Disinheritance
Preterition vs. Disinheritance
 It 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.
Purpose: Retribution to punish the act of the heir.
Implications from the definition:
1. It can be made only in testamentary succession
2. Only compulsory heirs can be disinherited
3. The courts may properly inquire into the validity of the
disinheritance
4. The heir is excluded from the legitime as well as the free
portion.
Other ways of depriving heir of legitime:
1. Predecease, incapacity or repudiation  but here their
representatives can get the heir’s share thru right of
representation
2. Incase the liabilities equal or exceed the value of the estate.
Requisites of a valid disinheritance:
1. It must be made in a will.
2. It must be express and cannot be presumed
3. It must be for a legal cause stated in the law
4. It must be for a true cause
5. It must be for an existing cause and not conditional or
preventive
6. It must be total and complete not partial
7. The cause must be stated in the will itself
8. The disinherited heir must be clearly identified
9. The will must not have been revoked.
Keyword – (WELTE – TCIR)
Article 915. A compulsory heir may, in consequence of
disinheritance, be deprived of his legitime, for causes
expressly stated by law. (848a)
Article 916. Disinheritance can be effected only through a will
wherein the legal cause therefor shall be specified. (849)
Article 917. The burden of proving the truth of the cause for
disinheritance shall rest upon the other heirs of the testator, if
the disinherited heir should deny it. (850)
Burden of proof:
If the disinheritance is denied by the heir  the other heirs of the
testator must prove the same.
Article 918. Disinheritance without a 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. (851a)
When disinheritance is invalid or without effect:
1. The will goes not give the cause or no cause was stated in
the will.
2. When the cause was denied by the heir concerned and not
proved by the instituted heir
3. The cause given in the will is not a cause provided for in the
law.
4. When there is a subsequent reconciliation between the
offender and the offended party
Effect of an invalid or ineffective disinheritance  It shall annul the
institution of heirs insofar as it may prejudice the person disinherited
but the devises and legacies shall remain valid to such extent as will
not impair the legitime. But if the free portion is not disposed of yet, the
heir also gets his share in the free portion.
It means that the institution is not annulled when the shares of the
other heirs can be reduced to give the invalidly disinherited heir his
share. But the rule is different in case of a preterition since here the
whole institution of heir shall be annulled.
 Preterition the omission may be intentional or unintentional while
Disinheritance is always intentional
 Preterition may be with cause or without cause while Disinheritance
must be true and legal and be stated in the will.
 Preterition annuls the institution of heirs therefore the omitted heir
inherits while Disinheritance, the disinherited heir gets nothing either by
legitime or free portion.
 Preterition may exists with or without a will while Disinheritance
must be made in a will
 Preterition the institution is always void except when the preterited
heir predecease the testator while Disinheritance it may be valid when
all the requirements are followed.
Preterition vs. Invalid Disinheritance
 In preterition, the institution of heirs completely annulled while in
disinheritance, the institution is not annulled but the shares of other
heirs must be reduced insofar as the legitime of the invalidly
disinherited heir is concerned.
Article 919. The following shall be sufficient causes for the
disinheritance of children and descendants, legitimate as well
as illegitimate:
(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;
(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;
(3) When a child or descendant has been convicted of adultery
or concubinage with the spouse of the testator;
(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;
(5) A refusal without justifiable cause to support the parent or
ascendant who disinherits such child or descendant;
(6) Maltreatment of the testator by word or deed, by the child or
descendant;
(7) When a child or descendant leads a dishonorable or
disgraceful life;
(8) Conviction of a crime which carries with it the penalty of
civil interdiction. (756, 853, 674a)
This article speaks of disinheritance of children and descendants,
whether legitimate or illegitimate.
1. Attempt against the life  must be found guilty by final
judgment. There must be intent to kill. The attempt to kill
must be made against a person within the line of the testator
(ascendant/descendant niya).
Effect of pardon  Still the disinheritance stands unless the pardon
came from the heir’s innocence.
2. Groundless accusation of a crime of imprisonment for 6
years or more  the said crime alleged can be committed
against anybody even against the child or descendant. If the
testator is acquitted on the ground of lack of proof beyond
reasonable doubt or lack of criminal intent does not
necessarily mean that the accusation is groundless, the
testator would not have the right to disinherit the accusing
heir. The heir may even only elaborate the crime as a
witness.
Elements under this paragraph:
 a. The act of accusing
b. The accusation was found groundless
c. The penalty for the crime charged is at least 6 years of
imprisonment.
3. Guilty of adultery or concubinage with the spouse of the
testator  Final judgment is needed.
4. FVIUF by the child caused the testator to make a will or
change one  there must be an old will made under fviuf
and a new one must be made with the disinheritance being
present.
5. Refusal to give support to the testator who disinherits  No
judicial demand is needed since the law does not require
this. But if support was given only because of judicial
compulsion (napugos lang) this would still be a valid ground.
6. Maltreatment by word or deed  This covers slanderous
words or offensive language or maltreatment by deed. The
maltreatment must be made intentionally. It is not necessary
