My father's will doesn't mention one of his children at all — not even to disinherit them. Does that cancel the whole will?

What preterition means, and what it does not

Article 854 provides: The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious. Preterition is total omission — the heir is not named, given nothing, and not disinherited. A child left a small or unfair share has not been preterited; his complaint is that his legitime was impaired, which is a different remedy. Silence is what triggers this article.

It reaches only compulsory heirs in the direct line

The phrase in the direct line does real work. Children and other descendants are covered, and so are ascendants where they are the compulsory heirs. A surviving spouse is a compulsory heir but is not in the direct line, so omitting a spouse is not preterition and produces a different consequence. The article also reaches forward in time: a child born after the testator's death is protected as fully as one alive when the will was signed. That is why a will drafted while a family is still growing needs revisiting, and why omission is so often accidental rather than deliberate.

What is left standing after the annulment

The consequence is severe but partial. The institution of heir falls, so those named to take the estate do not take as instituted, and that portion passes under the rules of intestate succession — usually to the children in equal shares, the omitted one included. Devises and legacies survive, but only insofar as they are not inofficious: a specific gift that eats into the legitimes is cut back to the point where it no longer does. So a will that leaves the house to a named friend and the residue to two of three children loses the residue clause and keeps the house gift, reduced if it goes too far.

The exception, and what to check first

The second sentence of Article 854 carries an important qualification: if the omitted compulsory heir dies before the testator, the institution stands, without prejudice to the right of representation. The omission of someone who predeceased the testator does not undo the will, though that person's own children may still step into his place. Before anyone concludes preterition has occurred, read the whole will carefully — including any clause acknowledging children generally, any legacy however small, and any earlier codicil — and check whether the omitted child received a donation during the father's lifetime.

Cases citing this provision

These Supreme Court decisions cite the provision above. We list them so you can read them yourself; the summaries of what each decided are not ours to give.

• Nelfa Delfin Trinidad, et al. vs. Salvador G. Trinidad, et al, G.R. No. 254695, December 6, 2023 — read the decision on LawPhil →
• Flora L. Tubera-balintec vs. Heirs of Cesar L. Tubera, G.R. No. 235701, February 15, 2023 — read the decision on LawPhil →
• Araceli Mayuga vs. Antonio Atienza, G.R. No. 208197, January 10, 2018 — read the decision on LawPhil →
• Iris Morales vs Ana Maria Olondriz, et al, G.R. No. 198994, February 3, 2016 — read the decision on LawPhil →

Related provisions

• Civil Code, Article 854 — Preterition
• Civil Code, Article 886 — Legitime Defined
• Civil Code, Article 904 — The Legitime Cannot Be Taken Away