1ANALYSIS OF PRETERITION ON TESTAMENTARY SUCCESSION Abstract This paper focuses on the provision of Article 854 of the Civil Code which discuss about Preterition on testamentary succession. This paper examines the latter provision by taking into consideration its legal effects and consequences, and problems it poses on the law on Testamentary Succession. It also provides for the requisites of preterition. It also aims to determine whether or not the claim of preterition is conferred by law or by blood by discussing the right of an adopted child to claim preterition vis-a-vis that of spouse of the testator. 2 I. INTRODUCTION Death is an inevitable event in a man’s life. When he was born, he is hunted by the brute fact that when he died, he cannot bring with him all that he owns, he have saved, built and earned on this earth. Thus, in order to save these properties that were left, the law intervened. The law fill in the vacuum that death has created and properties left as well as rights to be exercised and obligations that are unfulfilled are addressed. This law refers specifically to the law on succession which is provided in the Civil Code of the Philippines, Book III, Title IV, Article 774 to Article 1105. The law on succession addresses one of the legal consequences of death which is the transfer of ownership of property, rights and obligations. Succession, according to Article 774 of the Civil Code of the Philippines, is the 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 transmitted through his death to another or others either by his will or by operation of law. According to natural law, a person is obliged to provide for those he would leave behind as a consequence of family relations, the recognition of the natural law of consanguinity, or of blood and the natural affection of a person to those nearest him in relationship. Another basis of succession provides that it is a socio-economic postulate The law was constructed in such a way that this reservation made by law is properly protected so a parent and child may not deviate so and everyone will have to comply with some particular norm. 1 Thus the law. for whom the testator is presumed to have an obligation to reserve certain portions of his estate. VOLUME THREE (Articles 774-1105). “CIVIL CODE OF THE PHILS. L. upon the death of a person. It is a restriction to our right to make dispositions of our property effective mortis causa.WILLS AND SUCCESSION” . Its purpose is to protect those heirs.Seventeenth Edition. called compulsory heirs.. 3 MISON. A parent is expected to leave something to the children and the children who have no descendant are to leave something for their parents. 1 2 PARAS. Without being aware of certain rules on succession.3 which would prevent wealth from becoming inactive and stagnant. 2013 pg. people who may have made their wills sometimes violate the rule on legitimes involuntarily. One of these limitations is the system of legitimes. from his unjust weakness or thoughtlessness. “LAW ON SUCCESSION” . gives the latter the freedom to dispose of his property as an implicit attribute of ownership subject to certain limitations. The system of legitimes is a limitation upon the freedom of the testator to dispose of his property. Unfortunately only few people have access to this information. therefore. E. It is bilateral..2 Article 886 of the Civil Code provides 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. 4 There are three ways of violating the legitime: 1. Omission: Omit the compulsory heir in the will. Moreover. The collation is done for the proper determination or computation of the legitime. This paper will determine who can claim Preterition. In this case. Shortchange. the donations shall be reduced to the extent that they impair the legitime of the compulsory heir. 2. In case there exists an impairment of the legitime and/or the estate becomes insufficient to pay all the shares of the compulsory heir. 3. The best way of circumvention is to dissipate the estate by an act inter vivos making the estate so little or insignificant at the time of death. Circumvention. Finally. The succeeding sections of this paper shall discuss Preterition more thoroughly. Article 854 annuls the institution of the heir and results to partial intestacy where the legitime shall be paid to the compulsory heir. its effects and legal consequences. In this case. the researcher passes on this query: Is the claim of Preterition conferred by law or by blood . Article 1061 shall be applicable where all donations inter vivos or dispositions made during the testator’s lifetime shall be collated. In this case. Give the compulsory heir less than what he is entitled to. The omission mentioned in the preceding paragraph is what we call preterition which will be the subject matter of this paper. the researcher will discuss about the right of an adopted child vis-a vis Preterition. Article 906 shall be applicable which orders the completion of the legitime by charging against the free portion of the estate. or all of the compulsory heirs in the direct line.to go or to pass. PROBLEMS AND PROPOSALS”. and. Philippine Law Journal. "If the omitted compulsory heirs should die before the testator. Volume 50. F. shall annul the institution of heir. pg. The article could be found specifically in Book III. the institution shall be effectual." 