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).