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XV - XVI - Choice of Law in Succession & Torts and Crimes - Coggle…
XV - XVI - Choice of Law in Succession
& Torts and Crimes
A. Validity of Wills
B. Interpretation of Wills
- Nationality principle governs. Thus, rules of interpretation of the national laws of the decedent governs.
C.Revocation
D. Probate
- Adjudication that will executed with all formalities required by law, generally does not pass upon intrinsic validity of the will.
F. Administration of Estates
- Forum law governs.
E. Trusts
- A right of property, real or personal, held by one party for the benefit of another.
How Created
-
By deed during the lifetime of the settler
By Will
CIL Issues -
When trusts involve interests or properties in a place other than the decedent's domicile
Specific questions on validity and essential propriety of the trust as well as compliance with formalities
Effect of Choice of Law Provisions
- The courts of the place where the trust is being administered will normally apply that law, due to policy to carry out itnent of the creator of trust.
Absence of Choice of Law
- In the absence of an express choice of law, courts deem controlling law that will sustian the validity of he trust, whether it be state where administered or state where decedent was domiciled
Testamentary Trusts -
Extrinsic Validity - Dependent on the will which created them, thus governing rules on capacity and extrinsic requirements apply.
Property - Lex Situs applies to determine the validity of a trust created by a last will and testament since it involves property
Scope of Administration
- Refers to twin duties:
Duty to manage and Settle decedent's debts
Duty to distribute the residuum of the estate to the deceased heirs
Duty of Probate Court
- upon allowance of the will, to issue letters testamentary to the person named in the will upon the latter’s application. Where there is no will, the court may appoint an administrator
Purpose of Administrator
- Title vested in law, to fulfill twin purposes:
PRIMARY PURPOSE: Protection of creditors
o
INCIDENTAL PURPOSE: Distribution of the estate to the next of kin.
Territoriality
- Title of a domicilary administrator has no extraterritorial force
Anciliary administrator
– appointed by the court of the foreign country where the assets or property are located.
Governing Law
- being procedural, law of the forum governs. But, court will look into the law of the foreign state where the suit was made as to whether the extrinsic requirements in the execution have been complied with purusnat ot Art. 17, 816-187 of the NCC.
PH Procedural Laws -
Grounds for Disallowance (839) -
The will shall be disallowed in any of the following cases:
If the formalities required by law have not been complied with;
If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution;
If it was execute through force or under duress, or the influence of fear, or threats;
If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person;
If the signature of the testator was procured by fraud;
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. (n)
Formalities of a Will (804-821)
Lack of Testamentary Capacity
- This is determined at the time the will is executed Refers to the capacity of the testator to know:
Nature of the estate to be disposed of;
- Testator should have a fairly accurate knowledge of what he owns
Object of his bounty
- Testator should know his relatives in the most proximate degrees
Character of the testamentary act
- Document he is executing is one that disposes of his property upon death
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Probate of Foreign Will
- Can either be probated, or reprobated.
Probate - Proof of:
(a) Due Execution in manner require dby law;
(b) Testamentary Capacity at time of execution
Reprobate - No need to prove due execution and capacity.
Sir says this is original proceeding for probate, not recognition of foreign judgment.
Common Law Rules -
Movable Property
- If the will is allowed at the testator’s last domicile, it is valid everywhere with respect to movable property. This is because with respect to movable property, lex domicilii governs.
Real Property
- the probate of the will in the testator’s last domicile does not affect the conveyance of land which is governed by lex situs.
Effect of Probate/Reprobate (NCC 817)
- Same effect as if executed according to PH Laws.
PH Law
- A will may be revoked by the testator at any time before his death. Any waiver or restriction of this right is void.
Revocation Outside PH -
Done by non-PH Domiciliary
- Valid if done according to:
The law of the place where the will was made (lex loci celebrationis); or
The law of the place in which the testator had his domicile at the time (lex domicilii).
Done by PH Domiciliary Abroad -
Governing law is either:
Law of the domicile (Philippine law); or
Law of the place of the revocation (lex loci actus).
Revocation in PH
- Valid if done in accordance with NCC provisions, and under NCC 830, will is revoked by either:
Implicaiton of Law
By some will, codicil, or other writing executed as provided in case of wills; or
By burning, tearing, cancelling, 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.
Potential Problem
- Testator is domiciled in State A, revokes his will there. He changes domicile to State B, where he dies. What if the revocation was valid according to the laws of State A, but not of State B? Which law applies?
