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.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.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.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.
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:Article 87, Civil Code
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.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.Article 854, 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.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).Acain vs IAC, G.R. No. 72706, October 27, 1987
However, in Ventura vs. Ventura, 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.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.Article 915, Civil Code
Disinheritance can be effected only through a will wherein the legal cause therefor shall be specified.”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.
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.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.6 Manresa 618
The object of disinheritance is to punish the ungrateful, the culpable, the cruel the unnatural heir, or an unfaithful spouse.Bocobo and Noble, Wills and successions, page 44. Otherwise stated, its object is to maintain good order and discipline within the family.See 4 Castan 367
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.
|↑1||Article 854, Civil Code|
|↑2||Articles 915 – 916, Civil Code|
|↑3||Article 886, Civil Code|
|↑4||Article 842, Civil Code|
|↑5||Article 87, Civil Code|
|↑14||Article 904, Civil Code|
|↑15||Article 854, Civil Code|
|↑16||Id., Civil Code|
|↑17||III, Padilla, Civil Code Annotated, 1973 Edition, pp. 224-225|
|↑18||Acain vs IAC, G.R. No. 72706, October 27, 1987|
|↑19||G.R. No. L-26306, April 27, 1988|
|↑21||Article 915, Civil Code|
|↑22||Article 854, Civil Code|
|↑23||Article 919, Civil Code|
|↑32||Article 920, Civil Code|
|↑41||Article 921, Civil Code|
|↑48||See 6 Manresa 614; 4 Castan 367; see also Article 951, Civil Code|
|↑49||6 Manresa 618|
|↑50||Bocobo and Noble, Wills and successions, page 44|
|↑51||See 4 Castan 367|