Mistress in the will

Mistress in the will "My wife and I have been separated for almost 15 years now. We did not have our marriage annulled because it is very expensive and our priority is the education of our children. My current partner and I have been living together for the past 11 years. Last year, I learned that I have a kidney disease. This made me think about making a will so that I can leave my townhouse to my partner. Please advise me on the relevant laws that I should consider in bequeathing the said townhouse to my partner. Thank you in advance and more power. EdgardoDear Edgardo, Please be informed that under the Civil Code of the Philippines, you are prohibited from bequeathing any property to your partner. The following are the relevant provisions in the said law:“Article 739. The following donations shall be void: (1) Those made between persons who were guilty of adultery or concubinage at the time of the donationsxxx xxx xxx In the case referred to in No. 1, the action for declaration of nullity may be brought by the spouse of the donor or donee and the guilt of the donor and donee may be proved by preponderance of evidence in the same action.xxx xxx xxx“Article 1028. The prohibitions mentioned in Article 739, concerning donations inter vivos shall apply to testamentary provisions.”The abovementioned provisions in the Civil Code clearly prohibit individuals who are guilty of adultery or concubinage from bequeathing any property to their partners. Any testamentary provision to that effect is void and has no legal effect. Thus, even if you bequeath your townhouse to your partner in your last will and testament, she will not be able to receive the same should an action to nullify the said testamentary provision be filed by either your spouse or your partner’s spouse, if she was previously married. It is also important to mention that in the case of The Insular Life Assurance Company, Ltd. vs. Ebrado (G. R. No. L-44059 28 October 1977 Ponente:Honorable former Associate Justice Ruperto G.Martin), the Supreme Court explained that a criminal conviction is not necessary for the prohibition to apply, to wit:“We do not think that a conviction for adultery or concubinage is exacted before the disabilities mentioned in Article 739 may effectuate. More specifically, with record to the disability on “persons who were guilty of adultery or concubinage at the time of the donation,” Article 739 itself provides:In the case referred to in No. 1, the action for declaration of nullity may be brought by the spouse of the donor or donee and the guilt of the donee may be proved by preponderance of evidence in the same action.The underscored clause neatly conveys that no criminal conviction for the offense is a condition precedent. In fact, it cannot even be from the aforequoted provision that a prosecution is needed. On the contrary, the law plainly states that the guilt of the party may be proved in the same action for declaration of nullity of donation.And, it would be sufficient if evidence preponderates upon the guilt of the consort for the offense indicated. The quantum of proof in criminal cases is not demanded.” [Emphasis supplied]Therefore, it does not matter if your wife did not file a criminal case for concubinage against you or that you have not been convicted of the same. It only needs to be shown by preponderance of evidence that you are guilty of the said offense.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 ." - https://www.affordablecebu.com/