Common law jurisdictions: law of domicile at the time of the testator’s death governs, revocation is invalid.
Philippines: law of the place of revocation. Revocation valid.
Vibes ay
Revocability of a Will (828)
- A will may be revoked by the testator at any time before his death, so effective agad revocation at time of revocation.
Applicable Rules -
General Rule
- Where the terms are clear and unambiguous, lex intentionis should be governed.
XCPN
- Where there are ambiguous provisions, intent of the party/exact meaning can be inferred by referring to the context of the instrument itself, or the testator's contemporaneous and subsequent acts.
XCPN 2 XCPN
- If none can give absolute assurance that indeed of testator has been ascertained, settled presumptions of law may be resorted to.
Presumed that interpretations of such ambiguous phrase should be determined in accordance with the laws and customs of that state most probably in the mind of the testator at the time they used the words, and with which they are presumed to be most familiar.
If it is apparent that testator had a specific state in mind, even if no explicit identification, then that state's law should govern.
Multiple Dispositions
- the interpretation by which the disposition is to be operative shall be preferred (NCC 788). This is because most favorable construction to accomplish intended purpose by testator. Presumed that they did not intend to render the will ineffective, intended a lawful thing.
1. Extrinsic Validity
- Contemplates a situation where a Filipino executes a will abroad. Formalities prescribed by law. Not the testamentary dispositions themselves.
Lex Nationalii
- No specific provision in the Civil Code. However, argument is if If an alien is allowed to execute a will in a foreign country following Philippine law on formalities, with more reason should the Filipino be allowed to do so.
Law did not intend to put a Filipino ina worse position than an alien. However, Code should have expressly stated this, considering the rule in NCC 17.
Lex Loci Celebrationis (NCC 815;17)
- When a Filipino is in a foreign country, he is authorized to make a will in any of the forms established by the law of the country in which he may be. Such will may be probated in the Philippines.
Extrinsic Validity of Joint Wills
- 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. (669)
Joint wills executed by Filipinos anywhere (even if the foreign country allows it) are VOID on grounds of public policy.
Rationale for Prohibition of Joint Wills (Dacanay v. Florendo)
- Prohibited because:
A will is a purely personal and unilateral and this is defeated if two or more persons make their will in the same instrument;
It is contrary to the revocable character of a will;
A joint will may expose a testator to undue influence and may even tempt one of the testators to kill the other.
Prevents potential overreaching especially between husband and wife. When a joint will is made, the more aggressive/dominant spouse is liable to dictate the terms of the will for their own benefit/third persons.
In joint reciprocal wills, either one of the spouses may be tempted to kill or dispose of the other.
Effect of Admission to Probate of Joint Wills
- Only the will of one is upheld, the other lapses into intestacy. Unless, some other valid will is shown to exist in favor of testaemntary heirs or, testamentary heir is only heir.
Q. - Here, is it always husband?
Joint Wills by Aliens
- For EAP, Joint wills executed by aliens in the Philippines should not be probated if it affects heirs in the Philippines, as contrary to public policy.
Extrinsic Validity of Hologrpahic Wills (NCC 816 and 817) -
For EAP, these provisions applicable to hologrpahic wills as well.
816 - The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this Code prescribes
817 - A will made in the Philippines by a citizen or subject of another country, which is executed in accordance with the law of the country of which he is a citizen or subject, and which might be proved and allowed by the law of his own country, shall have the same effect as if executed according to the laws of the Philippines.
Definition of Holographic Wills
- entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed.
Otherwise known as an autographic will.
Rationale
- Introduced by the NCC to facilitate the secret expression of the desire by the testator. Simplest and most convenient method for making a last testament.
JBL Reyes Criticism - the simplicity of holographic wills is an invitation to forgery.
2. Intrinsic Validity
- Under unitary system adopted from Roman law, intrinsic validity of wills is governed by the national law of the decedent.
PH Law - NCC 16(2)
- 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.
Miciamo v. Brimo
- Condition in the will stated that distribution of properties of a Turkish national were to be in accordance with PH laws.
SC - Struck this down, applied lex nationalii to determine the intrinsic validity of the will. Deemed not imposed.
EAP - Court put aside clear intent of the testator but, at the same time presumed that Turkish (national) law was the same as PH Law. This is inconsistent with policy of giving primacy tot he last will and testament of the decedent. Thus, better if policy centered approach.
