Introduction: Embarking on a discussion of preterition in Succession Law, we delve into a scenario where a father unintentionally forgets one of his children when drafting a will. What are the consequences of such a seemingly trivial mistake? Can it be rectified, and does it lead to disinheritance? Join us as we explore this foundational concept in Spanish Succession Law, unraveling its practical applications and potential implications.
Preterition, an Oversight to Avoid in Testaments: Preterition, within the realm of succession, is an omission that must be vigilantly avoided. Failing to do so can result in the nullification of testamentary provisions, rendering the entire content of the will void and necessitating inheritance distribution through what is known as “Sucesión ab Intestato.” The legal foundation for preterition is outlined in articles 814, 831, and 1080 of the Civil Code (CC).
This phenomenon occurs when, intentionally or mistakenly, a testator “forgets” to mention one of their “legitimates.” Legitimates, in this context, refer to individuals entitled to receive a legitimate share, typically the testator’s children and descendants. In certain instances, the identification of these legitimates is termed “formal legitimacy,” emphasizing a nominal or generic reference.
Practical Example: Consider Juan, who has two sons, Javier and Marco. In his holographic will, Juan bequeaths everything to Javier, completely omitting any mention of Marco. Unfortunately, this testament falls prey to preterition.
How to Mention “Heirs” to Avoid Preterition: While there isn’t a universally accepted formula, it is advisable to identify legitimates nominally whenever possible. If nominal identification isn’t feasible, a generic mention can suffice. For instance:
- “I institute as heirs in equal parts my children, Ms. Irene Fernández De Castro and Mr. Juan Fernández De Castro” (nominal).
- “I institute as heirs in equal parts my sons and daughters” (generic).
It’s not necessary to name each child individually, but a general mention aims to prevent preterition.
Requirements for Preterition: Several specific requirements must be met for preterition to occur:
- The legitimate must be intentionally omitted in the will.
- The legitimate must not be assigned any inheritance as part of their legitimate share.
- The omission must encompass all or some of the legitimates.
- In case of an error, the forgotten legitimates must be children or descendants of the testator.
- The preterited individuals must be alive at the testator’s death; if they die before, the will remains valid.
Types of Preterition: Intentional and Unintentional:
- Intentional Preterition: Occurs when the testator purposefully fails to identify or mention a legitimate, often with the intention of leaving them with nothing. Possible scenarios include partial preterition, involving a single forgotten heir, or total preterition, where all heirs are neglected.
- Unintentional Preterition (Article 814.2 CC): Arises due to a testator’s unintentional failure to identify one or more legitimates. It can be total or partial, with different consequences for each scenario.
Action of Preterition: The action of preterition, regulated in Article 814 CC, must be exercised by the preterited legitimate. This action allows the legitimates to be designated as heirs, enabling them to claim their legitimate share through necessary reductions.
It’s worth noting that there is some doctrinal division regarding the treatment of intentional and unintentional preterition, particularly concerning the timelines for exercising the action.
Conclusion: In conclusion, preterition involves the inadvertent omission of a legitimate heir in a testament, leading to potential consequences that alter inheritance distribution. Despite the complexity of these rules, the examples provided throughout the article aim to enhance your understanding of this concept, shedding light on its nuances and implications. Understanding preterition is crucial in navigating the intricacies of Succession Law and ensuring fair and legally sound testamentary outcomes.