Opinion and Memorandum

8/3/2019 Opinion and Memorandum

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EXERCISES

(Legal Opinion and Memorandum

Writing)


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For Legal Opinion

A. Mario is the owner of the propertyleased to Ana for a period of one (1) year.When the lease expired, Ana refused to

vacate the premises. Mario ask you torender a legal opinion on how he couldevict Ana with dispatch as newly wed son

need the property, at the least expense.Mario is residing in the same barangay.


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B. Rizal, a Canadian national, came to thePhilippines as tourist. To secure an investorsvisa, he bought a condominium unit located atRoxas Blvd. worth P6 Million. The deed of salewas silent as to who should pay the taxes andregistration fees due the government. Thevendor refused to pay the capital gains taxclaiming that the broker made it clear that Rizal

is to shoulder the same. Rizal wants youropinion whether, under our laws, he is liable forcapital gains tax.


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FOR TRIAL MEMORANDUM

In the probate proceedings of the will of Arthur, it wasestablished that the will contained the following:

(i) a provision disinheriting his daughter Bernice forrunning with a married man; and

(ii) a provision disposing of his share in the family houseand lot in favor of his other children Connie and Dora.

No provision in favor of his wife Erica, because as thewill stated, she would get of the house and lot as her

conjugal share. Erica contested the probate of the will as she claimed tobeing a compulsory heir having been preterited.


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ANSWERS

TO LEGAL OPINION:

A.

08 October 2011

Dear Mr. Mario:Per your request, herewith is our opinion.

From the facts you provided us, it is established that:(1) the lease contract has expired without being

renewed or extended; (2) there was no dispute as toownership of the leased property; and (3) your mainconcern is to evict Ana at the least expense.


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Under the law, expiration of lease contract is a ground toeject the occupant of the leased property in an action forunlawful detainer under Rule 70 of the Rules of Court tobe filed in the courts of first level where the property is

located. No prior demand is necessary for such specialcivil action. It is, however, a condition precedent that youmust first file a complaint in the barangay where both ofyou resides as a condition precedent in filing suchaction, which would entail delay in ejecting Ana from the

property if no compromise is reach during theconciliation proceedings.


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This may seem circuitous according to your needs. Toskip barangay conciliation proceedings, the law allowsthe direct filing of the complaint in court where anapplication for provisional remedy is sought, such as

preliminary attachment and preliminary injunction underRule 57 and 58 of the Rules of Court, as long as thegrounds exists. (state the grounds possible to a client.)In such a situation, the court will proceed summarily withthe case because it is covered by the summary

procedure. (discuss the nature of summary procedure.)

We trust that we have answered your questions and welook forward to be of service to you in the future.


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Legal Opinion

B. (Date) Dear Mr. Mario: Herewith is our legal opinion on the matter as requested. (follow the brief summary of facts as given by the client)

The National Internal Revenue Code in the Philippines do notimpose tax burden called as capital gains tax to a buyer of realproperty regardless of his nationality unless it is so provided in theDeed of Sale. Therefore, the seller of the condominium unit shouldpay that tax.

This clearly provided in (state the law)

With the foregoing, we hope to have fully addressed you legalconcern and we look forward to be of service to you in the future.


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Legal Memorandum

Memorandum for the plaintiff

NOTE: the issue that must be addressedin the problem is: WHETHER TO GRANTOR DENY PROBATE OF ARTHURs

LAST WILL AND TESTAMENT ON THEGROUND THAT HIS WIFE, ERICA, WAS

PRETERITED.


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The components of TrialMemorandum

1. The PartiesNames, relationship, litigation status

2. The objectives of the Parties

What each side is seeking.

3. The theory of the Litigation

The cause of action and the defense.

4. The facts

The facts that are key to the resolution of the issues.

5. The Issue/Issues

The questions of facts or law


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6. Discussion/Arguments

The conclusions or answers to issued

7. The Reliefs

The reliefs prayed for the party (who is filing the

memorandum).

LEGAL BASIS OF YOUR ARGUMENT

In probate proceedings, the probate court shall consider extrinsicvalidity of the will. Preterition is not among the grounds to invalid awill that would deny its probate. Rule 76, Section 9 of the Rules ofCourt enumerates the grounds for disallowing a will, to wit: (state thegrounds, IF YOU CAN STILL RECALL. There are 5)

Moreover, there was no preterition of Erica.


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Moreover, there was no preterition ofErica.

Article 854 of the New Civil Code provides

that preterition or omission one, some, orall of the compulsory heirs in the directline, x x x, shall annul the institution ofheir; but the devises and legacies shall be

valid in so far as they are not inofficious.Erica is not related to Arthur in the directline.


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GOOD LUCK TO ALL OF YOU.

YOU WILL MAKE IT AND BE WITH US INTHIS NOBLE PROFESSION NEXTYEAR!

Opinion and Memorandum

Documents

Transcript of Opinion and Memorandum