Dear PAO,
I made my own last will and testament two years ago which was already
notarized and given to a trusted family member. Since then, a lot has
changed including my relationship with my family and the person to whom I
entrusted my will died already. Because of this, I’d like to make a new
last will that substantially changes the content of my old will. I’d
like to know how I can make a new last will and testament that will
replace the first one I made. I hope you can help me. Thanks!
Glory
Dear Glory,
The Philippine law on succession specifically provides for the manner of
changing a last will and testament and replacing it with a new one. The New Civil Code of the Philippines provides that:
“Article 830. No will shall be revoked except in the following cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing executed as provided in case of wills; or
(3) By burning, tearing, canceling, or obliterating the will with the
intention of revoking it, by the testator himself, or by some other
person in his presence, and by his express direction. If burned, torn,
cancelled, or obliterated by some other person, without the express
direction of the testator, the will may still be established, and the
estate distributed in accordance therewith, if its contents, and due
execution, and the fact of its unauthorized destruction, cancellation,
or obliteration are established according to the Rules of Court.”
It can be seen from the above cited law that a last will and
testament can be revoked either by implication of law; by physical
destruction of the will with intent to revoke it; or by execution of a
new will. In your case, the last one applies since you mentioned that
you wish to make a new will wherein such act of making a subsequent will
can have the effect of revoking your old will and rendering it
ineffective.
However, mere preparation of a new will does not automatically render
the old will inoperative. In order to have a valid revocation of a will
by a subsequent will, it is important that: the subsequent will
complies with the formal requirements in the execution of a will; the
maker of the will possesses testamentary capacity; and the subsequent
will must either contain express revocatory clause or is incompatible
with the prior will; and that the subsequent will be also probated.
(Ruben F. Balane, Jottings and Jurisprudence in Civil Law Succession,
2006)
In other words, to effectively replace the old will with a new will,
the recent will must either expressly mention the intention to replace
the old will, or contain provision which is incompatible with the old
will as this signifies the intention to revoke the old will. This, in
addition to the requirement that the last will follows the formalities
set by law and be probated by Court, is what you must do to replace your
old will with a new one.
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
source: Manila Times
Wednesday, February 5, 2014
The statute of frauds: More than just a handshake
WE LIVE in a society where businesses
thrive and flourish based on so-called gentlemen’s agreements and adhere
to a close-knit paradigm of intrapersonal relationships. Most
businessmen today fail to recognize the value of a written and signed
contract. While not all contracts need to be in writing and subscribed
by or signed by the parties to be enforceable, the Statute of Frauds,
found in paragraph 2 of Article 1403 of our Civil Code, enumerates six
classes of statutes which describe transactions required by law to be in
writing.
The Statute of Frauds finds its roots in the Parliament of England in the 1600s. It was then adopted in our Civil Code. The rationale behind the Statute of Frauds is to prevent fraud and perjury in the enforcement of obligations. Without a written contract, parties will depend on their sheer memory or that of their witnesses. Without any palpable evidence of the intention of the parties when the contract is executed, there is a high probability of fraud.
The first statute pertains to an agreement whose terms are not to be performed within a year from its making. In Viewmaster Construction Corp. v. Roxas (G.R. No. 133576, July 13, 2000), the Supreme Court found that a verbal agreement to act as guarantor for a loan -- only after the borrower sells 50% of his shareholdings in a corporation; and undertake a joint venture over two real estate properties -- was clear to be performed more than a year from the making thereof. As the circumstances behind the agreement fell squarely within the coverage of this statute, the verbal agreement was declared to be unenforceable.
The second statute applies to a special promise to answer for the debt, default or miscarriage of another. It must be noted however that for this statute to apply, the promise must be merely collateral. Thus, if the promisor becomes thereby primarily liable for the payment of the debt, the Supreme Court held in Reisse v. Jemije (G.R. No. 5447, March 1, 1910) that the transaction need not be made in writing to be enforceable.
