An Estate/Probate Idea For Mother Jones

My father died a few months ago and my stepmother will not let me see his Will. How do I go about getting a copy of the Will?  Already Tried: I have requested that a copy be either fax to me or mail with no avail 

Answer: Do you know if she is the executor?

What does she say is the reason?

Do you know if you father had assets in his name such as bank accounts or a house (that's not jointly owned)? 

I do not know if she is the executor.

I have requested three times to have a copy of the will sent. She says yes but it has been four months of requesting with no sign of the will.

I do not know if my father had a bank account or property in his own name at the time of his death.

Answer: You may need to retain a lawyer to write her a letter at the very least.

If she is the executor and you are a beneficiary then she owes you what is called a fiduciary duty and one thing she has to do is to report to you about what goes on with the estate.

If there are assets that were in his name the Will has to be probated and once that happens it's a matter of public record but you don't know if that's the case.

I find it odd or worrisome really that she won't show you the Will and I guess you do too. 4 months is ridiculously long if she says she will give it you and it sure doesn't seem like she's going to.

I would think that if she gets one letter from a lawyer she will produce it. If not the lawyer can let you know what your options are and how much they will cost you.

I hope this helps as a starting point.

Tinaw Searches A Real Estate Lawyer To Handle Her Properties

Tinaw reads up on cases about her current situation as lessor of the houses in her care. What better advice to compare it to but the Manila Times Online.

Dear PAO,

My family and I allowed a family friend to rent our former home in Makati in consideration of the amount of P8,000.00 a month. Because she failed to pay her rent, she now owes us more than P400,000.00. We gave her a promissory note to assess and sign. A week later, she gave us a check in the amount of P10,000.00 and she informed us that her husband tore the promissory note apart because they did not agree to pay her debt. For us, this is a sign of abuse. So we want her and her family be evicted from our property as soon as possible. How can we evict them and still have them pay the rental arrears?

XXX

Dear XXXX,

Given that you and your family friend have a contract of lease, she is bound, among others, to pay the agreed rental fee which is in the amount of P8,000.00 a month. As a rule, obligations of parties arising from a contract have the force of law between them and should be complied with in good faith (Article 1159, New Civil Code of the Philippines). Moreover, Article 1657, id, provides that, “The lessee is obliged: (1) To pay the price of the lease according to the terms stipulated: x x x” Should she fail to comply with her obligations, your family may resort to the rescission of your contract of lease and seek for indemnification for damages (Article 1659, id). We would like to stress that even if she did not sign the promissory note and that her husband tore it apart, this does not mean that she is relieved from her obligation to pay the rental fees as well as her other outstanding obligations. Your right to ask for the payment of the rental fees exists not by reason of the promissory note but by virtue of your contract of lease. Therefore, you may still impose upon her the payment of said fees with or without the promissory note.

Should your friend and her family refuse to vacate the premises, you may, in the alternative, file an action for unlawful detainer so that they may be legally ejected from your property. As provided for under the law, “The lessor may judicially eject the lessee for any of the following causes: x x x (2) Lack of payment of the price stipulated; x x x” The action must be filed within one year from the date of the last demand to vacate the leased premises on account of non-payment of rental fees (Section 1, Rule 70, Rules of Court). The same should likewise be filed before the Metropolitan Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial Court (Section 1, A (1), 1991 Revised Rule on Summary Procedure). You may also include your petition in court the prayer for the payment of your lessees’ outstanding obligations. Despite the fact that the amount of her unpaid rentals exceed P400,000.00, the action may still be brought to said lower courts because, under the law, all cases of forcible entry and unlawful detainer are within the jurisdiction of the Metropolitan Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial Court, irrespective of the amount of damages or unpaid rentals sought to be recovered (id).

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.

Write up was read from Manila Times PAO

Caregiver Lady Can Learn A Legal Lesson From This

After Caregiver Lady's recent problem from her recent trip to the Philippines, she should learn from the legal advice below on separation and child custody for OFWs in Canada.

