A common question arises when Filipino clients ask me for help with their Wills.

Is a valid Will in Alberta, Canada enforceable and valid in the Philippines as well? It is a fact that a lot of Filipino-Canadians who adopted Canada as their country continue to own properties in the Philippines which they intend to pass on to their loved ones in the event of death. Further concerns arise as to how their properties situated in the Philippines are to be distributed later on to their loved ones in the most expeditious manner when they die.

Therefore, 3 issues are intertwined from the question on whether or not a valid Will in Alberta, Canada can or could be enforceable in the Philippines:

If they have a valid Will in Alberta, Canada, must they have to have a Will done under Philippine law?

 

What will happen to their properties in the Philippines if they die with a Will validly executed in Alberta, Canada?

 

Are bequests and gifts consisting of properties in the Philippines given to their named beneficiaries in their Will?

The answer is simple enough but the Philippine law governing private international law (sometimes called the “conflict of law” provisions) must be amply explained.

In layman’s terms, private international law provides the remedy on how documents, contracts, and wills executed and entered by Filipinos in another country (i.e. Canada) may be used and given validity in the Philippines.

The Civil Code of the Philippines (which became law on August 30, 1950) covers private international law provisions (Articles 15 to 17) as well as the provisions of law governing wills and succession (Articles 774 to 1105). More than half a century after its enactment, the Civil Code covering private international law as well as the law on succession remain largely in placed.

A Will’s validity has to contend with 2 components: the formal requirements of a valid Will and the intrinsic or the testamentary provisions of the document insofar as the designation of the beneficiaries and the distribution of the properties of the testator (i.e. the maker)

There are 2 provisions in the Philippine Civil Code that apply to the question on whether Wills validly executed pursuant to the law in Alberta, Canada are valid and recognized in the Philippines:

Ø Article 17 of the Civil Code provides that “the forms and solemnities of contracts, will, and other public instruments shall be governed by the laws of the country in which they are executed”.

o   The article governs the requirements and formalities of a Will.

o   Therefore, if the Will executed by a Filipino-Canadian in Alberta, Canada conforms to the formal requirements of the Wills and Succession

Act of Alberta (“WSA” which became effective in Alberta on February 1, 2012), then that Will has passed the formal requirements threshold and will be valid in the Philippines.

Ø      Article 16 of the Civil Code, “intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found”.

 

Ø      The WSA of Alberta and the law on succession of the Civil Code of the Philippines largely differ on the power of the testator to distribute his or her estate to any beneficiary he or she may choose. Canadian law gives utmost freedom to the testator to decide who gets what and how is the estate to be divided. This is what is known as testamentary freedom to the maker of the Will to endow, give, distribute, and do what he wants with his properties after his or her death. Testamentary freedom also allows the testator to even disinherit any person (i.e. the spouse, children, relatives) to properties of his estate.

 

On the other hand, Philippine law gives the testator only a limited freedom to decide how his estate is to be divided and who will be his beneficiaries (i.e. the Civil Code provides for a very complicated system of “reservas” and forced heirs; and has provisions that the “free portion of the estate” is the only part that can be given to beneficiaries who are not compulsory heirs). And of course, the Civil Code has strict provisions for disinheritance and to exclude his “forced heirs” from the estate.

o   If a Filipino-Canadian in Alberta, Canada has taken up Canadian citizenship and executed a Will under the WSA, the testamentary provisions of his Will shall be regulated by Canadian law.

 

o   Article 16 gives a break to Filipino-Canadians insofar as having the utmost liberty to write the testamentary provisions of the Will especially on how his estate (including his properties in the Philippines) may be distributed and who will be his beneficiaries.

 

o   But I say this with a warning. If the Will executed in Alberta, Canada does not conform to the provisions of the Law on Succession (Book 3 of the Civil Code), the objectionable provisions of the Will may be subjected to litigation.

 

Under the provisions and principles of private international law, Filipino-Canadians who have executed a valid Will in Alberta, Canada do not have to execute a separate Will under Philippine law to impact their properties in the Philippines when they die.

It is settled in Philippine law that “(T)he oneness and universality of the inheritance cannot be divided or broken up merely because of the different countries where properties of the estate are situated” (Dean Capistrano, Gibbs v. Gov’t. of the Philippines, 59 Phil. 293).

Pursuant to the WSA and the Civil Code, properties in the Philippines of Filipino-Canadians shall form part of their estate when they die. The provisions of their valid Wills in Alberta, Canada shall govern the disposition of these properties which shall forthwith be distributed to the beneficiaries named in their Wills.

The simple enough answer that a Will validly executed in Alberta, Canada, can be recognized in the Philippines is yes.

Unfortunately, a Filipino-Canadian who would entertain this question must also be advised on the Philippine law on procedures on probate and distribution of properties in the Philippines; the complicated provisions of Book 3 of the Civil Code (the Law on Succession), and the costs involved in the probate proceedings.

ABOUT THE AUTHOR

Anthony L. Po graduated from the UP College of Law, University of the Philippines and practiced law for 28 years in the Philippines. He was admitted to the practice of law in Canada and is currently a member of the Law Society of Alberta as a Barrister and Solicitor and practices law with the law office of Murray MacKay Professional Corporation of Calgary (Tel. 403 532-8288) in the areas of Personal Injury, Family Law, Real Estate, Wills and Estate, and civil litigation. Comments may be coursed through anthonypo@albertalawyer.com

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