Is it okay to forget to mention an heir in your will? If you were that excluded heir, is there a way for you to still get a piece of inheritance?
Hello again, readers! In this article, we’ll talk about situations where an heir is not included or even mentioned at all in a will. Is this even legal?
My Friend, Danny
The other day my friend Danny (not his real name) messaged me on Facebook. Danny was an old drinking buddy from when I was still an office drone, fresh out of law school. He was a bit weird then but he was amusing, especially after a couple of beers. Anyway, he told me that his girlfriend had just given birth to his firstborn son and he was worried about his son’s future. He was worried because he knew, for a fact, that he was excluded in his father’s will.
Apparently, Danny was the “black sheep” of the family and his parents and siblings did not like him for some reason (I think it was because he was weird, hehe). The family kept him out of the family businesses but gave him a sizable allowance for his living expenses. Danny did not care about this before, as long as he got his allowance regularly. But now things were different. He wanted to make sure that he can provide for his son. He asked me if there was any way I can challenge his dad’s will or at least force his dad to include him in the will.
Time and again we see this theme in movies and tv dramas. The wealthy strict father dies and leaves nothing to some of his supposed heirs as punishment. Or an overbearing mother threatens her daughter to break up with her good-for-nothing boyfriend or else, she will not get a cent as inheritance. This may be awesome for entertainment. This may even be possible in other countries. But in the Philippines, it’s not as simple as that.
Compulsory heirs and their Legitimes
When a person dies with a will, testamentary succession takes place. In testamentary succession the concept of compulsory heirs kicks in. What are compulsory heirs? Compulsory heirs are the superstars or the VIPs in succession. We had the opportunity to discuss compulsory heirs in https://www.legalguide.ph/en/the-vips-of-estate-law.
But simplistically, the compulsory heirs are s follows:
- the children (legitimate, illegitimate, or aadopted) and descendants,
- parents and ascendants and
- the surviving spouse.
The law treats these sets of heirs as the most favored heirs in Philippine succession. By favoring these heirs, the law presumes that any reasonable person would always want to ensure that they receive an inheritance.
Compulsory heirs, as a general rule, cannot be excluded from succession. In fact, the law reserves a portion of the inheritance for the compulsory heirs. This reserved portion is untouchable. We call this reserved portion the legitimes of the compulsory heirs.
The legitimes of the compulsory heirs are a portion of the inheritance, specifically reserved for them. Note that the law reserves only a portion (or percentage), and not a specific piece of the inheritance. If a compulsory heir is denied his or her reserved portion, in whole or in part, the law will take measures to correct this and make sure that the compulsory heir is made whole.
What is Preterition in Estate Settlement
Considering that compulsory heirs are so important, what happens now if one of them is excluded or omitted from the testator’s will?
It can happen that a testator will omit or exclude a compulsory heir from his will. This can happen in the following scenarios:
- when the testator did not name the compulsory heir was in the will as an heir or
- although the testator named the compulsory heir as a relative, the testator did not institute him as an heir nor assigned any part of the estate to him.
In either case, the testator did not expressly disinherit the compulsory heir. In other words, the testator deprived him of his legitime. If this happens, the Civil Code provides that:
“Article 854, The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious.”
In other words, if a testator totally omits a compulsory heir from the will, and essentially gives nothing to the said compulsory heir, whether by will, by devise, legacy or even donation, essentially depriving him of his legitime, this is called preterition.
Effects of Preterition
If preterition takes place, the law states that this will render the institution of heirs null and void. Please note that devises and legacies will remain valid as long as they are not inofficious. Devises and legacies are gifts or rewards to certain persons of specific pieces of property, as opposed to portions or percentages.
In other words, the law will invalidate the institution of heirs. However, gifts of real or personal property (devises and legacies) will remain valid as long as they do not take from the legitimes of the compulsory heirs. If there are no devises or legacies, then there is a risk that the entire will will be nullified.
Going back to Danny...
Applying what we learned, can you guess how I advised Danny? Think about it for a bit before reading on. Go ahead, I’ll wait....
I told Danny that he is a compulsory heir of his father because he is a legitimate child. The law has reserved his legitime or his reserved inheritance for him. If Danny’s father really excluded him from his will, then there is a possibility that Danny was preterited in the estate settlement.
Of course, we cannot be sure because we did not see and analyze the will. But if Danny was indeed preterited from his father’s will, then he can challenge this will in court (There is a specific legal procedure to do this. See the related article in www.legalguide.ph).
If the court rules that there was preterition then the institution of heirs will be annulled. This can lead to the annulment of the entire will. And if the entire will is annulled, then intestate succession may take place. If this happens, Danny will get an equal share as his siblings.
If I was Danny’s father
Now what if the tables were turned? What if I was Danny’s father, I would first probably try to work things out with him. Danny’s a pretty decent guy.
But if Danny was a douchebag-of-a-son-who-did-not-deserve-any-of-my-hard- earned-money-and-properties, then I would include him in my will but only to the extent of his legitime (the most minimum he can get). That way, I do not risk nullifying my entire will.
If Danny was truly terrible or a douche factory, I would even explore disinheriting him instead. Note however that disinheriting is not so easy. There are very specific grounds, rules and procedures in the law for disinheriting someone.
I will need to strictly follow the substantive and procedural requirements to make sure my disinheritance takes effect. To be sure, at this point, I would mostly likely lawyer up (even if I’m a lawyer myself).
Lastly, if I was Danny’s father, I would make sure that I regularly check if my will was up to date. I have to make sure that the will still truly reflects the state of my assets and my intentions. I might find out one day that I had misjudged Danny wrongfully. That he was actually my only child who truly loved me.
I might then have a change of heart and want to give him as much of my properties as I can. It would really suck then if I died without changing my will to include Danny!
That’s all folks!
I hope you guys learned a lot from Danny and his father. If you plan to exclude someone in your will or you were excluded in a will, don’t panic. Don’t cry. Remember our concepts of compulsory heirs, legitimes and preterition. But please, don’t just rely on this article. Consult your lawyer and use what you learned here as a starting point .
If you have more questions about Estate Settlement, here’s an additional resource
I hope the article was able to help you out, but chances are you may have more questions about Estate Settlement. Please check out this additional resource and see if it can help you. Go to info.legalguide.ph/estate to learn more.
