FORCED HEIRS NO MORE: THE ABOLITION OF LEGITIMES

“At all costs one must have wealth, control wealth, and protect wealth.”

- Oscar Wilde

INTRODUCTION

The concept of forced heirship characterized the Civil Law world.

The Roman Law based will-making power of the testator-decedent, as
well as the well-entrenched limitation to such power – the legitimes of
compulsory heirs were embraced by the Philippines, being one of the civil
law countries.1 As found in testamentary laws, the concept of forced
heirship limits an individual’s freedom of testation by fragmenting that
person’s estate and by stipulation on how that person may dispose of his
or her assets after his or her death.2 In theory, after observing statutory
limitations, there’s a doctrine of testamentary freedom which allowed
testators to have the freedom to dispose of whatever property is left in
any manner they choose.3

“Inheritance law continues to define people by family categories.

Decedents and their survivors remain first and foremost spouses,
parents, children, and siblings rather than individuals with particular

1
Freedom in Death: Expanding the Disposing Power of the Decedent and Providing for a
More Rational Sharing of Legitimes
2
Matthews (2010). Trusts v. Foundations: Issues of Force Heirship in Different Jurisdiction
3
Irene D. Johnson, There's a Will, But No Way--Whatever Happened to the Doctrine of Testamentary
Freedom and What Can (Should) We Do to Restore It?, 4 Est. Plan. & Cmty. Prop. L.J. 105 (2011),
http://digitalcommons.pace.edu/lawfaculty/824/.
human needs and circumstances that increasingly defy conventional
family norms.”4
A number of persons have inserted odd provisions in their will
giving out a portion of their estate to just random strangers. An example
of a person of such a character was Archibald McArthur who lived in
Dodgeville, Wisconsin after the Civil War. Though he started out
penniless, he soon became a successful attorney and amassed a sizeable
fortune. It was then that he decided to take a personal vow of poverty. He
gave away almost everything and hung out in the cemetery a lot. In
1922, he bought a car and moved to Florida. When he died, his will
revealed that he had left each of his remaining relatives $5. The rest of
his money went to a man he once on a park bench. McArthur is
something of a celebrity in Wisconsin, where he is usually just called the
Dodgeville Hermit.5

Luis Carlos de Noronha Cabral da Camara has also made an

unusual distribution of his money after his death. Seventy (70) people
listed in a Lisbon phone directory were contacted out of the blue after his
death to be told he had made them his beneficiaries. They had been
chosen at random from the directory, in front of two (2) witnesses at a
registry office. It certainly came as a shock to them. In the first place,

4
Professor Baron has noted a similar phenomenon in will interpretation cases. She
argues that under existing approaches, "[t]he focus remains on the words, not on the complex motives by
which they were produced. The discussions are bloodless. One would hardly know that any actual people
were involved-only 'testators,' 'beneficiaries,' 'scriviners,' and 'residuary devisees.' " Jane B. Baron, Essay:
Intention, Interpretation, and Stories, 42 DUKE L.J. 630, 663-64 (1992). As Professor Baron states,
"[t]here is something deeply dissatisfying about a system that protects individuals only by depriving them
of their humanity." I. at 655.
5 Adrienne Crezo, ‘People Who Died and Left Their Fortunes to Strangers’, Available

http://mentalfloss.com/article/12811/7-people-who-died-and-left-their-fortunes-strangers 23
Novermber 2014 [8]
people do not, as a rule, make wills in Portugal. In the second,Portuguese
aristocrats are getting thin on the ground, let alone eccentric ones.6
Even though a portion of the decedent’s estate was given to just
anyone he barely know or totally not know, more and more people have
proven their absolute dominion over their patrimony even at their
deathbeds. It only goes to prove that while death is the only thing that is
certain in the world, this must not put an end to a person’s right to have
control over his estate. The full exercise of ownership must therefore
extend even beyond death.

Filomusi defines ownership as the “independent and general power

of a person over a thing for purposes recognized by law and within the
limits established thereby. Scialoja defines it as a “relation in private law
by virtue of which a thing pertaining to one person is completely
subjected to his will in everything not prohibited by public law or the
concurrence with the rights of another.7

The full exercise of ownership is unquestionable during one’s

lifetime. An owner is given the liberty to use, abuse and dispose of his
property as he wishes. He also has the right to exclude anyone from the
use thereof. When death strikes in, the law provides a way to extend
such right through succession.

