CUESTIONES LITIGIOSAS SOBRE LA PRETERICIÓN INTENCIONAL Y ERRÓNEA: EFECTOS Y CONSECUENCIAS DE LA TUTELA DE LA LEGÍTIMA CUANTITATIVA SOBRE LA SUCESIÓN TESTAMENTARIA.

Abstract

Preterition, like relegation and omission, has its own sphere in matters of wills and reserved portions, specifically, in its quantitative intangibility. The institution of preterition, whose origins lie at least nominally in Roman law, underwent a most significant change in 1981. The main purpose of Act 11/1981 of 13 May was to adapt the terms of the Civil Code to the Constitution. By virtue of that act, as far as preterition was concerned, issue not of a marriage were placed on an equal footing with issue of the marriage. At the same time, the new wording of article 814 incorporated intentional preterition and erroneous preterition. These two concepts are characterised by the different effects they have. The effects of the former are restricted to the forced heirs and withdrawal of an heir's reserved portion. Those of the latter are limited to the descendants and are capable of annulling testamentary provisions concerning assets and even the naming of heirs. In short, before and after this reform, preterition consisted in failure to mention in the will one or all of the persons entitled to a reserved portion. This paper examines these conceptual and legislative foundations and reviews case law on the most litigious issues concerning the definition, time and effects of preterition. The paper also discusses the retroactive nature of article 814 for non-matrimonial issue pretermitted in wills made before the Constitution took force.