In making a Will, you will stumble upon the following concepts that might be confusing on your part as a Testator:
Preterition is the total omission of a compulsory heir from a will without a valid cause. In the Philippines, we have the concept of legitimes – wherein fifty percent (50%) of the person’s Estate are reserved by law to his or her compulsory heirs. If the testator totally deprived the heir of his legitime, preterition occurs.
Defective Disinheritance is a situation wherein a compulsory heir is included in the institution of an heir, however, the legitime is not satisfied.
Disinheritance is a process whereby a compulsory heir was validly stripped of his rights as a compulsory heir as provided for by law thereby he can be excluded from the will.
The presence of Preterition annuls the institution of heirs or makes a will invalid, except devices and legacies in so far if they are not inofficous or if the legitimes are not impaired.
If a case is a mere Defective Disinheritance, the institution of heirs is not automatically invalid but subject to the fulfilment of the legitime of compulsory heirs especially those defectively disinherited.
If a compulsory heir was properly disinherited, he can be totally stripped of his or her legitime.
For example, if you totally omit a compulsory heir in your Will, Preterition will occur and the instituted heirs will be void. However, the devices and legacies, if there are any, will be respected if the legitimes of the compulsory heirs are fulfilled. If there are neither devices nor legacies in your Will and there is a Preterition, total intestacy will occur.
Question: As a testator if I created a Will but not fulfilling the legitime of one of my children as I bequeath less than the legitime, will this invalidate the will?
Answer: No, this will not invalidate the will. The provision on the will which prejudices the legitime of an heir though instituted but inofficious will be considered defective disinheritance, in whicc case, the institution of heirs is not wholly void, only that the prejudiced legitime of the defectively disinherited shall be fulfilled.