2014 Civil Law, Q25

Mario executed his last will and testament where he acknowledges the child being conceived by his live-in partner Josie as his own child; and that his house and lot in Baguio City be given to his unborn conceived child. Are the acknowledgment and the donation mortis causa valid? Why? (4%)

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Under Article 172 of the Family Code, how may illegitimate filiation be voluntarily recognized?

Under Articles 40 and 1025 of the Civil Code, what is the legal capacity of a conceived child to succeed by will?

What is the indispensable requirement under Article 41 of the Civil Code for a conceived child to retain property inherited by will?

Why is Mario's acknowledgment of his unborn child in his last will and testament legally valid?

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What is the legal effect of a testamentary disposition of a house and lot made in favor of a conceived child?

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1. Filiation Voluntary Recognition
Under Article 172 of the Family Code in relation to Article 834 of the Civil Code, illegitimate filiation may be established by an admission in a public document or a private handwritten instrument signed by the parent. A last will and testament constitutes an authentic public document. Consequently, a clear admission of paternity made in a valid last will serves as a complete and irrevocable voluntary recognition of an illegitimate child, even if the will is revoked prior to probate.

2. Conceived Child Capacity
Under Articles 40 and 1025 of the Civil Code, a conceived child is granted provisional civil personality for all purposes that are favorable to it. In testamentary succession, a fetus has the legal capacity to succeed and receive testamentary dispositions or donations mortis causa executed in its favor. However, this capacity is subject to the resolutory condition that the child must be born alive in accordance with Article 41 of the Civil Code.

3. Donation Mortis Causa
A disposition of property in a last will and testament to take effect upon the testator's death is governed by the law on testamentary succession rather than inter vivos donations. Under Philippine civil law, testamentary dispositions in favor of a conceived child are valid provided the formal solemnities of a will are observed and the beneficiary child achieves legal personality by being born alive. Such dispositions allow the testator to validly transmit property rights to unborn offspring.

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