Preterition Vs Disinheritance | Omission & Deprivation Of Legitime
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  • Preterition Vs Disinheritance | Omission & Deprivation Of Legitime

Preterition vs disinheritance is what we are about to discuss. Succession is not as simple as it may seem. This is not just a mere transfer of ownership to the person preferred to by the testator when the right time comes. There are lot of things to consider such as the manner of distribution and the recipients allowed by law to receive the liberality of the testator.

Despite that the property in question is owned by the testator in which it is supposedly and logically be managed and transferred in his own discretion upon his death, the law established a guideline that may be in contrary with his own accord. Indeed, succession is a complicated matter.

Preterition vs Disinheritance

Preterition is the omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator. When there is preterition, it shall annul the institution of heirs in a Will.[1]Article 854, Civil Code

Disinheritance is the deprivation of a legitime to which a compulsory heir is entitled to inherit by operation of law. Disinheritance can only be effected in a valid Will by reason of causes specified by law.[2]Articles 915 – 916, Civil Code

Compulsory heirs are entitled by law to a portion of decedent’s estate

In law on Succession, Compulsory heirs are generally entitled of the portion of decedent’s property as required by law. From the moment of their birth, the future right to receive an inheritance has already vested to them by virtue of the law on succession, a portion of the property of the testator, the least.

This law was derived from the New Civil Code of the Philippines, as stated in Article 886, that Legitime is that part of the testator’s property which he cannot dispose of because the law has reserved it for certain heirs who are, therefore, called compulsory heirs.[3]Article 886, Civil Code

This is also being supported under article 842 stating that “One who has no compulsory heirs may dispose by will of all his estate or any part of it in favor of any person having capacity to succeed.

One who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this Code with regard to the legitime of said heirs.[4]Article 842, Civil Code

To expand further, the disposition in this article shall only be applicable to the free, at his liberty and disposable portion of the testator’s estate however it is not, generally at his liberty, to dispose the legal portion or the legitime as it is reserved to his compulsory heirs. The testator cannot control it even through his testament and he cannot impair it.

Forced heirs by operation of law 

The legitime, as earlier stated, is being granted to the compulsory heirs. The New Civil Code of the Philippines enumerated the list of the persons, being named as Compulsory heirs. The following are compulsory heirs:[5]Article 87, Civil Code

(1) Legitimate children and descendants, with respect to their legitimate parents and ascendants;[6]Id.

(2) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants;[7]Id.

(3) The widow or widower;[8]Id.

(4) Acknowledged natural children, and natural children by legal fiction;[9]Id.

(5) Other illegitimate children referred to in article 287.[10]Id.

Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by those in Nos. 1 and 2; neither do they exclude one another.[11]Id.

In all cases of illegitimate children, their filiation must be duly proved.[12]Id.

The father or mother of illegitimate children of the three classes mentioned, shall inherit from them in the manner and to the extent established by this Code.[13]Id.

What if the testator wants to deprive or impair the compulsory heir on his rights to legitime?  Will it have a force and effect or will there be a law that expressly protects the compulsory heir’s right to legitime? The law expressly addressed it under Article 904 of the civil code stating the following:

The testator cannot deprive his compulsory heirs of their legitime, except in cases expressly specified by law. Neither can he impose upon the same any burden, encumbrance, condition, or substitution of any kind whatsoever.[14]Article 904, Civil Code

Other provisions of the Civil Code impliedly enunciate the devoid of deprivation of the compulsory heir’s right to legitime.

Omission of an heir in a Will

The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious.[15]Article 854, Civil Code

If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without prejudice to the right of representation.[16]Id., Civil Code

In Acain vs IAC, the Court enunciated the requisites of preterition in the separate opinion of Justice Melencio-Herrera.

The requisites of preterition are:

  • The heir omitted is a forced heir (in the direct line);
  • The omission is by mistake or thru an oversight.
  • The omission is complete so that the forced heir received nothing in the will.[17]III, Padilla, Civil Code Annotated, 1973 Edition, pp. 224-225

Pretention is presumed to be only an involuntary omission; that is, that if the testator had known of the existence of the compulsory heir at the time of the execution of the will, he would have instituted such heir. On the other hand, if the testator attempts to disinherit a compulsory heir, the presumption of the law is that he wants such heir to receive as little as possible from his estate. (III Tolentino, Civil Code, 1973 Edition, pp. 174-175).[18]Acain vs IAC, G.R. No. 72706, October 27, 1987

However, in Ventura vs. Ventura, [19]G.R. No. L-26306, April 27, 1988, the Supreme Court made no distinction whether the omission is intentional or not. In the Ventura case, the omission of a compulsory in a direct line was intentional. Thus:

Under Article 854 of the Civil Code, “the preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious,” and as a result, intestacy follows, thereby rendering the previous appointment of Maria Ventura as executrix moot and academic.[20]Ibid.

The law is clear that the rights of compulsory heir to legitime is preserved and reserved. This right to succeed to a portion of the testator’s estate is protected by law against the unreasonable inconsideration of the testator to deprive the compulsory heir of any inheritance.