3 BALANE. whether living at the time of the execution of the will or born after the death of the testator. BODY A. but the devises and legacies shall be valid insofar as they are not inofficious.PROVENANCE.5 II." the chapter on "Testamentary Succession. It connotes an ignoring. and ire .R. Thus. without prejudice to the right of representation.beyond or by." and the section on "Institution of Heir. some. Title IV. “PRETERITION. 583. an omitting. Chapter 2.. Article 854 is found in the book on "Different Modes of Acquiring Ownership. Praeterire therefore means to go by." The article reads in toto: "The preterition or omission of one. preterition is derived from two Latin terms: praeter . to pass by. . Section 2. in fact.3 Article 854 of the Civil Code of the Philippines is the provision where Preterition is discussed and defined." the title on "Succession. Article 854 makes it synonymous with omission. or to bypass. Preterition Etymologically. E. L. thus being tacitly deprived of his right to the legitime. “PRETERITION.PROVENANCE.. 4 According to Manresa. 3. nor assigned any part of the estate. “CIVIL CODE OF THE PHILS. “PRETERITION.5 Or. pg. It is thus a tacit deprivation of the legitime... 215 BALANE. F. either because he is not named. we come into one combined conclusion that Preterition is in general the “omission” of compulsory heir in the will. Philippine Law Journal.6 Thus for preliminary purpose. VOLUME THREE (Articles 774-1105). PROBLEMS AND PROPOSALS”. although he is named as a father.. IAC. With the foregoing definitions of preterition.Seventeenth Edition.WILLS AND SUCCESSION” . etc. Philippine Law Journal. as distinguished from disinheritance. 6 BALANE. 2. Preterition or pretermission is defined as the omission. 7 L-72706.. though mentioned. 4 PARAS. PROBLEMS AND PROPOSALS”.R.R." 6 The Supreme Court in Acain v. or. whether intentional or not. F. Volume 50. 1987 5 . he is neither instituted as an heir nor expressly disinherited. son. as Castàn puts it: "By preterition is meant the omission in the will of any of the compulsory heirs.7 held that Preterition consists in the omission in the testator’s will of the forced heirs or any one of them either because they are not mentioned therein.PROVENANCE. October 27. pg. of a compulsory heir in the inheritance of a person. Preterition consists in the omission of an heir in the will. or. without their being expressly disinherited. they are neither instituted as heirs nor are expressly disinherited. 2013 pg. which is an express deprivation. et al. Volume 50. Requisites on Preterition In order for preterition to occur and Article 854 of the Civil Code shall apply. The person is not an heir.7 B. 2. either inter vivos or mortis causa. which might be taken or considered an advance of his legitime. 906 that is. There must be TOTAL omission in the inheritance. 3. demand for the completion of legitime. not a legatee – meaning. not a devisee. The omission must be of a COMPULSORY heir . 1B. his remedy would be under Art. then he has already received part of his legitime such that if he were omitted. No donation inter vivos was given to him. The compulsory heir omitted must be in the DIRECT line. he receives nothing by will. There must not have been anything which could be inherited by intestacy. If he is already given such. 3. the following requisites must concur: 1. TOTAL OMISSION Omission results in preterition only when: 1. 2. which means that the whole estate was distributed by will. If any part of the legitime was paid to the compulsory heir in any form. one cannot claim total omission and avail of the benefits of . WHO ARE COMPULSORY HEIRS? The compulsory heirs are those persons in whose favour the law reserves some part of the testator’s estate. If there was payment of presumptive legitimes under Art 50 of the Family Code.8 preterition. 1967 10 L-23465. They are given priority in the distribution of the testator’s estate. “LAW ON SUCCESSION’ L-7818. 1966 9 . the only remedy of the Child is to demand for the completion of his legitime as provided in Article 906 of the Civil Code. since this would not be a case of preterition or total omission. on the contrary.000. this would not be a case of preterition. Barreto-Datu9 . Article 906 provides that “Any compulsory heir to whom the testator has left by any title less than the legitime belonging to him may demand that the same be fully satisfied”. They cannot be deprived of their legitimes. one cannot avail of the benefit of preterition. this fact would not invalidate the institution of a stranger as an heir. More.8 According to the case of Reyes vs. 8 MISON. the Supreme Court held that if a legitimate daughter gets less than her legitime. In this case of Testate Estate of Edward Christensen. 2B. January 25. the Supreme Court held that an acknowledge natural child is not omitted in the will but is. June 30. given a legacy of some P3. the case of Testate Estate of Edward Christensen10. 9 Article 887 enumerates who are the compulsory heirs: 1. and natural children by legal fiction. when testator institutes his own children is not preterition. 4. and illegitimate children. legitimate children/descendants.) Other legitimate children referred to in Article 287. with respect to their legitimate children and descendants. spouse. there are only four sets of compulsory heirs: parents/ascendants. secondary compulsory heirs and concurring compulsory heirs. Thus for example. pursuant to the Family Code. The law further divided compulsory heirs into three divisions. the omission of the Testator’s father.) In default of the following. These are primary compulsory heirs.) Legitimate children and descendants. legitimate parents and ascendants.) Acknowledged natural children. 