Could have used most significant relationship approach - Here, since resident of the PH, executed here, Intended PH law to govern,, properties in the PH, court could have justified applying PH laws, as PH place with most significant contacts.
Escape Device of disingenuous characterization - Same result, could have characterized the main issue so that it would call for the forum's application of its own substantive law. Here, could have characterized it as one of property, and not succession --> PH Properties --> Lex Rei Sitae
Definition of Wills (NCC 783)
- A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of this estate, to take effect after his death.
Jurisprudential Definition (Lorenzo v. Posadas)
- A disposition made:
By a competent testator;
In a form prescribed by law
Of property over which he has legal power of disposition.
Conflicts of Law Definition
- An involuntary transfer of property. This is because execution of the will itself does not transfer the property, but instead comes into effect upon the death of the testator.
Governing Law -
Domiciliary Law
- For common law Countries
National law
- for civil law countries.
XVI Choice of Law in Torts and Crimes
A. Policies behind conflicts tort law
-
To deter socially undesirable or, wrongful conduct
To rectify the consequences of the tortious act by distributing the losses that results from accident and products liability.
B. Lex Loci Delicti Commissi
- Law of the place where the alleged tort was committed.
C. Modern Theories on Foreign Tort Liability
D. Foreign Tort Claims
- A tortious liability is transitory. Thus, the liability resulting from the conduct is deemed personal to the perpetrator of the wrong, following him wherever they may go.
Thus, compensations may be exacted from perpetrator in any proper tribunal which may obtain jurisdiction of the defendant's person.
The right to sue is not confined to the place where the cause of action arises. Therefore, an action for tort may be brought wherever the torfeasor is subject to suit.
Conditions for the Enforcement of Tort Claims
- Claim for damages arising from torts committed abroad enforceable in forum court upon concurrence of:
The foreign tort is based on a civil action and, not on a crime;
The foreign tort is not contrary to the public policy of the forum;
The judicial machinery of the forum is adequate to satisfy the claim.
2. Products Liability of the Foreign Manufacturer
- Great variance as regards laws of states on the basis and extent of liability for defectively manufactured products. Lead to conflict torts cases.
3. The Alien Tort Act
- 1789 US Statute. gave US District courts original jurisdiction over any civil action by an alien for a tort committed in violation of the law of nations or a treaty of the united states.
4. Phil Rule on Foreign Torts
- No specific statutory law governing the enforcement of claims for damages arising from foreign torts.
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Rationale
- compliance with the law of nations was a fundamental concomitant of Nationhood… and the nation’s obligation to comply with a particular legal duty was supplemented by a moral duty.”
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Purpose of Enactment -
Recognizing obligation of every state to the law of nations as a means to avert chaos.
Stability of commercial relations and national security
Served to assure all foreigners that they were under the protection of just laws.
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Basis of Liability
- Can be based on:
Negligence
Strict Liability in tort
breach of warranty against hidden defects.
Common Resolution
- typically, plaintiff purchases a foreign-made product that is either fungible (food) or non-fungible (blender/oven).
If they ingest the product or uses it in an unaltered condition in accordance with printed instructions and suffer injury, may bring a products liability action against the manufacturer in his home state.
Courts of the plaintiff's home state assume jurisdiction and apply forum law because it has a real interest in allowing its injured domiciliary to recover damages from an out-of-state manufacturer.
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Under the Civil Code of the Philippines, strict liability is imposed by Articles 1314, 1711, 1712, 1723, 2183, 2184, 2187, 2189, 2190, 2191, 2192 and 2193. [1] Article 1314; strict tort against inducers.
Sovereignty as basis of Jurisdiction -
same problems as exercise of criminal jurisdiction over aliens.
Common Law
-
Tag Jurisdiction - Jurisdiction as an aspect of sovereignty has been accepted to justify any exercise of jurisdiction over a defendant within the territory
Deny enforcement of a foreign court judgment over ad efendant who was not present within the court's jurisdiction.
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Distinguished from Law on Contracts
- Jurisdiction of forum court is usually based on the consent of the parties.
In transnational tort, defendant is often sued against their will. Thus, there may be a problem of legitimacy of jurisdiction and subsequent decision.
The question of jurisdiction foreign torts has given rise to disagreements between courts especially on issues involving products liability.
E. Distinguishing between torts and crimes
-
Tort
- Transitory. Thus, liability is personal and, they are amenable to suit in whatever jurisdiction he is found.
Injury to an individual who may be situated in any place.
promulgated to indemnify the victims for injuries sustained.
