Preterition

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Preterition is the total omission of a compulsory heir in the direct line from inheritance.[1]


Preterition in a last will and testament

Manresa defines preterition as the omission of the heir in the will, either by not naming him at all or, while mentioning him as father, son, etc., by not instituting him as heir without disinheriting him expressly, nor assigning to him some part of the properties.[2] It consists in the silence of the testator with regard to a compulsory heir, omitting him in the testament, either by not mentioning him at all, or by not giving him anything in the hereditary property but without expressly disinheriting him, even if he is mentioned in the will in the latter case.[3] But there is no preterition where the testator allotted to a descendant a share less than the legitime, since there was no total omission of a forced heir.[4]

Article 854 of the Civil Code provides that 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. Article 854 provides:

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 devisees and legacies shall be valid insofar as they are not inofficious.
If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without prejudice to the right of representation.

Where a partition inter vivos of properties was executed, it is premature if not irrelevant to speak of preterition prior to the death of the purported testator, in the absence of a will depriving a legal heir of his legitime.[5]


Preterition in settlement of estate

Article 1104 of the Civil Code provides: "A partition made with preterition of any of the compulsory heirs shall not be rescinded, unless it is proved that there was bad faith or fraud on the part of the other persons interested; but the latter shall be proportionately obliged to pay to the person omitted the share which belongs to him."

An heir excluded in a deed of extrajudicial settlement has the effect of preterition. This kind of preterition, however, in the absence of proof of fraud and bad faith, does not justify a collateral attack on the Transfer Certificate of Title. The relief instead rests on Article 1104 of the Civil Code to the effect that where the preterition is not attended by bad faith and fraud, the partition shall not be rescinded but the preterited heir shall be paid the value of the share pertaining to her. [6]


References

  1. J.L.T. Agro, Inc. vs. Balansag, G.R. No. 141882, 11 March 2005, citing Article 854 of the Civil Code
  2. Aznar vs. Duncan, 123 Phil. 1450 (1966), cited in J.L.T. Agro, Inc. vs. Balansag, G.R. No. 141882, 11 March 2005
  3. J.L.T. Agro, Inc. vs. Balansag, G.R. No. 141882, 11 March 2005, citing Tolentino, Civil Code of the Philippines, Vol. III, 187 (1992)
  4. Reyes-Barreto vs. Barretto-Datu, 125 Phil. 501 (1967), cited in J.L.T. Agro, Inc. vs. Balansag, G.R. No. 141882, 11 March 2005
  5. J.L.T. Agro, Inc. vs. Balansag, G.R. No. 141882, 11 March 2005
  6. Non vs. Court of Appeals, G.R. No. 137287, 15 February 2000
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