Succession, as defined in Article 774 of the New Civil Code, is a

mode of acquisition by virtue of which the property, rights, and
obligations to the extent of the value of the inheritance, of a person are

6 Marite, ’10 Unbelievable Inheritance Stories’, Available http://www.oddee.com/item 96948.aspx

09 March 2016 [1] ; Patrick Jackson, Where there’s a Will there’s a Whim’. Available
http://news.bbc.co.uk/2/hi/europe/6268015.stm 09 March 2015 [3-5]
7 || A. Tolentino, COMMENTARIES AND JURISPRUDENCE ON THE CIVIL CODE OF THE

PHILIPPINES 45 (2004)
transmitted through his death to another or others either by will or by
operation of law.

The law explicitly provided two (2) means of disposing the estate
upon death. First, the letters of the law recognized the right of an owner
to dispose of his property in a manner suitable to his preference. These
wishes must be contained and embodied in a last will and testament.
The second one is by operation of law wherein the state comes in and
decides the manner of disposal based from prevailing customs and
traditions respecting family rights.

Therefore, if a man has the right to own private property, he also

has the power to dispose of such property freely, imposing such licit
terms and conditions as he might deem convenient. Consequently, he
may distribute them by means of a testament which is an instrument of
alienation conditioned upon his death.8

8 D. Jurado COMMENTS AND JURISPRUDENCE ON SUCCESSION 2 (9th ed., 2009)

 THE DOCTRINE OF FORCED HEIRSHIP

Forced heirship is generally a feature of civil-law legal systems

which do not recognize total freedom testation. The concept of forced
heirship refers to the set of legal provisions found in testamentary laws
which limit an individual’s freedom of testation by fragmenting that
person’s estate and stipulating how that person may dispose of his or her
assets after his or her death. The heirs of the deceased have a right to
claim a portion, depending on their system’s dictum, of that partible
inheritance. Forced heirship divides a decedent’s estate into non-
disposable assets, claimable by heirs, and disposable assets. These
forced heirs are persons, usually children and spouse, whom the testator
or donor cannot exclude from the inheritance due to the fixed share
provisions which set aside a specific quota of the property to satisfy the
established percentage entitled to them.9 As to how the concept of forced
heirship came to existence, Juan Francisco Pardini of the University of
London traced the same from Roman, Aztec, Islam, and Jewish systems
of inheritance.

Roman Law

Roman influence can be seen in every corner of the globe,

from islands to entire continents. Rome sparked the flame which ignited
areas such as: science, mathematics, astrology, and law. The climax of
Roman legal effervescence was the Corpus Iuris Civilis, or Body of Civil
Law, which gave birth to codified law, to Civil Law. During the times of
the Roman Empire, there was no codifies set of rules establishing a
forced heirship regime, however, there were Justinian dispositions

9
Juan Francisco Pardini, ‘Trusts vs Foundations: Issues of Forced Heirship in Different Jurisdictions’ page
4, Available www.pardinilaw.com/images/Research%20Essay 15 August 2014
regarding the ability of children who had been disinherited in a will by
the heads of families without any good reason to complain against the
authorities that they had been cut out or passed over. This so-called
undutiful will is truly the origin and birth of the concept that we now
called forced heirship. The existence of a patre familias requirement
imposed on all heads of families further strengthened the idea of “family
above property” which is the predominant explanation for the existence
of forced heirship even in today’s ever-changing world. Centuries later,
this playground of gladiators and philosophers conceived countries like
France, Italy, Spain, and Potugal. These Roman offspring, impregnated
with such civilian mentalities, ventured off to conquer Latin America, the
Caribbean, and Africa, and left the Roman seed planted in every colony
they established.

