1

ANALYSIS OF PRETERITION ON TESTAMENTARY SUCCESSION

Abstract

This paper focuses on the provision of Article 854 of the Civil Code which discuss

about Preterition on testamentary succession. This paper examines the latter provision by

taking into consideration its legal effects and consequences, and problems it poses on the

law on Testamentary Succession. It also provides for the requisites of preterition. It also

aims to determine whether or not the claim of preterition is conferred by law or by blood

by discussing the right of an adopted child to claim preterition vis-a-vis that of spouse of the

testator.
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I. INTRODUCTION

Death is an inevitable event in a mans life. When he was born, he is hunted by the

brute fact that when he died, he cannot bring with him all that he owns, he have saved,

built and earned on this earth. Thus, in order to save these properties that were left, the

law intervened. The law fill in the vacuum that death has created and properties left as well

as rights to be exercised and obligations that are unfulfilled are addressed.

This law refers specifically to the law on succession which is provided in the Civil

Code of the Philippines, Book III, Title IV, Article 774 to Article 1105. The law on succession

addresses one of the legal consequences of death which is the transfer of ownership of

property, rights and obligations.

Succession, according to Article 774 of the Civil Code of the Philippines, is the mode

of acquisition by virtue of which the property, rights and obligations to the extent of the

value of the inheritance, of a person are transmitted through his death to another or others

either by his will or by operation of law.

According to natural law, a person is obliged to provide for those he would leave

behind as a consequence of family relations, the recognition of the natural law of

consanguinity, or of blood and the natural affection of a person to those nearest him in

relationship. Another basis of succession provides that it is a socio-economic postulate

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which would prevent wealth from becoming inactive and stagnant. 1 Thus the law, upon the

death of a person, gives the latter the freedom to dispose of his property as an implicit

attribute of ownership subject to certain limitations. One of these limitations is the system

of legitimes.

The system of legitimes is a limitation upon the freedom of the testator to dispose of

his property. Its purpose is to protect those heirs, for whom the testator is presumed to

have an obligation to reserve certain portions of his estate, from his unjust weakness or

thoughtlessness. The law was constructed in such a way that this reservation made by law is

properly protected so a parent and child may not deviate so and everyone will have to

comply with some particular norm. A parent is expected to leave something to the children

and the children who have no descendant are to leave something for their parents. It is

bilateral. It is a restriction to our right to make dispositions of our property effective mortis

causa.2

Article 886 of the Civil Code provides that Legitime is that part of the testators

property which he cannot dispose of because the law has reserved it for certain heirs who

are, therefore, called compulsory heirs.

Unfortunately only few people have access to this information. Without being aware

of certain rules on succession, people who may have made their wills sometimes violate the

rule on legitimes involuntarily.

1 PARAS, E. L., CIVIL CODE OF THE PHILS., VOLUME THREE (Articles 774-1105),WILLS AND SUCCESSION ,Seventeenth Edition, 2013 pg. 3
2
MISON, LAW ON SUCCESSION
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There are three ways of violating the legitime:

1. Shortchange. Give the compulsory heir less than what he is entitled to. In this

case, Article 906 shall be applicable which orders the completion of the legitime by charging

against the free portion of the estate.

2. Circumvention. The best way of circumvention is to dissipate the estate by an act

inter vivos making the estate so little or insignicant at the time of death. In this case,

Article 1061 shall be applicable where all donations inter vivos or dispositions made during

the testators lifetime shall be collated. The collation is done for the proper determination

or computation of the legitime. In case there exists an impairment of the legitime and/or

the estate becomes insufcient to pay all the shares of the compulsory heir, the donations

shall be reduced to the extent that they impair the legitime of the compulsory heir.

3. Omission: Omit the compulsory heir in the will. In this case, Article 854 annuls the

institution of the heir and results to partial intestacy where the legitime shall be paid to the

compulsory heir.

The omission mentioned in the preceding paragraph is what we call preterition

which will be the subject matter of this paper. The succeeding sections of this paper shall

discuss Preterition more thoroughly. This paper will determine who can claim Preterition,

its effects and legal consequences. Moreover, the researcher will discuss about the right of

an adopted child vis-a vis Preterition. Finally, the researcher passes on this query: Is the

claim of Preterition conferred by law or by blood

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II. BODY

A. Preterition

Etymologically, preterition is derived from two Latin terms: praeter - beyond or by;

and ire - to go or to pass. Praeterire therefore means to go by, to pass by, or to bypass. It

connotes an ignoring, an omitting, and, in fact, Article 854 makes it synonymous with

omission.3

Article 854 of the Civil Code of the Philippines is the provision where Preterition is

discussed and defined. The article could be found specifically in Book III, Title IV, Chapter 2,

Section 2. Thus, Article 854 is found in the book on "Different Modes of Acquiring

Ownership," the title on "Succession," the chapter on "Testamentary Succession," and the

section on "Institution of Heir."

