Preterition in the Philippines: What Happens When a Compulsory Heir Is Left Out of a Will?
Quick Answer: Preterition is the total omission, in the conditions described by Article 854 of the Civil Code, of a compulsory heir in the direct line from a will. When true preterition exists, the institution of heirs is annulled, while devises and legacies remain valid insofar as they are not inofficious. It is different from merely giving an heir less than the legitime and different from a deliberate, legally valid disinheritance.
What Does Article 854 Cover?
Article 854 addresses omission of one, some, or all compulsory heirs in the direct line who were living when the will was executed or were born after the testator’s death, subject to the article’s terms. The legal consequence can be much more serious than a simple reduction of excessive testamentary dispositions.
Preterition vs Disinheritance
| Issue | Preterition | Disinheritance |
|---|---|---|
| Nature | Omission under Article 854 | Intentional deprivation of legitime for a legal cause |
| Cause required | No statutory cause of disinheritance is being asserted | Cause must be one expressly recognized by law |
| Will requirement | Heir is omitted | Cause must be stated in the will |
| Effect | May annul the institution of heirs | Valid disinheritance can deprive the heir of legitime |
For intentional exclusion, see Disinheritance in the Philippines.
Preterition vs Impairment of Legitime
An heir who is mentioned but receives too little may have a legitime problem without there being preterition. Article 855 addresses the share of a child or descendant omitted in a will in circumstances that do not produce the same consequence as true preterition.
Who Must Be Omitted?
Preterition is not a rule covering every relative who gets nothing. It focuses on compulsory heirs in the direct line under Article 854. The exact family structure and whether the omitted person is legally a compulsory heir must therefore be established first.
What Evidence Matters?
- the complete original will and codicils;
- birth, adoption, and filiation records;
- death certificates of persons in the line of succession;
- dates showing whether the heir existed when the will was executed;
- evidence of any lifetime disposition or express reference to the heir;
- documents relevant to the heir’s legal status.
Why the Consequence Is So Important
If the requirements of Article 854 are met, the law does not simply insert a small omitted share. The institution of heirs may be annulled, subject to the preservation of devises and legacies within the disposable portion. This can change the distribution of the estate substantially.
What If the Omitted Heir Died Before the Testator?
Article 854 itself addresses that situation and preserves the institution without prejudice to the right of representation where applicable. The descendants’ rights must then be analyzed under the representation rules.
Omission before birth: If the omitted direct-line heir was conceived when succession opened, review the Civil Code conditions governing the rights of a conceived child.
Frequently Asked Questions
Is forgetting to name a spouse preterition?
Not automatically under Article 854, which specifically concerns compulsory heirs in the direct line. A surviving spouse may still have legitime rights, but the legal analysis is different.
Does giving an heir ₱1 prevent preterition?
The issue is not solved by a token amount alone. The court examines whether there was total omission in the legal sense and whether the compulsory heir’s legitime was impaired.
Can preterition be fixed by the other heirs after death?
Heirs can enter lawful settlement or partition arrangements, but they cannot simply rewrite the statutory consequence of the will without respecting the rights of all affected parties and any required probate process.