CIVIL LAW REVIEW I – ATTY.

LEGARDA

Balanay v Martinez AUTHOR: Tan, Louis

[G.R. No. L-39427; June 27, 1975] NOTES:
TOPIC: Preterition
PONENTE: J. Aquino
CASE LAW/ DOCTRINE: For preterition to produce intestacy, the preterited heir must be a compulsory heir in the
direct line. Therefore, a preterition of the husband does not produce intestacy.

FACTS:
 Leodegaria Julian died and was survived by her husband and 6 legitimate children.
 Felix Balanay Jr., her son, filed a petition for the probate of her notarial will.
 In her will, she stated that she was the owner of several lands, and that she wanted her properties not to be divided
during the lifetime of her husband, Felix Balanay Sr. She devised and partitioned the conjugal lands as if they were
all owned by her, disposing her husband’s ½ share of the conjugal assets.
 Felix Balanay Sr. opposed the probate of the will on the grounds of preterition.
ISSUE(S): WON the husband was preterited.

HELD: No.

RATIO:
 The probate of a will might become an idle ceremony if on its face it appears to be intrinsically void. Where
practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated,
the court should meet the issue
 The instant case is different from the Nuguid case, supra, where the testatrix instituted as heir her sister and
preterited her parents. Her will was intrinsically void because it preterited her compulsory heirs in the direct
line.
 In the instant case, the preterited heir was the surviving spouse. His preterition did not produce intestacy.
Moreover, he signified his conformity to his wife's will and renounced his hereditary rights. .
 It results that the lower court erred in not proceeding with the probate of the will. Save in an extreme case
where the will on its face is intrinsically void, it is the probate court's duty to pass first upon the formal validity
of the will. Generally, the probate of the will is mandatory.
 Testacy is favored. Doubts are resolved in favor of testacy especially where the will evinces an intention on the
part of the testator to dispose of practically his whole estate. So compelling is the principle that intestacy should
be avoided and that the wishes of the testator should prevail that sometimes the language of the will can be
varied for the purpose of giving it effect.
DISSENTING/CONCURRING OPINION(S):