Aztec Law

The Aztecs are the ancestors of the people that now inhabit
the region stretching from northern Mexico to the lower regions of
Guatamela. Although the laws that now govern Mexico have varied
drastically in comparison with those laid down by ancient legislations,
these are areas of Mexico inhabited by indigenous groups that hold some
of the customs and laws of their ancestors who once populated these
lands. Succession law during the Pre-Hispanic era could be practiced by
all men, rich or poor, in regards to their particular properties, such as:
movable goods, immovable goods, and slaves. There were two types of
succession: voluntary and legitimate. In the legitimate, the male sons
were the only ones to enjoy the property of their deceased parent. Post-
Colonization injected Latin America with Roman-Occidental heritage
product of the Spanish conquering institutions which integrated Roman
ideals into those territories which they conquered. However, such Roman
ideals had come to us mixed with Islamic influence, due to the fact that
as mentioned earlier, after the Crusades, Muslim culture fused with
European. When Spain and Portugal conquered most of the American
land mass, the New Continent, rich in pseudo-Aztec essence absorbed
Roman-Islamic principles, concepts, and cultural components.

Islamic Law

Islamic inheritance law, or Shari’ah inheritance law, derives

its foundations from the Holy Quran, the customs laid down by the
Prophet, and furthermore, by the educational studies based on the
Quran and such customs. Rumsey glorified Islamic law by stating that
its inheritance laws formed the most efficient and polished methodology
for the redistribution of property known to the modern world. Shari’ah
law states that upon a person’s death, their property must satisfy the
following four principles:

1. Pay his/her funeral and burial expenses.

2. Pay his/her debts.

3. Execute his will/bequest (maximum 1/3 of his/her

property).

4. Distribute the remainder of his/her estate/property

according to Shari’ah law.

Those four standards are the backbone of the inheritance system

in Muslim countries. Furthermore, passages within the Quran such as:
“Allah commands you regarding your children. For the male a share
equivalent to that of two females” and “If there are women (daughters)
more than two, then for them two thirds of the inheritance; and if there
is only one then it is half”. These extracts further strengthened the fixed
shares entitled to the respective heir. These statutes favoured the male
heirs and crippled female heirs’ chances of obtaining a significant
fragment of the inheritance, but when the European continent engaged
in the Crusades, and the concept of forced heirship, along with the
concept of the trust, were imported back home, these gender-oppressing
provisions were modified or suppressed.

Jewish Law

The final contributor to the forced heirship dispositions that

plague the estates of men across the globe, is Jewish Law. Vague Biblical
references encouraged the establishment of inheritance laws within
Israel to ensure the stability of its tribes. Such Biblical extracts such as
‘if a man die, and have no son, then ye shall cause his inheritance to
pass unto his daughter” not only fortified the fixed share property quotas
that would pass on to the forced heirs, but it also strengthened the male
heirs. Furthermore, just as with Islamic Law, gender-favoring
dispositions were abolished as they were integrated into other
continental legal systems. Jewish presence within every continent grew
exponentially after the Second World War due to an exodus from Western
European countries as a direct result of the incessant chase that the
Reich gave to non-Aryan races. Argentina, Mexico, Brazil, the Caribbean,
and places in Central America suddenly had growing Jewish
communities within their societies. The integration of this culture, with
its ideals, into such countries, put the cherry on the cake, producing a
structured, predestined, and fixed inheritance system.10

With such an intrinsic melange of cultures, ideas, and systems,

forced heirship cemented itself as an institution in various legal
frameworks. Stretching all over Latin America, continental Europe, the
Middle East, parts of Africa, Asia, and even placing a seed in remote
Anglo-Saxon jurisdictions.11

Many theorists have attempted to intercept and circumvent the

legal impositions of forced heirship while the individual in question is
alive. It is an understood notion that forced heirship is triggered post
mortem, but what prevents a testator or donor from alienating his
property through inter vivos gifts? And the answer is simple. Whoever
attempts to bypass, deceive, or avoid such predetermined fixed share
allotments will encounter the unparalleled wrath of forced heirship’s
Leviathan “the claw back”. The clawback mechanism is integrated
wherever a type of reserve provision exists. This operated when the
disposed portion of an estate, taking into consideration testamentary and
inter vivos gifts, surpasses the established compulsory share, then forced
heirs can claim such testamentary gifts and clawback any gifts that the
deceased made during his or her lifetime. The clawback process occurs
in an inverse chronological sequence, meaning that the testamentary
gifts are attacked prior to those made while the testator or donor was
alive.12

