Preterition in partition of estate

In case there is an allegation that not all the known heirs of the decedent participated in the extrajudicial partition, and one or some who participated and were made parties thereto were not actually heirs, proof of such allegation would not automatically warrant rescission of the deed of partition. Under Article 1104 of the Civil Code, "[a] partition made with preterition of any of the compulsory heirs shall not be rescinded, unless it be proved that there was bad faith or fraud on the part of the persons interested; but the latter shall be proportionately obliged to pay to the person omitted the share which belongs to him." If there is no evidence of bad faith or fraud, rescission would not prosper. (G.R. No. 128102, March 7, 2000)

As to the party or parties to the deed who are allegedly not actually heirs, Article 1105 is in point; it provides: "A partition which includes a person believed to be an heir, but who is not, shall be void only with respect to such person." In other words, the participation of non-heirs does not render the partition void in its entirety but only to the extent corresponding to them. (G.R. No. 128102, March 7, 2000)

Article 1103 provides for an analogous rule for omission of objects or securities in the inheritance. "The omission of one or more objects or securities of the inheritance shall not cause the rescission of the partition on the ground of lesion, but the partition shall be completed by the distribution of the objects or securities which have been omitted." (Civil Code)

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