The third statute involves transactions made in consideration of marriage. To clarify, this statute does not cover instances where there is a breach of a mutual promise to marry. Consequently, a groom may sue his bride for damages based on a verbal promise (Cabague v. Auxilio, G.R. No. 5028, Nov. 26, 1952). What the statute contemplates is a promise by third persons to one of the parties contemplating the marriage. In the case of Domalagan v. Bolifer (G.R. No. 8166, Feb. 8, 1916), the Supreme Court held that a father who verbally agreed and gave money to his son’s fiancé cannot seek the return thereof because the agreement was not evidenced by a note or memorandum.
The fourth statute relates to sale of personal property for a price not less than P500. While this amount may be considered unsubstantial at this age and time, the value of P500 still controls, since there has been no amendment to this provision of law.
The fifth statute pertains to an agreement for a lease longer than one year. Consequently, a tenant cannot demand for the execution of a supplemental contract of lease for a period longer than of one year based on the landlord’s verbal promise.
The statute also applies to transactions involving the sale of real property or an interest therein. However, where part of the purchase price in an oral contract of sale of real estate had been paid, said partial performance takes the transaction out of the coverage of the statute. This statute only applies to interests involving a perfected contract of sale.
Lastly, the sixth statute applies to representations made to the credit of a third person. Thus, as a general rule, a representation made by a corporate officer to bind a corporation to a verbal agreement may be impugned for being unenforceable if such was not made in writing. However, such objections must be timely made and no benefit must have been derived by the corporation from the said transaction.
If the parties fail to reduce in writing their agreement, such a defect may nevertheless be ratified. Also, partial performance of any of the obligations in the agreement will no longer make it susceptible to being challenged under the Statute of Frauds.
In conclusion, knowing which transactions are covered by the Statute of Frauds is relevant to either ensure the enforceability of contractual obligations or challenge any obligation or liability not agreed upon. Clearly, the failure to present a written contract may have far reaching consequences as no evidence of the transaction will be admitted in court, unless the party enforcing presents a note or memorandum which is duly subscribed by the party obligated. In either case, it is safer to have a written contract, note or memorandum which clearly defines the terms of the obligation -- especially since, there may be instances when a handshake may not be enough.
(The author is an Associate of Angara Abello Concepcion Regala & Cruz Law Offices [ACCRALAW]. She can be contacted at 830-8000 or jcalegre@accralaw.com. The views and opinions expressed in this article are those of the author. This article is for general informational and educational purposes and not offered as and does not constitute legal advice or legal opinion.)
source: Businessworld
The Statute of Frauds finds its roots in the Parliament of England in the 1600s. It was then adopted in our Civil Code. The rationale behind the Statute of Frauds is to prevent fraud and perjury in the enforcement of obligations. Without a written contract, parties will depend on their sheer memory or that of their witnesses. Without any palpable evidence of the intention of the parties when the contract is executed, there is a high probability of fraud.
The first statute pertains to an agreement whose terms are not to be performed within a year from its making. In Viewmaster Construction Corp. v. Roxas (G.R. No. 133576, July 13, 2000), the Supreme Court found that a verbal agreement to act as guarantor for a loan -- only after the borrower sells 50% of his shareholdings in a corporation; and undertake a joint venture over two real estate properties -- was clear to be performed more than a year from the making thereof. As the circumstances behind the agreement fell squarely within the coverage of this statute, the verbal agreement was declared to be unenforceable.
The second statute applies to a special promise to answer for the debt, default or miscarriage of another. It must be noted however that for this statute to apply, the promise must be merely collateral. Thus, if the promisor becomes thereby primarily liable for the payment of the debt, the Supreme Court held in Reisse v. Jemije (G.R. No. 5447, March 1, 1910) that the transaction need not be made in writing to be enforceable.