Crime
- Local. Perpetrator of the wrong can be sued only in the state wherein he commits the crime.
Injury to the state where it is committed. Because crime is affront to sovereignty and good order of he state. Thus, each state must attend to vindication of its own sovereignty.
Promulgated to punish, reform perpetrators + deter others from violating the law.
F. Lex Loci Delicti
- For crimes, remove commissi, where the act was committed. But, law of the place of the crime.
Comparison to tort where law of the place where tortuous conduct/last act
For crime, wherever crime was committed (Concurrence of all elements)
Nullum Crimen Sine Lege
- Requires that for a person to be punished for an act, the act must have been made punishable as a crime by law.
Traditionally, understood to be municipal law.
Recent Developments
- nulum crimen can be satisfied if the act is considered a crime under international law.
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Relation to Territrorial Principle
- Crimes committed within the PH, by all persons are prosecuted and penalized under PH Law.
Criminal laws of a state are effective upon persons who commit the crime within the state's territory.
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NCC14 provides
: Penal laws and those of public security and safety shall be obligatory upon all who live or sojourn in the Philippine territory, subject to the principles of public international law and to treaty stipulations. (8a)
The lex loci delicti commissi or lex loci delictus[1] is the Latin term for "law of the place where the delict [tort] was committed"[2] in the conflict of laws. Conflict of laws is the branch of law regulating all lawsuits involving a "foreign" law element where a difference in result will occur depending on which laws are applied.
State cannot enforce foreign penal laws. Penal law exception rooted in CJ Marshall statement, the courts of no country execute the penal laws of one another.
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Rationale for Rule on Criminal Law -
Historical Reasons
Respect for Sovereignty
Procedural Difficulties
Public policy
Practical Inconvenience
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Place of the Most Significant Relationship
- Considers the state's contact with the occurrence and the parties
Principles in General -
Needs of Interstate and International System
Relevant Policies of the Concerned States
Relevant policies of other interested states and their relative interest of those in the determination of the particular issue
Protection of justified expectations of the parties
Basic policies underlying the particular field of law
Certainty, predictability and uniformity of result
Ease in the determination and application of the law to be applied.
Factual Contacts in Torts -
Not mechanical counting of factual contacts, but instead, court localizes the state of most significant relation and assesses the event or transaction int he light of the policy considerations of the interested states and underlying policies.
Place where the Injury occurred
Place where the negligent conduct occurred
Domicile, residence or nationality of the parties
Place where the relationship between the parties is centered
However, the factual contacts vary per substantive law.
Criticism
- Prof. Ehrenzweig from Auten//Haag cases. Stated that this approach can be used to support virtually any result. Thus hampers sound development of common law by making it so courts dont have to articulate the true motivations which are the very elements of growing rules
State Interest/Approach Analysis
- Look at the policy behind the laws of the involved states and the interest each state had in applying its own law.
Thus, factual contacts alone do not determine the outcome of a case UNLESS they reflected state policy which would be advanced by the application of the substantive state law.
Stemmed from criticism of the Auten decision's failure to provide any standard to determe which contacts were significant and evaluate the relative importance of a group of contacts.
Steps of Application
-
Analyze policies reflected by State Law
Determine whether both sates had a real interest in having their law applied
If yes - True conflicts problem
If no, - false conflict, and forum law had to apply substantive law of the interested state
False Conflict
- One state has no real interest in having their law applied. Failure to apply the other state's law would not impair the policy reflected in that law.
Ex. Babcock v. Jackson - False conflict, where Canadian policy behind guest statute was to protect host from suits by ungrateful guests or insurance companies from collusive suits. Where both victim and torfeasor are non-residents, no interest in application of guest staute.
Cavers’ Principles of Preference
- Choice of law should be determined by considerations of justice and social expediency. Not a result of the mechanical application of a rule or principle of selection.
Factors to Consider
- In determining whether to apply forum or foreign law, the court should:
Scrutinize the event or transaction giving rise to the issue before it;
Compare carefully the proffered rule of law and the result which its application might work in the case at bar with the rule of the forum; and
Appraise these results from the standpoint of justice between the litigants or of those broader considerations of social policy which conflicting laws may evoke.
Effect of Framework
- successfully set aside the stifling effects of ensuring certainty and uniformity above all other objectives.
Rationale
- Choice of law decisions should be made with reference to principles of preference which are conceived to:
Provide fair accommodation to conflicting state policies; and
Afford fair treatment to the parties who are caught up in the hazards between conflicting state policies.
