May two wills executed abroad be probated in a single proceeding in the Philippines?
Yes. “What the law prohibits is the making of joint wills either for the testator’s reciprocal benefit or for the benefit of a third person (Civil Code of the Philippines, Articel818). In the case at bench, the Cunanan spouses executed separate wills. Since the two wills contain essentially the same provision and pertain to property which in all probability are conjugal in nature, practical considerations dictate their joint probate. As this Court has held in a number of times, it will always strive to settle the entire controversy in a single proceeding leaving no root or branch to bear the seeds of future litigation (Motumull v. Dela Paz, 187 SCRA 743 [1990])[1]
“Evidence necessary for the reprobate or allowance of wills which have been probated outside of the Philippines are as follows: (1) the due execution of the will in accordance with the 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 on procedure and allowance of wills (III Moran Commentaries on the Rules of Court, 1970 ed., pp. 4129-429, Suntay v. Suntay, 95 Phil. 500 [1954]); Fulemer v. Hix, 54 Phil. 610 [1940])”[2]
What law governs the extrinsic validity of a will executed by an alien in the Philippines?
The extrinsic validity of a will may be proved either in accordance with the alien’s law or under Philippine law.[3]
“Article 816 covers a situation where the decedent was abroad when the will was executed. It provides that the will can be submitted for probate here in the Philippines, using either the law where the decedent resides or our own law. Article 816 of the Civil Code clearly made our own law applicable, as seen with the phrase “in conformity with those which this Code provides.”
On the other hand, Article 817 states:
ARTICLE 817. A will made in the Philippines by a citizen or subject of another country, which is executed in accordance with the law of the country of which he is a citizen or subject, and which might be proved and allowed by the law of his own country, shall have the same effect as if executed according to the laws of the Philippines.
Article 817 provides that a will by an alien executed in the Philippines shall be treated as if it were executed according to Philippine laws, if it was validly executed and accordingly could have been probated under the laws of the alien’s country of nationality.
Further, Article 817 does not exclude the participation of Philippine courts in the probate of an alien’s will, especially when the will passes real property in the Philippines. It provides an option to the heirs or the executor: to use Philippine law, or plead and prove foreign law. Thus, it does not remove jurisdiction from the Philippine court.
This option is clear from the clause “which might be proved and allowed by the law of his own country,” which implies that either the alien’s national law or Philippine law applies in the probate proceedings. Additionally, the clause “shall have the same effect as if executed in accordance with the laws of the Philippines” creates a fiction that foreign law if proven will have the same effect as Philippine law.
Clearly, as to the extrinsic validity of an alien’s will, Articles 816 and 817 of the Civil Code both allow the application of Philippine law.
The power of our courts to probate a will executed by an alien is likewise apparent in Rule 73, Section 1 of the Rules of Special Proceedings, which provides that if the decedent is an inhabitant of a foreign country, their will may be proved in the Regional Trial Court of any province in which they had an estate:
SECTION 1. Where estate of deceased persons settled. — If the decedent is an inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of administration granted, and his estate settled, in the Court of First Instance in the province in which he resides at the time of his death, and if he is an inhabitant of a foreign country, the Court of First Instance of any province in which he had estate. The court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a court, so far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record.”
What governs the instrinsic validity of the will?
Cayetano v. Hon. Leonidas, G.R. No. L-54191, May 30, 1984
“It is a settled rule that as regards the intrinsic validity of the provisions of the will, as provided for by Article 16(2) and 1039 of the Civil Code, the national law of the decedent must apply. This was squarely applied in the case of Bellis v. Bellis (20 SCRA 358) wherein we ruled:
It is therefore evident that whatever public policy or good customs may be involved in our system of legitimes, Congress has not intended to extend the same to the succession of foreign nationals.ℒαwρhi৷ For it has specifically chosen to leave, inter alia, the amount of successional rights, to the decedent’s national law. Specific provisions must prevail over general ones.
x x x x x x x x x
The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and under the law of Texas, there are no forced heirs or legitimes. Accordingly, since the intrinsic validity of the provision of the will and the amount of successional rights are to be determined under Texas law, the Philippine Law on legitimes cannot be applied to the testacy of Amos G. Bellis.
What happens if the foreign law on will is not properly pleaded and alleged in the reprobate of a will executed by a foreign national?
“The Philippines does not take judicial notice of foreign laws, hence, they must not only be alleged; they must be proven.ℒαwρhi৷ To prove a foreign law, the party invoking it must present a copy thereof and comply with Sections 24 and 25 of Rule 132 of the Revised Rules of Court[.]23 x x x; (Emphases supplied.)
Hence, this Court applies Philippine laws in determining whether the will should have been considered for probate. Our laws define a will as an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his death.24 The object of solemnities surrounding the execution of wills is to close the door on bad faith and fraud, to avoid substitution of wills and testaments and to guarantee their truth and authenticity.25
A will may either be holographic or notarial. A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in, or out of the Philippines, and need not be witnessed.26 In contrast, a notarial will must comply with solemnities including attestation, subscription and acknowledgment. The attestation refers to the act of three or more witnesses themselves who certify to the execution of the will before them, and to the manner of its execution.27 The acknowledgment is the act of the one who executed the will in going to a competent officer and declaring that the will is [his/her] act or deed.28 The subscribing or attesting witnesses are likewise required to acknowledge the will before the notary public. These requirements are indispensable for the validity of the will.29 Apropos are Art. 805 and Art. 806 of the Civil Code, to wit:
ART. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator’s name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin. and all the pages shall be numbered correlatively in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them.
ART. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court.”[4]
[1]Vda de. Perez v. Hon. Tolete, G.R. No. 76714, June 2, 1994
[2] Vda de. Perez v. Hon. Tolete, G.R. No. 76714, June 2, 1994
[3] In The Matter of The Petition To Approve The Will of Luz Gaspe Lipson and Issuance of Letters Testamentary, Gaspu vs. Hon., Pacis-Trinidad, G.R. No. 229101, November 23, 2010
[4] In The Matter of the Testate Estate of Aida A. Bambao, Linda A. Kucscar, petitioner, vs. Cosme B. Sekito, Jr., respondent, G.R. No. 237449, December 2, 2020