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Conflicts of Law:

Rules on Property and


Succession

By

Alfar, Shaneen Ray Manla


Batocail, Hazel Joy Virador
Closas, Robert Jones Hondanero
Pulvera, Seymour Binanay
Tan, Charles Jason Gonzaga
Tinsay, Jeorgia Marie Te
Torayno, Marc Van Andrew
Villones, Hanzel Uy
Yap, Roselle Verdadero

College of Law
Xavier University Ateneo de Cagayan
Cagayan de Oro City, Philippines

25 August 2016
Table of Contents
PART I: PROPERTY .....................................................3
Introduction ................................................................................ 3
Chapter 1: Real Property ............................................................. 4
Lex Situs: General Conflicts Rule on Real Property ....................... 4
Exceptions to Lex Situs on Real Property ....................................... 5
Chapter 2: Tangible Personal Property ......................................... 6
Choses in Action or Possession ..................................................... 6
Mobilia Senquntuur Personam: Discussion of Old Rule ................. 7
Lex Situs: General Conflicts Rule on Personal Property ................. 7
Exceptions to Lex Situs on Personal Property ................................ 8
Special Rules for Some Choses in Possession ............................... 8
Special Rule: Means of Transportation .......................................... 8
Special Rule: Thing in Transitu. ..................................................... 9
Chapter 3: Intangible Personal Property ...................................... 9
Administration of Debts ............................................................... 10
Negotiable Instruments ................................................................ 11
Corporate Shares of Stock ........................................................... 11
Franchise and Goodwill ............................................................... 12
Intellectual Properties .................................................................. 12
PART II: SUCCESSION................................................ 13
Introduction .............................................................................. 13
Chapter 1: Validity of the Will ................................................... 13
Conflict Rules on Extrinsic Validity .............................................. 14
Conflict Rules on Joint Wills ........................................................ 14
Conflict Rules on Intrinsic Validity ............................................... 15
Chapter 2: Revocation of Wills ................................................... 16
Chapter 3: Probate of Wills ........................................................ 17
Chapter 4: Administration of Estates ......................................... 17
General Rules on Administration of Estates ................................ 18
Conflict Rules on the distribution of residue ................................ 19
CONCLUSION ............................................................. 20
BIBLIOGRAPHY.......................................................... 21

2
Part I: Property

Introduction
With the globalization of the Philippine economy, Filipinos are
increasingly susceptible to at least one foreign element in their civil
or business transactions. Most, if not all, of these transactions
concern property of some form, whether it be land acquired by
succession, goods exported to other countries, or assignment of
patents and copyrights. Upon dispute as to which law governs in
transactions with foreign elements concerning property, Conflict of
Law rules applies.
Property, according to Philippine law, is generally defined as any
object susceptible of appropriation. New Civil Code enumerates two
kinds of property, namely real property and personal property, and
the latter may be further subdivided into tangible real property and
intangible real property. Cases involving property in the Philippines
are governed by the New Civil Code for substantive law, and the
Revised Rules of Court for procedural law. Choice of law rules would
depend on the character of the property, whether it be real or
immovable property or movable or personal property.
Elementary requisites before a court may proceed with any case,
whether conflict of law or not, includes the acquisition of jurisdiction
over the subject matter, person of the accused, and the res or thing.
Absent such jurisdiction, the court has no alternative but to dismiss
the case; conversely, when the court has jurisdiction, it may proceed.
In conflicts of law cases, however, the court having acquired
jurisdiction may refuse to accept the case on the ground of forum
non conveniens, or proceed, applying the law of the forum or lex fori,
when it is expressly allowed in its conflicts rules. Property in
particular generally follows the rule of lex rei sitei or lex situs, or the
applicable law is the law where the property is located.
Laurel vs Garcia1 is a peculiar case concerning the Roppongi
property in Japan. In ruling against the application of lex situs, the
Supreme Court reiterated the principle that a conflict of law rule does
not apply when no such situation exists. The Roppongi property was
given to the Philippines by Japan as reparation for damages done
during the war. Despite being located in Japanese territory, this
property does not follow the law of the forum simply because


1 Laurel v. Garcia, GR No. 92013 (1990)

3
ownership of the Roppongi property is vested in the Philippines. Title
of the property was not in dispute, and since no conflict situation
exists, lex situs does not apply; hence, the law of the Philippines shall
govern.