The article reads in toto:

"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.

"If the omitted compulsory heirs should die before the testator, the institution shall

be effectual, without prejudice to the right of representation."

3
BALANE,R. F.; PRETERITION- PROVENANCE, PROBLEMS AND PROPOSALS; Philippine Law Journal, Volume 50, pg. 583.
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Thus for preliminary purpose, Preterition or pretermission is defined as the omission,

whether intentional or not, of a compulsory heir in the inheritance of a person. 4

According to Manresa, Preterition consists in the omission of an heir in the will,

either because he is not named, or, although he is named as a father, son, etc., he is neither

instituted as an heir nor expressly disinherited, nor assigned any part of the estate, thus

being tacitly deprived of his right to the legitime.5

Or, as Castn puts it: "By preterition is meant the omission in the will of any of the

compulsory heirs, without their being expressly disinherited. It is thus a tacit deprivation of

the legitime, as distinguished from disinheritance, which is an express deprivation." 6

The Supreme Court in Acain v. IAC, et al.7 held that Preterition consists in the

omission in the testators will of the forced heirs or any one of them either because they

are not mentioned therein, or, though mentioned, they are neither instituted as heirs nor

are expressly disinherited.

With the foregoing definitions of preterition, we come into one combined conclusion

that Preterition is in general the omission of compulsory heir in the will.

4 PARAS, E. L., CIVIL CODE OF THE PHILS., VOLUME THREE (Articles 774-1105),WILLS AND SUCCESSION ,Seventeenth Edition, 2013 pg. 215
5 BALANE,R. F.; PRETERITION- PROVENANCE, PROBLEMS AND PROPOSALS; Philippine Law Journal, Volume 50, pg. 2.
6 BALANE,R. F.; PRETERITION- PROVENANCE, PROBLEMS AND PROPOSALS; Philippine Law Journal, Volume 50, pg. 3.
7
L-72706, October 27, 1987
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B. Requisites on Preterition

In order for preterition to occur and Article 854 of the Civil Code shall apply, the

following requisites must concur:

1. There must be TOTAL omission in the inheritance;

2. The omission must be of a COMPULSORY heir ;

3. The compulsory heir omitted must be in the DIRECT line.

1B. TOTAL OMISSION

Omission results in preterition only when:

1. The person is not an heir, not a devisee, not a legatee meaning, he receives

nothing by will.

2. No donation inter vivos was given to him, which might be taken or considered an

advance of his legitime. If he is already given such, then he has already received part of his

legitime such that if he were omitted, his remedy would be under Art. 906 that is, demand

for the completion of legitime.

3. There must not have been anything which could be inherited by intestacy, which

means that the whole estate was distributed by will.

If any part of the legitime was paid to the compulsory heir in any form, either inter

vivos or mortis causa, one cannot claim total omission and avail of the benets of
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preterition. If there was payment of presumptive legitimes under Art 50 of the Family Code,

one cannot avail of the benet of preterition.8

According to the case of Reyes vs. Barreto-Datu9 , the Supreme Court held that if a

legitimate daughter gets less than her legitime, this fact would not invalidate the institution

of a stranger as an heir, since this would not be a case of preterition or total omission.

More, the case of Testate Estate of Edward Christensen10, the Supreme Court held

that an acknowledge natural child is not omitted in the will but is, on the contrary, given a

legacy of some P3,000, this would not be a case of preterition.

In this case of Testate Estate of Edward Christensen, the only remedy of the Child is

to demand for the completion of his legitime as provided in Article 906 of the Civil Code.

Article 906 provides that Any compulsory heir to whom the testator has left by any title

less than the legitime belonging to him may demand that the same be fully satised.

2B. WHO ARE COMPULSORY HEIRS?

The compulsory heirs are those persons in whose favour the law reserves some part

of the testators estate. They are given priority in the distribution of the testators estate.

They cannot be deprived of their legitimes.