The third statute involves transactions made in consideration of marriage. To clarify, this statute does not cover instances where there is a breach of a mutual promise to marry. Consequently, a groom may sue his bride for damages based on a verbal promise (Cabague v. Auxilio, G.R. No. 5028, Nov. 26, 1952). What the statute contemplates is a promise by third persons to one of the parties contemplating the marriage. In the case of Domalagan v. Bolifer (G.R. No. 8166, Feb. 8, 1916), the Supreme Court held that a father who verbally agreed and gave money to his son’s fiancé cannot seek the return thereof because the agreement was not evidenced by a note or memorandum.
The fourth statute relates to sale of personal property for a price not less than P500. While this amount may be considered unsubstantial at this age and time, the value of P500 still controls, since there has been no amendment to this provision of law.
The fifth statute pertains to an agreement for a lease longer than one year. Consequently, a tenant cannot demand for the execution of a supplemental contract of lease for a period longer than of one year based on the landlord’s verbal promise.
The statute also applies to transactions involving the sale of real property or an interest therein. However, where part of the purchase price in an oral contract of sale of real estate had been paid, said partial performance takes the transaction out of the coverage of the statute. This statute only applies to interests involving a perfected contract of sale.
Lastly, the sixth statute applies to representations made to the credit of a third person. Thus, as a general rule, a representation made by a corporate officer to bind a corporation to a verbal agreement may be impugned for being unenforceable if such was not made in writing. However, such objections must be timely made and no benefit must have been derived by the corporation from the said transaction.
If the parties fail to reduce in writing their agreement, such a defect may nevertheless be ratified. Also, partial performance of any of the obligations in the agreement will no longer make it susceptible to being challenged under the Statute of Frauds.
In conclusion, knowing which transactions are covered by the Statute of Frauds is relevant to either ensure the enforceability of contractual obligations or challenge any obligation or liability not agreed upon. Clearly, the failure to present a written contract may have far reaching consequences as no evidence of the transaction will be admitted in court, unless the party enforcing presents a note or memorandum which is duly subscribed by the party obligated. In either case, it is safer to have a written contract, note or memorandum which clearly defines the terms of the obligation -- especially since, there may be instances when a handshake may not be enough.
(The author is an Associate of Angara Abello Concepcion Regala & Cruz Law Offices [ACCRALAW]. She can be contacted at 830-8000 or jcalegre@accralaw.com. The views and opinions expressed in this article are those of the author. This article is for general informational and educational purposes and not offered as and does not constitute legal advice or legal opinion.)
source: Businessworld
Monday, February 3, 2014
Parents can execute a will, deed of donation or sale in favor of their heirs
Dear PAO,
I would like to make a query on how my parents can transfer to me their properties while they are still living. I want to know the process on how this can be done. What are the documents that need to be prepared?
Thank you.
BRG
Dear BRG,
Article 712 of the New Civil Code (NCC) provides for the mode of acquisition of properties, thus we quote as follows:
“Art. 712. Ownership is acquired by occupation and by intellectual creation.
Ownership and other real rights over property are acquired and transmitted by law, by donation, by estate and intestate succession, and in consequence of certain contracts, by tradition.
They may also be acquired by means of prescription.”
Assuming that you are the only child of your parents and you are their only compulsory heir, there are several means wherein they can transfer title to their properties in your name while they are still living. They may opt to execute a Deed of Sale or a Deed of Donation in your favor. They can also make a will and have it probated while they are still living and have their properties partitioned in accordance with what they wish.
Should they desire, they can execute a Deed of Donation in your favor. Under the law, 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, NCC). In donation, the transfer of the property by the donor to the donee is gratuitous and the consideration is the donor’s graciousness, love and affection to the donee or the recipient. There is no monetary consideration for the transfer of the property in donation except for the love and affection of the donor to the donee. It is important however that the requisites for a valid donation be complied with. Article 749 of the New Civil Code provides for the requisites for a valid donation, thus:
“Art. 749. In order that the donation of an immovable may be valid, it must be made in a public document, specifying therein the property donated and the value of the charges which the donee must satisfy.
