A man, who is legally separated, has been living for the last few years with another woman. He has two children from his marriage, who have broken off relations with their father since the day he began his relationship with this new friend. The man now intends to make a will and bequeath the bigger part of his estate to his companion and leave his children only a small sum. What is his position at law?

Much depends upon whether the testamentary disposition that the man intends to bequeath to his friend would be more than the disposable portion of his property, thereby violating the legitim due by law to his descendants.

Legitim is that portion of the property of the deceased, which is saved by law to the descendants, and on failure of descendants, to the ascendants of the deceased. According to the Civil Code, the legitim due to the children shall be a third part of the property of the deceased, if the children are not more than four. This portion shall be divided in equal shares among the children participating in it. Furthermore, the legitim shall be due in full ownership and it shall not be lawful for the testator to encumber it with any burden or condition.

When computing the amount due as legitim, one must take the whole of the estate and subtract from it the debts due by the estate and the funeral expenses. If the testamentary disposition that the reader intends to bequeath to his friend exceeds the disposable portion allowed by law, it shall be liable to abatement limitedly up to that portion, at the time of the opening of the succession, provided that the demand is made within ten years from the day of the opening of the succession.

For the purposes of determining the abatement, the following rules shall be observed:

(a) all the property of the testator existing at the time of his death shall be formed in one whole bulk after having deducted therefrom the debts due by the estate;

(b) any property which has been disposed of by way of donation shall be then fictitiously added, movable property being reckoned at its value at the time of the donation, and immovable property according to its condition at the time of the donation and its value at the time of the death of the donor;

(c) the disposable portion shall then be computed according to the estate thus formed, regard being had to the rights of such persons as are by law entitled to a share of the estate of the testator.

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