Friday, December 07, 2007

How to disinherit your spouse

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 921 of the New Civil Code states the grounds for disinheriting a spouse.

[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.

Spouses no longer have the right to inherit from one another after their marriage is annulled (for voidable marriages) or declared null and void (for void marriages).

In a legal separation under Articles 55 to 67 of the Family Code, Article 63, paragraph(4) disqualifies the offending spouse from inheriting from the innocent spouse by intestate succession (this term simply means
“without a last will and testament”). Also, provisions in favor of the offending spouse in a last will previously executed by the innocent spouse is revoked by operation of law.

There are situations however when the spouses are merely separated without having gone through the judicial process of annulment, declaration of nullity or legal separation. In some cases, physical separation became necessary became of abuse. In instances of actual separation of the spouses where there are no judicial proceedings for annulment, declaration of nullity or legal separation, I have counseled people to, at the very least, file a petition for judicial separation of property as provided for by Articles 134 up to 142 of the Family Code.

Requisites and grounds for disinheriting a spouse

I have counseled some people in extreme situations to disinherit their spouses. Please take note that 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 of the New Civil Code of the Philippines.

The requisites of valid disinheritance under Art. 918 of the New Civil Code are:
[1] It must be done in a valid will;
[2] It must be express;
[3] There must be a true cause;
[4] The cause must be existing;
[5] It must be total and complete;
[6] The cause must be stated in the will;
[7] The heir disinherited must be identified;
[8] The will must not have been revoked.
The grounds for disinheriting a spouse under Art. 921 of the New Civil Code are:
[1] When the spouse has been convicted of an attempt against the life of the testator, his or her descendants or ascendants;
[2] When the spouse has accused the testator of a crime punishable by imprisonment of six years or more, and the accusation is false;
[3] When the spouse, by fraud, violence, intimidation or undue influence causes the testator to make a will or to change it;
[4] When the spouse has given cause for legal separation;
[5] When the spouse has given grounds for loss of parental authority;
[6] Unjustifiable refusal to support the children or the other spouse.
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 the 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 decedent.
As a general 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).

10 comments :

jo said...

My friend is married. He and his wife separated because his wife now has a boyfriend. Prior to their separation in fact, they executed an extra-judicial agreement to divide their conjugal property and duly signed by them.

Question No.1: Is the extra-judicial agreement valid?

Question No. 2: Can my friend now seek for the annulment of the agreement o the ground that his spouse has a child with a man other than her husband while still very much married to my friend?

Thank u.

Atty. Gerry T. Galacio said...

Article 99 (for absolute community of property) and Article 126 (for conjugal partnership of gains) provide for the ways the community property or conjugal partnership is terminated:

[1] Upon the death of either spouse;

[2] When there is a decree of legal separation;

3] When the marriage is annulled or declared void; or

[4] In case of judicial separation of property during the marriage under Articles 134 to 138.

Thus you can see that the extrajudicial agreement is NOT valid. Even if the situation in your Question no. 2 did not exist, the agreement will still be invalid.

(However the rights of creditors of either spouse must be respected. Whatever charges and obligations may have been incurred by either spouse may be charged against the community property or conjugal partnership but subject to reimbursement by the spouse who incurred such obligations.)

Anonymous said...

Hello, my husband left me and my son for another woman.Now my husband fathered a child w/ his mistress.I want to know if i can disinheret husband using this info as a ground.What step should i take to do that.
In addition,he has not been supporting me and my son financially, can i compel him to support me and my son? He has been denying the fact that he already has a job.

Anonymous said...

my brother and his wife separated last year and early this year his wife gave birth to their 2nd child - the first one was aborted by his wife. they separated because his wife wanted my brother to support her family as in her grandmother, her nieces and nephew other than her and their son. she has threatened my brother taht she'll file a cse against my brother if my brother won't give her money claiming it's her right to get money from my brother. but my brother is hesitant of giving her money cause he knew that it would be spent not on the needs of their son but to his wife's family which my brother claim not to be his responsibility to give food to his wife's grandmother and nieces. my brother is supporting his son but denies giving cash to his wife. like he just buys milk, diapers and other baby's needs but never hand in cash to his greedy wife. i can't blame my brother if he doesn't trust his wife when it comes to money matters. what could my brother do cause he's so sick and tired of his wife threats and not to mention the nagging.

