Disinheritance of Legitimaries: Criteria
The AP Barcelona points out that disinheritance requires that the disinherited person be attributed an action or omission that the law typifies as sufficient to deprive him/her of the legitimate share and that this action or omission occurred before the will was granted. But in addition, this requirement implies the existence of the disinherited at the time when the will of exclusion is formalized in the will, which does not occur in this case with respect to the grandchildren, who are the heirs of the disinherited and also have rights.
The lawsuit raises the question of whether or not the cause of disinheritance of article 451-17-2, letter e) of the Codi Civil de Catalunya is applicable and whether the evidence presented shows that this cause exists.
The Court considers that disinheritance requires that an action or omission be attributed to the disinherited person that the Law typifies as sufficient to deprive him/her of the legitimate share, and that it has occurred before the will is granted. But in reality, this requirement implies, in addition to the identification of the affected legitimate and the expression of the “causa disinheredationis”, the existence of the disinherited at the time when the will of his exclusion is formalized in the will.
The cause of disinheritance consists of “the manifest and continuous absence of family relationship between the testator and the legitimate, if it is for a cause exclusively attributable to the legitimate”. This cause is based on the social reality in which many children lack relationship with their parents for a long time and on the correlative will, observed in real practice when granting wills, of parents who wished to deprive their children of their legitimate rights because there had been no relationship with them and they preferred to give the assets to other relatives.
Doctrinal requirements
According to the doctrine, the following requirements must be met to disinherit for this reason:
- Lack of family relationship between the deceased and the beneficiary
For this absence of relationship to exist, it is necessary that there is no contact between the testator and the disinherited, that they have ceased to see each other, their lives going their separate ways. There may have been a non-family, commercial or professional relationship. The law does not require a minimum time of absence of contact, but it must be significant according to the circumstances.
2. Continuous and manifest
It must be successive in time, and a mere temporary interruption for professional, educational or similar reasons is not sufficient. Also, this lack of relationship must be manifest, which requires that it is an evident absence and, therefore, that it is known by third parties close to the family environment of the parties.
3. That it is due to a cause attributable exclusively to the beneficiary
This imputability of the successor in title can be due to multiple reasons. It is almost certain that one person as well as another can allege multiple motives, more or less justified, but in the end what remains with the passage of time is the fact of the lack of relationship and it is this lack of relationship that provokes the existence of the possible cause of disinheritance.
In the present case, it has been fully accredited that the absence of family relationship has been constant and continued over time, there being a deep disagreement between the plaintiff and her mother since June 2014, when the daughter expressly refused to take care of the mother the month she was entitled to, conduct that thereafter was maintained by the plaintiff, who did not even go to visit her mother during the times when she was admitted to several hospitals.
However, it is not considered proven that the disinheritance is fair with respect to the grandchildren, who would replace their mother by right of representation. The circumstance that the grandchildren only saw the grandmother for Christmas does not justify that the absence of relationship was imputable with respect to them, so that they succeed by right of representation by lineage to their mother, rightly disinherited, and, therefore, when occupying their position they will have the right to the part of legitimate that corresponds to them, which will be the equivalent amount that would have corresponded to their mother.