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).

12 comments :

Anonymous said...

Hi Atty.,

I have a Lola who died single. I believe this means she has no compulsury heir. She left a will inheriting those relatives close to her. Are the relatives who are not mentioned in the will have the right to ask for inheritance (maghabol)?
Also what are the cases that a will may be invalidated.

thanks a lot and more power.

Atty. Gerry T. Galacio said...

1. Your narration is not complete as to how you are related to your “Lola” and who her relatives are.I will presume that she is the sister of your grandfather or grandmother either on your father’s side or mother’s side.
Please surf to the New Civil Code section of my website www.familymatters.org.ph). Art. 887 NCC defines who the compulsory heirs are:

(1) Legitimate children and descendants, with respect to their legitimate parents and ascendants;
(2) In default of the foregoing, 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 fiction;
(5) Other illegitimate children referred to in Article 287.

Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by those in Nos. 1 and 2; neither do they exclude one another.

In all cases of illegitimate children, their filiation must be duly proved.

The father or mother of illegitimate children of the three classes mentioned, shall inherit from them in the manner and to the extent established by this Code.


Since your Lola died single (with no children, parents, ascendants), then she has no compulsory heirs. Art. 842 of the NCC states that “one who has no compulsory heirs may dispose by will of all his estate or any part of it in favor of any person having capacity to succeed.”

HOWEVER, a last will and testament must comply with certain legal requirements as provided for by Articles 804 to 885 NCC. If these requirements have not been complied with, then the will can be invalidated. For example, if the last will and testament contains only a JURAT (“subscribed and sworn to before me …) and not a notarial ACKNOWLEDGMENT (“Before me a notary public .. personally appeared … known to me … and she testified that the same is her voluntary act and deed …”) then the will is not valid.

Any relative who wants to claim a part of your Lola’s estate must prove that the will is defective for not having complied with the requirements. If the will is indeed found to be defective, then Articles 1003 up to 1010 NCC will apply.

Anonymous said...

dear atty. galacio,

my kumpare a widower, but later remarried,narrated to me na masama ang loob nya sa mga anak ng babae simply because they favored other persons to live sa bahay na supposed to be ay may karapatan pa rin sya.noong magasawa kasi sya ay pumisan sya sa asawa nya ngayon. sinabi lang nya na ibibigay nya ang bahay at lupa sa bunso niyang anak. at iba pa nyang anak ay pinagpatayo na nya ng lupa at yong isa ay binigyan na rin nya ng lupa. ngayon noong gusto na ng lumipat doon ng pansamantala habang nasa ibang bansa ang ank at manugang nya ay tumanggi ang anak nyang babae at binigyan pa sya ng kondisyon sa pagtira doon at kapag si masunod ay sa iba nila patitirhan. masamang-masama ang loob nya sa dalawang anak nyang babae. naisip nya hanggat buhay sya ay magpagawa sya ng notarial will at gusto nyang idisinherit ang mga yon. pwede ho bang maging ground ang treatment na ginawa ng mga anak nya sa kanya? maraming salamat po

Atty. Gerry T. Galacio said...

Some of the grounds for disinheriting a child are maltreatment in word or deed, and ungratefulness.

Tell your kumpare to make sure that he gets a competent notary public. The legal requirements are strict for last will and testament, and for disinheritance. If the notary public does not know the requirements, then the disinheritance could be set aside.

Atty. Gerry T. Galacio said...

For everyone:

Thanks for browsing this blog. I hope that I have been able to help you even in some small way. From this point on, however, please do not post your questions or comments here. Please email to me your questions or comments at gtgalacio@yahoo.com.

Answering e-mails is a much more straightforward and time conserving effort for me. With questions posted in this blog, I have to first open my e-mail and then copy/paste the comments or questions to Word. After composing my replies, I then have to search for the specific page where the comments are located and then use a dialog box to post my replies. It is a time-consuming process.

Again, from this point on, please e-mail your questions or comments to me.

Anonymous said...

dear atty galacio,

nagpakasal po kasi kami ng asawa kong biyudo two years ago na. ngayon lang nya nai-file ang extra-judicial settlement ng conjugal properties ng namatay nyang asawa. ang tanong ko po ay ano po ang mga legal rights ko sa properties nya if ever na meron sa conjugal properties ng namatay nyang asawa at sa namana nyang kabuhayan sa namatay din nyang mga magulang. maraming salamat po

Anonymous said...

gud day,
gus2 ko lang po sanang magtanong although my father is still alive separated cya sa mother ko all his properties ay ipinangalan na nya sa 2nd family nya meaning hndi nya na kailangang mag file ng disinheritance sa aming 3 magkakapatid na 1st family nya kasal cya sa mother ko tanong ko lang po sana kung puwede na ba naming habuling magkakapatid yung mana namin sa kanya despite the fact na buhay pa cya? gus2 lang po sana kc naming masettle b4 cya mawala para maiwasan na rin ang gulo between us and his 2nd family? tnx

Atty. Gerry T. Galacio said...