However, notwithstanding the solidification of the concept of forced

heirship over the centuries, researched shows that during the very early
10
See note 9, supra
11
Ibid
12
See note 9, supra
period of Roman legal history, the powers of the pater extended even to
the extreme limit of life and death. Under such a social order with such
legal institutions there could be no room for any concept of testamentary
restrictions on the parent. The children were called sui heredes, which is
sometimes defined as heirs to themselves and implies co-ownership with
the pater, but this definition may refer back to a much more primitive
period. If the pater died intestate, the children were first in line to inherit,
but this absolute power of disposition gave him unrestricted freedom to
distribute his estate in legacies.13 Some writers believe that complete
freedom to testation and the power of disinheritance existed right from
the Twelve Tables.14 On the other hand, some are of the opinion that
although there was power of disposition by legacy, testation consisted of
the institution of an heir and came into existence as late as the second
century BC.15

To date, there are a number of countries and most parts of the

United States that did not subscribe to the concept of forced heirship.
These countries maintain the right of an owner to fully dispose of his
property to take effect at death. The exact rules differ from country to
country. Whilst some countries may insist that upon death all the
property of an individual domiciled in that country must, in every
circumstance, pass to their forced heirs, other countries may permit a
testator to give away a proportion of his estate, provided the balance
passes to forced heirs. In some jurisdictions it is considered perfectly
proper for testators to be required to make adequate provision for their
dependants. Critics however suggest that testators should be allowed to
distribute their estate or a proportion of their estate as they wish, and

13
Joseph Dainow, ‘The Early Sources of Forced Heirship; Its History in Texas and Louisiana’, Available
digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?article=1875…lalrev 08 August 2014
14
Ibid
15
Id, at 9
that prohibiting them from doing this cannot be any more valid on death
than during lifetime.16

California does not have forced heirship laws such as France,

Germany, Switzerland and Japan. These laws limit a testator’s right to
dispose of their estate by allowing the testator’s heirs to receive an
inheritance regardless of the testator’s wishes. A Californian is entitled to
disinherit everybody, except, if applicable, their spouse. In the case of a
spouse, the testator may only give away ½ of the couple’s community
property but may give away all of the testator’s separate property. If so
desired, the following individuals should be specifically disinherited:

 A child of the testator born or adopted after the will was

executed (Probate Code 21620-21621);

 A child omitted because the testator mistakenly believed the

child to be deceased (Probate Code 21622);

 A child of whose birth the testator was unaware (Probate

Code 21622); or

 A spouse who married the testator after the execution of the

will (Probate Code 21610)17

According to the report made by Ernst and Young entitled

International Estate and Inheritance Tax Guide of 2013, the following
countries do not recognize the concept of Forced Heirship: Australia,

16
‘Global Wills’, Available http://www.globalwills.com/forced-heirship 23 August 2014 [2]
17
Shahram Miri Esq, ‘Estate Planning in California’, Available
http://calestateplanning.blogspot.com/2011/05/last-will-and-testament.html 09 March 2015
Canada, South Africa and India with respect to self-acquired properties.
New Zealand does not impose any forced heirship provisins, although
statutory provisions allow relatives and others to make claims against
estates in certain circumstances.18 Minor and disabled children of any
deceased person domiciled in Russia, disabled spouse and parents, and
any disabled dependants of the deceased must inherit at least one-half of
the shares each of them is entitled to inherit by law, irrespective of any
testamentary provisions. The remaining part of the estate outside this
reserved portion may be inherited by others without restrictions.19 In
instances when the testator’s heirs are not dependent on him in any
other way, he is not restricted to dispose of his properties according to
his will. Moreover, there are no compulsory inheritance rules or forced
heirship rules in England and Wales. However, if no provision has been
made for his or her spouse or for other persons financially dependent on
the deceased, a claim against his or her estate may be made under the
Inheritance (Provision for Family and Dependents) Act 1975.20 In Ireland,
under the Succession Act 1965, a spouse or civil partner is entitled to a
“legal right share” in the deceased’s estate, which overrides the
provisions of the will. When there are no children, the spouse or civil
partner is entitled to one-third of the estate. However, children do not
have any automatic right, but they have a right to apply to the courts
under the Succession Act 1965 for a share of the estate, where they
believe that “proper provision” was not made by the deceased for them.
The court will look at all factors before deciding whether “proper
provision” was made to include the extent to which proper provision was
made during the testator’s lifetime and the financial situation of the