Chapter 1: Real Property


Real property, also called immovable property, is generally
attributed to land, including improvements attached thereto by
nature, destination, incorporation, or analogy. Article 415 provides
an enumeration of things considered real property, however,
according to Edgardo Paras, citing the case of Standard Oil Co. of
New York v. Jaranillo, this enumeration cannot be construed as an
absolute criterion as to determine which properties are real, and
which are personal.2

Lex Situs: General Conflicts Rule on Real Property


Every conflict rule consists of two parts: (1) the factual situation
consisting the set of facts presenting a conflict problem; and (2) the
point of contact or the connecting factor, that is the law of the country
with which the factual situation is most intimately connected. With
respect to real property, a conflict of law situation arises only when:
(1) there is dispute over the title or ownership of an immovable, such
that the capacity to take and transfer immovable, the formalities of
conveyance, the essential validity and effect of the transfer, or the
interpretation and effect of conveyance, are to be determined; and (2)
a foreign law on land ownership and its conveyance is asserted to
conflict with a domestic law on the same matters. Hence, the need to
determine which law should apply.3
Since the situs of real property is fixed, inalienable, and
universal, traditionally and necessarily, real property has always
been governed by the lex situs or lex rei sitae, i.e., law of the
country where the property is situated.4. This is due to the fact that
real property forms part of the territorial jurisdiction of the country
where it is located, and therefore, it is logical that it shall be subject
to the law of the States where it is found. Contrary rules in foreign
states cannot certainly be given effect unless the situs so allows.5


2 Edgardo L. Paras, Civil Code of the Philippines Annotated Vol. II Arts. 414-
773 Property: 17th Edition (Manila, Philippines: Rex Printing Company Inc.,
2013), 12.
3 Laurel v. Garcia, GR No. 92013 (1990)
4 Article 16(1), New Civil Code
5 Edgardo L. Paras, Civil Code of the Philippines Annotated Vol. II Arts. 414-

773 Property: 17th Edition (Manila, Philippines: Rex Printing Company Inc.,
2013), 322.

4
The theory of lex situs applies when the intrinsic validity and
alienations, transfers, mortgages, capacity of the parties,
interpretation of documents, effects of ownership, co-ownership,
accession, usufruct, lease, easement, police power, eminent domain,
taxation, quieting of title, registration and prescription of rights
concerning real property6 is in question.
Swank vs Hufnagle 7 illustrates a conflicts case applying lex
situs, where even if legal capacity is present according to law where
the contract was executed, the law where the property is situated
shall still govern. Therefore, mortgages over real property, when
considered void in the place where the real property is situated, is
void, regardless of law of the place where it was executed. Similarly,
if a foreigner executed a deed of sale abroad in favor of a Filipino
concerning a parcel of land found in the Philippines, lex situs or
Philippine law shall govern all characteristics of the transaction.

Exceptions to Lex Situs on Real Property


According to Salonga8, here are four notable exceptions to the
general rule of lex situs: (a) successional rights; (b) capacity to
succeed; (c) contract which do not delve into title of property; and (d)
contracts where real property is given as security.
In the case of succession rights to real property what should
govern is the national law of the deceased, as provided in Article 16(2)
of the New Civil Code. Likewise, according to Article 1039 of the New
Civil Code, capacity to succeed is governed by the national law of the
deceased.
Contracts involving real property which do not deal with the title
to such real property shall not necessarily be governed by the lex
situs. The proper law of the contract which is the lex loci voluntatis
or the lex loci intentionis is should be regarded as controlling.
In contracts where real property is given by way of security, the
principal contract is governed by the proper law of the contract; the
accessory contract of mortgage, is governed by the law of the state
where the real property mortgage is situated.
If the principal contract is valid, as tested by the lex loci
voluntatis or the lex intentionis, the validity of the accessory contract
of mortgage is still to be determined by the lex rei sitae. If the
mortgage is void by the lex rei sitae, the principal contract can still
remain valid.


6 Ibid, 322.
7 Swank v Hufnagel, 111 Ind. 4543 (1887)
8 Jovito Salonga, Private International Law (Manila, Philippines: Rex Printing

Company, Inc., 1995)

5
If, upon the other hand, tested by the lex loci voluntatis or the
lex loci intentionis, the principal contract of loan is void, the mortgage
would undoubtedly be also void (for accessory loses standing should
the principal be invalid), even if considered independently by itself
the mortgage would have been regarded as valid by the lex rei sitae.

Chapter 2: Tangible Personal Property


In lieu of a concrete definition, Article 416 and Article 417 of the
New Civil Code enumerates what constitutes tangible and intangible
personal or movable property, respectively.9
The tangible properties enumerated in Article 416 are referred
to as choses in possession, while the intangible personal properties
in 417 are referred to as choses in action.

