5. Disinheritance

Effects of Preterition

• The institution of heir is annulled.

The annulment is in toto, unless in the will there are, in addition, testamentary dispositions in the form of devises or legacies. (Nuguid v. Nuguid, G.R. No. L-23445) Preterition annuls the institution of an heir and annulment throws open to intestate succession the entire inheritance. (Morales v. Olondriz, G.R. No. 198994, Acain v. Intermediate Appellate Court, G.R. No. L-72706) Verify the G.R. number for Acain v. Intermediate Appellate Court: G.R. No. L-72706.

• Devises and legacies shall remain valid as long as they are not inofficious. The only provisions which do not result in intestacy are the legacies and devises made in the will for they should stand valid and respected, except insofar as the legitimes are concerned. (Acain v. Intermediate Appellate Court, G.R. No. L-72706) Verify the G.R. number for Acain v. Intermediate Appellate Court: G.R. No. L-72706. If the devises and legacies impair the legitimes, they are merely reduced.
• If the omitted compulsory heir should die before the testator, the institution shall be effectual, without prejudice to the right of representation.

Disinheritance

A compulsory heir may, in consequence of disinheritance, be deprived of his legitime, for causes expressly stated by law. (Art. 915)

Requisites for Valid Disinheritance:

• Effected only through a valid Will (Art. 916)
• For a cause Expressly stated in the will (Art. 916, 918)
• The cause must be certain and True (Art. 918)
• Total;
• It must be for a cause expressly stated by Law (Art. 916, in relation to Art. 919-921)
• Unconditional;
• If the truth of the cause is denied, it must be Proved by the proponent. (Art. 917)

Note: Will containing disinheritance must be probated.

Disinheritance only occurs in testamentary succession. Its counterpart in intestate succession is unworthiness.

Effects of Disinheritance

• Total exclusion of the compulsory heir from the inheritance, which includes his legitime, his share in the intestate portion, and any testamentary disposition made in a prior will. (Balane, supra at p. 437-438)

NOTE: Therefore, the heir loses his legitime. As to the free portion, it passes through Substitution, Accretion, and Intestacy.

Question: Is there a right of representation in case of disinheritance? YES

• The children or descendants of the person disinherited shall take his or her place and shall preserve the rights of compulsory heirs with respect to the legitime. (Art. 923)

NOTE: The disinherited heir can be represented in the legitime and also to any intestate portion that he or she would have inherited:

• Only in the descending line, never in the ascending
• A disinherited parent shall have neither the usufruct nor the administration of the property constituting the legitime received by his or her children through representation. (Art. 923)

Ineffective Disinheritance

Disinheritance without specification of the cause, or for a cause the truth of which, if contradicted, is not proved, or which is not one of those set forth in this Code, shall annul the institution of heirs insofar as it may prejudice the person disinherited; but the devises and legacies and other testamentary dispositions shall be valid to such extent as will not impair the legitime. (Art. 918)

Effects of Ineffective Disinheritance

• If the testator had made disposition of the entire estate, the testamentary disposition is annulled only insofar as they prejudice the legitime of the person disinherited. It does not affect the dispositions of the testator with respect to the free portion
• If the testator did not dispose of the free portion, the compulsory heir will be given all that he is entitled to receive as if the disinheritance has not been made, without prejudice to lawful dispositions made by the testator in favor of others
• Devisees, legacies and other testamentary dispositions shall be valid to such extent as will not impair the legitime. (Vitug, Civil Law Volume III, 2006 edition, p. 263)

Preterition is total omission from the inheritance, without the heir being expressly disinherited. The implied basis of the rule on preterition is inadvertent omission by the testator. Thus, if the testator explicitly disinherits the heir, Article 854 on preterition will not apply. Should the disinheritance be ineffective, for absence of one or other of the requisites for a valid disinheritance, the heir is simply entitled to demand his rightful share. (Balane, supra)

Grounds for Disinheritance of Legitimate or Illegitimate Children and Descendants (Art. 919)

