“It is also not possible to partially disinherit an heir, i.e., simply decrease his legitime

You feel that you have a strong enough cause to disinherit a compulsory heir. How do you go about disinheriting said heir?

Under Article 916 of the Civil Code, a disinheritance should be contained in a last will and testament wherein the legal cause/s therefor should be specified.

In my June 25 column, I discussed the procedure for making a will and mentioned that the simpler way of making a will is doing a holographic will rather than a notarial will. A holographic will has barely no formalities and is only required to be entirely handwritten, dated and signed by the testator. May a disinheritance be made through a holographic will?

This was already answered by the Supreme Court in the 2006 case of Seangio v. Seangio (G.R. Nos. 140371-72, 27 November 2006). In said case, the testator prepared a document entitled Kasulatan ng Pag-Aalis ng Mana wherein he indicated that he was disinheriting his eldest son, but made no other disposition of his estate. The ground cited was the maltreatment he had suffered from said heir.

According to the Court, the Kasulatan, although it may initially come across as a mere disinheritance instrument, conforms to the formalities of a holographic will prescribed by law, having been written, dated and signed by the hand of the testator himself. An intent to dispose mortis causa (effective upon death) can be clearly deduced from the terms of the instrument. Said the Court: “…while (the Kasulatan) does not make an affirmative disposition of the latter’s property, the disinheritance of Alfredo, nonetheless, is an act of disposition in itself. In other words, the disinheritance results in the disposition of the property of the testator Segundo in favor of those who would succeed in the absence of Alfredo.”

It is also not possible to partially disinherit an heir, i.e., simply decrease his legitime or compulsory share. The disinheritance must be total, meaning the heir cannot be allotted anything even from the “free portion” of the estate.

Because of the dire consequences of a disinheritance, the burden of proof falls on the heirs of the testator who seek to enforce the disinheritance (Article 917, Civil Code). They will have to prove by competent evidence that any of the valid causes (discussed in Part 1 of this Column) exists. Otherwise, the disinheritance will not be given effect and the disinherited heir will still be entitled to his legitime.

As long as the testator is still alive, however, all is not lost for the disinherited heir. The law recognizes that blood is still thicker than water and the possibility of reconciliation between the testator and the disinherited heir. Such a reconciliation renders ineffectual any disinheritance already made and deprives the testator of the right to disinherit said heir (Article 922, Civil Code).

Indeed, one can imagine the potential difficulty on the part of the disinherited heir to prove later on the fact of such reconciliation, especially once the testator has died. The best way to obviate such difficulty is for the testator to simply destroy the will where disinheritance is made and execute a new one without the disinheritance.

Another obvious effort by the law to insulate other heirs from the deleterious effects of a disinheritance is the provision that if the disinherited heir has children and descendants, such children/descendants will instead receive the legitime of the disinherited heir (Article 923, Civil Code). This is called the right of representation.

The law makes a distinction between legitimate and illegitimate children/descendants of the disinherited heir. If the disinherited heir is the legitimate child of the testator, said disinherited heir’s legitimate children/descendants may inherit by way of representation, but the illegitimate children/descendants (if any) may not. If the disinherited heir is the illegitimate child of the testator, both the legitimate and illegitimate children/descendants may inherit by representation. (Article 973, Civil Code)

This is one of those curious provisions, which may be deemed discriminatory against illegitimate children but, unfortunately, remains part of the laws of the land.

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