3. Secondary compulsory heirs composed of the parents and ascendants of the testator. with respect to their legitimate parents and descendants. The latter inherit only in default of the primary compulsory heirs. Primary compulsory heirs are composed of legitimate children and their descendants. However. 2. but the omission of one or both parents when there are no . 5.) The widow or widower. A direct line is that constituted by the series of degrees among ascendants and descendants. whether living at the time of the execution of the will or born after the death of the testator. VOLUME THREE (Articles 774-1105). “CIVIL CODE OF THE PHILS. it provides that “The preterition or omission of one.the surviving spouse is a compulsory heir not in the direct line. the concurring compulsory heirs composed of the spouse of the testator and the illegitimate children of the testator. Concurring means they inherit together..Seventeenth Edition. the former neither excludes the latter. WHO CAN CLAIM PRETERITION? To review the provision of Article 854. some.WILLS AND SUCCESSION” . Legitimate 11 PARAS.11 On the other hand. 216 . E. nor does the latter exclude the former from the inheritance. for in this case. 3B. paragraph 1 of the Civil Code. or all of the compulsory heirs in the direct line. but the devises and legacies shall be valid insofar as they are not inofficious”. because not every compulsory heir is in the direct line . L. The preceding provision clearly pointed out that those who can claim preterition are only the compulsory heirs in the direct line. 2013 pg. The qualification is not tautological. shall annul the institution of heir.. the parents would be the compulsory heirs.10 legitimate children or descendants constitutes Preterition. fall under the purview of Article 854. and he is completely deprived hereof. other legitimate descendants in certain instances.Neri v. Segundo did die before the testator and in 1984. in proper cases. 27. of course.12 Based on the above cited facts.11 children and. In one case13. surely such a case presents no problem. Although this writer is not aware of a Philippine decision involving the preterition of other legitimate descendants. However.. Volume 50. 1987 . pg. Acain vs. Akutin. At least one Philippine case . either per capita or per stirpes. the share shall go to Segundo’s children. F. decided in 1941 .. the descendant is at the testator's death entitled to a legitime. As long as under the circumstances.PROVENANCE. if totally omitted in the inheritance. al. a testator named Nemesio wrote a will before his death instituting his brother Segundo as heir to his entire wealth inspite of the fact that Nemesio had a legally adopted daughter named Virginia. after the death of Nemesio. legitimate descendants other than children would. Philippine Law Journal. L-72706.deals with the preterition of legitimate children. compulsory heirs in the direct line primarily refer to those descendants and ascendants of the testator. Article 854 will be applicable.R. it is submitted that an adopted child can claim preterition whenever he or she is omitted in the inheritance of his or her adoptive parents. et. Legitimate children are always entitled to a legitime. “PRETERITION. Oct. the will was presented to the court for 12 13 BALANE. it can be inferred that these compulsory heirs in the direct line are related to the testator by blood. He added a stipulation saying that in case Segundo predeceases him. Basically. IAC. PROBLEMS AND PROPOSALS”. 599. The Supreme Court ruled that insofar as the widow Rosa is concerned. It cannot be denied that Virginia was totally omitted and in the will of the testator. under Article 39 of the Child and Youth Welfare Code. with this given facts.14 Thus. 72706 October 27.12 probate by one of Segundo’s children. 1987 . But as for the legally adopted daughter of Nemesio. adoption gives to the adopted person the same rights and duties as if he were a legitimate child of the adopter and makes the adopted person a legal heir of the adopter. this is a clear case of preterition of the legally adopted child. The probate was opposed by Nemesio’s wife Rosa and their legally adopted daughter Virginia on the ground that they were preterited. it draws us to set of queries: What is the underlying reason behind the preterition on the adopted child? Would it not be unfair for the spouse whose omission does not constitute preterition? 14 G. Article 854 of the Civil Code may not apply since the spouse is a compulsory heir but not in the direct line. Hence. Neither can it be denied that she was not expressly disinherited. The Supreme Court ruled that the universal institution of the children of Segundo to the entire inheritance of the testator results in totally abrogating the will because the nullification of such institution of universal heirs – without any other testamentary disposition in the will – amounts to a declaration that nothing at all was written. No.R. . Do adopted children belong in the direct line as contemplated in Article 854? Naturally. Thus. must include blood or legal relationship.PROVENANCE. by fiction and mandate of law. an adopted child becomes a compulsory heir in the direct line of his adoptive parent. F. PRETERITION ON THE ADOPTED CHILD VIS-A-VIS PRETERITION OF SPOUSE Adoption is a process which creates a legal relationship between the adoptee and the adopter. pg. This view would give to the terms "line" and "degree" in Articles 963 to 969 a meaning according to nature. 