• When the child or descendant has been found guilty of an attempt against the life of the testator, his or her spouse, descendants, or ascendant;
• Final conviction is required
• It includes all stages of commission of a crime. (Attempted, frustrated, or consummated)
• This ground also applies to disinheritance of parents, ascendants, and spouse.
• Felony must be intentional (not through negligence)
• 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;
• 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;
• It may be made by the heir in a proceeding as a complainant or witness in a criminal case.
• The accusation must be found groundless; an acquittal is not required.
• An acquittal based only on reasonable doubt does not, by itself, establish that the accusation was groundless.
• This ground also applies to disinheritance of parents, ascendants, and spouse.
• When a child or descendant has been convicted of adultery or concubinage with the spouse of the testator;
• Final conviction is required
• There must be a valid marriage between the spouse and the testator.
• This ground also applies to disinheritance of parents and ascendants. (Balane, supra)
• When the child or descendant, by fraud, violence, intimidation, or undue influence, causes the testator to make a will or to change one already made;
• A refusal without justifiable cause to support the parent or ascendant who disinherits such child or descendant;
• The obligation to support must be proven.
• There must be a need and demand for support.
• The demand must be unjustifiably refused.
• This ground also applies to the disinheritance of parents, ascendants, and spouses

NOTE: Refusal may be justified, if the obligor does not have enough resources for all whom he is obliged to support. The ascendants are only third in the hierarchy of preference among claimants of support. (Family Code, Art. 200, par. 3)

• Maltreatment of the testator by word or deed, by the child or descendant;
• The verbal or physical assault must be of a serious nature.
• No conviction is required. It is not even required that a criminal case be filed.

By word – Slander, offensive language, insult, libel. May be spoken or written.

By deed – No need for violence. It could be something that caused the testator to be humiliated.

• When a child or descendant leads a dishonorable or disgraceful life;

The conduct must be habitual. (Balane, supra)

• Conviction of a crime which includes the penalty of civil interdiction.
• Final conviction is required.
• The accessory penalty of civil interdiction is imposed with the principal penalties of death, reclusion perpetua, and reclusion temporal.

NOTE: The enumeration is exclusive

Grounds for Disinheritance of Legitimate or Illegitimate Parents or Ascendants (Art. 920)

• When the parents have abandoned their children or induced their daughters to live a corrupt or immoral life or attempted against their virtue;
• Includes all conduct constituting a repeated or total refusal or failure to care for a child.
• This applies when the parents willfully left the children to fend for themselves.
• It is not restricted to those instances of abandonment penalized by law.
• Inducement - same as deprivation of parental authority; only applies to female descendants
• Attempt on virtue - no conviction is required
• When the parent or ascendant has been convicted of an attempt against the life of the testator, his or her spouse, descendants, or ascendants;
• 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;
• When the parent or ascendant has been convicted of adultery or concubinage with the spouse of the testator;
• 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;
• The loss of parental authority for causes specified in this Code;
• It refers to culpable loss of parental authority and excludes attainment of the age of majority. (Balane, supra) The causes for culpable loss of parental authority include:
• judicial deprivation of parental authority on the ground of sexual abuse;
• loss of parental authority as a result of a judicial declaration of abandonment of the child
• judicial deprivation of parental authority based on:
• excessively harsh or cruel treatment of the child
• giving the child corrupting orders, counsel, or example
• compelling the child to beg; or
• subjecting the child or allowing him to be subjected to acts of lasciviousness
• No conviction is required.
• The refusal to support the children or descendants without justifiable cause;
• An attempt by one of the parents against the life of the other, unless there has been a reconciliation between them.
• Final conviction is not required.
• It includes all stages of commission of a crime. (Attempted, frustrated, or consummated)
• Even if parents are not married, it is still a ground. The parents do not need to be spouses. However, the testator must be a common child.
• Reconciliation between the parents removes the right of a child or descendant to disinherit and rescinds a disinheritance already made.

NOTE: The enumeration is exclusive.