The acceptance may be made in the same deed of donation or in a separate public document, but it shall not take effect unless it is done during the lifetime of the donor.
If the acceptance is made in a separate instrument, the donor shall be notified thereof in an authentic form, and this step shall be noted in both instruments.”
If the Deed of Donation provides that the same will take effect during the lifetime of your parents then the title to the property which has been donated to you may be transferred in your name after the appropriate donor’s and transfer taxes have been paid. Aside from the execution of a valid Deed of Donation, the law requires the payment of taxes by the parties to a donation. After the payment of the required taxes, you may go to the Office of the Register of Deeds where the property subject matter of the Deed of Donation is and have the said deed registered and inscribed at the back of the title involving the said property. The registration of the Deed of Donation with the Register of Deeds is very important in order to bind third parties who are not parties to the Deed of Donation. The inscription at the back of the title to the property of the said Deed of Donation is a notice to other parties not involved in the said deed of the transfer of the property to you by your parents through an instrument called Deed of Donation. After the registration and inscription, you may take the appropriate steps so that the title to the said properties be transferred in your name.
We hope that we were able to address your query. We wish to remind you however that our opinion is based on the facts that you stated. Our opinion may vary if other facts are added 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
I would like to make a query on how my parents can transfer to me their properties while they are still living. I want to know the process on how this can be done. What are the documents that need to be prepared?
Thank you.
BRG
Dear BRG,
Article 712 of the New Civil Code (NCC) provides for the mode of acquisition of properties, thus we quote as follows:
“Art. 712. Ownership is acquired by occupation and by intellectual creation.
Ownership and other real rights over property are acquired and transmitted by law, by donation, by estate and intestate succession, and in consequence of certain contracts, by tradition.
They may also be acquired by means of prescription.”
Assuming that you are the only child of your parents and you are their only compulsory heir, there are several means wherein they can transfer title to their properties in your name while they are still living. They may opt to execute a Deed of Sale or a Deed of Donation in your favor. They can also make a will and have it probated while they are still living and have their properties partitioned in accordance with what they wish.
Should they desire, they can execute a Deed of Donation in your favor. Under the law, 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, NCC). In donation, the transfer of the property by the donor to the donee is gratuitous and the consideration is the donor’s graciousness, love and affection to the donee or the recipient. There is no monetary consideration for the transfer of the property in donation except for the love and affection of the donor to the donee. It is important however that the requisites for a valid donation be complied with. Article 749 of the New Civil Code provides for the requisites for a valid donation, thus:
“Art. 749. In order that the donation of an immovable may be valid, it must be made in a public document, specifying therein the property donated and the value of the charges which the donee must satisfy.
The acceptance may be made in the same deed of donation or in a separate public document, but it shall not take effect unless it is done during the lifetime of the donor.
If the acceptance is made in a separate instrument, the donor shall be notified thereof in an authentic form, and this step shall be noted in both instruments.”
If the Deed of Donation provides that the same will take effect during the lifetime of your parents then the title to the property which has been donated to you may be transferred in your name after the appropriate donor’s and transfer taxes have been paid. Aside from the execution of a valid Deed of Donation, the law requires the payment of taxes by the parties to a donation. After the payment of the required taxes, you may go to the Office of the Register of Deeds where the property subject matter of the Deed of Donation is and have the said deed registered and inscribed at the back of the title involving the said property. The registration of the Deed of Donation with the Register of Deeds is very important in order to bind third parties who are not parties to the Deed of Donation. The inscription at the back of the title to the property of the said Deed of Donation is a notice to other parties not involved in the said deed of the transfer of the property to you by your parents through an instrument called Deed of Donation. After the registration and inscription, you may take the appropriate steps so that the title to the said properties be transferred in your name.