Observations
- shows a “territorialist bias”—looks to the place where significant events occurred or where the legal relationship is centered.
On Torts
- Third principle of preference in torts deals with rules that sanction some kinds of conduct engaged in by a defendant in one state and extends the benefit of this higher standard of conduct and financial protection to the plaintiff, even if the state of injury does not create analogous liabilities
American Contributions to Conflicts of Tort Law
- Determination of whether the law where tort was committed or law of the domicile of the parties is the controlling law.
Law of tort deemed as proper law in questions involving regulation of conduct
Law of domicile of parties governs in matters relating to loss distribution or financial protection (Ex. Babcock case) This is because state's loss distribution policy should benefit its domiciliaries even when they act outside state borders. Thus, same effect if applied in Babcock case.
Importance
- Determines the tort liability in matters affecting conduct and safety.
Rationale - Rules that regulate the conduct of persons within state border such as traffic rules and speed limits seek to further state policy of deterring undesirable conduct and, raising the standard of conduct of person who use their roads.
Potential Problem
- Locus delicti not easily determmined where liability producing conduct happens in one state, but the injuries are sustained in another.
Theories of Lex Delicti -
Common Law Countries
- Place of injury (place where last event necessary to make an actor liable for an alleged tort occurs)
Basis - vested rights theory, if the harm does not take place, tort is not completed. Negligence by itself not actionable without injury.
Civil Law Countries
- Place where the tortious conduct was committed.
Basis - Legality/illegality should be determined by the law of the state where he is at the time he does such act.
If the actor does not conform to standard of conducut set by laws of that state, then liable for any harm that results therefrom, even if sustained in another state.
Effect of Lex Delicti
- Regardless if place of injury or place of conduct, traditional view is that an actor liable by lex loci delicti is liable everywhere.
This is because of vested rights theory, damages arising from torts committed in one state are actionable in another state.
Public Policy Exception
- Lex Loci Delicti will not be enforced in a forum court where the proper law contravenes the law or, public policy of the forum.
Absence - Absence of similar law does not necessarily mean contravention of public policy. Differences in remedy is insufficient to make it conflicting.
Similary of Legislation
- Serves as evidence that the foreign statute does not offend local public policy. It is not an indispensable condition.
Criticism
- Prof. Weintraub questioned uniformity of results as primary object of conflicts of law. because if only purpose of choice of law rules is to make result independent of forum choice, there must be both Choice of law rules, but also these rules must be uniform in each possible forum.
EAP - Unreasoned application of lex loci delicti commissi to achieve uniformity of results independent of fairness tot he parties frustrates the ends of justice
Usually leads to strong state policy, thus, states lean against displacing its own tort law with that of another state.
Policies to be Considered in Conflict of Laws
- Specific Policies substantive tort law should be evaluated in light of the needs of interstate and international systems, including policies of:
Upholding the justified expectation of parties
Minimizing adverse consequences that might follow from subject a party to the law of more than one state
Discouraging forum shopping
Achieving decisional harmony.
General Rule on Conflicts -
GR
- Parties to an accident could not have relied on a particular state law since accidents are fortuitous
XCPN
- In these instances, court should lessen adverse effects of applying the laws of several states on the parties.
When they anticipated liability for some future act and are insured against it
Corporation - Where a party, like a corporation may expect that the laws of the state where it has business activities to be applicable in particular circumstances but, has no way of complying with various laws without reincorporating in each state.
Instances when Conflicts Arise
- when:
Thee tortuous conduct AND place of resulting injury are different
One state imposes higher standards than the other state.
Difference in products liability laws; varying judicial interpretations of the extent of liability.
Concerned States
- In interstate accidents,
these are where the victims and tortfeasor reside, or where the enterprise has business activity.
These are the states where the effects of granting or denying the damages will be greatly felt
States where liability creaing conduct occurred and, state where the injury arose
because of implementation of adminitory policies reflected in their tort laws.
Definition of Torts
- Derived from the french word torquere/to twist. defined as an act or omission producing an injury to another without any previous existing lawful relation of which the act may be said to be a natural outgrowth or incident.
Anglo-American Concept
- Braoder, includes malice and willful intent.
Spanish Concept
- Obligation arising from non-contractual negligence.
PH definition (NCC 20-2176)
- a torfeasor is one, who contrary to law, by act or omission willfully or negligently causes damage to another and shall indemnify the latter for the same.