Wednesday, November 20, 2013

Last will and testament provisions must be enforced

Dear PAO,
My mother passed away some 13 years ago. When she was still a baby, she was already under the care of my grandparents. They are not her biological parents, no legal adoption transpired. She is actually the daughter of my grandmother’s sister but they took care of her because they had no child of their own. She has been using my grandparents’ names in all her records.

Can she be considered as a legally adopted child? The reason why I am asking is because the conjugal property of my grandparents are now being claimed by their relatives, and according to them my mother is not entitled to any share of the legitime as she is not a legally adopted child of my grandparents. But my grandfather left a will prior to his demise bequeathing all their properties to my mother. Can my mother be considered as a rightful heir? Your guidance will be highly appreciated.

Dear ME,
In the situation that you have presented, we submit that your mother cannot be considered as a legally adopted child. First and foremost, we want to emphasize that there is no such thing as adoption by prescription. Accordingly, even if your mother was under the care of your alleged grandparents, that she has long presented herself as their daughter, and that all her records appear under their names, such will not suffice to declare her as a legally adopted child.

It is necessary that your mother and your alleged grandparents have undergone the process of adoption and that a competent court has declared her to have been legally adopted by her qualified adoptive parents. Absent these, their relationship remains to only be that of aunt-and-niece and uncle-in-law-and-niece.
Insofar as your mother’s right over the properties of her aunt and uncle-in-law is concerned, the claim of the latter’s relatives that your mother is not entitled to a legitime is correct. Legitime, as defined under the law, “is that part of the testator’s property which he cannot dispose of because the law has reserved it for certain heirs who are, therefore, called compulsory heirs” (Article 886, New Civil Code of the Philippines). Pursuant to Article 887 of the said Code, only the following are compulsory heirs: (1) Legitimate children and descendants, with respect to their legitimate parents and ascendants; (2) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants; (3) The widow or widower; (4) Acknowledged natural children, and natural children by legal fiction; (5) Other illegitimate children referred to in Article 287. Since your mother is only the niece of the decedents, she is not considered as one of their compulsory heirs, and thus, not entitled to any legitime.

However, as a devisee or legatee, your mother is entitled to receive the properties left by her uncle. It bears stressing that her uncle executed a last will and testament bequeathing in her favor those properties. Accordingly, the provisions thereof must be enforced. It is only essential that her uncle had no compulsory heir living at the time of his demise and that your mother did not predeceased him. Should there be a compulsory heir living at the time of his demise, only the properties which form part of the free portion of his estate may be transmitted to your mother, in accordance with the provisions of Section 5, Chapter 2, Title IV of the New Civil Code of the Philippines.

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

source:  Manila Times Column of Atty Persida Acosta

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