We hope that we were able to address your query. We wish to remind you however that our opinion is based on the facts that you stated. Our opinion may vary if other facts are added 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
Thursday, December 5, 2013
Petitions for correction of birth certificate errors not as costly as criminal or civil cases
Dear PAO,
I have a legal problem regarding the entries in the birth certificates of my two children. From my reading of your column, I learned that the error in the entries in the birth certificates of my children will require correction which can only be effected by an order of the court. My questions are, how is the petition filed and how much will I spend for this including the lawyer’s fees?
Ms. Saipan
Dear Ms. Saipan,
Before you can file the petition to effect the correction in the birth certificates of your children, you should consult a lawyer who will prepare the said petition. The Petition for Correction of Entry in the record of birth of any party seeking for correction in the same may be filed in the Regional Trial Court of the place where the birth is registered. In your case, you may file the petition in the place of the appropriate civil registry where the births of your two (2) children are registered. The said remedy is provided for under Section 1, Rule 108 of the Rules of Court which provides that:
“Any person interested in any act, event or order or decree concerning the civil status of persons which has been recorded in the civil register may file a verified petition for the cancellation or correction of any entry relating thereto, with the Court of First Instance (now Regional Trial Court) of the province where the civil registry is located.”
The following entries in the Civil Register may be cancelled or corrected: (a) births; (b) marriages; (c) deaths; (d) legal separations; (e) judgments or annulments of marriage; (f) judgment declaring marriages void from the beginning; (g) legitimations; (h) adoptions; (i) acknowledgments of natural children; (j) naturalization; (k) election, loss or recovery of citizenship; (l) civil interdiction; (m) judicial determination of filiation; (n) voluntary emancipation of a minor; and (o) changes of name (Section 2, Rule 108, Rules of Court).
Relative to your query of how much is the cost for the filing of the petition, you will be spending for the filing fees in court as well as the expenses for the publication. Filing fees for this kind of cases are minimal. However, the amount of expenses for the publication would depend on the kind of newspaper that will publish the Order of the court giving due course to your petition. Judicial publications are determined through raffle and made through the Office of the Clerk of Court which has jurisdiction over your petition.
As for the lawyers’ fee, the same is dependent on the intricacies of the case, the professional standing of the lawyer, among others, and subject to the guidelines as imposed by the Code of Professional Responsibility.
Canon 20 of the Code of Professional Responsibility, provides, that a lawyer shall charge only fair and reasonable fees and in the determination of the lawyers’ fees, a lawyer shall be guided by the following factors, to wit:
a) The time spent and the extent of the services rendered or required;
b) The novelty and difficulty of the questions involved;
c) The importance of the subject matter;
d) The skill demanded;
e) The probability of losing other employment as a result of the acceptance of the proferred case;
f) The customary charges for similar services and the schedule of fees of the IBP chapter to which he belongs;
g) The amount involved in the controversy and the benefits resulting to the client from the service;
h) The character of the employment, whether occasional or established; and
i) Professional standing of the lawyer (Rule 20.01 Code of Professional Responsibility).
Petitions for correction of entries may not be as difficult as other criminal or civil cases, hence, lawyers may not be charging you much more than what is fair and reasonable.
We hope that we were able to substantially answer all your queries. However, please be reminded that our opinion is based on your narration of facts and our appreciation of the same. The opinion may vary if other facts are added 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
I have a legal problem regarding the entries in the birth certificates of my two children. From my reading of your column, I learned that the error in the entries in the birth certificates of my children will require correction which can only be effected by an order of the court. My questions are, how is the petition filed and how much will I spend for this including the lawyer’s fees?
Ms. Saipan
Dear Ms. Saipan,
Before you can file the petition to effect the correction in the birth certificates of your children, you should consult a lawyer who will prepare the said petition. The Petition for Correction of Entry in the record of birth of any party seeking for correction in the same may be filed in the Regional Trial Court of the place where the birth is registered. In your case, you may file the petition in the place of the appropriate civil registry where the births of your two (2) children are registered. The said remedy is provided for under Section 1, Rule 108 of the Rules of Court which provides that:
“Any person interested in any act, event or order or decree concerning the civil status of persons which has been recorded in the civil register may file a verified petition for the cancellation or correction of any entry relating thereto, with the Court of First Instance (now Regional Trial Court) of the province where the civil registry is located.”
