5

LAST WILL

AND

TESTAMENT

AND

SUCCESSIONAL RIGHTS
Problem Scenario

On April 2005, four years after the plane crash probate proceedings for Manuels will were

initiated. In the will, Manuel left P500,000 to Cora, and the rest of all his properties to Wendy and Ben

equally. Luis, entrusted with the will, know that if the will was to be followed, it would be unfair to

Wendy, since Ben was really Manuels illegitimate child. Louis advises Wendy to contest the will. He

adds, however that if she contests the will, she has to tell the whole world that Ben is not her biological

child. Wendy does not want to give Ben up to his biological mother, since she (Wendy) has learned to

love hm. However, she is adamant about giving Cora the P500,000.

Issues

a) Should Wendy contest the will?

b) Louis reminds Wendy that in all their years of friendship, she and Manuel have gone to him for their

legal problems but not once did he charge them a fee. Due to the time involved in litigating this case (as

to not giving Cora the P500,000), he accepts the case but demands from Wendy payment of P150,000,

his standard fee. Wendy refuses. Can Louis withdraw from the case?

c) If instead, Louis agrees to take the case upon Wendys promise to give him the entire P500,000 meant

for Cora, should he win the case, but only P25,000, should he lose, would this be correctly characterized

as a contingent fee?

d) If Louis agrees, spends his own money for expenses necessarily to litigate, such amount exceeding

P25,000 but losses the case anyway, can he demand a fee more than that agreed on?

e) Distinguish between a champertous contract and a contingent fee.

f) What are the criteria in considering the reasonableness of Attorneys fees?

lawyer, Atty. Evie Escaler. She believe that there is little chance that the case will prosper considering

that Wendy wanted the bequest to Cora to be voided on moral grounds, but did not want any proof to

be presented that could identify Cora as Bens biological mother. Nevertheless, she keeps these

thoughts to herself and accepts the case considering that it presented a real challenge and was a good

test case in addition to having the makings of a high profile case of show-biz proportions. Discuss the

legal and moral issues involved.

a) Should Wendy contest the will?

Yes.

Article 892 of the Civil Code of the Philippines states:

If only one legitimate child or descendant of the deceased survives,the widow or

widower shall be entitled to one-fourth of the hereditary estate.In case of a legal separation, the

surviving spouse may inherit if it was the deceased who had given cause for the same.

If there are two or more legitimate children or descendants, the surviving spouse shall

be entitled to a portion equal to the legitime of each of the legitimate children or descendants.

In both cases, the legitime of the surviving spouse shall be taken from the portion that can be

freely disposed of by the testator.

Article 894 of the Civil Code of the Philippines states:

If the testator leaves illegitimate children, the surviving spouse shall be entitled to one-

third of the hereditary estate of the deceased and the illegitimate children to another third. The

remaining third shall be at the free disposal of the testator.

Article 897 of the Civil Code of the Philippines states:

When the widow or widower survives with legitimate children or descendants, and

acknowledged natural children, or natural children by legal fiction, such surviving spouse shall

be entitled to a portion equal to the legitime of each of the legitimate children which must be

taken from that part of the estate which the testator can freely dispose of.

Illustration of answers to issues taken

Santiago vs. Fojas, 248 SCRA 68

"It is axiomatic that no lawyer is obliged to act either as adviser or advocate for every

person who may wish to become his client.he has the right to decline employment, subject,

however, to Canon14 of the CPR. Once he agrees to take up the cause of a client, the lawyer

owes fidelity to such cause and must always be mindful of the trust and confidence repose in
 him. he must serve his client with competence and diligence, and champion the latter's cause

with wholehearted fidelity, care, and devotion...."

b) Louie reminds Wendy that in all their years of friendship, she and Manuel have gone to him for

their legal problems but not once did he charge them a fee. Due to the time involved in litigating this

case (as to not giving Cora the P500, 000), he accepts the case but demands from Wendy payment of

P150, 000, his standard fee. Wendy refuses. Can Louis withdraw from the case?

CANON 22 - A LAWYER SHALL WITHDRAW HIS SERVICES ONLY FOR GOOD CAUSE AND UPON

NOTICE APPROPRIATE IN THE CIRCUMSTANCES.

