Thursday, October 30, 2014

Citing a debtor for indirect contempt goes beyond non-payment of debt

Dear PAO,
A case for non-payment of loan was filed against my father. He never bothered me about it because, for him, it was his personal obligation to settle. I was just surprised when he told me that there was an order to imprison him. He mentioned something about indirect contempt. I thought nobody can be imprisoned due to non-payment of debt, or as in his case, non-payment of loan. How come there is an order against him in that manner? Please enlighten me because I am really worried for him.
Dear Arianne,
You are correct in saying that no person can be imprisoned merely by reason of non-payment of debt. This guarantee is expressly provided for under Section 20, Article III of the 1987 Philippine Constitution which states: “No person shall be imprisoned for debt or non-payment of poll tax.”
In the situation that you have presented, we cannot conclude with certainty whether the order issued against your father was precisely because of his failure to pay his loan obligation. If it was, then you may question that order of the court.
You should consider, however, that the order may have been for some other reason. As you have mentioned in your letter, your father raised his concern regarding an indirect contempt. This may very well be the reason why the court issued such order against him. Indirect contempt is defined by and punished under Section 3, Rule 71 of the Revised Rules of Court which provides that:
“After a charge in writing has been filed, and an opportunity given to the respondent to comment thereon within such period as may be fixed by the court and to be heard by himself or counsel, a person guilty of any of the following acts may be punished for indirect contempt:
(a)    Misbehavior of an officer of a court in the performance of his official duties or in his official transactions;
(b)    Disobedience of or resistance to a lawful writ, process, order or judgment of a court, including the act of a person who, after being dispossessed or ejected from any real property by the judgment or process of any court of competent jurisdiction, enters or attempts or induces another to enter into or upon such real property, for the purpose of executing acts of ownership or possession, or in any manner disturbs the possession given to the person adjudged to be entitled thereto;
(c)    Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt under Section 1 of this Rule;
(d)    Any improper conduct tending, directly or indirectly, to impede, obstruct or degrade the administration of justice;
(e)    Assuming to be an attorney or an officer of a court, and acting as such without authority;
(f)    Failure to obey a subpoena duly served;
(g)    The rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an order or process of a court held by him
But nothing in this section shall be so construed as to prevent the court from issuing process to bring the respondent into court, or from holding him in custody pending such proceedings.”
If your father was adjudged guilty of indirect contempt committed against a Regional Trial Court or a court of equivalent or higher rank, he may be penalized with fine not exceeding Thirty Thousand Pesos (P30,000.00) or imprisonment not exceeding six (6) months, or both. If he is adjudged guilty of indirect contempt committed against a lower court, he may be punished with fine not exceeding Five Thousand Pesos (P5,000.00) or imprisonment not exceeding one (1) month, or both. If he violated a writ of injunction, temporary restraining order or status quo order, he may also be ordered to make complete restitution to the injured party of the property involved or such amount as may be alleged and proved (Section 7, Rule 71, Revised Rules of Court).
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.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to

Tuesday, October 21, 2014

Joint wills prohibited by law

Dear PAO,
My wife and I are already of old age and in preparation for our eventual demise, we deem it proper to address this inevitable event by preparing our last will and testament. Because of this, my wife and I made our last will together detailing the manner of distribution of our property to our children. Our last will was made on one lengthy document incorporating both our wishes in the handling and distribution of our pieces of property. We both voluntarily signed and witnessed together. When we were about to have the document notarized, however, we were advised that we can’t have our last will together in the same document. I want to confirm if this is true and if there are any legal bases for this disallowance in executing a shared last will and testament. We appreciate your legal opinion to clarify this matter.
Dear Conor,
While you and your wife may prepare your last will and testament, it is important to know that the law provides for certain limitations and specifications in the manner of execution of such document. Based on your narration, the will that you and your wife prepared is considered to be a joint will. This kind of will is called a joint will since it contains the wills of more than one individual in one document. The Civil Code of the Philippines has this to say about the preparation of this kind of will:
“Article 818. Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or for the benefit of a third person.”
As seen from this cited law, there is a clear prohibition against the making of a joint will. Considering this prohibition, joint wills are void and therefore shall have no legal effect in the transfer of your estate to your designated successors.
As opined by the respected succession law expert Prof. Ruben Balane, and as supported by the Supreme Court case, Dacanay v. Florendo, 87 Phil. 324 (1950), joint wills are considered to be against public policy because they limit the mode of revocation of a will since one of the testators cannot destroy the will without also revoking the will of the other testator; they compromise the nature of secrecy of a will; they present danger of undue influence between testators; and there may be a danger of a testator tempted to kill the other testator (Ruben F. Balane, Jotting and Jurisprudence in Civil Law Succession, 2006).
The prohibition against joint wills is further emphasized in another provision of the Civil Code of the Philippines which states that a joint will executed by Filipinos even in a foreign country shall still not be valid in our country even if it is authorized by the laws of the foreign country where it was executed (Art. 819, Civil Code of the Philippines).
To reiterate simply, joint wills are prohibited by law. Thus, in order to ensure that the transfer of your estate can be legally allowed and executed in accordance with your plans, it will be in your and your wife’s best interest to prepare your own separate wills in observance of provisions of the law.
Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.
We hope that we were able to enlighten you on the matter.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to