The following entries in the Civil Register may be cancelled or corrected: (a) births; (b) marriages; (c) deaths; (d) legal separations; (e) judgments or annulments of marriage; (f) judgment declaring marriages void from the beginning; (g) legitimations; (h) adoptions; (i) acknowledgments of natural children; (j) naturalization; (k) election, loss or recovery of citizenship; (l) civil interdiction; (m) judicial determination of filiation; (n) voluntary emancipation of a minor; and (o) changes of name (Section 2, Rule 108, Rules of Court).
Relative to your query of how much is the cost for the filing of the petition, you will be spending for the filing fees in court as well as the expenses for the publication. Filing fees for this kind of cases are minimal. However, the amount of expenses for the publication would depend on the kind of newspaper that will publish the Order of the court giving due course to your petition. Judicial publications are determined through raffle and made through the Office of the Clerk of Court which has jurisdiction over your petition.
As for the lawyers’ fee, the same is dependent on the intricacies of the case, the professional standing of the lawyer, among others, and subject to the guidelines as imposed by the Code of Professional Responsibility.
Canon 20 of the Code of Professional Responsibility, provides, that a lawyer shall charge only fair and reasonable fees and in the determination of the lawyers’ fees, a lawyer shall be guided by the following factors, to wit:
a) The time spent and the extent of the services rendered or required;
b) The novelty and difficulty of the questions involved;
c) The importance of the subject matter;
d) The skill demanded;
e) The probability of losing other employment as a result of the acceptance of the proferred case;
f) The customary charges for similar services and the schedule of fees of the IBP chapter to which he belongs;
g) The amount involved in the controversy and the benefits resulting to the client from the service;
h) The character of the employment, whether occasional or established; and
i) Professional standing of the lawyer (Rule 20.01 Code of Professional Responsibility).
Petitions for correction of entries may not be as difficult as other criminal or civil cases, hence, lawyers may not be charging you much more than what is fair and reasonable.
We hope that we were able to substantially answer all your queries. However, please be reminded that our opinion is based on your narration of facts and our appreciation of the same. The opinion may vary if other facts are added 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
Friday, November 22, 2013
Bounced checks constitute crime of estafa
Dear PAO,
I received a demand letter from my creditor to pay the amount corresponding to the postdated checks I issued, which were dishonored because of “insufficient funds”. Before receipt of the demand letter, I was willing to settle my obligations but my creditor and I had a misunderstanding regarding the manner of payment of my debt. In the end, she said that she would just see me in court as she did not agree to any settlement anymore.
I admit to be a bit angry because of her inconsideration. Then, I received a demand letter asking me to pay all my debts otherwise she will file a case for estafa and threatens me of imprisonment for 20 years. I believe that the case will be dismissed because I know that no person can be imprisoned for non-payment of debt. Please clarify!
Josie
Dear Josie,
Our Constitution has declared under Section 20, Article III thereof that “no person shall be imprisoned for debt or non-payment of poll tax”. Although a person who is indebted cannot be punished by imprisonment, he may nevertheless be sued civilly for collection of sum of money, wherein the court shall order payment of debt. However, when the act of borrowing of money is accompanied with an act which is punishable by law with imprisonment or penalty, the debtor may be criminally liable not for the non-payment of debt but for the commission of the crime. As in your case, borrowing, alone, of money will not make you criminally liable. But your issuance of postdated checks which were later dishonored for “insufficiency of funds” constitutes a crime of either violation of Batas Pambansa Blg. 22 (B.P. 22) or Estafa.
BP 22, commonly referred to as “Bouncing Checks Law”, punishes any person who makes or draws and issues any checks to apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check upon its presentment. On the other hand, the maker or issuer may likewise be liable for estafa punishable under Article 315 of the Revised Penal Code if he issues a check for payment of an obligation using false pretense or fraudulent act.