Atty. Gerry T. Galacio said...

1. As I discussed in this post, some grounds for disinheritance which you can use are [4] When the spouse has given cause for legal separation; and [6] Unjustifiable refusal to support the children or the other spouse.

The requirements for disinheritance are very strict. Please consult a very COMPETENT notary public to draft for you this document.

2. In terms of support, please read my post titled “Support for abandoned woman and family” (look for the link in the sidebar).

Atty. Gerry T. Galacio said...

Your brother should at the very least file a petition for legal separation (Articles 55 to 67 of the Family Code). OR, he can file a petition in court asking it to set the amount of support for the child AND the wife. Your brother cannot refuse to support his wife, otherwise he can be charged with violation of RA 9262. Your brother however is not obligated to support anybody else.

Anonymous said...

my brother isn't refusing to support is child but he refused to give the money straight to his wife because he knows that the money intended for the child will not be fully used or spend on his child's needs but to SUPPORT his wife's family (her grandma, nephew and nieces). my brother also learned that his wife is communicating with her ex seaman boyfriend and that the guy is also sending money to her. we have learned that she just used my brother to save her and her family from poverty and hunger. the time she was about to leave for abroad, she found out she was pregnant with my brother's child, she had it aborted cause she said she wanted to go abroad and it'snot yet time for her to have a child. but when her trip abroad failed and her mom doesn't want to support her anymore after her mom learned that she got married with my brother (yes, they got married without the consent of her mom and my mom too). she was sent back home here with nothing. now she's using her child with my brother to get money to support her family and sustain her quirks. my family (mom, me, the rest of the siblings) have been extending help on her and her child but she refuses and insist that she wants CASH. i did volunteered on taking care of her child's medical expenses like the immunizations and visit to the child's pedia when needed but she kept on wailing I WANT CASH! but my brother's adamant in giving in to her whims because my brother doesn't TRUST her with MONEY matters anymore. she kept on sending mails to my brother and nagging him and cursing my brother. the entire family have read her mails becasue my brother forwarded to us all her emails. and it made our blood rushing when we read all her mails. she kept on threating my brother in one of her mail then on the other mail she told my brother that she doesn't want to see my brother anymore and that she wanted my brother not to have communications with her and the baby and that she can raise the baby all by herself. and now she shifted in another mood, she wants CASH. i think this girl is insane. she's even bad mouthing our entire family to everyone she came across with, telling them baseless and nonsensical stories.

Bobby said...

Atty,
My brother has a wife who left him because he is too much financially n emotionally attached with our mom. My mom and our sister-in-law doesnt get along well.
My mom actually wants to disinherit my sis-in-law and my brother as well from her properties. But my sis-in-law does not want to sign any contracts with my mom. Can my mom pursue to disinherit my sis-in-law and brother?

Atty. Gerry T. Galacio said...

"my brother isn't refusing to support is child but he refused to give the money straight to his wife because he knows that the money intended for the child will not be fully used or spend on his child's needs but to SUPPORT his wife's family (her grandma, nephew and nieces)."

Like I said, your brother should file a petition in court asking it to set the amount of support he must give. He can manifest to the court his apprehensions that the the woman may possibly not use the support for his child. Our courts are not only courts of law but also courts of equity. The judge can order the court social worker or the case workers of the Social Welfare and Development office of the town or city where the child is located to ensure that the child receives the support. The court can also adopt other measures to ensure the safety of the child.

Atty. Gerry T. Galacio said...

Bobby,

Your mother can disinherit only your brother and not your sister-in-law. Why? Your brother is your mother’s compulsory heir. Your sister-in-law is not an heir of your mother.

This means that if the grounds provided for by the New Civil Code are present, your mother can disinherit your brother.