Article 1,862 of the Brazilian Civil Code (“CC“) establishes three types of wills: (i) the public will (testamento público); (ii) the sealed wiltl (testamento cerrado); and (iii) the private will (testamento particular), each with its own characteristics and formal requirements.
The public will is drafted by a Public Notary and read aloud in the presence of 2 witnesses.
As per the sealed will, as the name suggests, it is sealed before a Public Notary, in the presence of 2 witnesses, and returned to the testator. In any event, its content is unknown to the Public Notary and the eventual violation of its seal would lead to its annulment.
The private will, on its turn, is drafted and executed by the testator him/herself, without the assistance of a Public Notary. The private will must be read aloud previously in the presence of 3 witnesses, before its execution. Upon the death of the testator, the witnesses may be called in court to confirm the validity of the will.
Although private wills are not the most popular ones in Brazil, they turn out to be worthy in cases in which the testator wishes to keep secrecy of its content and existence.
Earlier this year, the Brazilian Superior Court of Justice (“STJ“) decided, under Special Appeal (REsp) No. 2,080,530, to enforce a private will whose witnesses were unable to confirm, in court, the testator’s intentions, the will’s date and form of execution.
In said case, two people filed a special appeal with the STJ after lower courts denied their request to register and enforce a private will.
However, in accordance with the STJ decision, flexibility is of essence in such cases, so as to concile, on one hand, the compliance with legal formalities and, on the other hand, the respect for the testator’s last will.
According to STJ, “the time gap between the will’s execution and its confirmation in court may be too long – years or decades later – making it impossible for the witnesses to attest specific details regarding the will”.
Thus, “the witnesses should either confirm that the will is effective or, at least, that the will was read before them, and the signatures apposed thereof belong to them and to the testator”.
Therefore, the lack of confirmation by the witnesses in regard to certain details involving the will’s execution circumstances should not render it unenforceable.
The above STJ decision is important because it ensures protection and effectiveness of the testator’s last will and confers legal stability for succession plannings, consolidating the strength of private wills.