Rule 22.01 - A lawyer may withdraw his services in any of the following:

(a) When the client pursues an illegal or immoral course of conduct

in connection with the matter he is handling;

(b) When the client insists that the lawyer pursues conduct violative

of these canons and rules;

(c) When his inability to work with co-counsel will not promote the

best interest of the client;

(d) When the mental or physical condition of the

lawyer renders it difficult for him to carry out the employment effectively;

(e) When the client deliberately fails to pay the fees for the services or fails to comply

with the retainer agreement;

(f) When the lawyer is elected or appointed to public office; and

(g) Other similar cases.

Rule 20.04 - A lawyer shall avoid controversies with clients concerning his compensation and

shall resort to judicial action only to prevent imposition, injustice or fraud.

Rule 14.04 - A lawyer who accepts the cause of a person unable to pay his professional fees

shall observe the same standard of conduct governing his relations with paying clients.
 But as regards to Louis' reason for withdrawing the case, it is best for Wendy to

terminate the services of Louis despite the fact that both of them are friends. Choosing to hire a

lawyer to represent you can bring you the intense advocacy, legal expertise, and litigation

experience you need to win your case. It's not enough that the two of you simply disagree about

something minor during litigation, especially money issues. Being a lawyer, Louis has to be

reminded that the primordial purpose of lawyering as its best explain that, A lawyer is a member

of an honorable profession whose primary purpose is to render public service and help secure

justice and in which remuneration is a mere incident.

c) If instead, Louie agrees to take the case upon Wendys promise to give him the entire P500,000

meant for Cora, should he win the case but only P25,000 should he lose, would this be correctly

characterized as a contingent fee?

I. Consider the following:

Taganas vs. NLRC, GR 118746, September 7, 1995

A contingent fee arrangement is an agreement laid down in an express contract

between a lawyer and a client in which the lawyer's professional fee, usually a fixed percentage

of what may be recovered in the action is made to depend upon the success of the litigation.

This arrangement is valid in this jurisdiction.

FRANCISCO RAYOS, vs. ATTY. PONCIANO G. HERNANDEZ, G.R. No. 169079, February 12, 2007

Contingent fee contracts are subject to the supervision and close scrutiny of the court

in order that clients may be protected from unjust charges.[29] Section 13 of the Canons of

Professional Ethics states that a contract for a contingent fee, where sanctioned by law, should

be reasonable under all the circumstances of the case including the risk and uncertainty of the

compensation, but should always be subject to the supervision of a court, as to its

reasonableness.
 Rule 138, Section 24, of the Rules of Court provides:

SEC. 24. Compensation of attorneys; agreement as to fees.

- An attorney shall be entitled to have and recover from his client no more than a

reasonable compensation for his services, with a view to the importance of the subject matter

of the controversy, the extent of the services rendered, and the professional standing of the

attorney. No court shall be bound by the opinion of attorneys as expert witnesses as to the

proper compensation, but may disregard such testimony and base its conclusion on its own

professional knowledge. A written contract for services shall control the amount to be paid

therefor unless found by the court to be unconscionable or unreasonable.

d) If Louis agrees, spends his own money for expenses necessary to litigate, such amount exceeding P

25,000 but loses the case anyway, can he demand a fee more than that agreed on?

Rule 138, Section 24, of the Rules of Court provides:

SEC. 24. Compensation of attorneys; agreement as to fees.

- An attorney shall be entitled to have and recover from his client no more than a

reasonable compensation for his services, with a view to the importance of the subject matter

of the controversy, the extent of the services rendered, and the professional standing of the

attorney. No court shall be bound by the opinion of attorneys as expert witnesses as to the

proper compensation, but may disregard such testimony and base its conclusion on its own

professional knowledge. A written contract for services shall control the amount to be paid

therefor unless found by the court to be unconscionable or unreasonable.

e) Distinguish between a champertous contract and a contingent fee.