8 MISON, LAW ON SUCCESSION

9 L-7818, January 25, 1967
10
L-23465, June 30, 1966
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Article 887 enumerates who are the compulsory heirs:

1.) Legitimate children and descendants, with respect to their legitimate

parents and descendants;

2.) In default of the following, legitimate parents and ascendants, with

respect to their legitimate children and descendants;

3.) The widow or widower;

4.) Acknowledged natural children, and natural children by legal ction;

5.) Other legitimate children referred to in Article 287;

However, pursuant to the Family Code, there are only four sets of compulsory heirs:

parents/ascendants, legitimate children/descendants, spouse, and illegitimate children.

The law further divided compulsory heirs into three divisions. These are primary

compulsory heirs, secondary compulsory heirs and concurring compulsory heirs. Primary

compulsory heirs are composed of legitimate children and their descendants. Secondary

compulsory heirs composed of the parents and ascendants of the testator. The latter inherit

only in default of the primary compulsory heirs.

Thus for example, the omission of the Testators father, when testator institutes his

own children is not preterition; but the omission of one or both parents when there are no
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legitimate children or descendants constitutes Preterition, for in this case, the parents

would be the compulsory heirs.11

On the other hand, the concurring compulsory heirs composed of the spouse of the

testator and the illegitimate children of the testator. Concurring means they inherit

together, the former neither excludes the latter, nor does the latter exclude the former

from the inheritance.

3B. WHO CAN CLAIM PRETERITION?

To review the provision of Article 854, paragraph 1 of the Civil Code, it 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.

The preceding provision clearly pointed out that those who can claim preterition are

only the compulsory heirs in the direct line. A direct line is that constituted by the series of

degrees among ascendants and descendants.

The qualification is not tautological, because not every compulsory heir is in the

direct line - the surviving spouse is a compulsory heir not in the direct line. Legitimate

11
PARAS, E. L., CIVIL CODE OF THE PHILS., VOLUME THREE (Articles 774-1105),WILLS AND SUCCESSION ,Seventeenth Edition, 2013 pg. 216
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children and, in proper cases, legitimate descendants other than children would, of course,

fall under the purview of Article 854, if totally omitted in the inheritance. Legitimate

children are always entitled to a legitime; other legitimate descendants in certain instances,

either per capita or per stirpes. At least one Philippine case - Neri v. Akutin, decided in 1941

- deals with the preterition of legitimate children. Although this writer is not aware of a

Philippine decision involving the preterition of other legitimate descendants, surely such a

case presents no problem. As long as under the circumstances, the descendant is at the

testator's death entitled to a legitime, and he is completely deprived hereof, Article 854 will

be applicable.12

Based on the above cited facts, compulsory heirs in the direct line primarily refer to

those descendants and ascendants of the testator. Basically, it can be inferred that these

compulsory heirs in the direct line are related to the testator by blood. However, it is

submitted that an adopted child can claim preterition whenever he or she is omitted in the

inheritance of his or her adoptive parents.

In one case13, a testator named Nemesio wrote a will before his death instituting his

brother Segundo as heir to his entire wealth inspite of the fact that Nemesio had a legally

adopted daughter named Virginia. He added a stipulation saying that in case Segundo

predeceases him, the share shall go to Segundos children. Segundo did die before the

testator and in 1984, after the death of Nemesio, the will was presented to the court for

12 BALANE,R. F.; PRETERITION- PROVENANCE, PROBLEMS AND PROPOSALS; Philippine Law Journal, Volume 50, pg. 599.
13
Acain vs. IAC, et. al., L-72706, Oct. 27, 1987
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probate by one of Segundos children. The probate was opposed by Nemesios wife Rosa

and their legally adopted daughter Virginia on the ground that they were preterited.

The Supreme Court ruled that insofar as the widow Rosa is concerned, Article 854 of

the Civil Code may not apply since the spouse is a compulsory heir but not in the direct line.

But as for the legally adopted daughter of Nemesio, under Article 39 of the Child and

Youth Welfare Code, adoption gives to the adopted person the same rights and duties as if

he were a legitimate child of the adopter and makes the adopted person a legal heir of the

adopter. It cannot be denied that Virginia was totally omitted and in the will of the testator.

Neither can it be denied that she was not expressly disinherited. Hence, this is a clear case

of preterition of the legally adopted child.

The Supreme Court ruled that the universal institution of the children of Segundo to

the entire inheritance of the testator results in totally abrogating the will because the

nullification of such institution of universal heirs without any other testamentary

disposition in the will amounts to a declaration that nothing at all was written.14

Thus, with this given facts, it draws us to set of queries: What is the underlying

reason behind the preterition on the adopted child? Would it not be unfair for the spouse

whose omission does not constitute preterition?

