De la acción de reducción de los legados como vía de protección a una hija incapacitada judicialmente, legitimaria, preterida por el testador: a propósito de la sentencia nº 239 de 31 de mayo de 2013 de la sala de lo civil y de lo administrativo del Tribunal Supremo.

Regarding a daughter with Down syndrome, along with certain form of heart disease, which provokes her judicial declaration of disability, it is undoubted that if the father has not allocated goods in title of inheritance, legacy or through an inter vivos liberality as payment of her legitimas, that he had forgotten her. Hence, her condition as legitimaria heir or specially protected in respect to him results undeniable, as per article 493.1 a) CC and the International Convention of the Rights of People with Disability. In front of this situation, and given that the hereditary patrimony was distributed by legacies without establishment of any preferences in the will regarding any specific bequest, it is possible to interpret the article 495.1 CC in accord with the principle of favor testamenti in a way that it permits to preserve the allocations made in favor of the legatees where there is no excess from the part of free disposition and provide to the forgotten heir with the amount of the legitima resulting from the reduction of the legacies.