Why a will can be null if you are unaware that you have several heirs

A will may be worthless if the testator did not know they had more than one heir. The error is not just bureaucratic; it directly affects who receives the inheritance and how it is distributed.

Blanca Palmero, a lawyer at Vilches Abogados, explains what happens when a forced heir is unintentionally left out and how the law regulates this delicate situation.

The key concept: preterition and its importance

What is preterition?

Preterition is the omission of a person who, by kinship, has the right to be an heir and does not appear in the will. This can happen due to ignorance or forgetfulness and directly affects the validity of the will.

This error often occurs when an unknown child or heir appears after the will was made or when there are family changes not reflected.

Differences with disinheritance

Preterition is not the same as disinheritance, which is a voluntary and explicit decision to exclude an heir. In contrast, preterition is not including an heir unintentionally.

Therefore, the law protects these forgotten heirs so they do not lose their rights due to an error or ignorance.

Forced heirs, legitimate portion, and legal consequences

Who are the forced heirs?

The Civil Code establishes that descendants, ascendants, and spouses are forced heirs, entitled to a minimum part of the inheritance, called the legitimate portion.

Ignoring these rights can annul parts of the will or the entire will, depending on the case.

Impact of omitting an heir

If a forced heir is forgotten, the corresponding share of other heirs is reduced to guarantee their legitimate portion. If the omission is total (other forced heirs are also omitted), the will is considered null and the inheritance is distributed as if the will did not exist.

Intestate succession then applies, which can radically change the intended distribution.

Intentional and unintentional preterition: how each affects the situation

Intentional preterition

When someone knows they have an heir and decides not to include them, the right of the forgotten heir is respected by reducing other shares and legacies. This is a dispute that can end in court to guarantee the legitimate portion.

In this case, the testator cannot avoid the minimum share the law recognizes for the forgotten heir.

Unintentional preterition

When the omission is due to ignorance or forgetfulness (for example, an unknown child), the testator did not know there were more heirs. This can cause the will to be declared null if all forced heirs have been forgotten.

This is one of the most common causes of conflict in inheritances that apparently seemed clear.

For this reason, lawyer Palmero always recommends consulting specialists to avoid such an error causing an entire will to disappear.