14G.R. No. 72706 October 27, 1987

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C. PRETERITION ON THE ADOPTED CHILD VIS-A-VIS PRETERITION OF SPOUSE

Adoption is a process which creates a legal relationship between the adoptee and

the adopter. Adopted person are most likely children of those who bear the child when they

are not yet married. But adoption also occurs to those children who are abandoned or

neglected by their biological parents. Thus, for the best interest of the Child, the law allows

for their adoption by person or persons who may not be related by blood to the child and

who is qualified to adopt according to the law on adoption following the legal process.

Do adopted children belong in the direct line as contemplated in Article 854?

Naturally, we could say that an adopted child does not belong to the direct line because of

the fact that he or she may bear no blood relationship to the adopter. This view would give

to the terms "line" and "degree" in Articles 963 to 969 a meaning according to nature,

arising out of a natural, biologic generation, a bond ex sanguine only, not ex lege.

On the other hand, there are those who would assert that, by fiction and mandate of

law, an adopted child acquires a relationship of legitimate filiation to his adopter and that,

therefore, "line" in Article 854, must include blood or legal relationship.15 An adopted child

does not become a relative in the direct line by the legal ction of adoption since this legal

ction is only for purpose of liation. However, an adopted child becomes a compulsory

heir in the direct line of his adoptive parent. The ction of adoption is between the adopted

15
BALANE,R. F.; PRETERITION- PROVENANCE, PROBLEMS AND PROPOSALS; Philippine Law Journal, Volume 50, pg. 607
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and the adopter. Hence, in case the adopted child is omitted in the will of his adoptive

parent, he can claim preterition under Article 854. 16

According to Justice Balane, this second view is more persuasive which find its

support from Article 39, paragraph 1 of the Child and Youth Welfare Code which provides

that, the adoption shall give to the adopted person the same rights and duties as if he

were a legitimate child of the adopter: Provided, That an adopted child cannot acquire

Philippine citizenship by virtue of such adoption.

Spouse on the other hand is not a relative in the direct line. The spouse merely

becomes a relative by the ction of the judge or the priest.17 Before it was submitted that,

if the preterition of an illegitimate child annuls the institution of heirs, with greater reason

should the preterition of the surviving spouse should be placed in the same category as the

preterition of other compulsory heirs.18 However this problem was settled in the case of In

Re Will of Leodegaria Julian, where the Supreme Court held that since the surviving spouse

is not in the direct line, her omission in the will does not constitute preterition.

The reason why the surviving spouse is set apart from the other compulsory heirs is,

according to Manresa, "founded solely on the special nature of the surviving spouse's

legitime, which is always assigned in usufruct. The law considers that the spouse's right

does not essentially alter the institution of heirs, although said heirs immediately acquire

16 MISON, LAW ON SUCCESSION

17
MISON, LAW ON SUCCESSION
18
PARAS, E. L., CIVIL CODE OF THE PHILS., VOLUME THREE (Articles 774-1105),WILLS AND SUCCESSION ,Seventeenth Edition, 2013 pg. 217
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the naked ownership of only a part and suffer the temporary limitation of the widow's

usufruct."

D. PRETERITION- CONFERRED BY LAW OR BY BLOOD?

By the foregoing discussion, since an adopted child who may not be related by blood

to their adopting parent can claim preterition, are we safe to assume that the claim of

preterition is conferred by law and not by blood?

If the claim of preterition is conferred by law, could it be possible that the omission

of spouse be considered as preterition? Is it not unfair for the spouse whose omission in the

will could not be considered as preterition to avail of the remedy of the same?

We review again the provision of Article 854 paragraph 1 of the Civil Code, thus;

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.

This above provision does not expressly states that an adopted child is a compulsory

heir in the direct line. Neither did it supply or add therein that an adopted child is included.

It is only when jurisprudence supplied the application of the provision which brought clarity

to the vagueness of the provision.

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More so, it has not further distinguished who are these adopted children. Adopted

children according to the law on adoption may be related by blood to the adopter or a

stranger. Hence, we come into conclusion or a presumption that the claim of preterition is

not conferred by blood alone but by law.

If it is possible for us to conclude that the claim of preterition is conferred by law and

not by blood, is it possible that our law-makers would amend the provision to include the

spouse in the tenet of this provision?

The writer is of the opinion that it is possible or rather necessary to include the

spouse within the ambit of the provision of Article 854. Notwithstanding the fact that the

law gives an adopted child the same rights and duties as if he is legitimate child, it is of no

moment that we thrust aside the idea that a spouse may be given the same right as that of

other compulsory heirs in the provision of Article 854 of the Civil Code.

