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.
Conor

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 dearpao@manilatimes.net

Annotation of levy on title removable after 10-year prescriptive period

Dear PAO,
I lost in a case way back in 1990 and my property in the province was levied to satisfy the judgment of the court.  The levy was annotated on my title. For unknown reasons, however, my property was not auctioned off or sold. Last month, I received a letter from the person who won the case demanding me to pay my outstanding obligation or he will proceed with auctioning off  my property.  May I ask if he can still enforce the levy?  What can I do in this situation?
Donald

Dear Donald,
A court judgment may only be executed within the period provided by the law and rules.  After the lapse of such time, the decision can no longer be executed.

According to the rules, a party who obtained a favorable decision has the right to have the decision executed by filing a motion with the court that rendered the same within five (5) years from the time the decision became final and executory. After such time, the concerned party must first file an action to revive judgment before he can have the same executed (Section 6, Rule 39, Rules of Court). This action must be filed within ten (10) years from the time the decision was rendered in consonance with the provision of the law stating that an action predicated or based on a judgment must be brought within ten years from the time the right of action accrues (Article 1144, Civil Code).

This ten-year prescriptive period also applies to levy of property. As mentioned by the Supreme Court in the case of Jalandoni vs. PNB, a valid execution issued and levy made within the five-year period after entry of the judgment may be enforced by sale of the property levied upon thereafter, provided the sale is made within ten years after the entry of the judgment (108 SCRA 102). Thus, the party who obtained a favorable decision must proceed with the auction and sale of the levied property within the period provided to execute the decision. Otherwise, he or she loses her right to do so.

Moreover, the court declared in the same case that an expired levy that was annotated on the title becomes a cloud on the title.  As a cloud, the owner of the property, or his or her heirs is entitled to have the same removed. As provided by law, whenever there is a cloud on title to real property or any interest therein, by reason of any instrument, record, claim, encumbrance or proceeding which is apparently valid or effective but is in truth and in fact invalid, ineffective, voidable or unenforceable, and may be prejudicial to the said title, an action may be brought to remove such cloud or to quiet the title (Art. 476, Civil Code). The action to remove the cloud may be filed by any person who has an interest in the property before the appropriate Regional Trial Court in accordance with Rule 63 of the Rules of Court.

Applied in your case, considering that more than twenty (20) years has lapsed since your property was levied, it can be safely assumed that the same has expired and is no longer enforceable.  It has become a cloud on your title.  As the owner of the levied property, you may file a petition in court to remove the annotation of the levy on your title.

We hope that we were able to enlighten you on the matter. 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 dearpao@manilatimes.net

Widow can conditionally donate house, lot to niece

Dear PAO,
I am already old, a widow and have no children. My niece is my only companion in life and the one who is taking care of me. Though still a minor at 16 years of age, I am wondering if I can donate my only piece of property, a house and lot, to her as a gesture of repaying the good deeds she has done for me. If ever, is this donation valid? Can I put a provision in the donation that as long as I am still alive, I will be the one who will use the house? 
Sioning

Dear Sioning,
Your desire to bestow upon your niece the house and lot mentioned in your letter without asking for anything in return is a donation. As defined, donation is an act of liberality whereby a person disposes gratuitously of a thing or right in favor of another, who accepts it (Article 725, New Civil Code of the Philippines).

Since your niece is still a minor, she still has no capacity to enter into a contract. Nonetheless, her legal guardian may represent her in all her transactions. For instance, in a Deed of Donation, since she cannot accept as yet the donation, she may be represented by her parents or legal guardian in accepting the same. This is clearly provided under Article 741 of the New Civil Code of the Philippines, to wit:

“Art. 741. Minors and others who cannot enter into a contract may become donees but acceptance shall be done through their parents or legal representatives.”

Thus, even if your niece is still a minor, you may donate to her what you think is appropriate to reward her for taking good care of you, such as the house and lot you mentioned in your letter. Also, since it appears that this house and lot is the only piece of property you own, you may reserve the use thereof exclusively to yourself even if the ownership is already transferred to your niece by way of donation. Article 750 of the New Civil Code of the Philippines gives light to this, to wit:

“Art. 750. The donations may comprehend all the present property of the donor, or part thereof, provided he reserves, in full ownership or in usufruct, sufficient means for the support of himself, and of all relatives who, at the time of the acceptance of the donation, are by law entitled to be supported by the donor. Without such reservation, the donation shall be reduced in petition of any person affected.”

