After last will found valid, heirs get testator’s wealth

Dear PAO,

Persida Acosta

PAO

When my aunt died, she left a last will and testament where she designated me and my other cousins as heirs to all her pieces of property. What shall we do to enforce the provisions of her will? Is there a possibility for her will to be invalidated?
Mr. Reyes

Dear Mr. Reyes,
The last will and testament of your aunt should be proved and allowed first in accordance with our Rules of Court before any of her pieces of property may be transferred to the heirs named therein (Article 838, Civil Code of the Philippines). Being one of the designated heirs, you may file a petition for probate before the Regional Trial Court where she resides at the time of her death. Your petition shall contain the following: 1) jurisdictional facts; 2) the names, ages and residences of the heirs, legatees and devisees of the testator or decedent; 3) the probable value and character of the pieces of property of the estate; 4) the name of the person for whom letters are prayed; and 5) if the will has not been delivered to the court, the name of the person having custody of the pieces of property (Rule 76, Section 2, Rules of Court). Once you have filed the petition, the court having jurisdiction shall fix a time and place for proving the will when all concerned may appear to contest the allowance thereof, and shall cause notice of such time and place to be published three (3) weeks successively, previous to the time appointed, in a newspaper of general circulation in the province (Rule 76, Section 3, Rules of Court). If the court is satisfied with your petition, it shall issue a certificate of allowance duly attested by the seal of the court that shall be attached to the will. The attested copies of the will devising real property and of the certificate of allowance thereof, shall be recorded in the register of deeds of the province in which the lands are located (Rule 76, Section 3, Rules of Court).

The last will and testament of your aunt will be disallowed, however, in any of the following instances: 1) if the formalities required by law have not been complied with; 2) if the testator was insane or otherwise mentally incapable of making a will, at the time of its execution; 3) if it was executed through force or under duress, or the influence of fear, or threats; 4) if it was procured by undue and improper influence on the part of the beneficiary or of some other person; 5) if the signature of the testator was procured by fraud; and 6) if the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto (Article 839, 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 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

Disinheritance valid when made through a will citing legal cause

Dear PAO,
Our house was built in a property left by my late grandfather.  Recently, my uncle came to our house and demanded that we vacate the property.  He claimed that my father was disinherited by my late grandfather so we do not have any right to the property.  He showed us the last will and testament of my grandfather to prove the disinheritance.  What can we do? Do we not have any right to the property?
Mardy

Dear Mardy,
Disinheritance is not taken lightly in our jurisdiction.  There are stringent rules before a compulsory heir can be stripped of his or her right to inherit, to wit: The disinheritance must be effected through a will wherein a legal cause shall be specified (Art.  916, Civil Code of the Philippines).

There are two important requisites mentioned in this provision of law. First, the disinheritance must be effected through a will.  This means that it should follow the stringent rules on forms and solemnities of a will, either holographic or notarial.  Otherwise, the disinheritance will be void.   Second, there must be a legal cause for disinheritance, which must be real, not imaginary.  In case of children and other descendants, the legal causes are: 1) conviction for the crime of adultery or concubinage with the spouse of the testator, or any other crime carrying the penalty of civil interdiction; 2) having been found guilty of attempting to kill the testator, his or her spouse, descendants or ascendants; 3) making groundless accusation against the testator of a crime punishable by at least six years of imprisonment; 4) refusal to give support without justifiable cause; 5) maltreatment by word or deed; 6) living a dishonorable and disgraceful life; 7) employing fraud, violence, intimidation, or undue influence to induce the testator to make or modify a will (Art. 919 , Civil Code of the Philippines).

Your father may question his disinheritance using these standards as guide.  He may check if the last will and testament of your grandfather conforms with the requirements set by the Civil Code.  He may also verify the cause of the disinheritance. If it is not included in the legal causes provided by law, or if the same be false or fabricated, your father may question his disinheritance.  In such a case, the other heirs of your grandfather have the burden of proving the truth of the cause (Art. 917, Civil Code of the Philippines). Failure on their part to substantiate the alleged cause would render the disinheritance void.

In addition, our Civil Code expressly provides that “a subsequent reconciliation between the offender and the offended person deprives the latter of the right to disinherit, and renders ineffectual any disinheritance that may have been made” (Art. 922). Hence, your father may also show that he and your grandfather have already reconciled to question the disinheritance if this be the case.

In any event, it is not true that your family does not have any right to the property.  Even if we consider that your father was legally disinherited by your grandfather, your family still has a right on the property he left.  The law clearly states that “the children and descendants of the person disinherited shall take his or her place and shall preserve the rights of compulsory heirs with respect to the legitime” (Art. 923, Civil Code of the Philippines). Thus, the rule on representation will apply. Representation is a right created by fiction of law, by virtue of which the representative is raised to the place and the degree of the person represented, and acquires the rights which the latter would have if he were living or if he could have inherited (Art.
970, Civil Code of the Philippines). This means that you and your siblings, if any, will represent your father and receive his share from the estate left by your grandfather.

We hope you find the foregoing in order. Please bear in mind that the opinion above is based on the facts you presented and our appreciation of the same. Our opinion may vary should actual facts and circumstances change.

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

Negligent persons who cause harm liable for damages

Dear PAO,
As I was passing by a salon last week, I was shocked to have been drenched in what seemed to me was foul-smelling water. One of the hairdressers of that salon was cleaning up and threw a bucket of water outside their window without even checking if there were people staying or passing by. I was so outraged because I was then on my way to work. I demanded to talk to the salon owner, but they refused to heed my demand. So, I decided to file a blotter to the nearest police station to document what happened to me. Upon reaching my house, I started noticing that my scalp was itching. The next day, hair strands started to fall off from my head, and now I have a small patch in my scalp for the lost hair.

Can I sue the hairdresser? Can I also sue the salon owner? I hope you can advice me.
Ms. Depressed

Dear Ms. Depressed,
Every person must act diligently so as to avoid injury to another person or another’s property. A person who causes damage to another or to the property of the latter may be held liable thereto to the extent as may be provided under the terms and stipulations agreed upon by them, should a contract exist between the parties, or in consonance with law, if there is no contractual relationship between them.

Accordingly, a person who throws a bucket of water outside his or her window may be held liable if he was negligent in his actions and such negligence caused damage or injury to a bystander or a passerby, similar to what happened to you. This is pursuant to Article 2176 of the New Civil Code of the Philippines, which provides: “Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called quasi-delict x x x”

The liability does not only extend to the perpetrator, but also to those responsible for them, as long as the former is performing his or her assigned tasks. As provided for under Article 2180 of the said law: “The obligation imposed by Article 2176 is demandable not only for one’s own acts or omissions, but also for those of persons for whom one is responsible. x x x Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their tasks, even though the former are not engaged in any business or industry. x x x”

However, it is still essential for you to establish that the injury you claim to have sustained, particularly the itching of your scalp as well as the small patch which was brought about by the falling off of your hair, was predominantly the result of the negligent act of the hairdresser. If you fail, however, to establish this or if it is later on shown that the injury you sustained was by reason of your own negligence, the award of damages may not prosper. According to Article 2179 of the New Civil Code of the Philippines: “When the plaintiff’s own negligence was the immediate and proximate cause of his injury, he cannot recover damages. But if his negligence was only contributory, the immediate and proximate cause of the injury being the defendant’s lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be awarded.”

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 dearpao@manilatimes.net

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.
Arianne

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 dearpao@manilatimes.net

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