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The will is one of the main instruments of estate succession, since it expresses the wishes of the deceased person regarding the destination of their assets. Even so, disagreements in the partition proceedings are not rare, and may even lead some heir to contest the will.
However, from the legal point of view, disagreeing about the manner of distribution of the inheritance is not sufficient grounds to contest or annul the document. As Max Bandeira, of Bandeira Damasceno Advogados, explains, the challenge of a will is only admitted in cases expressly provided for in the Civil Code.
InfoMoney spoke with specialists about the aspects involved in contesting a will: the main reasons, how and when to do it, among others. Continue reading and learn more about the subject.
When can the will be contested?
Among the most common situations that may lead to the contestation of the inheritance provisions are the following:
Incapacity of the testator
The will is only valid if the testator is of perfect discernment at the time of its drafting.
As Alberto Feitosa, of Lassori Advogados, observes, art. 1,860 of the Civil Code establishes the minimum age of 16 years for a will to be made, but does not establish a maximum. In other words, it is sufficient that the testator be of perfect discernment in order to be able to make a will, even before civil majority.
Defects of form
For each type of will (public, sealed or private) there are specific formalities. When one fails to comply with any of these particularities, we have the so-called defect of form in the document.
Defects of consent
Defects of consent may also invalidate a will. Normally, they contemplate situations related to fraud (dolo), coercion or simulation.
Fraud occurs when someone intentionally induces the testator into error, manipulating their will, while coercion involves situations of physical or psychological pressure. Simulation, in turn, takes place when the testator declares a will different from their true intention, in order to attempt to produce legal effects different from what is written.
In this sense, Alberto Feitosa highlights three contexts in which simulation tends to be used. The first of them is when the testator wishes to indirectly favor someone, but does not want (or cannot) leave them as an heir. The second is when one tries to circumvent the forced share (legítima), that is, the portion that must obligatorily go to the necessary heirs.
“Finally, simulation may also have the objective of disguising the patrimonial intention, such as hiding assets from creditors or from other heirs,” says the attorney.
Prohibited clauses
Returning to the forced share (legítima), its disregard is a classic example of what is prohibited in the will, since the testator may only freely dispose of half of their assets.
Substantial error
The substantial error involves some mistaken perception by the testator regarding reality, whether in relation to the object or to the person benefited.
Substantial error
The substantial error involves some mistaken perception by the testator regarding reality, whether in relation to the object or to the person benefited.
“For example, disposing of a property or allocating assets to someone whom the testator believed to be alive constitute this type of error,” explains Max Bandeira.
Existence of a later will
If there is a more recent valid will, it has the power to revoke the previous one, in whole or in part. In this case, the contested document produces no effects, since it was superseded by the more recent one.
What is the deadline to contest the will?
As a rule, the deadline for contesting a will is five years, counted from its registration.
Who may contest a will?
Heirs, the surviving spouse, creditors of the estate and even the Public Prosecutor’s Office (Ministério Público) – if there are incapable persons involved – may challenge a will.
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