that a judgment convicting the child must be made. It is
immaterial whether physical injuries are produced by the
maltreatment.
But maltreatment by an ascendant to a descendant does not constitute
ground for disinheritance for while there is abuse, it is generally an
exercise of power. (ex. Pag hapak sa apo by the lola, the lola cannot
be disinherited from the apo’s will incase the lola is the only heir)
7. Leading a dishonorable or disgraceful life  Judgment or
conviction is not necessary, it is enough that the act brings
dishonor or disgrace to the family but the acts must be made
in continuity not a single act.
8. Conviction of a crime with civil interdiction  Final conviction
is needed. Civil interdiction is an accessory penalty to death,
reclusion perpetua and reclusion temporal.
Article 920. The following shall be sufficient causes for the
disinheritance of parents or ascendants, whether legitimate or
illegitimate:
(1) When the parents have abandoned their children or induced
their daughters to live a corrupt or immoral life, or attempted
against their virtue;
(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;
(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;
(4) When the parent or ascendant has been convicted of
adultery or concubinage with the spouse of the testator;
(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;
(6) The loss of parental authority for causes specified in this
Code;
(7) The refusal to support the children or descendants without
justifiable cause;
(8) An attempt by one of the parents against the life of the
other, unless there has been a reconciliation between them.
(756, 854, 674a)
This article speaks of disinheritance of a parent or ascendant, whether
legitimate or illegitimate.
1. Parents who abandon their child or induce their daughter to
live a corrupt life or attempted against their virtue 
abandonment here means a mere failure to give due care or
attention. The attempt against the virtue does not have to be
in a final judgment.
Par. 6: Loss of parental authority  Art. 920 does not refer to Art.
228 of the Family code since this would lead to absurdity. It refers
to the following; Art 230 of the Civil code – the parental authority
is suspended when a parent is convicted of a criminal case which
imposes a penalty of civil interdiction, Art 231 – parental authority
is suspended by the court, Art. 238 – mother who contracts a
subsequent marriage loses parental authority over the children
unless the husband expressly allows his widow to marry again in
his will and that she can keep and exercise the parental authority,
Art. 332 – the court may suspend parental authority if parents
treat their children with excessive harshness or give corrupting
orders or abandon them.
 Loss of parental authority to be ground for disinheritance only if
there is FAULT on the part of the heir such as in Art. 330 and 332 of
the Civil Code and not when there is no such fault.
 Parental authority lost and subsequently regained, the
disinheritance become ineffective and invalid. What is important is that
before the death of the child-testator, parental authority has been
regained and therefore no new cause for disinheritance exists.
Par. 8  applies when the attempt is made against the life of the
parents only and not to the life of other persons. The reconciliation
between the parents deprives the child the right to disinherit the
offending parent because the child should not be more severe than the
spouse who has been offended.
Effect of reconciliation: Implies mutual restoration of feelings to the
status quo which is the relationship prior to the commission of the act
which strained the relationship. Thus, a general pardon without
removal of hurt feelings is not the reconciliation spoken of by law.
Implied reconciliation exists when the parents live together again after.
Art. 921 – Sufficient causes for disinheriting a spouse
Par. 4  A decree of legal separation is not essential nor is a final
judgment in a criminal case is required.
Art. 922 – A subsequent reconciliation between the offender
and the offended person deprives the latter (offender) of the
right to disinherit, and renders ineffectual any disinheritance
that may have been made.
Reconciliation  The mutual restoration oof feelings to the status quo.
It is the resumption of friendly relations.
Characteristics of Reconciliation:
1. It requires no special form, thus it may be express or implied.
Implied reconciliation exists when the parties live again
together.
2. There is no reconciliation in the following;
a. General pardon given at the hour of death unless there
is really removal of hurt feelings
b. Pardon not accepted by the disinherited heir
c. Pardon which does not specify the heir concerned or
the act pardoned
d. Pardon given in the very same will providing for the
disinheritance. No reconciliation can be said to have
occurred here since there is only a sort of moral force
or spiritual influence which forgives in the name of
morality. (murag nay conciliation pero char ra diay to
kay the offended did not really mean it and there was
no removal of hurt feelings)
Effects of Reconciliation:
1. If no disinheritance has been made yet, no disinheritance
can no be done (kay nag reconcile naman)
2. Disinheritance already made is rendered ineffectual; it is as if
no disinheritance made at all.
Rule in case the cause of disinheritance is also the cause of
unworthiness in Reconciliation:
 If the cause of unworthiness was made a ground for disinheritance
and there was reconciliation, Art. 922 will govern and not Art. 1033.
Effect: The mere fact of reconciliation extinguishes the unworthiness
and no written document is necessary for condonation.
Reason: the law presumed this to be the will of the testator and this
presumed will cannot prevail over the express will of a person shown
by his act of reconciliation.
 If the cause of unworthiness is not made a ground for disinheritance
or there is no disinheritance at all, Art. 1033 will apply.
Art. 1033: The causes of unworthiness shall be without effect if the
testator had knowledge thereof at the time, he made the will or if he
having known them subsequently, he should condone them in writing.