Choses in Action or Possession


A chose in possession is a movable thing of which one has
possession.10 It is not confined merely to stagnant objects but also
those who have a naturally changing situs, such as goods in transitu
and vessels or other means of transportation.11
A chose in action is right to personal things of which the owner
has not the possession, but merely a right of action for their
possession 12 . This means any or all of the following: 13 (a) right of
proceeding in a court of law to procure payment of sum of money, or
right to recover a personal chattel or a sum of money, or right to
recover a personal chattel or sum of money by action; (b) personal
right not reduced into possession, but recoverable by a suit of law; (c)
a right to personal things of which the owner has not the possession,
but merely a right of action for their possession; (d) the phrase "chose
in action" includes all personal chattels which are not in possession,
and all property in action which depends entirely on contracts
express or implied; (e) right to receive or recover debt, demand, or
damages on cause of action ex-contractu or for a tort or omission of
a duty.14


9 Elmer T. Rabuya, Property (Manila, Philippines: Rex Printing Company, Inc.,

2008), 49
10 Ibid
11 Edgardo L. Paras, Civil Code of the Philippines Annotated Vol. II Arts. 414-

773 Property: 17th Edition (Manila, Philippines: Rex Printing Company Inc.,
2013), 330.
12 Blacks Law Dictionary 2nd Ed.
13 Edgardo L. Paras, Civil Code of the Philippines Annotated Vol. II Arts. 414-

773 Property: 17th Edition (Manila, Philippines: Rex Printing Company Inc.,
2013), 329.
14 Black's Law Dictionary

6
Mobilia Senquntuur Personam: Discussion of Old Rule
The old rule regarding personal properties is embodied in the
maxim mobilia senquntuur personam, or movables follow the person
of the owner. The rule grew up in Middle Ages when movable property
could easily be carried from place to place.15 There are three main
reasons that justified the doctrine of personal law following the
property. First is that, since personal property has no fixed situs, an
artificial one must be created. This artificial situs should be the
personal law of the owner. Second, the rule is simple, and would
apply wherever the location of the personalty. Third the rule is more
stable, since the rule would remain despite the change of location of
the immovable.16
The application of the rule, however, led to unsatisfactory and
unjust results. It also obstructed commercial intercourse and
disturbed the stability of many commercial transactions. 17 Hence,
this doctrine has been abandoned.

Lex Situs: General Conflicts Rule on Personal Property


As in real property, Article 16 of the New Civil Code applies to
personal property, the general rule that the law of the state where the
property is located at the time of the transaction in question
determines the creation and the transfer of interests in choses in
possession. 18 The rationale lies in the fact that situs is easily
ascertainable, making it convenient and fair for both the immediate
parties and third persons who may be affected by the rights in rem
in the property.19 Where the chattel is normally delivered as a part of
the transaction, the situs rule seldom raises problems for the situs
is clearly the focal point of the transaction.20 Thus, with the change
from the old rule of mobilia senquntuur personam, it is evident that
the general rule and the four exceptions in real property is applicable
to personal properties as well.
With respect to voluntary transfers of interest in chattels, the
Second Restatement holds that in the absence of an effective choice


15 Pullman's Palace Car Co v Comm. of Pennsylvania 141 US 1882 as quoted in
Paras p.327
16 Story Commentaries on Conflict of Laws p.376 as quoted in Paras, p.327
17 Jovito Salonga, Private International Law (Manila, Philippines: Rex Printing

Company, Inc., 1995), 488


18 Ibid, 491
19 M. Wolff. Private International Law (Oxford University Press, 1950); Goodrich

Conflict of Laws p.470 as quoted in Paras, p.328


20 Ibid

7
of law by the parties, greater weight will be usually given to the lex
situs of the chattel at the time of the conveyance.21
With respect to acquisitions of title by operation of law, the
Second Restatement holds, as do most authorities, that they should
be governed by the lex situs. The reason for this, as stated by Salonga,
is that the State where a chattel is situated has the dominant interest
in determining the circumstances under which an interest in the
chattel may be acquired by operation of law.22

Exceptions to Lex Situs on Personal Property


Lex situs does not apply, however, to transactions of future
delivery where location of the chattel bears little effect until delivery.
In which case, the conflicts rule to be followed is the law most
significantly related to the issue, a rule generally applicable in
conflicts situations relating to contracts.23

Special Rules for Some Choses in Possession


However, the problem with lex situs, according to Salonga and
Sempio-Diy, is that it fails to consider two forms of movable property:
property whose situs naturally changes, such as vessels or goods in
transitu, and intangible personal property. To enforce lex situs over
vessels and goods in transitu, one has to consider a multiplicity of
possibilities, which could be complicated, and it would be difficult, if
not impossible, to determine the situs of intangible personal property,
which can neither be seen nor touched. Therefore, the remedy for
intangible property and those whose situs naturally changes is to
attach an artificial or constructive situs.24 This is now where the
special rules in choses in action and choses in possession apply.

Special Rule: Means of Transportation


Property with naturally changing situs, particularly vessels, are
constantly presented with foreign elements. In view of its inherent
movability, the generally accepted rule for the situs of vessels is the
law of the flag or the law of the place of registry.25 Therefore, the law
of the flag governs alienation, mortgage, and other contracts affecting
vessels, even when sold or mortgaged in the high seas. When docked


21 Jovito Salonga, Private International Law (Manila, Philippines: Rex Printing
Company, Inc., 1995), 493
22 Ibid
23 Ibid
24 Ibid
25 Edgardo L. Paras, Civil Code of the Philippines Annotated Vol. II Arts. 414-

773 Property: 17th Edition (Manila, Philippines: Rex Printing Company Inc.,
2013), 330

8
in a foreign port, the choice between the law of the flag and the law
of the foreign port arises. It has been held that the law of the foreign
port is controlling.