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 dearpao@manilatimes.net

Law allows use of pen names

Dear PAO,
I would like to seek advice on the legal use of pen names. I am a children’s book writer and I have been using a pen name for the past couple of years. I have heard that there is a law penalizing the usurpation and improper use of one’s name. I want to know whether I have violated it considering my use of a pen name. I hope you can give me advice on this matter. Thank you and God bless.
Edson

Dear Edson,
The use of pen names is not an uncommon practice and it is even recognized and allowed under Philippine laws but subject to specific limitations. According to the Civil Code of the Philippines:

“Article 379. The employment of pen names or stage names is permitted, provided it is done in good faith and there is no injury to third persons. Pen names and stage names cannot be usurped.”

As this law expressly provides, use of pen names is legally permitted under Philippine laws. Thus, you may use a pen name for your work as a writer as long as it is done in good faith and with no harm to other persons. Furthermore, the cited provision provides that the pen name you are using is protected by law and cannot be usurped considering that you have a vested right in its use (Melencio Sta Maria, Persons And Family Relations Law, 2010).

With regard to your concern on the improper use of one’s name in relation to your use of a pen name, you have nothing to worry about since the use of a pen name is generally not considered improper as already explained above. Likewise, the law penalizing usurpation of a name does not apply to your case since use of a pen name is not a usurpation of a name unless you are using the name of another person as your pen name. Thus, while you may use a pen name as a writer, make sure that the pen name you are using is not the name of an existing person.

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 dearpao@manilatimes.net

No crime committed by custodian’s sibling over ‘stolen’ certificate of title

Dear PAO,
My parents are gone and being the oldest child, my siblings agreed that I will be the custodian of all certificates of title of their pieces of property. One of our siblings, however, who is so greedy, got one of the certificates without my permission during the celebration of the death anniversary of our father in my house and now he is refusing to return it. I want to pursue a case against him. What is the proper case to file? Is it theft or robbery?
Alex

Dear Alex,
The crimes of theft and robbery are both punishable under Crimes Against Property of Title XX of the Revised Penal Code (RPC). Both crimes pertain to the taking of personal property of another without the latter’s consent and with intent to gain. If the taking was committed without violence against, or intimidation of persons or force upon things, the crime committed is theft pursuant to Article 308 of the RPC. On the other hand, if the taking was committed with violence against, or intimidation of persons or force upon things, the proper crime to be charged is robbery pursuant to Article 293 of the same law.

The crimes of theft and robbery, however, are not the proper cases that may be filed against your sibling who, according to you, had got one of the certificates of title pertaining to the pieces of property of your deceased parents without your permission. One of the elements of theft and robbery is the taking of personal property of another and this essential element for both crimes are lacking in your case. It is important to note that the pieces of property covered by the certificates of title in your possession belong to your deceased parents. As such, these are co-owned by you and your siblings. The co-ownership of these pieces of property is based on your right as successor or heir of your parents. Since these pieces of property have not yet been divided, you and your siblings have the equal right over each of the pieces of property. Thus, being a co-owner of what were left by your parents, you cannot file a case either for theft or robbery against the sibling who allegedly got one of the certificates of titles in your care.

We suggest that you file a case for partition in court instead. This case for partition shall have the effect of dividing all the pieces of property of your parents to the latter’s heirs thereby preventing incidents like what happened during the commemoration of the death anniversary of your father. Nevertheless, you may try to have a settlement on your own, wherein you may agree by yourselves the division of these pieces of property through the execution of a deed of extra-judicial settlement.

We hope that we have answered your query. Our legal opinion may vary if other facts are stated 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 dearpao@manilatimes.net

source:  Manila Times

The crime of concubinage

Dear PAO,
My husband is working in Metro Manila and comes home with us in Davao once a month. There’s a rumor that my husband is cohabiting with another woman while he is away for work so I investigated the matter and found it to be true. What case can I file against my husband?
BT

Dear BT,
The act of your husband in cohabiting with another woman constitutes the crime of concubinage which is defined and penalized under Article 334 of the Revised Penal Code (RPC), to wit:

“Art. 334. Concubinage.—Any husband who shall keep a mistress in the conjugal dwelling, or shall have sexual intercourse, under scandalous circumstances, with a woman who is not his wife, or shall cohabit with her in any other place, shall be punished by prision correccional in its minimum and medium periods.

The concubine shall suffer the penalty of destierro.”

The crime of concubinage is considered a private crime which may only be prosecuted by the offended spouse. However, the offended party shall not be allowed to file a complaint for concubinage without including both the guilty parties, if they are both alive, nor, in any case, if she shall have consented or pardoned the offenders (Article 344, RPC).