15 An adopted child does not become a relative in the direct line by the legal fiction of adoption since this legal fiction is only for purpose of filiation. arising out of a natural. therefore. "line" in Article 854. the law allows for their adoption by person or persons who may not be related by blood to the child and who is qualified to adopt according to the law on adoption following the legal process. 607 . for the best interest of the Child. not ex lege.13 C. PROBLEMS AND PROPOSALS”. But adoption also occurs to those children who are abandoned or neglected by their biological parents. an adopted child acquires a relationship of legitimate filiation to his adopter and that. we could say that an adopted child does not belong to the direct line because of the fact that he or she may bear no blood relationship to the adopter. The fiction of adoption is between the adopted 15 BALANE. On the other hand.R. Adopted person are most likely children of those who bear the child when they are not yet married. Volume 50. there are those who would assert that. a bond ex sanguine only. “PRETERITION. Philippine Law Journal. biologic generation. However. WILLS AND SUCCESSION” .. “LAW ON SUCCESSION” MISON. L. her omission in the will does not constitute preterition”. That an adopted child cannot acquire Philippine citizenship by virtue of such adoption. according to Manresa.18 However this problem was settled in the case of In Re Will of Leodegaria Julian. 16 According to Justice Balane. if the preterition of an illegitimate child annuls the institution of heirs. “CIVIL CODE OF THE PHILS. “LAW ON SUCCESSION” PARAS. The law considers that the spouse's right does not essentially alter the institution of heirs. although said heirs immediately acquire 16 17 18 MISON. E. “the adoption shall give to the adopted person the same rights and duties as if he were a legitimate child of the adopter: Provided. in case the adopted child is omitted in the will of his adoptive parent. this second view is more persuasive which find its support from Article 39. "founded solely on the special nature of the surviving spouse's legitime.14 and the adopter. which is always assigned in usufruct. where the Supreme Court held that “since the surviving spouse is not in the direct line. he can claim preterition under Article 854. paragraph 1 of the Child and Youth Welfare Code which provides that. Hence.17 Before it was submitted that. VOLUME THREE (Articles 774-1105). The reason why the surviving spouse is set apart from the other compulsory heirs is. The spouse merely becomes a relative by the fiction of the judge or the priest.” Spouse on the other hand is not a relative in the direct line..Seventeenth Edition. 2013 pg. 217 . with greater reason should the preterition of the surviving spouse should be placed in the same category as the preterition of other compulsory heirs. CONFERRED BY LAW OR BY BLOOD? By the foregoing discussion. This above provision does not expressly states that an adopted child is a compulsory heir in the direct line. thus. could it be possible that the omission of spouse be considered as preterition? Is it not unfair for the spouse whose omission in the will could not be considered as preterition to avail of the remedy of the same? We review again the provision of Article 854 paragraph 1 of the Civil Code. since an adopted child who may not be related by blood to their adopting parent can claim preterition.15 the naked ownership of only a part and suffer the temporary limitation of the widow's usufruct. shall annul the institution of heir. PRETERITION. whether living at the time of the execution of the will or born after the death of the testator." D. . It is only when jurisprudence supplied the application of the provision which brought clarity to the vagueness of the provision. “The preterition or omission of one. but the devises and legacies shall be valid insofar as they are not inofficious”. are we safe to assume that the claim of preterition is conferred by law and not by blood? If the claim of preterition is conferred by law. Neither did it supply or add therein that an adopted child is included. some. or all of the compulsory heirs in the direct line. The surviving spouse who is left to take good care of their own children. it is of no moment that we thrust aside the idea that a spouse may be given the same right as that of other compulsory heirs in the provision of Article 854 of the Civil Code. to support them and give them better education deserves the same treatment as those other compulsory heirs. For a man’s fate is unknown. is it possible that our law-makers would amend the provision to include the spouse in the tenet of this provision? The writer is of the opinion that it is possible or rather necessary to include the spouse within the ambit of the provision of Article 854. we come into conclusion or a presumption that the claim of preterition is not conferred by blood alone but by law. Is it not unnatural for a testator to omit his own spouse in the will? The writer believes in the natural attribute