Special Rule: Thing in Transitu.


With regard to the goods in transitu, different transactions are
governed by different conflict rules.
According to Article 1753 of the New Civil Code, loss,
destruction or deterioration of foreign bound goods in transitu are
governed by the law of the country of destination. If there is a change
in course, the law of the new destination shall govern. As to goods
that were never shipped, lex situs governs.
Due to the attachment of a temporary situs, validity and seizure
of goods in transitu are governed by the law of the place where they
were seized.26 An example is when an owners creditors seized goods
in transit. While being detained, the law of the place governs whether
the seizure was lawful, or whether a lien or other similar right was
acquired.27
As to disposition or alienation of goods, the owner may choose
between several legal systems. 28 Generally, the law of the place
voluntarily agreed upon, otherwise known as lex loci voluntatis, or
the law of the place intended by the parties, otherwise known as lex
loci intentionis, may govern, since, being a contractual obligation29,
the general conflict rules of contracts applies. However, sale or
mortgage of goods in transit may be governed by the law governing
temporary resting places. Ownership may also pass by mere consent,
pursuant to lex loci actus, despite the law of the place having more
stringent requirements. Law of the country of destination may also
be stipulated, provided that the goods actually arrive there.
However, where the seller or mortgagor of goods in transit did
not have the authority to alienate such goods, the validity of the
disposition shall be governed by lex situs, or the law of the place
where the goods are actually situated at the time of alienation.

Chapter 3: Intangible Personal Property


26 Edgardo L. Paras, Civil Code of the Philippines Annotated Vol. II Arts. 414-

773 Property: 17th Edition (Manila, Philippines: Rex Printing Company Inc.,
2013), 331
27 Jovito Salonga, Private International Law (Manila, Philippines: Rex Printing

Company, Inc.), 494


28 Ibid, 495
29 Edgardo L. Paras, Civil Code of the Philippines Annotated Vol. II Arts. 414-

773 Property: 17th Edition (Manila, Philippines: Rex Printing Company Inc.,
2013), 331

9
Intangible properties have no physical existence, therefore
applying lex situs is impossible. To solve conflicts of law problems
concerning intangible property where situs is essential, an artificial
situs is attached to the intangible property. However, the question as
to which situs attaches is a problem in itself, which has been subject
to often conflicting theories.
Debts and other obligations or interests arising from contracts
are generally considered intangible properties by operation of law.
Recovery or involuntary attachment of such debts is generally
governed by the law of the place where summons may be effectively
served, which is usually the domicile of the debtor. Garnishment of
property to satisfy judgment debts must be filed in the court where
the service of summons may be validly effected.
As to voluntary assignment of debts, many theories posit
different applicable rules. The prevailing rule is similar to contracts,
lex loci voluntatis or lex loci intentionis30, where the law of the place
where performance may be demanded governs. An inherent defect of
this rule, however, is that there are many places where demand of
performance may be effected or service may be summoned. One
opposing theory espoused in Harris v. Balk31 posits the national law
or law of the domicile of the debtor and creditor, which is impractical,
since investigation of personal laws of both debtor and creditor is
inevitable. Another theory posits lex loci celebrationis32, or the law
where the assignment was created, but this law gives rise to peculiar
circumstances as when foreign law governs assignment merely
because the assignment was done while party was on vacation
outside his country.
For the purposes of taxation, in determining the situs of
intangibles in general, the old rule of mobilia sequntuur personam is
still applicable. Intangibles are taxed at the domicile of the owner or
creditor, since the legal title to the debt is present at his domicile and
is there taxable if the State so declares.

Administration of Debts
For the purpose of administering of debts, the situs is the place
where the assets of the debtor are actually situated. An assignee in
insolvency, for example, is required to take hold of the assets of the
debtor for eventual distribution among creditors; it is obvious that
the lex situs of the properties will be the determining law.


30 Westlake, A Treatise on Private International Law The Conflict of Laws

(London, England: C. Roworth and Sons, Bell Yard Temple Bar, 1858)
31 Harris v. Balk, 198 US 215 (1905)
32 Herbert F. Goodrich. Handbook of the Conflict of Laws: 3rd Edition (St Paul:

West Publishing Co., 1949), 426-427; American Restatement

10
A debtor may be sued wherever process may be served upon
him. This fact justifies the decision which allows an administrator to
sue a foreign debtor who comes within the jurisdiction in which the
administrator permitted to sue. Power to collect the debt exists there,
as there is power to control over the debtor. If an administrator
wishes to recover property or debts outside the state, he must be
granted ancillary administrative power.
Ancillary administration will be granted by the courts of a state
where the tangible property of a non-resident decedent is located.
Power of control over the property both demands and justifies this
procedure.
In like any manner ancillary administration will be granted by
the courts of a state where a debtor of a non-resident decedent is
domiciled. Power of control over the debtor is required to give the
necessary power of control over the debt.

