According to the decision of the 3rd College, “in his act of last will, the communicator presented the intention to dispose of all his assets”
The 3rd class of Superior Court of Justice (STJ) decided this Tuesday 20 to reinstate the sentence that validated the will left by the presenter Gugu Liberated decide on the total assets. In his will he would leave 75% to his children and 25% to his grandchildren.
For the college student, the communicator intended to dispose of all his assets and not just the available part. This is because, in the disposition deed, he repeatedly referred to all of his assets.
According to the decision, “when the testator (Gugu) speaks of 25% of the total estate, he indicates his intention to provide for the division of the rightful to his three necessary heirs, which he was not prohibited from”.
Gugu, in his last will, presented the intention to dispose of all his assets, also according to the STJ. Which he did, attributing 100% of the legitimate rights to the three necessary heirs, his three children, corresponding to 50% of his total assets. Furthermore, he also left 50% of the available share, i.e. 25% of the total assets, to his children. Another 25% went to the five grandchildren, heirs in wills. The judgment understood that the will was faithful to the law. The TJ/SP ruling reversed the decision.
The rapporteur, Minister Nancy Andrighi, highlighted that “although the isolated and literal interpretation of art. 1.857, § 1, Criminal Code suggests that the legitimate of the necessary heirs cannot be subject to testamentary provision, this provision must be considered together with the others that regulate the matter, and which demonstrate that this is not the best interpretation of the law”.
“There is no impediment that the unavailable part intended for the necessary heirs appears and is referred to in the public deed of the will by the author of the inheritance, provided that this does not involve deprivation or reduction of that part that the law assigns for this class of heirs “Nancy said.
The minister also highlighted that the will can indicate the “legitimate of the necessary heirs, because it is lawful for the author of the inheritance, while alive and from the beginning, to organize and structure the succession, provided that it is mentioned precisely to allocate half or more unavailable to said heirs without deprivation or reduction of the share due to them by law”.
“By examining the testamentary disposition transcribed in the sentence, it is concluded that the testator intended to dispose of all of his assets and not just the available part. This is because, in the deed of disposition, the testator has repeatedly referred to his entire assets. also when it promoted the division of percentages between children, necessary heirs who had their legitimate respect, and grandchildren who were testamentary heirs”, highlighted the speaker, adding that the decision was unanimous.
The lawyer representing Gugu’s daughters will appeal
Attorney Nelson Wilians, who represents Gugu Liberato’s daughters, Marina and Sofia, in the judicial process over the property dispute, said on Tuesday that he respects the decision of the 3rd Panel of the Superior Court of Justice, but will appeal.
“The ministers decided to overturn the correct decision of the Court of Justice of São Paulo which had reduced the testamentary disposition, so that the will left by the presenter Gugu Liberato complied with the provisions of the law and the jurisprudence of the STJ himself. In the will, he disposed of 100% of all his assets, without respecting the rightful part of the children,” Wilians said, in a statement.
“According to Brazilian law, the testator must protect half of all his assets (lawful part) and can dispose of the other half (available part) only in a will,” he continued.
According to the lawyer, the decision contradicts the express provision of the specific legislation and also the jurisprudence of the Court itself. “It is a violation of a precept of public order, which opens precedents and brings legal uncertainty to the Brazilian judicial system,” he said.
“If it had been the intention of the presenter Gugu to leave 25% of the total, he would have tested 50% of the part available to the grandchildren and not 25%”, assessed Wilians, adding that the process of recognizing the stable union, moved from widow Rosa Miriamcontinue normally.
Source: Terra
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