18
‘Ernst and Young: International Estate and Inheritance Tax Guide 2013’ page 204, Available
http://www.ey.com/Publication/vwLUAssets/2013-international-estate-and-inheritance-tax-
guide/$FILE/2013-international-estate-and-inheritance-tax-guide.pdf 08 August 2014 [1-3]
19
Id, 247 [7]
20
Id, at 328 [1]
testator and the child. The court has power to alter the terms of a will
and make provision for a child from the estate, if found that the testator
did not make the said “proper provision”.21 For most of these countries,
the rule of thumb is that, when the decedent left no heirs who neither
are minors nor are dependent upon him for support, he is perfectly
allowed by law to dispose of his estate according to his will. No portion of
his property is reserved as a legitime, thus any person can be instituted
as an heir. The only condition is that the same must be embodied in a
valid last will and testament.

A last will and testament is a legal document that communicates a

person’s final wishes, as pertaining to possessions and dependents. It
outlines what to do with possessions, whether they are being left to
another person, group or donated to charity, and what will happen to
other things for which they are responsible, such as custody of
dependents and accounts and interests management.22

As held by Justice Moreland, in his dissenting opinion in Santos v.

Manarang, “A will is the testator speaking after death. Its provisions have
substantially the same force and effect in the probate court as if the
testator stood before the court in full life making the declarations by
word of mouth as they appear in the will. That was the special purpose of
the law in the creation of the instrument known as the last will and
testament. Men wished to speak after they were dead and the law, by the
creation of that instrument, permitted them to do so. . . all doubts must
be resolved in favor of the testator’s having meant just what he said.”23

21
Id, at 138 [4-8]
22
‘Last Will and Testament’, Available http://www.investopedia.com/terms/l/last-will-and-testament.asp 09
March 2015 [1]
23
Ancheta v. Guersey-Dalaygon, G.R. No. 139868, June 8, 2006
 THE PHILIPPINE SETTING

On 31 July 1889, the Queen Regent Maria Cristina issued a royal

decree extending the application of the Spanish Civil Code of 1889 to the
islands of Cuba. Puerto Rico and the Philippines. Primarily influenced by
the Las Siete Paridas, several Roman law principles and provisions were
enacted and adopted in it, including the legitime.24
The Philippine law on succession is found in the Civil Code of the
Philippines, from Article 774 until Article 1105. Like most of the
countries in Europe and Latin America, the Philippines is one country
which has preserved the system of legitime. Its purpose is to preserve the
customs and traditions of the Filipino people and to promote family
solidarity. It was passed “to protect the children and the surviving widow
or widower from the unjustified anger or thoughtlessness of the other
spouse.25
Article 783 of the Civil Code defines a last will and testament as an
act whereby a person is permitted, with the formalities prescribed by law,
to control to a certain degree the disposition of his estate, to take effect
after his death. The phrase to a certain degree must be given emphasis
because, in the Philippines, an owner is not given the absolute right to
dispose of his properties in a will after his death. The consequence of this
is that the making of a will should be considered subordinated to both
the law and public policy.26 Being a civil law country where all laws are
codified, we subscribe to the concept of forced heirship wherein a portion
of the estate of the decedent is reserved to a set of heirs who are called
compulsory heirs.

24
Freedom in Death: Expanding the Disposing Power of the Decedent and Providing for a
More Rational Sharing of Legitimes
25
||| E. Paras, CIVIL CODE OF THE PHILIPPINES ANNOTATED 207, (6 th ed., 2008)
26
Herreros v. Gil, L-3362, March 1, 1951
 The Civil Code strictly imposes upon any person a limitation on the
right of any property owner to absolutely dispose of his estate, through a
will, to just any person upon his death. A portion of this is reserved to
his children, spouse, ascendants and other persons as required by law.27
Why is that the case? That is because, as Filipinos the lawmakers believe
that the needs of the family must first be satisfied before a person can
even give out to others. Through the years, it has been customary that as
member of a family, one has the obligation to support and give each
other’s needs within one’s means. So much so that the 1987
Constitution reserved on Article which embodies this fundamental right.

27
CIVIL CODE, Art. 887