Negotiable Instruments
Different aspects of negotiable instruments are governed by
different conflict rules.
Negotiability or the non-negotiability of such instruments are
determined by the law which gives rise to the right embodied in the
instrument,33 i.e. the negotiability of Philippine checks are governed
by Philippine laws, and Swedish bills of exchange governed by
Swedish laws. The United States, however, adopts a different view,
where the law where the instrument was executed governs.34
As to transactions, Spears v. Wilson Sewing Machine Co. 35
explained that the obligation that gave rise to a negotiable instrument
is embodied in the instrument itself, hence transfer of the instrument
also transfers the right to demand fulfillment of the obligation. Being
analogous to transfer of chattels, the conflicts rule concerning
transfer, delivery, or negotiation of the instrument must be governed
by the law of the place of the instrument at the time of negotiation.

Corporate Shares of Stock


Conflict rules governing corporate shares of stock wholly
depend on the type of transaction concerned. Transactions affecting
corporations themselves, such as sale of corporate shares and
taxation of dividends, are governed by the law where the corporation
was created. Contracts between parties, such as sale of corporate


33M. Wolff. Private International Law (Oxford University Press, 1950)
34 Section 348, American Restatement
35 50 Mich 534

11
shares, is governed by lex loci voluntatis or lex loci intentionis,
generally the place where the certificate is delivered.36

Franchise and Goodwill


Franchises, or any transaction or agreement having all
elements of franchise, are subject to the law of the place granted them.
The goodwill of a business, as well as taxation thereon, is governed
by the law of the place where the business is carried on.

Intellectual Properties
In the absence of international treaties, intellectual properties
such as patents, trademarks, and copyrights, are generally governed
and protected only by the state where they are granted. Registration,
degree of protection, and infringement are therefore governed by the
laws of the state granting protection to these intellectual properties.
General rule concerning intellectual property is registration
confers right, and in determining the rights of the registration of
patents, first to file rule and the right of priority rule applies. The
first to file rule dictates that a registered patent prevails over an
unregistered claim, and in case of application of different inventors,
the applicant with the earliest filing date or priority date owns the
patent. Conversely, the right of priority rule states that a patent
application filed by one who has previously applied for the same
invention in another country that affords similar privileges to
Filipinos shall be considered filed as of the date of filing application.
For instance, X who filed an application in France in 2009 has a prior
right over Y who filed an application in the Philippines in 2010.
In case of similar or identical goods, a trademark identical with,
confusingly similar to, or constitutes a translation of, an
internationally and locally well-known mark, whether registered in
the Philippines or not, are generally refused registration. In
determining whether a mark is well-known, knowledge of the relevant
sector of the public, rather than of the public at large shall be taken
into account.
It should be noted that under the Paris Convention, a foreign
national, even if not licensed to do or not actually doing business in
the Philippines may file an action for infringement, provided (a) its
mark is registered in the Philippines, or in the case of a trade name,
it has continuously been used in commerce in the Philippines; and
(b) its country extends reciprocal rights to nationals of the Philippines
or is a member of the Paris Convention.


36 Cheshire, Private International Law

12
Part II: Succession
Introduction
In the Philippines, succession is defined as a mode of
acquisition by virtue of which the property, rights and obligations to
the extent of the value of the inheritance, of a person are transmitted
through his death to another or others either by his will or by
operation of law. This may be effected either by will or testate, or by
operation of law or intestate. When confronted with a conflict rule, it
is imperative to first resolve what law should be applied in
transmission of successional rights upon the death of the person.
There are two recognized theories in determining the proper law
for the transmission of successional rights: the unitary or single
system and the split or scission system.
Under the first theory, unitary or single system, there is only
one law that determines transmission whether real or personal
properties. An example of which is when the national law of the
deceased, otherwise known as national theory, or the domicile of the
deceased, otherwise known as domiciliary theory, is followed in the
transmission of both real and personal properties. On the second
theory, the split or scission system, the transmission of real property
is governed by the lex situs or the law of the place where the property
is located while transmission of personal property is governed by the
domicile of the deceased at the time of his death.
In our jurisdiction we follow the first theory or the unitary or
single system in transmission of properties regardless of the
character of the property and where the property be found.

