect after his death
FROM A CONFLICT OF LAW PERSPECTIVE

An involuntary transfer of property

Because although the act of executing ones last will
and testament is a voluntary act, that in itself does
not transfer title.
It is only upon the death of the owner that the will
comes into effect and since death is involuntary,
making a will becomes an involuntary transfer of
property.

TESTAMENTARY with the

intervention of a Notary Public and
participation of attesting witnesses. Arts.
804 to 809
HOLOGRAPHIC entirely written, dated,
and signed by the hand of the testator
himself.

UNITARY/SINGLE SYSTEM
SPLIT/SCISSION SYSTEM

Only one law determines the

transmission of real and personal
properties
Adopted by the Philippines and other
countries following the NATIONALITY
THEORY.(Art. 16 New Civil Code)
The national law of the deceased governs
the transmission of both real/personal
properties, regardless of its nature &
country where they may be found.

Two laws determine the transmission of

real/personal properties:
Lex Situs
Domiciliary law

Adopted by England/US
LEX SITUS governs the succession to real
DOMICILIARY LAW-law of the domicile of
the deceased at the time of his death
governs the succession to personal
properties.

EXPRESSLY OR IMPLIEDLY
DURING HIS LIFETIME
PRINCIPLES OF DEPENDENT RELATIVE
REVOCATION

If the subsequent will is denied probate by

reason of its defective execution, the earlier
will may be entitled to probate if proved to be
duly and properly executed.

EXTRINSIC
INTRINSIC

-deals w/ forms & solemnities in the

making of wills
age
form of will (oral/written, public/private,
holographic/notarial, number of witnesses,
etc.)

Determined by the :

NATIONALITY RULE (LEX NATIONALII) of the

deceased(those who follow the nationality
theory)
EX. PHILIPPINES (Par. 2 Art. 16 NCC)

DOMICILIARY RULE (LEX DOMICILII) at the time

of death (those who follow the domiciliary
theory)

Deals with the substance of the wills:

Order of succession
Amount of successional rights

French word/REFER BACK/RETURN

Arises when there is doubt as to whether reference by

the lex fori (law of the place where the problem arises)
to the foreign law involves reference to the internal law
of the foreign law or to the entirety of the foreign law.
Ex. Non citizen/resident alien who died in the Phil.,
leaving an estate

Art. 16 (2nd par) Apply the national law of the deceased.

However, his own country provides that the law of domicile
should apply) See: Christensen vs. Christensen Garcia, 7 SCRA
95
In case of conflict between the nationality theory & domiciliary
theory, treat as RENVOI, hen the PHILIPPINE LAW can still be
applied even if the deceased was a citizen of another country

MAY A FILIPINO MAKES A WILL ABROAD?

YES. He may comply with the formalities:
NATIONALITY RULE/lex nationalii (Phil law) OR
LEX LOCI CELEBRATIONIS. (law of the country
where the will was executed)
BASIS:

ARTICLE 17 NCC-lex loci celebrationis

ARTICLE 815 NCC-lex loci celebrationis

Subject to no other form

May be made in or out of the Philippines
No witness needed

BEING A UNILATERAL & PURELY PERSONAL ACT

REVOCABLE AT ANY TIME BEFORE DEATH OF
TESTATOR
ANY WAIVER OR RESTRICTION OF THIS RIGHT IF
VOID
VALID- REVOCATION DONE OUTSIDE THE PHIL. BY
A PERSON WHO DOES NOT HAVE A DOMICILE IN
THE PHIL. (ART. 829):
When done according to:

The law of the place where the will was made (LEX
LOCI CELEBRATIONIS OR
The law of the place where the testator had his
domicile at that time (LEX DOMICILII)

By implication of law OR
By some will, codicil, or other writing,
executed as provided in the case of wills;
OR
By burning, tearing, cancelling, or
obliterating the will with the intention of
revoking it, by the testator himself, or by
some other persons in his presence, and
by his express direction

VALID:
If a person is domiciled in the Phil if made in
accordance with our law (LEX DOMICILII) or
LEX LOCI ACTUS (place where revocation was
made)
Person who does not have his domicile in the
Phil.
If done according to any of the ff:

LAW OF THE PLACE WHERE THE WILL WAS MADE

LAW OF THE PLACE IN WHICH THE TESTATOR

HAD HIS DOMICILE AT THE TIME

BASIS: ARTICLE 829

VALID if done in accordance with the

provisions of this Code

IF THE REVOCATION WAS VALID BY THE

LAWS OF THE STATE WHERE HE REVOKED
IT BUT INVALID BY THE LAWS OF THE
STATE OF DOMICILE AT THE TIME OF HIS
DEATH,
WHICH
CONTROLS
THE
SITUATION?
Common law countries apply the law of the
domicile at the time of the testators death,
not the law of the place of revocation
In the Philippines-applies the law of the place
of revocation.