Grounds for Disinheritance of a Spouse (Art. 921)

• When the spouse has been convicted of an attempt against the life of the testator, his or her descendants, or ascendants;
• 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;
• When the spouse by fraud, violence, intimidation, or undue influence cause the testator to make a will or to change one already made;
• When the spouse has given cause for legal separation;
• A decree of legal separation is not required.
• The grounds for legal separation need not be proven, unless contested by the heir.
• If there is already a decree of legal separation, the ground is conclusive, but there is still a need to disinherit by will.
• When the spouse has given grounds for the loss of parental authority;
• Judicial decree is not required. Giving grounds therefore is sufficient. (Art. 921)
• Unjustifiable refusal to support the children or the other spouse

NOTE: The enumeration is exclusive

Revocation of Disinheritance

• Reconciliation (Art. 922)
• Subsequent institution of the disinherited heir.

Nullity of the will, which contains the disinheritance, is not a revocation of disinheritance. An invalid will cannot effect a valid disinheritance in the first place.

Reconciliation

This refers to the resumption of genuine cordial relationship between the testator and the disinherited heir, approximating that which prevailed before the testator learned of the cause for disinheritance, reciprocally manifested by their actions before or after the act of disinheritance. (Vitug, supra, p. 264) Reconciliation before disinheritance extinguishes the right to disinherit; reconciliation after disinheritance renders the disinheritance ineffectual. (Civil Code, Art. 922)

Reconciliation may be done by:

• Concrete and express pardon extended to the offender, who accepts it.

A general pardon extended by the testator on his deathbed to all who have offended him will not suffice.

• Unequivocal conduct toward the offending heir, by which the intent to forgive must be clear.

Effects of Setting Aside the Disinheritance

• The disinherited heir is restored to his legitime.
• If the disinheriting will did not dispose of the disposable portion, the disinherited heir is entitled to his proportionate share, if any.
• If the disinheriting will or any subsequent will disposed of the disposable portion in favor of testamentary heirs, legatees, or devisees, such dispositions remain valid.

Summary of Grounds for Disinheritance (Arts. 919, 920 & 921)

Legacies and Devises – Civil Code, arts. 924-959

SECTION 7

Legacies and Devises

Article 924. All things and rights which are within the commerce of man may be bequeathed or devised. (865a)

Article 925. A testator may charge with legacies and devises not only his compulsory heirs but also the legatees and devisees.

The latter shall be liable for the charge only to the extent of the value of the legacy or the devise received by them. The compulsory heirs shall not be liable for the charge beyond the amount of the free portion given them. (858a)

Article 926. When the testator charges one of the heirs with a legacy or devise, he alone shall be bound.

Should he not charge anyone in particular, all shall be liable in the same proportion in which they may inherit. (859)

Article 927. If two or more heirs take possession of the estate, they shall be solidarily liable for the loss or destruction of a thing devised or bequeathed, even though only one of them should have been negligent. (n)

Article 928. The heir who is bound to deliver the legacy or devise shall be liable in case of eviction, if the thing is indeterminate and is indicated only by its kind. (860)

Article 929. If the testator, heir, or legatee owns only a part of, or an interest in the thing bequeathed, the legacy or devise shall be understood limited to such part or interest, unless the testator expressly declares that he gives the thing in its entirety. (864a)

Article 930. The legacy or devise of a thing belonging to another person is void, if the testator erroneously believed that the thing pertained to him. But if the thing bequeathed, though not belonging to the testator when he made the will, afterwards becomes his, by whatever title, the disposition shall take effect. (862a)

Article 931. If the testator orders that a thing belonging to another be acquired in order that it be given to a legatee or devisee, the heir upon whom the obligation is imposed or the estate must acquire it and give the same to the legatee or devisee; but if the owner of the thing refuses to alienate the same, or demands an excessive price therefor, the heir or the estate shall only be obliged to give the just value of the thing. (861a)

Article 932. The legacy or devise of a thing which at the time of the execution of the will already belonged to the legatee or devisee shall be ineffective, even though another person may have some interest therein.

If the testator expressly orders that the thing be freed from such interest or encumbrance, the legacy or devise shall be valid to that extent. (866a)

Article 933. If the thing bequeathed belonged to the legatee or devisee at the time of the execution of the will, the legacy or devise shall be without effect, even though it may have subsequently been alienated by him.