Chapter 1: Validity of the Will


According to Article 783 of the New Civil Code, a will is an act
whereby a person is permitted, with formalities prescribed by law, to
control a certain degree of the disposition of his estate, to take effect
after his death. Being a personal, solemn, revocable, and free act of
disposition, wills are considered to embody his last wishes of the
testator. Taking effect only after death, a testator may revoke and
change it at any time, if he so desires, before his death.
In our jurisdiction, there are two kinds of wills: the notarial will
and holographic will. Notarial wills are those made with the aid of a
notary public and attesting witnesses, and holographic wills are
those entirely handwritten, dated and signed by the testator. In both
cases, a will must be probated to check its validity.
There are two aspects in determining the validity of a will:
extrinsic and intrinsic validity. Extrinsic validity deals with forms and

13
solemnities in the making of the will. Intrinsic validity concerns itself
with the substance of the will.

Conflict Rules on Extrinsic Validity


With respect to time, extrinsic validity of a will, as a general rule,
depends on law in force at the time it was made. Imposition of more
stringent rules cannot invalidate wills previously declared valid.
Likewise, subsequent leniency of formal rules does not validate a will
void when it was created.
As to location, the conflicts situations concerning extrinsic
validity of wills is, in summary, governed by lex nationalii, lex loci
celebrationis, lex domicilii, or the law of the forum. Such conflict
situations include wills made by Filipinos abroad, by aliens abroad,
and by aliens in the Philippines.
If a Filipino makes a will abroad, extrinsic validity may be
governed by either lex nationalii or lex loci celebrationis; he may
comply with the formalities of either Philippine law or the law of the
country where the will was executed. To illustrate, Filipinos
temporarily residing in Japan may execute a will in accordance with
the laws of either Philippines or Japan. Therefore, if the will was
executed in accordance with the form required by the laws of Japan,
his will may be probated in the Philippines.
If an alien makes a will abroad, extrinsic validity may be
governed by lex nationalii, lex loci celebrationis, or lex domicilii, the
law of the place where he is domiciled. To illustrate, on his way to the
Philippines, a Korean national domiciled in America executed a will
in Japan. Such will may be probated in the Philippines if it is made
in accordance to the law of Korea, applying lex nationalii, America,
applying lex domicilii, Philippines applying the law of the forum, or
Japan, applying lex celebrationis.
Whether executed in or out of the Philippines, holographic wills
are subject to no other form other than being entirely written, dated,
and signed by the hand of the testator himself. In case of doubt, the
substantial compliance rule applies. Hence, any holographic will
made by any person, citizen or not, may be probated in the
Philippines if it is written, dated, and signed by the testator himself
or so long as its authenticity is established.

Conflict Rules on Joint Wills


The only exception to the rule that a Filipino can execute a will
abroad, as expressly provided in Article 819 of the New Civil Code, is
the prohibition of making a joint will. A joint will is defined as a single
testamentary instrument which contains the wills of two or more
persons, jointly executed by them, either for their reciprocal benefit

14
or for the benefit of a third person.37 Filipinos cannot execute joint
wills, even if it is valid in the country where it was executed. The
rationale behind is to avoid the possibility of committing parricide.
However, the rule may vary if it is made by foreigner abroad and made
here in the Philippines.
Joint wills made by aliens abroad shall be considered as valid
in the Philippines if valid according to lex nationalii, lex domicilii, or
lex loci celebrationis. A joint will executed by an alien and a Filipino
citizen abroad will be valid as to the alien applying lex nationalii, lex
domicilii, or lex celebrationis but void as to the Filipino, the same
being against our public policy on joint wills.38
Joint wills made by aliens in the Philippines are void even if
valid under their lex nationalii or lex domicilii because our public
policy on joint wills may not be militated against.

Conflict Rules on Intrinsic Validity


Similar to the rule on extrinsic validity, from the viewpoint of
time, intrinsic validity is governed by the law in force at the time of
death. This is because at death, successional rights have become
vested rights, and no subsequent law may alter such vested rights.
With regard to location, different countries follow one of the two
rules of intrinsic validity: lex nationalii or lex domicilii. Lex nationalii
states that successional rights are governed by the national law of
the decedent whereas in lex domicilii, the law where the decedent was
domiciled. The Philippines follows lex nationalii, as expressly
provided in Article 16 of the New Civil Code, and applied by the
Supreme Court in Miciano vs. Brimo, Bellis vs. Bellis, and Cayetano
vs. Leonidas.
However, in Aznar vs Garcia, the law of the Philippines was
applied despite the decedent being a foreign national. In the case, the
decedent was a citizen of California yet domiciled in the Philippines.
Upon his death, lex nationalii of the decedent was applied to
determine the successional rights of his heirs. Upon investigation
however, the decedents national law, or the laws of the state of
California adheres to lex domicilii, directing the application of
Philippine laws. This peculiar situation led to the application of
Philippine laws, despite the decedent being a foreign national.