of man who loves another to leave him/her something in the will before he/she goes. to whom the testator have built a family together and traverse the journey of life in sickness and in health. could not avail of the same remedy on preterition.16 More so. it has not further distinguished who are these adopted children. Adopted children according to the law on adoption may be related by blood to the adopter or a stranger. he/she always think of those . Hence. who is always there for her/him even for richer or poorer. Notwithstanding the fact that the law gives an adopted child the same rights and duties as if he is legitimate child. It is irrational why a spouse. If it is possible for us to conclude that the claim of preterition is conferred by law and not by blood. “CIVIL CODE OF THE PHILS. B and C.Seventeenth Edition. 221 . E. L. it results to total intestacy. VOLUME THREE (Articles 774-1105). This means that the law on intestacy shall be followed.17 persons close to his/her heart and would not die without making sure that they will be left secured. Once the institution of heirs is annulled. A. C was omitted. B and a friend F. the proper term should be void. If the estate is P90. Paras.WILLS AND SUCCESSION” . according to Justice Edgardo. Take this for example19: T has three sons. E. It does not need any court action. 000. 2013 pg. LEGAL EFFECTS OF PRETERITION The legal effects of preterition are as follows: 1. This annulment of institution is automatic. T made a will instituting A. Hence.. Annulment of the institution of heirs The annulment of the institution is mandatory so that a portion of the estate may be freed to satisfy the remaining unpaid legitimes. how should same be distributed? 19 PARAS.. A and B were omitted. gets nothing. Although the institution of heirs is indeed annulled. P10. “CIVIL CODE OF THE PHILS. Nevertheless. the legacies and devisees shall remain valid in so far as they are not inofficious.WILLS AND SUCCESSION” . E.. In T’s will. F. In other words. Instituted heirs do not enjoy any preference over specific properties unlike legatees and devisees who enjoy a priority because the testator has indicated the specific property to be given to them. 000. Thus.000. 2. the institution of A. he gave F.Seventeenth Edition. L. VOLUME THREE (Articles 774-1105). 222 . How should the estate on T’s death be distributed? 20 PARAS.. A and B. the friend. a friend. 000 as a legacy out of an estate of P100.: In this case the omission of C is a clear case of preterition.18 ANS. B and C as sons of T will each get P30. as a result. Legacies and devises cannot be cancelled or voided but can be reduced only if the estate is still insufficient to pay the legitimes after the annulment of the institution. B and F shall be annulled and law on intestate succession takes place. legatees and devisees can still lose their legacies and devises if the portion of the estate is insufficient to pay the legitime(s) of the preterited heir(s). A. For example20: T has two sons. 2013 pg. the free portion is P50.19 ANS. 000.21 21 MISON. and should remain effective. These effects of preterition aim to preserve the legitime since this provision shall prevent the testator from denying the compulsory heir of his legitime by merely omitting his name in the will. The remaining P90. Therefore. he must state the cause for disinheritance and comply with the requirements of disinheritance. 000 will be divided equally between the two children. 000. While it is within the power of the testator to disinherit an heir. “LAW ON SUCCESSION”. the legacy of P10. .: Since the estate is worth P100. 000 is not inofficious. If the omission of an adopted child results to preterition. however. if omitted in the will. to give an equal but rational treatment would indeed be a good point of making a change in the provision of Article 854 of the Civil Code of the Philippines. it suggests that the amendment of Article 854 of the Civil Code would be workable. The Spouse. As a general rule preterition only applies to compulsory heirs in the direct line. He further suggested that the protection must be extended to all the compulsory heirs without any distinction.20 III. Thus. is not a compulsory heir in the direct thus he/she cannot claim preterition once his/her name is omitted in the will. Article 854 of the Civil Code is a bad provision. he can legally claim for preterition. By the passage of the Child and Youth Welfare Code. then why not the omission of spouse will be given the same effect? Therefore. As such. the law-makers should examine this particular provision of Article 854 of the Civil Code and determine other problems pose by this law. Hence. an adopted child. an adopted child who is not a compulsory heir in the direct was given as much same right and duties as that of a legitimate child. According to Justice Balane. Be that as it may. preterition can be claimed by the legitimate children and descendants. The writer is of the same opinion. CONCLUSION All of the foregoing is the discussion of preterition. illegitimate children and descendants and parents and ascendants in the default of the former. . “PRETERITION. “LAW ON SUCCESSION” 3.PROVENANCE. Philippine Law Journal.WILLS AND SUCCESSION” .R. PROBLEMS AND PROPOSALS”. F.21 IV.. MISON.. BIBLIOGRAPHY 1. PARAS. 2013 . VOLUME THREE (Articles 7741105). E. Volume 50 2. BALANE.Seventeenth Edition. L. “CIVIL CODE OF THE PHILIPPINES.