In fine, this principle prescribed by the law impliedly devoid the testator from removing the compulsory heir from the recipient of legitime. This principle also includes the aspect of non-imposing of burden encumbrance, condition, or substitution of any kind whatsoever upon the heir.

Deprivation of Legitime in a Will

Now that the law stated that compulsory heirs are required to receive their corresponding legitime or portion of the property set by law, what would be the remedy or options of the testator if he expressed his intention to disinherit his compulsory heir or heirs? The law introduces an option for such situation which is called disinheritance.

The New Civil Code of the Philippines provides that “A compulsory heir may, in consequence of disinheritance, be deprived of his legitime, for causes expressly stated by law.[21]Article 915, Civil Code

Disinheritance can be effected only through a will wherein the legal cause therefor shall be specified.”[22]Article 854, Civil Code As expressly provided by the law, there should be legal cause in order for the testator to disinherit his heir/heirs. The law gave several instances in which it discusses the sufficient causes for disinheritance.

Article 919. The following shall be sufficient causes for the disinheritance of children and descendants, legitimate as well as illegitimate:[23]Article 919, Civil Code

(1) When a child or descendant has been found guilty of an attempt against the life of the testator, his or her spouse, descendants, or ascendants;[24]Id.

(2) When a child or descendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless;[25]Id.

(3) When a child or descendant has been convicted of adultery or concubinage with the spouse of the testator;[26]Id.

(4) When a child or descendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made;[27]Id.

(5) A refusal without justifiable cause to support the parent or ascendant who disinherits such child or descendant;[28]Id.

(6) Maltreatment of the testator by word or deed, by the child or descendant;[29]Id.

(7) When a child or descendant leads a dishonorable or disgraceful life;[30]Id.

(8) Conviction of a crime which carries with it the penalty of civil interdiction.[31]Id.

Article 920. The following shall be sufficient causes for the disinheritance of parents or ascendants, whether legitimate or illegitimate:[32]Article 920, Civil Code

(1) When the parents have abandoned their children or induced their daughters to live a corrupt or immoral life, or attempted against their virtue;[33]Id.

(2) When the parent or ascendant has been convicted of an attempt against the life of the testator, his or her spouse, descendants, or ascendants;[34]Id.

(3) When the parent or ascendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found to be false;[35]Id.

(4) When the parent or ascendant has been convicted of adultery or concubinage with the spouse of the testator;[36]Id.

(5) When the parent or ascendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made;[37]Id.

(6) The loss of parental authority for causes specified in this Code;[38]Id.

(7) The refusal to support the children or descendants without justifiable cause;[39]Id.

(8) An attempt by one of the parents against the life of the other, unless there has been a reconciliation between them. [40]Id.

Article 921. The following shall be sufficient causes for disinheriting a spouse:[41]Article 921, Civil Code

(1) When the spouse has been convicted of an attempt against the life of the testator, his or her descendants, or ascendants;[42]Id.

(2) When the spouse has accused the testator of a crime for which the law prescribes imprisonment of six years or more, and the accusation has been found to be false;[43]Id.

(3) When the spouse by fraud, violence, intimidation, or undue influence cause the testator to make a will or to change one already made;[44]Id.

(4) When the spouse has given cause for legal separation;[45]Id.

(5) When the spouse has given grounds for the loss of parental authority;[46]Id.

(6) Unjustifiable refusal to support the children or the other spouse.[47]Id.

Since disinheritance with sufficient legal cause is the allowed way to deprive the compulsory heir to acquire its rights for legitime, let us further review the purpose behind it. Disinheritance is the process or act thru a testamentary disposition of depriving in a will any compulsory heir of his legitime for true and lawful causes.[48]See 6 Manresa 614; 4 Castan 367; see also Article 951, Civil Code

Manresa also further elaborated that the purpose of disinheritance is not vengeance but retribution as far as there can be possibly feelings of vengeance between parents and children or between husband and wife at the supreme hour of death.[49]6 Manresa 618

The object of disinheritance is to punish the ungrateful, the culpable, the cruel the unnatural heir, or an unfaithful spouse.[50]Bocobo and Noble, Wills and successions, page 44. Otherwise stated, its object is to maintain good order and discipline within the family.[51]See 4 Castan 367

Final Thoughts

To sum it up, Legitime or the portion of the estate of the testator, being required to be transferred to the entitled recipient or most commonly known us Compulsory heirs, cannot be impaired or alienated by the testator despite his ownership of the such property.

The law established the rule in which it gives importance to the bond by reason of blood, binding the testator’s discretion in the distribution of his properties upon his death. Regardless if it is contrary to the testator’s accord to give the inheritance to his relatives or not, the owner of the estate has no control over it, and no option but to comply with the rules set by the statute.

Yes, there are some instances that legal and sufficient causes may be used to deprive a compulsory heir to inheritance of legitime, the mere decision and accord of the testator is not enough to control the full portion of his estate as to transferring it to his preferred heirs. In case of the untouchability of compulsory heir’s rights to its legitime, I would say, indeed, blood is thicker than water.

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RALB Law | RABR & Associates Law Firm

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