A reader, who is legally separated from his wife, has been living for the last five years with another woman. He has two children from his marriage, who have no longer shown him any respect as their father since the day he began his new relationship. He now intends to bequeath most of his estate to his partner and leave his children only a small sum.
What is his position at law?
Much depends upon whether the inheritance that the reader intends to bequeath to his partner would be more than the disposable portion of the testator's 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 section 616 (1) of the Civil Code, the legitim due to the children, shall be a third of the property of the deceased, if the children are not more than four.
Therefore, since the reader has two children, at least one-third of his estate shall be bequeathed to them. This portion shall be divided equally among the two children. Furthermore, the legitim shall be due in full ownership and 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 partner 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:
(i) all the property of the testator existing at the time of his death shall be formed in one whole bulk after deducting the debts due by the estate;
(ii) 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;
(iii) 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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