Dear PAO,
My sister-in-law is in Canada right now and she has been there for 3 years . However, during those years that she was working there her husband (who happens to be my brother) had been
living with another woman and they already have a child. Finally, my sister-in-law got her permanent residency in Canada and she wishes to petition her 2 children so she can stay with
them. The problem is, her husband is giving her a hard time. He does not like to cooperate and he did not even bother to accompany his children to get their passports. The children are
temporarily living with their aunt.

My question is, how will my sister-in-law file for full custody over her children? She is in Canada and she cannot go home because of financial difficulty. Can her children travel without the
permission of their father?

XXX

Dear XXX,
The problem of your sister-in-law is common in our society. It is very disheartening but we cannot avoid the reality that children suffer the most in cases where their parents separate because of infidelity and unfaithfulness. However, even with the difficulties which spouses in this situation would encounter in their relationship as husband and wife, they should never forget that their children are not part of their misunderstandings. Hence, the welfare of the children must not be jeopardized just because one of the parents turned astray and reneged on his/her duties and obligations as a parent. The law thus, come into play to protect the welfare of the child.

Relevant laws relating to custody are as follows:

“Art. 209. Pursuant to the natural right and duty of parents over

the person and property of their unemancipated children,

parental authority and responsibility shall include the caring for

and rearing them for civic consciousness and efficiency and the

development of their moral, mental and physical character and

well-being.”

“Art. 211. The father and the mother shall jointly exercise

parental authority over the persons of their common children. In

case of disagreement, the father’s decision shall prevail, unless

there is a judicial order to the contrary.”

“Art. 213. In case of separation of the parents, parental authority

shall be exercised by the parent designated by the Court. The

Court shall take into account all relevant considerations,

especially the choice of the child over seven years of age,

unless the parent chosen is unfit.

“No child under seven years of age shall be separated from the

mother, unless the court finds compelling reasons to order

otherwise.”

From the foregoing provisions of the law, it is very clear that

parental authority is exercised by both the father and the mother

and in case the parents had separated, it is the Court which will

determine who shall be exercising parental authority. This

presupposes however that one parent has filed for a custody

case or for other remedies to severe the marriage bond.

Custody battles may be an independent case or just an incident

to a petition for legal separation or a petition for annulment of

marriage or declaration of nullity of marriage.

It must be noted however that in custody battles, it is the

children who suffer the trauma of thinking that their parents are

quarrelling on who should take care of them, hence,

considerations must be taken into account by both parents

thinking that the primordial consideration is the best welfare of

the child.

You may advise your sister-in-law to talk to her husband first

regarding the welfare of their children. She should try to

convince him that it would be best for the children to be with her

considering that at this time their children are living with their

aunt. If efforts to persuade her husband to cooperate on the

working out of the children’s petition to be immigrants of Canada

fail, your sister-in-law is left with no choice but to file the

appropriate case in court.

Anent your query if the children can be brought to Canada

without their father’s consent, the answer is in the negative.

Notably, their father’s parental authority has not been renounced

by him neither was it divested from him. The law enumerates

the grounds for loss of parental authority, thus:

“Art. 228. Parental authority terminates permanently:

(1) Upon the death of the parents;

(2) Upon the death of the child; or

(3) Upon emancipation of the child (327a).”

“Art. 229. Unless subsequently revived by a final judgment,

parental authority also terminates:

(1) Upon adoption of the child;

(2) Upon appointment of a general guardian;

(3) Upon judicial declaration of abandonment of the child in a

case filed for the purpose;

(4) Upon final judgment of a competent court divesting the party

concerned of parental authority; or

(5) Upon judicial declaration of absence or incapacity of the

person exercising parental authority.”

Having an alleged mistress and a child with his mistress is not a ground for loss of parental authority. Thus, your brother’s consent before the children could travel will still be required by
the Department of Social Welfare and Development (DSWD).

The best solution to the problem is for both your brother and sister-in-law to have mediation and conciliation. They should sit down and talk about and negotiate their differences for the
welfare of their children and set aside first whatever marital problems they have. Your sister-in-law may make the first move to address the problems the soonest and start moving on with
their respective lives.

Note: Write up was read from Manila Times Website PAO