What is preterition?

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)

What does “born after the death of the testator” mean?

It simply means that the omitted heir must already be conceived at the time of death of the testator but was born only after the death of the testator.

What are the 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;

4. Nothing must have been received by the heir by gratuitous title.

What are the 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 testator, institution shall be effectual, without prejudice to right of representation

What is the effect of preterition on the will itself?

General Rule: The effect of annulling the institution of heirs will be, necessarily, the opening of a total intestacy except that proper legacies and devises must be respected. Here, the will is not abrogated.

Exception: If the will contains a universal institution of heirs to the entire inheritance of the testator, the will is totally abrogated.

Reason: The nullification of such institution of the universal heirs without any other testamentary disposition in the will amounts to a declaration that nothing at all was written. 

What are the rights of the preterited heirs?

They are entitled not only to their shares of the legitime but also to those of the free portion which was not expressly disposed of by the testator by way of devises and legacies.