Published 27 June 2018, The Daily Tribune
It is a scene straight out of a movie or telenovela. The executor of a last will and testament or the lawyer of the deceased reads out the contents of the decedent’s last will and testament in front of all the heirs. When it is announced that one heir—usually the black sheep of the family—is disinherited, there is a collective gasp, and the disinherited heir launches into a fit of hysterics.
In reality, can an heir really be disinherited?
Let us define first what disinheritance means. All compulsory heirs, whether mentioned in the will or not, are entitled to what is called a legitime. A legitime is that part of the testator’s property which cannot be given away because the law has reserved it for the following compulsory heirs: (1) Legitimate children and descendants, with respect to their legitimate parents and ascendants; (2) When there are no legitimate children and descendants, legitimate parents and ascendants; (3) Surviving spouse; (4) Acknowledged natural children, and natural children by legal fiction; (5) Other illegitimate children.(Articles 886 and 887, Civil Code)
Even if nothing is given in the last will and testament to these compulsory heirs, they will still be entitled to their legitime in the proportion prescribed by law. That portion of the estate which is not reserved for compulsory heirs is aptly called the “free portion.”
What if the testator not only wants to leave out a compulsory heir from the “free portion” but also wants to ensure said heir does not get his/her legitime? Indeed, there are times when an heir has gained the disfavor of the testator to such an extreme extent that the latter would not want any of his assets to pass on to that heir after he/she dies. That is when disinheritance can be put into effect.
To be valid, however, the disinheritance must be based on specific grounds: Children and descendants may be disinherited for the following reasons: (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. (Article 919, Civil Code).
On the other hand, for parents or ascendants: (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 the Civil 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. (Article 920, Civil Code)
As regards the surviving spouse, the following are valid grounds to disinherit: (1) When the spouse has been convicted of an attempt against the life of the testator, his or her descendants, or ascendants; (2) When the spouse has accused the testator of a crime for which the law prescribes imprisonment of six years or more, and the accusation has been found to be false; (3) When the spouse by fraud, violence, intimidation, or undue influence cause the testator to make a will or to change one already made; (4) When the spouse has given cause for legal separation; (5) When the spouse has given grounds for the loss of parental authority;(6) Unjustifiable refusal to support the children or the other spouse. (Article 921, Civil Code)
Assuming there is a ground to disinherit, how can disinheritance be validly accomplished? This and other contentious disinheritance issues will be dealt with in Part 2 of this topic.
For comments and questions, please send email to cabdo@divinalaw.com
