1.

Preterition
-- is the total omission of a compulsory heir belonging to the direct ascending or
descending line in the inheritance of a person.

 Omission of forced heirs because they are not mentioned or though mentioned
they are neither instituted as heirs nor are expressly disinherited
 Preterition- If by mistake or inadvertence
 Defective disinheritance- if the omission is intentional

 3 Requisites of Preterition

1. There is total omission of an heir from the Inheritance (not the will)
 He is not given any share, although there is no express disinheritance.
 Donation intervivos is a kind of advance inheritance.
2. The omitted heir is a compulsory heir
3. Said compulsory heir must belong in the direct ascending or descending line
 A spouse is not in the direct line although he is a compulsory heir.

 Effects of Preterition:

1. Institution of heirs is annulled(voided automatically without need of court action), ipso

facto as if no institution was made and thus rendering the distribution of legitime as
distribution intestacy.
2. Although the institution of heirs is indeed annulled, the legacies and devises shall
remain valid insofar as they are not inofficious. They are reducible if the legitime has
been impaired

 Examples:

1) T has two sons, A and B. In T’s will, he gave F, a friend, P10,000 as a legacy out of
an estate of P100,000. A and B were omitted. How should the estate on T’s death be
distributed?

ANS.: Since the estate is worth P100,000, the free portion is P50,000. Therefore, the
legacy of P10,000 is not inofficious, and should remain effec- tive. The remaining
P90,000 will be divided equally between the two children. Hence, the estate will be
distributed as follows:

A = P45,000 B = P45,000 F = P10,000

2) T has two legitimate sons A and B. In T’s will, he gave a friend F a legacy of P10,000;
instituted A as heir; and deliberately omitted B. If the estate is P100,000, how should the
estate be distributed on T’s death?
ANS.: In view of the preterition, the institu- tion of A is not valid, but the legacy is
effective, for the legitime has not been impaired. Therefore, the remaining P90,000 will be
divided intestate.

HENCE:
A = P 45,000
B = P 45,000
F = P 10,000

3) In problem No. 2, if the legacy had been P60,000, and the other facts are the same,
how would the estate be distributed?
 ANS.: The estate being P100,000, the free por- tion is only P50,000, hence, the legacy of
P60,000 should be reduced by P10,000, leaving the distribu- tion as follows:
A = P 25,000
B = P 25,000
F = P 50,000

2. Ineffective disinheritance

This Article treats of three cases when the disinheritance is considered invalid or
ineffective or illegal.

1. without giving the cause (NO CAUSE STATED) 


2. a cause denied by the heir concerned and not proved by the instituted heir (NOT
TRUE CAUSE) 

3. a cause not given in the law (NOT LEGAL CAUSE)

 Effects of Ineffective Disinheritance

1. The institution of heirs is annulled but only insofar as it may prejudice the person
disinherited, that is, insofar as the legitime of said heir is impaired. 

2. The devises, legacies, and other testamentary disposi- tions shall be valid to such extent
as will not impair the legitime. 


 Example of the 1st Effect

A disinherited B, and instituted C and D as his (A’s) heirs. B, C, and D are A’s legitimate
children. The disinheritance of B was however invalid because it was for a cause not
provided for by the law. The hereditary estate is P900,000. How much will each of the
children receive?

ANS.: B’s legitime is P150,000 (and he gets this)

C gets .................. P375,000

D gets .................. P375,000

In other words, the institution of heirs remains valid, but the shares of the instituted heirs will
be decreased to give B his legitime.

 The rule here is different from that in preteri- tion (Art. 854), because in such a case, the
whole institution of heirs is annulled. Had there been preterition here, each of the children
would receive P300,000 each.
 Example of the 2nd Effect
Estate is P1 million. A legacy of P700,000 was given to X, a friend. Y, a legitimate child of the
testator, was ineffectively disinherited. How much should X and Y get?

ANS.: X gets only P500,000. (The legacy to him is reduced by P200,000 so as not to impair
Y’s legitime. Y gets P500,000 [his legitime].).

 The rule regarding this 2nd effect is the same as in preterition. (Art. 854).
 If the free portion has not been disposed of, the ineffectively disinherited heir gets not only
his legitime, but also his intestate share of the free portion. This is because he is an
intestate heir also.

Example:

T has two legitimate children A and B. His estate is P1 million. In his will, T gave A his
legitime of one-fourth, and ineffectively disinherited B. How much will B get?

ANS.: B gets P250,000 as legitime, and a half-share as intestate heir in the free portion of
P500,000 (or P250,000).

Thus, he gets a total of P500,000.].

[NOTE: A gets the same amount.] (NOTE ALSO that in the problem presented, the free
portion had not been disposed of.).

 Distinctions Between Preterition and VALID Disinherit- ance

Preterition VALID Disinheritance

1. the omission may be either intentional or

unintentional (thus, it is an implied depri- 1. disinheritance is always intentional
vation) 
 (thus, it is an express deprivation)

2. may be with cause or with- out cause 
 2. cause must always be stated in the
will; must be true and legal
3. preterition annuls the insti- tution; therefore
3. the disinherited heir in- herits
the omitted heir inherits 

NOTHING (either by way of legitime, or
4. may exist with or without a will (as when by way of free portion)
everything has been given to only one of the
4. a will is always required
compulsory heirs by way of donation inter
vivos). 
 5. may be VALID — when all the
requirements of the law are followed.
5. the institution is always VOID — except when
the preterited heir predeceases the testator.
 


 Distinction Between Preterition and Imperfect or Ineffective Disinheritance (BAR)

Preterition Imperfect Disinheritance

The institution remains valid, but must be

The institution of heirs is completely
reduced insofar as the legitime has been
annulled.
impaired.

 Similarities Between Preterition and Imperfect or Inef- fective Disinheritance

1. In both cases, the omitted heir and the imperfectly disin- herited heir get at least their
legitime. 

2. In both cases, the legacies and devises remain valid inso- far as the legitime has not been
impaired. 

3. Both refer to compulsory heirs.