NOTE:
Art. 922 the reconciliation need not be in writing thus it may be oral or it
may be express or implied.

Art 1033 the condonation must be in writing.

How disinheritance is revoked:

1. Subsequent reconciliation (Art. 922)
2. The making of a new will making the disinherited her an
instituted heir.

Art. 923. The children and descendants of the person

disinherited shall take his or her place and shall preserve the
rights of compulsory heirs with respect to the legitime; but the
disinherited parent shall not have the usufruct or
administration of the property which constituted the legitime.

This article tackles the right of representation of the disinherited heir.

Take not here that only the heirs of the disinherited heir can represent
the latter but only insofar as their legitime is concerned. But if the
disinherited person is also given a device or legacy or a part of the free
disposal, the same will go to the substitutes if any, if none to the other
heirs, legatees or devisees by accretion is proper, if not, it should go
the the legal heirs by intestacy.

The free portion share will first go to:

1. Substitutes, if none…
2. Other heirs, legatees or devisees by accretion, if not
proper
3. Legal heirs by intestacy

Thus, ma notice nimo that even shares in the free portion cannot go
the disinherited heir.

As to administration: The general rule is that the parent has the right to
administer and right to use the usufruct of a child under his parental
authority, the exception is Art. 923 that is when the child inherits the
property by right of representation by reason of the disinheritance of
his parents.

 Reason for allowing such law: The fault of the heir is not the fault of
the representative and it would be unjust to punish them.

Take note also that the law refers only to a disinherited child and
descendants of the disinherited heir and does not include the spouse
or parent.
 INSTITUTION OF HEIR If there are two persons having the same name and they cannot be
identified with the use of proof because of similarity of circumstances,
Art. 840 the person instituted cannot be an heir.

Institution of heir  it is an act by virtue of which a testator designates Art. 845

in his will the person or persons who are to succeed in his property and
transmissible rights and obligations.

It is a voluntary act and it exists only in testamentary succession. A

conceived child can be instituted provided the conditions of Art. 40 and
41 of the Civil Code is present (A conceived child shall be considered
born for all purposes that are favorable to it provided the child is alive
at the time it is completely delivered from the mother’s womb.
However, if it had an intrauterine life of less than 7 months, it shall not
be considered born if it dies within 24 hours after its delivery.)

Requisites for a valid institution:

1. The will must be extrinsically valid – formalities, valid
consent, duly probated will, personal act of testator.
2. The institution must be valid intrinsically – No impairment
of legitime or preterition.
3. The institution must be effective – No PRI

Art. 841

A will shall be valid even though:

a. It does not contain an institution of an heir – if for example it
only contains a disinheritance.
b. The institution does not comprise the entire estate – if for
example the institution is not enough to cover the entire
estate, legal succession will take place over the excess.
c. The person instituted does not accept the inheritance or is
incapacitated to succeed.

In such case, the testamentary disposition will be complied with. Any

excess shall pass to the legal heirs by virtue of legal succession.

Art. 842
Rule on Freedom of Disposition of Estate. There exist two scenarios in
this article.

1. If the testator has no compulsory heir  He can give his

estate to anybody he pleases provided that the person is
qualified to inherit. However, this rule is subject to
restrictions such as Patent Law when a homesteader dies
the rights he has should go to his surviving spouse.
2. If the testator has a compulsory heir  he must respect the
legitime of the compulsory heir and only the free portion can
be given to anybody.

Art. 843
How designation of the heir should be made. As a rule, the testator
should designate the heir by his name and surname.

 When there are two persons having the same name – the testator
shall indicate some circumstance by which the instituted heir may be
known.

 When the testator has omitted a name of the heir – the institution
shall still be deemed valid if he should designate him in such a manner
that there can be no doubt as to who has been omitted.

Why not give to the both person the estate? This would frustrate the
will of the testator since then the estate would be given to someone he
never really intended to institute.

Art. 844
Effects of error in the name, surname or circumstance.

 If there is an error in the name, surname or circumstance of the heir

shall not vitiate the institution when it is possible in any other manner to
know with certainty the person instituted. How is this done? Thru
referring to extrinsic evidence but not thru oral declarations of the
testator (Art. 789)