It is irrational why a spouse, to whom the testator have built a family together and

traverse the journey of life in sickness and in health, who is always there for her/him even

for richer or poorer, could not avail of the same remedy on preterition. The surviving

spouse who is left to take good care of their own children, to support them and give them

better education deserves the same treatment as those other compulsory heirs.

Is it not unnatural for a testator to omit his own spouse in the will? The writer

believes in the natural attribute of man who loves another to leave him/her something in

the will before he/she goes. For a mans fate is unknown, he/she always think of those
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persons close to his/her heart and would not die without making sure that they will be left

secured.

E. LEGAL EFFECTS OF PRETERITION

The legal effects of preterition are as follows:

1. Annulment of the institution of heirs

The annulment of the institution is mandatory so that a portion of the estate

may be freed to satisfy the remaining unpaid legitimes. This annulment of institution is

automatic. It does not need any court action. Hence, according to Justice Edgardo, Paras,

the proper term should be void.

Once the institution of heirs is annulled, it results to total intestacy. This

means that the law on intestacy shall be followed.

Take this for example19: T has three sons, A, B and C. T made a will instituting

A, B and a friend F. C was omitted. If the estate is P90, 000, how should same be

distributed?

19
PARAS, E. L., CIVIL CODE OF THE PHILS., VOLUME THREE (Articles 774-1105),WILLS AND SUCCESSION ,Seventeenth Edition, 2013 pg. 221
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ANS.: In this case the omission of C is a clear case of preterition. Thus, as a

result, the institution of A, B and F shall be annulled and law on intestate succession takes

place. A, B and C as sons of T will each get P30,000. F, the friend, gets nothing.

2. Although the institution of heirs is indeed annulled, the legacies and devisees shall

remain valid in so far as they are not inofficious.

In other words, Legacies and devises cannot be cancelled or voided but can

be reduced only if the estate is still insufcient to pay the legitimes after the annulment of

the institution.

Instituted heirs do not enjoy any preference over specic properties unlike

legatees and devisees who enjoy a priority because the testator has indicated the specic

property to be given to them. Nevertheless, legatees and devisees can still lose their

legacies and devises if the portion of the estate is insufcient to pay the legitime(s) of the

preterited heir(s).

For example20: T has two sons, A and B. In Ts 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 Ts death be distributed?

20
PARAS, E. L., CIVIL CODE OF THE PHILS., VOLUME THREE (Articles 774-1105),WILLS AND SUCCESSION ,Seventeenth Edition, 2013 pg. 222
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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 effective. The

remaining P90, 000 will be divided equally between the two children.

These effects of preterition aim to preserve the legitime since this provision shall

prevent the testator from denying the compulsory heir of his legitime by merely omitting

his name in the will. While it is within the power of the testator to disinherit an heir, he

must state the cause for disinheritance and comply with the requirements of

disinheritance.21

21
MISON, LAW ON SUCCESSION.
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III. CONCLUSION

All of the foregoing is the discussion of preterition. As a general rule preterition only

applies to compulsory heirs in the direct line. Thus, preterition can be claimed by the

legitimate children and descendants, illegitimate children and descendants and parents and

ascendants in the default of the former. By the passage of the Child and Youth Welfare

Code, an adopted child who is not a compulsory heir in the direct was given as much same

right and duties as that of a legitimate child. Hence, an adopted child, if omitted in the will,

he can legally claim for preterition.

The Spouse, however, is not a compulsory heir in the direct thus he/she cannot claim

preterition once his/her name is omitted in the will.

According to Justice Balane, Article 854 of the Civil Code is a bad provision. He

further suggested that the protection must be extended to all the compulsory heirs without

any distinction.

The writer is of the same opinion. As such, it suggests that the amendment of Article

854 of the Civil Code would be workable. If the omission of an adopted child results to

preterition, then why not the omission of spouse will be given the same effect? Therefore,

to give an equal but rational treatment would indeed be a good point of making a change in

the provision of Article 854 of the Civil Code of the Philippines.

Be that as it may, the law-makers should examine this particular provision of Article

854 of the Civil Code and determine other problems pose by this law.
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IV. BIBLIOGRAPHY

1. BALANE,R. F.; PRETERITION- PROVENANCE, PROBLEMS AND PROPOSALS;

Philippine Law Journal, Volume 50

2. MISON, LAW ON SUCCESSION

3. PARAS, E. L., CIVIL CODE OF THE PHILIPPINES, VOLUME THREE (Articles 774-
1105),WILLS AND SUCCESSION ,Seventeenth Edition, 2013