YES, prior to the testators death.

His new will would also be allowable in
his petition
WHAT IF HE DIES BEFORE HE PRESENT
SUCH PETITION, the ordinary probate
proceeding after the testators death
would be in order.

PROHIBITED UNDER ART. 818, against public

policy. WHY?
Will is purely personal and unilateral act, & this is
defeated if 2 or more persons make their will in
the same instrument.
Contrary to the revocable character of will. If one
revokes it by burning, the other testator would
have no instrument left.
May expose a testator to undue influence and may
even tempt one of the testator to kill the other.

Whether executed by Filipinos in the

Philippines OR abroad.
VOID-If the foreign country allows it

NOT PROHIBITED IF THEIR NATIONAL

LAWS, OR DOMICILIARY LAW, OR UNDER
THE LEX LOCI CELEBRATIONIS DO NOT
PROHIBIT IT.
Hence, IF MADE BY ALIENS IN THE PHIL. IT
IS VOID AS AGAINST PUBLIC POLICY
HOWEVER, IF THE JOINT WILL IS
EXECUTED BY ALIEN & FILIPINO, IT IS
ALLOWED AS TO THE ALIEN BUT VOID AS
TO FILIPINO.

An adjudication that the last will and

testament of a person was executed with
all the formalities required by law.
It does not pass upon the validity of the
provision of the will but its authentication
concerning the capacity of the testator and
compliance with the requisites/solemnities
of law for its validity
MANDATORY-no will shall pass unless
proved (real/personal) and allowed in
accordance with the Rules of Court

LAW OF THE FORUM APPLIES

WHY? Allowance/Disallowance of will is
procedural
IMPRESCRIPTIBLE because it is
established for the protection of
testators expressed will in the disposition
of his properties

Principle of Res judicata applies with

respect to extrinsic validity
He is of sound mind when he executed the will
acting voluntarily, not under duress, menace,
fraud, or undue influence
Signed in the presence of required number of
witnesses
Will is genuine and not a forgery

Rule 77 Rules of court

Wills proved and allowed in foreign
country according to its laws may be
allowed, filed, and recorded by the proper
court in the Phil.

Executed and probated already in a foreign

country in accordance with its law
Foreign judgment does not have an
automatic extraterritorial effect, hence
need to ask for enforcement, not proving
the due execution of will again
Only with respect to the property of the
decedent in the Phil.
Although it does not accord with the
requirements for wills executed in the Phil.

Administration of his estate will require

the appointment of a domiciliary or
principal administrator and an ancillary
administrator to his properties abroad.
WHY?

The administrator in one country has no

power over the property in another country.
Same with probate court. Estate needs to be
separately settled in each country.

DUE EXECUTION OF WILL IN ACCORDANCE WITH

FOREIGN LAW
TESTATOR HAS HIS DOMICILE IN THE FOREIGN
COUNTRY/NOT IN THE PHIL.
ADMISSION OF WILL TO PROBATE IN SUCH
COUNTRY
FACT THAT THE FOREIGN TRIBUNAL IS A
PROBATE COURT
LAWS OF FOREIGN COUNTRY ON PROBATE AND
ALLOWANCE OF WILL

Courts cannot take judicial notice

Absence of proof as to probate law and
procedure of foreign country, presumed
to be similar in the Phil.
Effect: validity of foreign will may have
to be decided in accordance with Phil.
laws

PHILIPPINES
IF
FROM
DOMESTIC
CORPORATION, even if the certificates of
stock are held by a foreigner domiciled in
another country.
CASE:
TAYAG
vs.
BENGUET
CONSOLIDATED, INC. G.R. No. L-23145

American who died in New York, leaving

properties in the US and Phil, in the form
of shares of stocks in a domestic
corporation.
Trial court in the Phil. Ordered the
domiciliary administrator to surrender the
cert of stock of decedent in the domestic
corp./considered the certificates lost and
required to issue new certificates

Where anon-resident decedent dies in the

country of his domicile, leaving properties
also in the Phil., his estate is settled in
both countries
Appointment of principal or domiciliary
administrator/ancillary administrator
Domiciliary administrator cannot
frustrate the settlement of estate in the
Phil.

STATE IS THE LAST HEIR OF A DECEASED

PERSON.
STATE SUCCEEDS TO THE PROPERTIES
LEFT AS HEIR.