1. Your father can be prosecuted for criminal cases for concubinage under the Revised Penal Code OR psychological violence under RA 9262 (please read my posts on these topics; look for the links in the sidebar).

2. Succession (the legal term for the right to inherit) opens or begins only upon the death of the person. You cannot therefore demand your inheritance whole your father is still alive.

Your father can of course give to you and your siblings what you are entitled to inherit from him in the form of what is known as “donation mortis causa” but that is voluntary on his part.

3. “hndi nya na kailangang mag file ng disinheritance sa aming 3 magkakapatid na 1st family”

What do you mean? Even if your father is now living with another woman, your mother, you and your siblings are still his compulsory heirs. You will have the right to inherit from your father once he dies. That right cannot be taken away from you except in a valid disinheritance which complies with all the requirements of the New Civil Code of the Philippines.

Moreover, after your father dies, you can run after all his properties, even those in the name of his second family. Please take note that the property relations between your father and the second woman is governed by Article 148 of the Family Code (please surf to my website www.familymatters.org.ph).

Article 148 states that the second woman must be able to prove that she made actual contributions in the purchase of these properties.

Under Article 148, if and when it is the second woman who dies before your father, then your father’s share in the partnership property will not go to him but to you (his legal family).

3. You should retain the services of a lawyer who can give you various options of how to ask your father to voluntarily give to you NOW what comprises your future inheritance.

Padfoots said...

What counts as a dishonorable or disgraceful life? How do the courts treat homosexuality?

Atty. Gerry T. Galacio said...

Padfoots,

Justice Paras states that “the essence of the cause is that anything which brings dishonor or disgrace to the family of the testator (the person who makes the will or who disinherits the child) merits correction in the form of disinheritance. However, a single act is not ordinarily sufficient for leading a life implies continuity.”

The Supreme Court, citing the opinion of Sen. Tolentino, in Seangio vs. Reyes ruled that “the fundamental principle that the intent or the will of the testator, expressed in the form and within the limits prescribed by law, must be recognized as the supreme law in succession. All rules of construction are designed to ascertain and give effect to that intention. It is only when the intention of the testator is contrary to law, morals, or public policy that it cannot be given effect.”

This means that even if homosexuality may have become acceptable to a large part of Philippine society, what’s important is what the decedent/testator (the person who makes the will or who disinherits the child) thinks and feels about the situation.

Anonymous said...

Hello Atty Galacio,
Nagtatanong lang po ako tungkol po sa disinheritance. Nanay ko po ay namatay na 3 yrs ago. Ang mga properties po niya ay hindi pa po naibigay sa mga heirs dahil po sa kakulangan ng pera sa paggasto ng pag process ng mga dokumento at sa pagbayad po ng state ng nanay ko. Ngayon, ang tatay ko po ay nagsisimula ng magbenta nga kanyang share ng lupain maski hindi pa po naka subdivide. Nang kami po mga heirs ay nakipagsalita sa kanya tungkol sa pag subdivide ay binalewala po niya at palagi lang po siyang nagsasabi na malaking pera ang kakailanganin niyan. Me isa po akong kapatid na siyang malapit sa kanya ang palaging nakapaligid at siya ring taga benta ng lupain na share ng tatay ko.Ang problema, hindi pa nga natratransfer sa mga heirs ang kanilang share bakit at pupuede ba yan makabenta ang share ng tatay ko? Ngayon, magulo na ang pamilya namin dahil hindi na nakikinig sa aming mga salita ang tatay ko. Pinakikinggan lang niya ang 1 anak. At sa katunayan nga, sinasabi pa nga na gagawa daw ng tatay ko ng disinheritance testament laban sa 2 niyang anak dahil sumasagot daw kontra sa kanya at di daw nakakatulong sa kanya. Pwede ba yan 2 kong kapatid ma disinherit nga dahil lang sa pagdedebati minsan sa usapan?
Salamat po at more power

Atty. Gerry T. Galacio said...

[1] You should immediately retain the services of a lawyer to help protect your rights and to file a petition for judicial settlement of your mother’s estate.

[2] As I discussed in this post, the grounds for disinheritance are very strict. Fighting for your legal rights is not a ground for disinheritance.