Published — June 01, 2022
The following post does not create a lawyer-client relationship between Alburo Alburo and Associates Law Offices (or any of its lawyers) and the reader. It is still best for you to engage the services of your own lawyer to address your legal concerns, if any.
Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.
Read also previous article: MAY AN HEIR BE DISINHERITED? (Part II)
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Partial disinheritance is not allowed
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Disinheritance may be rendered ineffectual
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The disinherited heir may be represented by his own heirs
Man is naturally good. That is the basic thesis of Jean-Jacques Rousseau. According to him, the advent of property is the source of all mankind’s social ills. In relation to this article, yes, man works hard for his survival and to have properties he deems important and desires.
Well, there are a lot of ways to preserve and protect such acquired properties. One way is to be aware of whom you should donate or transfer your property. Is your heir deserving to receive such properties? Is your heir capable of preserving your hard-earned properties? The first part of this article would show that you may deprive any, some, or all of your heirs to receive through inheritance such properties.
Going back to our hypothetical example in part two of this article, may Gerard Franco be partially disinherited by Jose Mari, his father?
The law says:
No.
It is not possible to partially disinherit an heir by simply reducing his legitime or compulsory share. The disinheritance must be total. It means that the disinherited heir cannot get anything even from the “free portion” of the estate of the testator. A free portion refers to that remaining amount of the estate after the compulsory heirs have been given their lawful share.
In case Gerard Franco was properly disinherited for a cause by Jose Mari through a will because Gerard Franco has been living a dishonorable and disgraceful life, is there any recourse for Gerard Franco to be entitled still of his legitime?
The law says:
Yes.
As long as Jose Mari is alive, there is always a chance for the him and Gerard Franco to reconcile. A subsequent reconciliation between Jose Mari and Gerard Franco deprives the former of the right to disinherit the latter. In effect, the will where Jose Mari expressly disinherited Gerard Franco can no longer be enforced. Gerard Franco may still receive his inheritance.
Suppose there was no subsequent reconciliation between Jose Mari and Gerard Franco during the lifetime of the former, it is not the responsibility or duty of Gerard Franco to prove that he has not been living a dishonorable and disgraceful life.
If Gerard Franco should deny that he has been living a dishonorable and disgraceful life, it is incumbent upon the other heirs of Jose Mari to prove that indeed Gerard Franco has committed the cause or causes for his disinheritance. Otherwise, the disinheritance will not be given effect and Gerard Franco is still entitled to receive his legitime.
On the other hand, suppose there was a successful disinheritance, meaning, the other heirs of Jose Mari were able to prove by competent evidence that Gerard Franco has been living a dishonorable and disgraceful life, still, the latter is not lost. That is because, under the law, if proper, Gerard Franco has the right to be represented by his own heirs. This means that the heirs of Gerard Franco will instead receive his lawful share from the estate of Jose Mari, his father.
However, do note that the law makes a distinction. If the heirs of Gerard Franco are his legitimate children or descendants, such heirs may inherit by way of representation from Jose Mari only if Gerard Franco is a legitimate child of Jose Mari. Otherwise, only the legitimate children or descendants of Gerard Franco may inherit by way of representation. Gerard Franco’s illegitimate children or descendants may not inherit.
But, if Gerard Franco is an illegitimate child of Jose Mari, legitimate or not, the children or descendants of the Gerard Franco may inherit by way or representation from Jose Mari.
Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/0917-5772207.
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