In the case of Bautista vs Gonzales (182 SCRA 151) describes a champertous agreement

as one whereby an attorney agrees to pay expenses of proceedings to enforce the clients

rights. In champertous contracts, the lawyer is the one paying for all the costs and fees of the

case, without reimbursement from the client.

agreement laid down in an express contract between a lawyer and a client in which the lawyer's

professional fee, usually a fixed percentage of what may be recovered in the action is made to

depend upon the success of the litigation. Thus, in contingent fees, the lawyer gets paid the

agreed amount if the case is successful, otherwise, he does not get paid, or gets paid a lower

agreed amount. This does not mean though that the lawyer necessarily pays the costs and fees

of the suit. The clients may still be paying for the costs of the suit, but the lawyer gets paid his

agreed fee if they win.

f) What are the criteria in considering the reasonableness of Attorneys fees?

I. Consider the following:

i. Code of Professional Responsibility, Canon 20.01,

which was highlighted by the Supreme Court in the case of Del Rosario vs. CA, 237 SCRA 39 In

determining the reasonableness of such attorneys fees, this Court in a number of cases has

provided various criteria which, for convenient guidance, we might collate thusly:

a) the quantity and character of the services rendered;

b) the labor, time and trouble involved;

c) the nature and importance of the litigation;

d) the amount of money or the value of the property affected

by the controversy;

e) the novelty and difficulty of questions involved;

f) the responsibility imposed on counsel;

g) the skill and experience called for in the performance of the

service;

h) the professional character and social standing of the lawyer;

i) the customary charges of the bar for similar services;

j) the character of employment, whether casual or for establishment client;

k) whether the fee is absolute or contingent (it being the rule that an attorney

may properly charge a higher fee when it is contingent than when it is absolute);
 and

l) the results secured.

ii. Rules of Court, Rule 138, Section 24

SEC. 24. Compensation of attorneys; agreement as to fees. - An attorney shall be entitled to

have and recover from his client no more than a reasonable compensation for his services, with

a view to the importance of the subject matter of the controversy, the extent of the services

rendered, and the professional standing of the attorney. No court shall be bound by the opinion

of attorneys as expert witnesses as to the proper compensation, but may disregard such

testimony and base its conclusion on its own professional knowledge. A written contract for

services shall control the amount to be paid therefor unless found by the court to be

unconscionable or unreasonable.

Del Rosario vs. CA, 237 SCRA 39

In determining the reasonableness of such [attorneys]fees, this Court in a number of cases has

provided various criteria which, for convenient guidance, we might collate thusly:

a) the quantity and character of the services rendered;

b) the labor, time and trouble involved;

c) the nature and importance of the litigation;

d) the amount of money or the value of the property affected by the controversy;

e) the novelty and difficulty of questions involved;

f) the responsibility imposed on counsel;

g) the skill and experience called for in the performance of the service;

h) the professional character and social standing of the lawyer;

i) the customary charges of the bar for similar services;

j) the character of employment, whether casual or for establishment client;

k) whether the fee is absolute or contingent (it being the rule that an attorney may

properly charge a higher fee when it is contingent than when it is absolute); and

l) the results secured.

lawyer, Atty. Evie Escaler. She believes that there is little chance that the case will prosper considering

that Wendy wanted the bequest to Cora to be voided on moral grounds but did not want any proof to

be presented that could identify Cora as Bens biological mother. Nevertheless, she keeps these

thoughts to herself and accepts the case considering that it presented a real challenge and was a good

test case in addition to having the makings of a high profile case of show-biz proportions. Discuss

the legal and moral issues involved.

Consider the following:

i. Code of Professional Responsibility, Canons 15, 15.05,15.07, 17

CANON 15 - A LAWYER SHALL OBSERVE CANDOR, FAIRNESS AND LOYALTY INALLHIS DEALINGS

AND TRANSACTIONS WITH HIS CLIENTS.

Rule 15.05. - A lawyer when advising his client, shall give a candid and honest opinion on the

merits and probable results of the client's case, neither overstating nor understating the

prospects of the case.

Rule 15.07. - A lawyer shall impress upon his client compliance with the laws and the principles

of fairness.

CANON 17

- A LAWYER OWES FIDELITY TO THE CAUSE OF HIS CLIENT AND HESHALL BE MINDFUL OF THE

TRUST AND CONFIDENCE REPOSED IN HIM