Thus, your creditor may pursue either a criminal case for violation of B.P. 22 and/or estafa against you depending on the events surrounding your issuance of postdated checks. The penalty of twenty (20) years for the issuance of unfunded check is not a threat for you to pay in full the amount of the checks. The said imprisonment is the maximum penalty which can be imposed upon an accused in an estafa case under Article 315 of the Revised Penal Code, which states that “the penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years.”
Please be reminded that the above legal opinion is solely based on our appreciation of the problem that you have stated. The opinion may vary when other facts are stated.
source: Manila Times Column of Atty Persida Acosta
I received a demand letter from my creditor to pay the amount corresponding to the postdated checks I issued, which were dishonored because of “insufficient funds”. Before receipt of the demand letter, I was willing to settle my obligations but my creditor and I had a misunderstanding regarding the manner of payment of my debt. In the end, she said that she would just see me in court as she did not agree to any settlement anymore.
I admit to be a bit angry because of her inconsideration. Then, I received a demand letter asking me to pay all my debts otherwise she will file a case for estafa and threatens me of imprisonment for 20 years. I believe that the case will be dismissed because I know that no person can be imprisoned for non-payment of debt. Please clarify!
Josie
Dear Josie,
Our Constitution has declared under Section 20, Article III thereof that “no person shall be imprisoned for debt or non-payment of poll tax”. Although a person who is indebted cannot be punished by imprisonment, he may nevertheless be sued civilly for collection of sum of money, wherein the court shall order payment of debt. However, when the act of borrowing of money is accompanied with an act which is punishable by law with imprisonment or penalty, the debtor may be criminally liable not for the non-payment of debt but for the commission of the crime. As in your case, borrowing, alone, of money will not make you criminally liable. But your issuance of postdated checks which were later dishonored for “insufficiency of funds” constitutes a crime of either violation of Batas Pambansa Blg. 22 (B.P. 22) or Estafa.
BP 22, commonly referred to as “Bouncing Checks Law”, punishes any person who makes or draws and issues any checks to apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check upon its presentment. On the other hand, the maker or issuer may likewise be liable for estafa punishable under Article 315 of the Revised Penal Code if he issues a check for payment of an obligation using false pretense or fraudulent act.
Thus, your creditor may pursue either a criminal case for violation of B.P. 22 and/or estafa against you depending on the events surrounding your issuance of postdated checks. The penalty of twenty (20) years for the issuance of unfunded check is not a threat for you to pay in full the amount of the checks. The said imprisonment is the maximum penalty which can be imposed upon an accused in an estafa case under Article 315 of the Revised Penal Code, which states that “the penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years.”
Please be reminded that the above legal opinion is solely based on our appreciation of the problem that you have stated. The opinion may vary when other facts are stated.
source: Manila Times Column of Atty Persida Acosta
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.
ME
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
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.
ME
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
Wednesday, November 13, 2013
Lessee may not legally suspend rent payment
Dear PAO,
My friend was named by his cousins as their attorney-in-fact in a Special Power of Attorney which they have executed relating to their properties here in the Philippines since they are domiciled abroad. My friend had the 2,000 square meter lot and the house leased at P2,500 a month, but there was no written contract. The problem is that the lessee has not paid the rentals since October 2012 and is even asking my friend to pay him the amount he spent for the improvements made in the properties. He warned my friend that a case will be filed against him if he will not settle the amount. What can my friend do to force the lessee to leave the properties which are the subject of the lease agreement?
Pia
Dear Pia,
Both parties in a contract of lease have respective obligations to fulfill. For one, the lessor is obliged, during the subsistence of the contract of lease, to make all the necessary repairs to the object of their contract in order to keep the same suitable for the use to which it has been devoted, unless there is a stipulation to the contrary (Article 1654 (2), New Civil Code [NCC]). In so far as the lessee is concerned, he or she is obliged, among others, to pay the price of the lease according to the terms stipulated in their contract (Article 1657 (1), NCC).