37 Desiderio P. Jurado. Comments and Jurisprudence on Succession. (Manila,
Philippines: Rex Printing Company, 2009), 106.
38 Article 818, New Civil Code

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Chapter 2: Revocation of Wills
Revocation, in succession, refers to the act of withdrawal or
declaring void a will previously made39. Wills may be revoked by the
testator at any time before his death, and any waiver or restriction of
this right is void40. Despite having numerous choices as to which law
governs the validity of the creation and enforcement of wills,
revocation is generally governed by lex domicilii, or the law of the
place where the testator is domiciled. As such, if the testator is
domiciled in the Philippines, revocation must be done in accordance
with Philippine laws, regardless of his nationality and the place of
revocation.
If the act of revocation takes place in the Philippines, it must be
done in accordance with Philippine laws, regardless whether the
testator is domiciled in this country or not.
If the revocation takes place abroad by a testator who is not
domiciled in the Philippines, it must be done either in accordance
with the laws of the place where the testator had his domicile at the
time of revocation or the law of the place where the will was made.41
However, according to Salonga, the rules on revocation leaves a
number of loose ends and doubts.
The provision seems to imply that the place of revocation is of
no importance. If construed strictly, the Philippines may not
recognize revocation done abroad by a non-domiciliary of the
Philippines in accordance with the laws of the place of revocation, as
opposed to revocation in accordance with the law of his domicile or
the execution of the will. This conclusion runs counter to the
principle of lex loci celebrationis, whose primacy is espoused in
Article 17(1) of the New Civil Code. Furthermore, such interpretation
impairs the will of the testator.
The shift from lex nationalii to lex domicilii as a test factor or
point of contact is questionable. It seems antithetical to completely
abandon lex nationalii, the law governing the creation of wills, in
determining the principal point of contact in revocation. Where
several points of contact are recognized in the creation of wills by
aliens abroad, limiting the point of contact for revocation to lex loci
celebrationis and lex domicilii seems illogical.
Likewise, there is apparently no provision with reference to
aliens domiciled in the Philippines who executed the act of revocation
abroad. On the other hand, a will made by an alien abroad, wherever
his domicile may be, will be considered formally valid in the
Philippines if formally valid accordance to his national law, or to the
law of his domiciled, or to the law of the place where it is made, it is

39 Black Law Dictionary
40 Art. 828, New Civil Code of the Philippines
41 Mison, Wills and Succession Better Explained, 2010

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also formally valid if made according to the requirements of
Philippine Law42.
Summarily, the conflict rules in determining validity of the act
of revocation of the will may be subject to further legislative
enhancement to avoid existence of doubt.

Chapter 3: Probate of Wills


Probate is the act or proceeding of establishing a last will and
testament before a competent court as valid, done by competent
testator, and executed in the form provided for by law, for the purpose
of certifying the document as valid and binding.43 The proper probate
of a will, pursuant to the Rules of Court, is necessary to pass on real
and personal property of the deceased. Public policy dictates that
neither estoppel nor prescription may hinder the probate of a validly
executed will.
Wills validly executed abroad may be probated in the
Philippines, provided that they have not yet been admitted to probate
in a foreign court. In which case, the procedure shall be governed by
the rules in the Philippines, hence due execution and testamentary
capacity must be proved.44
Wills duly and validly probated in a foreign country may be
allowed, filed, and recorded by the proper RTC in the Philippines,
under Rule 77 of the Rules of Court. Similar to the procedure of
enforcing of a foreign judgment, a copy of the will and order of decree
of allowance thereof, both duly authenticated, shall be filed with a
petition for allowance in the Philippines.
Probate proceedings are proceedings in rem, and therefore
notice or publication to all interest persons is necessary. According
to In re Testate of Jose Suntay45, a will probated by a foreign court
cannot be accepted in the Philippines, where there was neither proof
of notice or publication to interest parties, proof that the court was a
probate court, nor proof that the proceeding was a probate
proceeding.

Chapter 4: Administration of Estates


Administration is the process of determining and realizing the
assets of a deceased person, the payment of the debts of the estate,
and the actual distribution of the residue to the heirs. Being


42 Jovito Salonga, Private International Law (Manila, Philippines: Rex Printing
Company, Inc., 1995)
43 Ibid
44 Ibid
45 In re Testate of Jose B. Suntay, 95 Phil 500 (1954)

17
procedural in nature, administration is governed by lex fori or the
law of the country where the action is brought.

