Monday, December 17, 2007

Disinheriting children and descendants, legitimate as well as illegitimate

Summary / Definition of terms

1. “Testate or testamentary succession” refers to situations where the person dies leaving a last will.

2. “Legal or intestate succession” refers to situations where the person died without a last will.

3. “Decedent”: the person who dies and whose property is to be divided

4. “Testator”: the person who dies leaving a last will

5. A “notarial will” is prepared and notarized by a notary-public; besides the testator, three attestation witnesses must sign the will.

6. A “holographic will” is completely written, signed, and dated by the person making the will.

7. Article 918 of the New Civil Code states the requisites of a valid disinheritance.

8. Article 919 of the New Civil Code states the grounds for disinheriting children and descendants (grandchildren), legitimate as well as illegitimate.

9. The law is strict in the matter of disinheritance. If the requisites are not complied with, the disinheritance can be set aside.

10. Whether notarial or holographic, the will must be probated before it can be given effect. “Probate” simply means that the will must be filed with and approved by the proper court. If the will has not been probated, ownership of real or personal properties mentioned in the will cannot be transferred to the heirs, and any disinheritance cannot be given effect.

A lot of Filipinos, in their twilight years, have told their children that whoever would take care of them in their time of old age or sickness, would be the one to inherit from them. Those who will not do so will not receive anything by way of inheritance. In some cases, brothers and sisters have fought each other, claiming that those who took care of their parents in their old age are the only ones entitled to inherit.

Here in the Philippines, we have the system of compulsory heirs under the New Civil Code. This simply means that certain individuals have the legal right to inherit from us. The only way we can deprive a compulsory heir of his inheritance is through the process of disinheritance.

Also, under RA 8552 (Domestic Adoption Act of 1998), rescission of adoption is no longer allowed. This means that once adopted, a person cannot be “un-adopted” or “dis-adopted” (if there are such words) by his adoptive parents. What the adoptive parents can do is to disinherit the adopted child.

The law is very strict in the matter of disinheritance. If the requisites are not complied with, the disinheritance can be set aside. You must seek the help of a lawyer-notary public who is well-versed in the requisites stated in the New Civil Code of the Philippines. (Please read the discussion below on the two kinds of will, notarial and holographic.)

Grounds for disinheriting children and descendants

Article 919 of the New Civil Code provides the grounds for disinheriting children and descendants (grandchildren), legitimate as well as illegitimate. The word "testator" mentioned several times below refers to the person making a last will and testament. Please take note that disinheritance must be done through a will.
1. When a child or descendant has been found guilty of an attempt against the life of the testator, his or her own 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 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 with the penalty of civil interdiction.
Requisites for valid disinheritance of children and descendants

The requisites of valid disinheritance under Art. 918 of the New Civil Code are:
  • It must be done in a valid will;

  • It must be express;

  • There must be a true cause;

  • The cause must be existing;

  • It must be total and complete;

  • The cause must be stated in the will;

  • The heir disinherited must be identified;

  • The will must not have been revoked.
Two kinds of will: notarial and holographic

Under the New Civil Code of the Philippines, there are two kinds of wills: (1) notarial will, and (2) holographic will. As the name denotes, a “notarial will” is prepared and notarized by a notary-public. On the other hand, a “holographic will” is completely written, signed and dated by the person making the will (called the “testator”).

Disinheritance through a “Kasulatan ng Pag-Aalis ng Mana”

For more information about holographic wills, please read the Supreme Court decision in Dy Yieng Sangio vs. Reyes G.R. Nos. 140371-72 November 27, 2006. In this case, the testator executed a document entitled “Kasulatan ng Pag-Aalis ng Mana” where he disinherited his oldest child. The Supreme Court ruled:
The document, although it may initially come across as a mere disinheritance instrument, conforms to the formalities of a holographic will prescribed by law. It is written, dated and signed by the hand of the testator himself. An intent to dispose mortis causa (upon death) can be clearly deduced from the terms of the instrument, and while it does not make an affirmative disposition of the latter’s property, the disinheritance, nonetheless, is an act of disposition in itself. In other words, the disinheritance results in the disposition of the property of the testator in favor of those who would succeed in the disinherited heir.
Whether notarial or holographic, a will must be probated before it can be given effect

Whether notarial or holographic, the will must be probated before it can be given effect. “Probate” simply means that the will must be filed with and approved by the proper court. If the will has not been probated, (1) ownership of real or personal properties mentioned in the will cannot be transferred to the heirs, and (2) any disinheritance cannot be given effect.

Issues to be resolved in the probate of a holographic will

In a petition to admit a holographic will to probate, the only issues to be resolved by the court are:
(1) whether the instrument submitted is, indeed, the decedent’s last will and testament;

(2) whether said will was executed in accordance with the formalities prescribed by law;

(3) whether the decedent had the necessary testamentary capacity at the time the will was executed; and,

(4) whether the execution of the will and its signing were the voluntary acts of the decedents.

As a rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of the will sought to be probated. However, in exceptional circumstances, courts are not powerless to do what the situation constrains them to do, and pass upon certain provisions of the will. (Ajero v. Court of Appeals, G.R. No. 106720, September 15, 1994, 236 SCRA 488).