SUBJECT: The Rule on ‘The Preterition’ and the Annulment of Institution of Heirs

I. Introduction

This memorandum provides an exhaustive analysis of the rule on preterition and its legal effect of annulling the institution of heirs under Philippine civil law. Preterition, as defined under Article 854 of the Civil Code, occurs when a compulsory heir in the direct line is omitted from the testator’s will, receiving nothing by testate or intestate succession. The central legal consequence is the annulment of the institution of heirs, rendering the will effectively intestate with respect to the omitted heir’s legitime. This memo will examine the legal basis, essential elements, jurisprudential applications, and distinctions from related concepts such as disinheritance.

II. Legal Foundation: Article 854 of the Civil Code

The governing provision is Article 854 of the Civil Code: “The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious. The compulsory heirs who are not preterited shall be entitled to their full legitime.” This article establishes the sanction for preterition and outlines its specific effects on the different parts of the will.

III. Essential Elements of Preterition

For preterition to exist and trigger the annulment of the institution of heirs, the following elements must concur:

The omitted heir must be a compulsory heir in the direct line. This includes legitimate children and descendants, with respect to their parents and ascendants, and legitimate parents and ascendants, with respect to their children and descendants. It does not include the surviving spouse, who is a compulsory heir but not in the direct line for purposes of Article 854.

The omission must be total. The heir must receive nothing from the testator’s estate, either by the provisions of the will (testate) or by operation of law (intestate). If the heir is given a share, even if it is less than his legitime, the issue is one of impairment of the legitime and not preterition.

The omission must be without a valid cause. If the omission is legally justified, such as through a valid disinheritance executed in accordance with Articles 915 to 918 of the Civil Code, it is not considered preterition.

IV. Effects of Preterition

The legal effects of a finding of preterition are specific and severe:

Annulment of the Institution of Heirs: The core effect is the complete nullification of the institution of heirs in the will. The names of the instituted heirs are considered as though they were not written.

Intestacy with Respect to the Preterited Heir’s Share: The estate is distributed as if the testator died intestate, but only to the extent of the preterited heir’s legitime. The preterited heir shall receive his full legitime.

Validity of Devises and Legacies: Devises and legacies are not annulled by preterition, provided they are not inofficious. They remain valid but are subject to collation and reduction if they impair the legitime of the compulsory heirs, including the preterited heir.

Rights of Non-Preterited Compulsory Heirs: Compulsory heirs who were not omitted are not affected in their right to their full legitime. They retain their right to claim their lawful share from the free portion after the preterited heir’s legitime is satisfied.

V. Distinction from Disinheritance

Preterition must be distinguished from disinheritance, as confusion between the two leads to different legal outcomes.
Preterition is a mere omission or silence in the will regarding a compulsory heir. It is not an express act of exclusion. Its cause is unknown or unspecified. The effect is the annulment of the institution of heirs*.
Disinheritance is an express act of exclusion by the testator for a cause specified by law (Articles 919, 920, Civil Code). It must be explicitly stated in the will with the legal cause. The effect is the deprivation of the disinherited heir’s share in the legitime, but the institution of heirs in the will remains valid. A disinheritance that fails to state a legal cause is considered a preterition*.

VI. Jurisprudential Clarifications

Philippine jurisprudence has refined the application of Article 854:

The “No Preterition” Rule in Conjunction with a Universal Institution: The Supreme Court, in Testate Estate of Manuela de Leon, established that if the testator institutes all his children as heirs without any qualification, and no legacy or devise is given to any of them, there is no preterition even if no specific share is allotted. The universal institution operates as a designation of each child to their intestate share.

Preterition of a Compulsory Heir Not in the Direct Line: The omission of the surviving spouse, a compulsory heir but not in the direct line, does not result in the annulment of the institution of heirs under Article 854. The remedy is an action for the declaration of nullity of the will only as it affects the spouse’s legitime.

Preterition of One Among Several Compulsory Heirs: The rule applies even if only one compulsory heir in the direct line is omitted. The annulment of the institution of heirs is total, not partial.

VII. Comparative Table: Preterition vs. Disinheritance vs. Impairment of Legitime

Aspect	Preterition	Disinheritance	Impairment of Legitime
Nature of Act	Omission or silence in the will.	Express act of exclusion in the will.	Allocation of shares that reduces a compulsory heir’s lawful portion.
Cause	No cause stated or unknown.	Must be for a specific cause authorized by law (e.g., indignities, conviction of certain crimes).	Typically, an over-generous devise or legacy that encroaches on the legitime.
Heirs Affected	Only compulsory heirs in the direct line.	Any compulsory heir, including the spouse.	Any compulsory heir.
Effect on Will	Annuls the institution of heirs. The will is void as to the preterited heir’s legitime.	Does not annul the will. The disinheritance stands if valid.	Does not annul the will. The devises/legacies are reduced to satisfy the legitime.
Remedy	The preterited heir gets his full legitime via intestate succession.	The disinherited heir is excluded, provided the cause is valid and properly alleged.	The compulsory heir files an action for reduction of inofficious donations or testamentary provisions.

VIII. Procedural Implications

An action to declare the existence of preterition and its effects is typically brought during the probate of the will or in a separate special proceeding for the settlement of the estate. The preterited heir must actively assert his right. The prescription of such an action is governed by the rules on prescription for the recovery of an inheritance, which is ten (10) years from the right of action accrues (e.g., from the death of the testator or the discovery of the will and the omission).

IX. Exceptions and Special Cases

Preterition of an Heir Believed Dead: If the testator omitted a compulsory heir under the belief that the heir was dead, the rule on preterition may not apply strictly, but the heir must still be restored to his legitime.

Voluntary Omission with Advance Receipt: If a compulsory heir voluntarily allows his omission, having already received his advance legitime or his share by way of a donation inter vivos, the omission is not considered preterition but must be accounted for through collation.

X. Conclusion

The rule on preterition under Article 854 of the Civil Code is a mandatory and strict provision designed to protect the legitime of compulsory heirs in the direct line. Its primary sanction—the annulment of the institution of heirs—serves as a powerful deterrent against their complete omission from a will. Practitioners must carefully distinguish preterition from disinheritance and impairment of the legitime, as the legal consequences differ significantly. A thorough review of the will’s provisions in relation to all compulsory heirs is essential to avoid the inadvertent application of this rule, which can drastically alter the testator’s expressed distribution of his estate.