• Heirs excluded in wills can run to court

    Persida Acosta

    Persida Acosta

    Dear PAO,
    My father died recently. I am his only legitimate child with my late mother but he had other children with his mistress. Now, my half siblings are claiming all the properties left by my father. They claim that my father left a last will leaving all his properties to them. If this is true, does it mean I don’t have any right to my father’s properties?

    Dear Martina,
    Undeniably, a person is allowed by law to determine the disposition of his estate upon his death. However, this right is not absolute. There is a portion that a person is not allowed to dispose according to his wish. This portion is called legitime, which is the part of a person’s property which he cannot dispose of because the law has reserved it for his compulsory heirs (Art. 886, Civil Code of the Philippines). Consequently, a person’s right to dispose of his properties only extends to the portion not covered by the law on legitime. He may, however, disinherit a compulsory heir for causes expressly stated by law. (Art. 915, Id.)

    The primary compulsory heirs of a person are his legitimate children and descendants, and their legitime consists of one-half of the hereditary estate of their parents. (Art. 888, Id.) This portion is fixed regardless of the number of legitimate children. Thus, if there are two or more legitimate children, the half portion is divided among them. But if there is only one legitimate child, then he is entitled to receive half of the estate as legitime. If the decedent left the compulsory heirs with less than the legitime prescribed by law, the affected compulsory heirs may demand that their legitimes be fully satisfied (Art. 906, Id.) They may come to court and ask for completion of their legitimes. In such a case, testamentary dispositions that impair or diminish the legitime of the compulsory heirs shall be reduced insofar as they may be inofficious or excessive. (Art. 907, Id.)

    However, if a compulsory heir is absolutely excluded from the division of the estate, there may be preterition. Preterition refers to the omission in the testator’s will of one or more compulsory heirs either because they are not mentioned therein, or, though (Maninang v. Court of Appeals, 114 SCRA 478) mentioned, they are neither instituted as heirs nor are expressly disinherited. Its requisites are: 1) there is a total omission in the inheritance; 2) the omission must be of a compulsory heir; and 3) the compulsory heir omitted must be in the direct line (Civil Code of the Philippines Annotated, Paras, 15th ed., p. 209). The first requisite means that the heir must not receive anything from the decedent either by will, other modes of succession, or donation. The heir must be absolutely excluded from the estate left by the decedent. The second and last requisites taken together, mean that the omitted heir must be a child or legitimate descendant, or if there be none, a legitimate parent or ascendant.

    When there is preterition, the affected compulsory heir has the right to ask not only for his legitime, but also for the annulment of the institution of heirs. This means that the designation of heirs made by the decedent in his last will and testament will be rendered void or ineffective. In effect, the instituted heirs will lose their right to the testamentary disposition made by the decedent in their favor, and the affected portion of the estate would be considered as if the decedent did not dispose of them, and will be distributed in accordance with the rule on intestacy. However, devisees and legacies shall remain valid insofar as they are not inofficious. (Art. 854, Id.)

    Applying the foregoing to your case, you are entitled to receive your legitime from the estate of your father as a compulsory heir absent any valid disinheritance. If you receive a property from your father, by succession or donation, you may ask for the completion of your legitime. But if you are absolutely excluded in the division of the estate of your father, there is preterition. You may ask the court to annul the institution of your half siblings as heirs. In which case, they will lose their claim on the testamentary disposition made by your father to them, except to specific devises and legacies which will be respected insofar as they are not inofficious.

    We hope you find this opinion useful. Please bear in mind that this opinion is based on the facts you narrated and our appreciation of the same. Our opinion may vary if facts are changed or elaborated.

    Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net


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