LEGAL OPINION IN RE: ESTATE OF JOSE

DELA CRUZ

December 14, 2016

Mrs. Myrna dela Cruz

18 Real Street
Canada, United States of America

Dear Mrs. dela Cruz,

Here is the opinion you requested. The facts gathered from you are as
follows:

You and your husband, Mr. Jose dela Cruz are formerly Filipino citizens
who are now residing in Canada. You migrated from Philippines to Canada last
June 1980 together with your children Jose Jr., Carmel and Marie who were
minors in 1980. Your children automatically acquired Canadian citizenship
upon the grant of the State of Canada of Canadian Citizenship with you as
parents.

In 2011, your husband executed a Last Will and Testament designating

you as his sole heir and executor. The will stated that you are to own all of
Joses properties whether situated in Canada or in the Philippines. In 2012, your
husband died and the will was probated and approved by the courts in Canada.
 It turns out that your husband during his lifetime 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 comprise all the heirs pursuant to
Philippine laws.

ISSUE

The issue here is clear: whether or not your children have the right to Judicially
Partition the property situated in Tarlac.

ARGUMENTS/LEGAL BASES

In my opinion, the right of your children to Judicially Partition the land

situated in Tarlac would depend on the law in Canada, in which your husband is
a national at the time of his death, pertaining to Testate Succession.

First, it is clearly established that when your husband died, he is a citizen of

Canada. The law in Canada would apply as to the succession of his estate.

Art. 16 of the Civil Code of the Philippines provides:

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 successional rights are under consideration, whatever may be the nature
of the property and regardless of the country wherein said property may be
found.

Second, when your husband executed his Last and Will and Testament, he
made you as the sole heir and executor of all his properties whether situated in
Canada or in the Philippines. The time when your husband died, his will was
validly probated and approved by the courts in Canada.

The issue on whether or not your children can inherit from the estate of
your husband would depend on the law in Canada. The Supreme Court ruled in
the case of Maciano vs Brino, that the law that would govern the disposition of
the property of the decedent is the law of the State of which he is a national at
the time of his death.
 Applying the same law and the case decided by the Supreme Court
mentioned above, the law that should govern the testamentary succession with
respect to your husbands estate is the law in Canada. Since the will was
probated and accepted in the courts in Canada, it follows that your designation
as the sole heir of his properties whether situated in Canada or in the Philippines
is perfectly valid.

Lastly, in order for you to validly acquire the land located in Tarlac and at the
same time prove that your children do not have the right to inherit said land, it is
incumbent upon you to prove the law in Canada pertaining to successional
rights of heirs, if any, and to reprobate the will here in the Philippines and
provide pieces of evidence to allow such will.

Sec. 1, Rule 77 of the Rules of Court provides:

Wills proved and allowed in a foreign country, according to the laws of such
country, may be allowed, filed and recorded by the proper Municipal/Regional
Trial Court in the Philippines.

In the case of Justice Quiason Vda. de Perez vs Tolete, the Supreme Court ruled
that the evidence necessary for the reprobate or allowance of will which have
been probated outside of the Philippines are as follows:

1. The due execution of the will in accordance with foreign laws;

2. The testator has his domicile in the foreign country and not in the
Philippines;
3. The will has been admitted to probate in such country;
4. The fact that the foreign tribunal is a probate court; and
5. The laws of the foreign country in procedure and allowance of wills.

The Supreme Court further explained that the necessity of presenting

evidence on the foreign law upon which the probate in the foreign country is
based, is impelled by the fact that the courts of the Philippines cannot take
judicial notice of them.

RECOMMENDATION

To summarize the possible defenses in your case, I recommend that we

must prove two things:

First, we must present the law in Canada if it recognizes compulsory

heirs, because if it does not, then your children do not have the right to partition
the property. Lastly, we must reprobate the will here in the Philippines in order
for you to validly acquire the land located in Tarlac.

Respectfully yours,

Atty. Albert Cyr P. Bitangjol