Should either the lessor or the lessee fail to comply with his or her obligation, the aggrieved party may ask for the rescission of the contract of lease and indemnification for damages, or allow the contract to remain in force but seek for indemnification for damages he has incurred (Article 1659, NCC). The lessee also has the option of suspending the payment of his rent if the lessor fails to make the necessary repairs or to maintain the lessee in peaceful and adequate enjoyment of the property leased and he may order the costs be attributable to the lessor if the latter has failed to make urgent repairs (Article 1658 and Article 1663 (4), NCC).
In the situation that you have presented before us, we cannot conclude with certainty whether your friend, as the representative of the owners of the property, is obliged to indemnify the lessee. While it may be true that certain works have been made by the lessee in the properties leased, it is not clear to us whether such were in the nature of necessary repairs. Accordingly, the lessee may not lawfully suspend the payment of his rent. Neither is there is any showing that such works were made as part of urgent repairs to the properties. Hence, the lessee may not order that the same be placed at the cost of the lessor or his representative.
Since the lessee has failed to comply with his obligation of paying the rent which has became due since October 2012, your friend may opt to file for judicial ejectment against the lessee. Pursuant to Section 9 of Republic Act No. 9653, otherwise known as the Rent Control Act of 2009, “Ejectment shall be allowed on the following grounds: x x x (b) Arrears in payment of rent for a total of three months: x x x”
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.
My friend was named by his cousins as their attorney-in-fact in a Special Power of Attorney which they have executed relating to their properties here in the Philippines since they are domiciled abroad. My friend had the 2,000 square meter lot and the house leased at P2,500 a month, but there was no written contract. The problem is that the lessee has not paid the rentals since October 2012 and is even asking my friend to pay him the amount he spent for the improvements made in the properties. He warned my friend that a case will be filed against him if he will not settle the amount. What can my friend do to force the lessee to leave the properties which are the subject of the lease agreement?
Pia
Dear Pia,
Both parties in a contract of lease have respective obligations to fulfill. For one, the lessor is obliged, during the subsistence of the contract of lease, to make all the necessary repairs to the object of their contract in order to keep the same suitable for the use to which it has been devoted, unless there is a stipulation to the contrary (Article 1654 (2), New Civil Code [NCC]). In so far as the lessee is concerned, he or she is obliged, among others, to pay the price of the lease according to the terms stipulated in their contract (Article 1657 (1), NCC).
Should either the lessor or the lessee fail to comply with his or her obligation, the aggrieved party may ask for the rescission of the contract of lease and indemnification for damages, or allow the contract to remain in force but seek for indemnification for damages he has incurred (Article 1659, NCC). The lessee also has the option of suspending the payment of his rent if the lessor fails to make the necessary repairs or to maintain the lessee in peaceful and adequate enjoyment of the property leased and he may order the costs be attributable to the lessor if the latter has failed to make urgent repairs (Article 1658 and Article 1663 (4), NCC).
In the situation that you have presented before us, we cannot conclude with certainty whether your friend, as the representative of the owners of the property, is obliged to indemnify the lessee. While it may be true that certain works have been made by the lessee in the properties leased, it is not clear to us whether such were in the nature of necessary repairs. Accordingly, the lessee may not lawfully suspend the payment of his rent. Neither is there is any showing that such works were made as part of urgent repairs to the properties. Hence, the lessee may not order that the same be placed at the cost of the lessor or his representative.
Since the lessee has failed to comply with his obligation of paying the rent which has became due since October 2012, your friend may opt to file for judicial ejectment against the lessee. Pursuant to Section 9 of Republic Act No. 9653, otherwise known as the Rent Control Act of 2009, “Ejectment shall be allowed on the following grounds: x x x (b) Arrears in payment of rent for a total of three months: x x x”
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.
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