B12. Preterition

Question 1

Definition

Answer 1

Preterition is the omission in testator’s will of one,
some or all of the compulsory heirs in the direct line,
whether living at the time of execution of the will or
born after the death of the testator. (Art. 854, NCC)

Question 2

Requisites of Preterition

Answer 2

Requisites of Preterition

1. There is a total omission in the inheritance;
2. The person omitted is a compulsory heir in the direct line;
3. The omitted compulsory heir must survive the testator, or in case the compulsory heir predeceased the testator, there is a right of representation; and 4. Nothing must have been received by the heir by gratuitous title.

Question 3

Effects of Preterition

Answer 3

Effects of Preterition

1. Preterition annuls the institution of heirs;
2. Devices and legacies are valid insofar as they are not inofficious;
3. If the omitted compulsory heir dies before the testator, the institution shall be effectual, without prejudice to the right of representation.

Question 4

b) Governing Law