Hence, being the offended spouse, you may file a complaint against your husband and his other woman before the Office of the Prosecutor of the place where they are cohabiting with each other. To successfully prosecute them of the crime of concubinage, you need to prove the following elements: 1) you and your husband are married; 2) he committed any of the following acts: a) keeping a mistress in the conjugal dwelling; b) having sexual intercourse under scandalous circumstances with a woman not his wife; c) cohabiting with her in any other place; 3) as regards the woman, she must know your husband to be married (Luis B. Reyes, The Revised Penal Code (Book Two), page 848).

The Public Attorney’s Office (PAO) provides free legal assistance to qualified indigent clients in filing of criminal complaints before the Office of the Prosecutor. To be able to assist you, you need to go to our district office of the place where your husband is cohabiting with another woman. Our district offices are usually located at city or municipal halls, justice halls, provincial halls or other buildings near the aforementioned places.

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts that 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 dearpao@manilatimes.net

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Grounds for ejecting lessee of rented condo unit

Dear PAO,
I am currently renting a condominium unit in Taguig City (Metro Manila) for P8,000 a month. The contract is to expire in one year. Six months after I started occupying the unit, the owner told me to vacate as she was selling it. Of course I did not leave. Can the buyer evict me after the sale?
Rhenz

Dear Rhenz,
The contract of lease you entered into with the condominium unit owner is covered by Republic Act (RA) 9653 or the Rent Control Act of 2009. Section 9 thereof provides the grounds for ejectment, to wit:

“SEC. 9. Grounds for Judicial Ejectment. – Ejectment shall be allowed on the following grounds:
(a) Assignment of lease or subleasing of residential units in whole or in part, including the acceptance of boarders or bedspacers, without the written consent of the owner/lessor;

(b) Arrears in payment of rent for a total of three (3) months: Provided, That in the case of refusal by the lessor to accept payment of the rent agreed upon, the lessee may either deposit, by way of consignation, the amount in court, or with the city or municipal treasurer, as the case may be, or barangay chairman, or in a bank in the name of and with notice to the lessor, within one (1) month after the refusal of the lessor to accept payment.

The lessee shall thereafter deposit the rent within ten (10) days of every current month. Failure to deposit the rent for three (3) months shall constitute a ground for ejectment.

The lessor, upon authority of the court in case of consignation or upon joint affidavit by him and the lessee to be submitted to the city or municipal treasurer or barangay chairman and to the bank where deposit was made, shall be allowed to withdraw the deposits;

(c) Legitimate need of the owner/lessor to repossess his or her property for his or her own use or for the use of any immediate member of his or her family as a residential unit: Provided, however, That the lease for a definite period has expired: Provided, further, that the lessor has given the lessee the formal notice three (3) months in advance of the lessor’s intention to repossess the property and: Provided, finally, that the owner/lessor is prohibited from leasing the residential unit or allowing its use by a third party for a period of at least (1) year from the time of repossession;

(d) Need of the lessor to make necessary repairs of the leased premises which is the subject of an existing order of condemnation by appropriate authorities concerned in order to make the said premises safe and habitable: Provided, That after said repair, the lessee ejected shall have the first preference to lease the same premises: Provided, however, That the new rent shall be reasonably commensurate with the expenses incurred for the repair of the said residential unit and: Provided, finally, That if the residential unit is condemned or completely demolished, the lease of the new building will no longer be subject to the aforementioned first preference rule in this subsection; and
(e) Expiration of the period of the lease contract.”

Clearly, the sale of the unit being rented is not a ground for evicting a tenant, even if the sale is consummated. The buyer should honor the contract as well as its terms and conditions. Should there exist a ground or grounds for ejectment after the sale, it is the right of the buyer to evict the tenant.
Also, as expressly provided by the above-mentioned law, no lessor shall be evicted by reason of the sale of the leased unit. This is particularly provided by Section 10 of the said law:

“SEC. 10. Prohibition Against Ejectment by Reason of Sale or Mortgage. – No lessor or his successor-in-interest shall be entitled to eject the lessee upon the ground that the leased premises have been sold or mortgaged to a third person regardless of whether the lease or mortgage is registered or not.”

Thus, if the only reason of your lessor to evict you from the premises you are renting is the sale of the said unit, then this will not prosper as this is contrary to 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 guide you with our opinion 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 dearpao@manilatimes.net


source:  Manila Times