If the legatee or devisee acquires it gratuitously after such time, he can claim nothing by virtue of the legacy or devise; but if it has been acquired by onerous title he can demand reimbursement from the heir or the estate. (878a)

Article 934. If the testator should bequeath or devise something pledged or mortgaged to secure a recoverable debt before the execution of the will, the estate is obliged to pay the debt, unless the contrary intention appears.

The same rule applies when the thing is pledged or mortgaged after the execution of the will.

Any other charge, perpetual or temporary, with which the thing bequeathed is burdened, passes with it to the legatee or devisee. (867a)

Article 935. The legacy of a credit against a third person or of the remission or release of a debt of the legatee shall be effective only as regards that part of the credit or debt existing at the time of the death of the testator.

In the first case, the estate shall comply with the legacy by assigning to the legatee all rights of action it may have against the debtor. In the second case, by giving the legatee an acquittance, should he request one.

In both cases, the legacy shall comprise all interests on the credit or debt which may be due the testator at the time of his death. (870a)

Article 936. The legacy referred to in the preceding article shall lapse if the testator, after having made it, should bring an action against the debtor for the payment of his debt, even if such payment should not have been effected at the time of his death.

The legacy to the debtor of the thing pledged by him is understood to discharge only the right of pledge. (871)

Article 937. A generic legacy of release or remission of debts comprises those existing at the time of the execution of the will, but not subsequent ones. (872)

Article 938. A legacy or devise made to a creditor shall not be applied to his credit, unless the testator so expressly declares.

In the latter case, the creditor shall have the right to collect the excess, if any, of the credit or of the legacy or devise. (837a)

Article 939. If the testator orders the payment of what he believes he owes but does not in fact owe, the disposition shall be considered as not written. If as regards a specified debt more than the amount thereof is ordered paid, the excess is not due, unless a contrary intention appears.

The foregoing provisions are without prejudice to the fulfillment of natural obligations. (n)

Article 940. In alternative legacies or devises, the choice is presumed to be left to the heir upon whom the obligation to give the legacy or devise may be imposed, or the executor or administrator of the estate if no particular heir is so obliged.

If the heir, legatee or devisee, who may have been given the choice, dies before making it, this right shall pass to the respective heirs.

Once made, the choice is irrevocable.

In the alternative legacies or devises, except as herein provided, the provisions of this Code regulating obligations of the same kind shall be observed, save such modifications as may appear from the intention expressed by the testator. (874a)

Article 941. A legacy of generic personal property shall be valid even if there be no things of the same kind in the estate.

A devise of indeterminate real property shall be valid only if there be immovable property of its kind in the estate.

The right of choice shall belong to the executor or administrator who shall comply with the legacy by the delivery of a thing which is neither of inferior nor of superior quality. (875a)

Article 942. Whenever the testator expressly leaves the right of choice to the heir, or to the legatee or devisee, the former may give or the latter may choose whichever he may prefer. (876a)

Article 943. If the heir, legatee or devisee cannot make the choice, in case it has been granted him, his right shall pass to his heirs; but a choice once made shall be irrevocable. (877a)

Article 944. A legacy for education lasts until the legatee is of age, or beyond the age of majority in order that the legatee may finish some professional, vocational or general course, provided he pursues his course diligently.

A legacy for support lasts during the lifetime of the legatee, if the testator has not otherwise provided.

If the testator has not fixed the amount of such legacies, it shall be fixed in accordance with the social standing and the circumstances of the legatee and the value of the estate.

If the testator during his lifetime used to give the legatee a certain sum of money or other things by way of support, the same amount shall be deemed bequeathed, unless it be markedly disproportionate to the value of the estate. (879a)

Article 945. If a periodical pension, or a certain annual, monthly, or weekly amount is bequeathed, the legatee may petition the court for the first installment upon the death of the testator, and for the following ones which shall be due at the beginning of each period; such payment shall not be returned, even though the legatee should die before the expiration of the period which has commenced. (880a)

Article 946. If the thing bequeathed should be subject to a usufruct, the legatee or devisee shall respect such right until it is legally extinguished. (868a)

Article 947. The legatee or devisee acquires a right to the pure and simple legacies or devises from the death of the testator, and transmits it to his heirs. (881a)

Article 948. If the legacy or devise is of a specific and determinate thing pertaining to the testator, the legatee or devisee acquires the ownership thereof upon the death of the testator, as well as any growing fruits, or unborn offspring of animals, or uncollected income; but not the income which was due and unpaid before the latter's death.

