When planning and subsequently drafting one’s will, testators are, to a certain extent, able to bequeath their estate however, and to whoever they wish to. This is naturally, subject to a number of exceptions that are intended to safeguard legally sound continuity from one natural person to another.

The first step is understanding what exactly a will is. Article 588 of the Civil Code defines a will as an instrument, revocable of its nature, by which a person, according to the rules laid down by law, disposes, for the time when he shall have ceased to live, of the whole or of a part of his property.

Article 596 of the Civil Code goes onto explain that any person not subject to incapacity under the provisions of this Code, may dispose of, or receive property by will. Thus, the general rule is that anyone can inherit, except

There are also other exceptions contemplated by law, such as those not yet conceived or those not born viable. The law also makes it a point to emphasise that if children do not fall within the exceptions above-mentioned, all children whether born in wedlock, out of wedlock or adopted may receive will from the testator.

Another interesting exceptional provision is Article 605 which lists persons unworthy of receiving a will. These are persons who have

Such acts (and this is extended to accomplices) will render one incapable of receiving property under a will. However, if a person disqualified under the above-mentioned list has been rehabilitated i.e. forgiven by the testator, he may in that case, receive by will. Here, one can see the legislator’s humanity in attempting to incentivise the amelioration of hostile family relations.

Another peculiar exception derives from Article 611 which deals with the incapacity of members of monastic orders or of religious corporations of regulations cannot after taking the vows in the religious order or corporation, dispose or receive by will. They may, however, inherit a small life pension. Therefore, once a person has taken the respective vow, they can no longer dispose and/or receive.

Those testators who have the widest liberty in who they can dispose their will to are those who have no descendants or spouse. In that case, he may dispose either by universal or singular title of the whole of his estate in favour of anyone – as long as they are capable of receiving under a will, i.e. as long as they do not fall within the number of exceptions explained above, they may receive will.

The situation may get trickier when the testator has a surviving spouse and/or children as the choice regarding who is to inherit becomes slightly more restricted. This is where the Reserved Portion, commonly known as ‘The Legittima’ kicks in.

 Article 615 of the Civil Code defines the Reserved Portion as the right on the estate of the deceased reserved by law in favour of the descendants and surviving spouse of the deceased. Here, the law is interfering, albeit with good cause, in the testator’s full discretion in their testamentary dispositions.

The Reserved Portion is due to all children irrespective as to whether they were conceived or born in or out of wedlock of adopted. The portion reserved for children amounts to one-third of the value of the estate (i.e. all assets and liabilities of the testator) whereas if such children are not more than four in number and one-half of such if they are five children or more. This Reserved Portion is subsequently divided in equal shares between all children.

The surviving spouse also has the right to the reserved portion, as stipulated in Article 631 and 632 of the Civil Code, as follows

The law, naturally, does provide a very exceptional rule to this seemingly obligatory Reserved Portion by virtue of Articles 622 and 623 of the Civil Code. Other than an heir being deemed unworthy through Article 596, the persons entitled by law to a reserved portion may be deprived thereof by a specific declaration of the testator on any of the grounds specified in this Code, to be stated in the will. The grounds for disherison are immensely specific, which reflects the exceptionality and gravity of such circumstances.

These grounds are laid out in Article 623 where the law clearly notes that it is under these grounds only where a descendant may be disinherited

Moreover, other than the onerous requirements, the law requires that the testator alleging disherison must prove that the descendant satisfies at least one of the grounds.

What does this all mean? Say a testator, Paul, passed away and was survived by his spouse, Maria and his two children Sarah and John. To an extent, Paul may bequeath his estate to whoever he wishes. However, once he is married and has two children, he is, generally, restricted by the Reserved Portion. In this case, 1/3rd of his estate is reserved for his two children, which is to be divided equally between them and 1/4th in full ownership for his wife, Maria. Naturally, should Maria and Paul separate and renounce their testamentary rights over the other, this 1/4th will be absorbed by the children’s portion.

Paul has separated from his wife and consequentially, has a relatively hostile relationship with his children, and is far closer to his nephew, Matthew and would rather institute Matthew as his universal heir.

Unless Paul can prove that any of his children are either unworthy or ought to be disinherited specifically based on the grounds laid out by law, should Paul institute Matthew as his heir (or even co-heir), Matthew must deduct the Reserved Portion due to Sarah and John from the total inheritance.

Should Paul institute Matthew as his universal heir, i.e. his only heir, Sarah and John as Paul’s children may, following Matthew’s inheritance of their father’s estate, have a judicial right to call upon Matthew to transfer their Reserved Portion due. Should Paul pass away and, in his will, allege that Sarah and John satisfy one of the grounds of unworthiness and disherison, and Sarah and John challenge such allegations, it is up to Matthew as universal heir to prove that the listed grounds are satisfied.

Succession and inheritance can often open unhealed wounds that may potentially cause legal disputes following the death of a testator. Hence, the legislator attempts to intervene and as much as possible, maintain a level of legal continuity whilst safeguarding the rights of all those involved.