General Rules on Administration of Estates


In the Philippines as well as other civil law countries, executors
and administrators are appointed either by the testator through the
will or by the court. The rights, powers and obligations of the executor
or administrator are coextensive with the territorial jurisdiction of the
court that qualified or appointed him. Hence, it is important to
determine what court has the power to appoint him. Under our
jurisdiction, if the decedent was an inhabitant of the Philippines at
the time of this death, regardless whether he is an alien or a citizen,
the Regional Trial Court of the province in which he was residing at
the time of his death shall have the probate jurisdiction; or , if the
decedent was an inhabitant of a foreign country at the time of his
death, it is the Regional Trial Court where he may have his property
and the first to take cognizance thereof excludes all others 46 .
Therefore, an executor or administrator qualified or appointed by a
Philippine court has jurisdiction only over the properties of the
deceased located in the Philippines.
Since administration extends only to property within the
territorial jurisdiction of the State granting such authority, an
administrator appointed in one State or country has no power over
property in another country. To administer property situated in a
foreign State, the administrator must be reappointed by that State47.
Property left by a decedent in both his country of domicile and
in foreign countries must be distributed in separate administration
proceedings, giving rise to two kinds of administration: (a) principal
domiciliary administration, or administration of property within his
country of domicile; and (b) ancillary administration, or
administration of property located abroad.
In view of these independent administrative proceedings, it is
conceivable, therefore, that administration may be done
simultaneously by different administrators in their respective
jurisdictions, which may give rise to complications in the scope of
each administrator. Although such predicament may be avoided by
the designation of the estate as a single unit for the purposes of
administration, such designation cannot be done without
disregarding the sovereignty of the different states48. Be that as it
may, pertinent provisions of the New Civil Code subscribe to this


46 Jovito Salonga, Private International Law (Manila, Philippines: Rex Printing
Company, Inc., 1995)
47 In re Testate Estate if Butler, Gr.no. L-3677
48 Jovito Salonga, Private International Law (Manila, Philippines: Rex Printing

Company, Inc., 1995)

18
principle, when wills are proved and allowed in a foreign country are
presented in the Philippines for execution, the court shall grant
letters of testamentary or letters of administration with a will
annexed and shall extend to all the estate of the testator in the
Philippines.

Conflict Rules on the distribution of residue


Administration proceedings, after payment of all liabilities,
determine whether an excess of assets called residue exists. For the
distribution of the residue, should there be any, the general rule is
that the ancillary administrator shall remit the balance to the
domiciliary administrator for distributions.
If the testator is insolvent, then his estate in the Philippines
shall, as far as practicable, be disposed of in such a way that
creditors here and elsewhere may receive an equal share in
proportion to their respective debts49.When the administration of the
decedents estate, both ancillary and domiciliary, is completed, the
distribution of the remaining assets follows.
To reiterate, distribution of residue, if any, is separate from
administration, and is therefore regulated not according to the law
governing administration but according to the law on succession,
pursuant to Article 16(2) of the New Civil Code. An administrator in
his final accounting shall be held responsible for all assets that have
come to him anywhere, by reason of his local appointment, and if the
same person has served as administrator in more than one State he
must account separately for the properties received under such
appointment50.


49 Ibid
50 Ibid

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Conclusion

Between real and personal property, conflicts of law rules are


ratiocinated on their inherent characteristics of immovability and
movability, respectively. Personal property in particular are governed
generally by conflicts rules on contracts, which give rise to rights and
obligations over them, excluding property with a naturally changing
situs and intangible property, which has no physical existence. In
formulating these conflict rules, it is evident that each state or
country respects the inherent sovereignty of the other, and recognizes
the complications arising from attempting to apply laws and rules of
other sovereign states in other countries. Lex situs and other
applicable rules are the best way to avoid misconstruction and
misapplication of laws of which the court may or may not possess
expertise thereof.
Rights involving succession are subdivided into the different
stages of succession: execution of wills, revocation, probate, and
administration proceedings. Conflict of law rules cater to the peculiar
requisites of each stage, whether lex nationalii, lex domicilii, lex loci
celebrationis, or the law of the forum should be applied. It is evident,
however, that some established rules in conflicts cases involving
succession may be subject to further legislative enhancement to
avoid absurd rulings to meticulous circumstances, for the purpose of
the law is not to obstruct but to facilitate the determination of the
truth and further establish the rights and obligations of parties in
conflict.

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Bibliography
Goodrich, H. (1949). Handbook of the Conflict of Laws. St Paul: West
Publishing Co.
Jurado, D. P. (2009). Comments and Jurisprudence on Succession.
Manila: Rex Printing Company.
Paras, E. T. (2013). Civil Code of the Philippines Annotated (17th
Edition ed., Vol. II). Manila, Philippines: Rex Publishing
Company.
Rabuya, E. T. (2008). Property. Manila, Philippines: Rex Publishing
Company.
Salonga, J. (1995). Private International Law. Manila, Philippines:
Rex Printing Company.
Westlake, J. (1858). A Treatise on Private International Law - The
Conflict of Laws. London, England: C. Rowerth and Sons.
Pullman's Palace Car Co. vs Comm of Pennsylvania, 141 US 18
(1891).
Harris v Balk, 198 US 215 (1905).
In re Testate of Jose B. Suntay, 95 Phil 500 (1954).
In re Testate Estate of Basil Butler, GR No. L-3677 (1951).
Laurel v Garcia, GR No. 92013 (1990).

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