Content published on the website and in the print edition of the newspaper Valor Econômico:
By Adriana Aguiar (Valor)
The São Paulo courts authorized the daughter of a businessman, who died in 2017, to remain as administrator of the family business, in which she holds a 1% interest – the remainder belongs to the father’s estate. The decision is from the 1st Business and Arbitration Disputes Court of the capital.
The daughter turned to the Judiciary after the estate administrator, the father’s partner, removed her from the position. The couple’s stable union was recognized during the course of the businessman’s probate proceedings, who left three heiresses, among them the administrator of the company.
“The partner, two hours after being appointed estate administrator, called a meeting and decided to remove the remaining shareholder with a 1% interest in the company, without any justification”, says lawyer Glauber Ortolan, partner at the firm Lassori Advogados, who represents the heiress in the proceedings.
In the proceedings (No. 1034123-37.2019.8.26.0100), the businessman’s daughter argues the irregularity of the convening of the meeting. The legal deadline for convening a shareholders’ meeting, which must be eight days in advance, would not have been observed. She further argues that the act is harmful to the company and exceeds the purpose of the estate administrator’s functions.
The argument was accepted by Judge Rogério Murillo Pereira Cimino, of the 1st Business and Arbitration Disputes Court of São Paulo. He granted the early relief (a type of injunction) sought by the plaintiff to keep her in the position.
In the decision, the magistrate states that, “notwithstanding the estate administrator’s proprietary interest in verifying the company’s accounts, it is not lawful for her to interfere in its administration, nor to make any alteration of the corporate bylaws as indicated in the notification, until the conclusion of the probate, partition of the shares, and eventual admission as a partner, which the articles of association grant to the remaining partner”.
According to Ortolan, the estate administrator would not have the power to remove the remaining partner from the position of administrator. The probate, he explains, is still being discussed and she, in her capacity as estate administrator, should safeguard the assets of the estate. “Without intervening in the company before concluding the probate”, the lawyer states.
The decision, he adds, is important because it is the first of its kind and reinforces that the estate administrator cannot take any action that harms the company. “She has the right to receive the rendering of accounts, but does not have the right to interfere in the company because there is an administrator for that purpose”, says Ortolan.
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