From the moment of the testator's death, the thing bequeathed shall be at the risk of the legatee or devisee, who shall, therefore, bear its loss or deterioration, and shall be benefited by its increase or improvement, without prejudice to the responsibility of the executor or administrator. (882a)

Article 949. If the bequest should not be of a specific and determinate thing, but is generic or of quantity, its fruits and interests from the time of the death of the testator shall pertain to the legatee or devisee if the testator has expressly so ordered. (884a)

Article 950. If the estate should not be sufficient to cover all the legacies or devises, their payment shall be made in the following order:

(1) Remuneratory legacies or devises;

(2) Legacies or devises declared by the testator to be preferential;

(3) Legacies for support;

(4) Legacies for education;

(5) Legacies or devises of a specific, determinate thing which forms a part of the estate;

(6) All others pro rata. (887a)

Article 951. The thing bequeathed shall be delivered with all its accessions and accessories and in the condition in which it may be upon the death of the testator. (883a)

Article 952. The heir, charged with a legacy or devise, or the executor or administrator of the estate, must deliver the very thing bequeathed if he is able to do so and cannot discharge this obligation by paying its value.

Legacies of money must be paid in cash, even though the heir or the estate may not have any.

The expenses necessary for the delivery of the thing bequeathed shall be for the account of the heir or the estate, but without prejudice to the legitime. (886a)

Article 953. The legatee or devisee cannot take possession of the thing bequeathed upon his own authority, but shall request its delivery and possession of the heir charged with the legacy or devise, or of the executor or administrator of the estate should he be authorized by the court to deliver it. (885a)

Article 954. The legatee or devisee cannot accept a part of the legacy or devise and repudiate the other, if the latter be onerous.

Should he die before having accepted the legacy or devise, leaving several heirs, some of the latter may accept and the others may repudiate the share respectively belonging to them in the legacy or devise. (889a)

Article 955. The legatee or devisee of two legacies or devises, one of which is onerous, cannot renounce the onerous one and accept the other. If both are onerous or gratuitous, he shall be free to accept or renounce both, or to renounce either. But if the testator intended that the two legacies or devises should be inseparable from each other, the legatee or devisee must either accept or renounce both.

Any compulsory heir who is at the same time a legatee or devisee may waive the inheritance and accept the legacy or devise, or renounce the latter and accept the former, or waive or accept both. (890a)

Article 956. If the legatee or devisee cannot or is unwilling to accept the legacy or devise, or if the legacy or devise for any reason should become ineffective, it shall be merged into the mass of the estate, except in cases of substitution and of the right of accretion. (888a)

Article 957. The legacy or devise shall be without effect:

(1) If the testator transforms the thing bequeathed in such a manner that it does not retain either the form or the denomination it had;

(2) If the testator by any title or for any cause alienates the thing bequeathed or any part thereof, it being understood that in the latter case the legacy or devise shall be without effect only with respect to the part thus alienated. If after the alienation the thing should again belong to the testator, even if it be by reason of nullity of the contract, the legacy or devise shall not thereafter be valid, unless the reacquisition shall have been effected by virtue of the exercise of the right of repurchase;

(3) If the thing bequeathed is totally lost during the lifetime of the testator, or after his death without the heir's fault. Nevertheless, the person obliged to pay the legacy or devise shall be liable for eviction if the thing bequeathed should not have been determinate as to its kind, in accordance with the provisions of article 928. (869a)

Article 958. A mistake as to the name of the thing bequeathed or devised, is of no consequence, if it is possible to identify the thing which the testator intended to bequeath or devise. (n)

Article 959. A disposition made in general terms in favor of the testator's relatives shall be understood to be in favor of those nearest in degree. (751)

Legacy – Testamentary disposition of personal property by particular title. (Balane, supra)

Devise – Testamentary disposition of real property by particular title. (Balane, supra)