10/30/2021
In a pandemic context, an increasing concern amongst individuals and their families regarding succession related matters has been noticed, generating a wider search for wealth planning strategies and structures, one of which is the execution of a will.
Although last will provisions constitute a versatile and effective tool for wealth and succession plannings, it is important to analyze the impacts arising from a possible predecease of an heir and/or legatee contemplated in the last will, case in which the intention of the deceased may not prevail, failing to be enforced.
A predecease event occurs when an heir and/or legatee dies before the testator.
The consequences of a predecease –for purposes of this analysis – are: (i) the right of representation (“direito de representação”); and (ii) the lapse of last will provisions.
The “direito de representação”, as established in Article 1,851 of the Brazilian Civil Code (“CC”), consists of the direct succession right, by means of which relatives close to the deceased, in a descending line, are called to succeed him/her.
Thus, if an heir dies before the testator, the descendants of the deceased shall be called to substitute him/her. It is the case in which grandchildren are indicated to substitute the corresponding parent, in connection to the succession of one of their grandparents, inheriting exactly what the parent was initially entitled to as an heir, if he/she was alive.
However, the “direito de representação” only applies to legal succession, never to testamentary succession.
The question that arises now is: in a testamentary succession context, which will be the applicable rules in case of predecease of an heir or legatee to whom assets have been assigned?
If the last will does not indicate a substitute for that predeceased heir or legatee, the last will provision that conferred a portion of the estate to the predeceased heir or legatee shall be considered null and void. As a result, the portion of the estate previously entitled to the predeceased heir or legatee shall be added to the equal co-heirs and/or co-legatees portion, in accordance to Article 1,943 of the CC.
Therefore, it is possible that the deceased wishes and intentions under the last will provisions shall not be eventually respected, specially in regard to assets division amongst the heirs and/or legatees, reason why it is highly recommended that the testator indicates, on the last will provisions, a substitute to his/her heir(s)/legatee(s), or, if such alternative is not possible, that a new last will is drafted and registered, should a predecease event takes place.
Coauthors: Isabela Rodrigues Alves de Sá e Silva and Marcelo Trussardi Paolini
