29/8/2024
A last will can reveal itself as a very helpful tool in the succession context, due to the fact that, in Brazil, it allows the testator to: (i) indicate which assets should be assigned to which heirs; (ii) establish the so called “Cláusulas Restritivas”, which aim to maintain certain or all assets free of community of property regime (incomunicabilidade), free of any lien (impenhorabilidade) and/or to limit the heirs right to transfer the assets property to third parties (inalienabilidade); (iii) include third parties, non-heirs, as beneficiaries of the estate (subject to the limits established by law); (iv) appoint a legal guardian for his/her children, considering the occurrence of the parents simultaneous death; and (v) appoint a special administrator in regard to assets assigned to his/her children who have not attained the age of eighteen at the date of his/her death.
It is known, however, that it is increasingly common for certain families to have assets and/or heirs in more than one jurisdiction. How does it affect the enforceability of last wills? What formalities should be observed? Which law should apply? Should a last will be executed in Brazil, in a foreign jurisdiction or in both?
According to the principle of locus regit actum, in order to be enforceable and valid, a last will should comply with the legal requirements of the jurisdiction in which it will be executed. Thus, a last will executed in Brazil must comply with the Brazilian legal requirements on this matter. Brazilian law establishes three types of will: (i) the notarial will (testamento público); (ii) the sealed will (testamento cerrado); and (iii) the private will (testamento particular), each with its own characteristics and formal requirements. The notarial will, for instance, is drafted and executed before a Public Notary and read aloud in the presence of 2 witnesses.
According to Article 17 of Decree-Law No. 4,657/1942, also known as the Law of Introduction to the Rules of Brazilian Law (“LINDB”), any last will must respect Brazilian national sovereignty, public order and good customs.
Regarding the applicable law, Article 10 of LINDB establishes that: “Succession by death or absence shall be governed by the law of the country in which the deceased or missing person is domiciled, regardless of the nature and location of the assets.”.
In other words, in the event of death of a Brazilian resident individual, the rules regarding forced heirship, last wills drafting and probate proceedings, for example, will be those established in the Brazilian law, regardless of the location of the assets and/or the domicile of the heirs.
On the other hand, in the event of death of an individual resident abroad, who leaves assets located in Brazil, the succession should be governed by Brazilian law for the benefit of the Brazilian spouse and/or children, except if the deceased’s personal law is more favorable to them.
Furthermore, according to Paragraph 2 of Article 10 of LINDB, “the law of the country where the heir or legatee is domiciled governs the capacity to succeed”.
Therefore, if there are assets and/or heirs abroad, despite being possible and advisable to draft and execute a last will in Brazil, it is essential to observe the foreign jurisdiction successions law, in order to assure the last will enforceability, especially in relation to assets located abroad and/or heirs domiciled abroad.
Coauthored by: Marcelo Trussardi Paolini, João Victor Guedes, Isabela Rodrigues Alves de Sá e Silva and Camila Caçador Xavier
