The contestation of last will and testament dispositions in inheritance law and its impact on the autonomy of the deceased

Abstract

This article analyzes the contestation of wills in the Brazilian legal system and its impacts on the autonomy of the testator’s will. The central question is: to what extent can heirs contest a will without compromising the testator’s autonomy? Using historical, documentary, bibliographic, and jurisprudential methods, the research is structured in two development sections, and is limited to the norms in force in the Brazilian Civil Code, and to doctrinal and jurisprudential positions, especially decisions of the Court of Justice of Rio Grande do Sul (TJ/RS) and the Superior Court of Justice (STJ), highlighting the main grounds used to invalidate or uphold testamentary provisions. The study concludes that, although a will is a legitimate instrument for expressing one’s will, its validity can be questioned in the face of formal defects, provisions contrary to the law, or harm to necessary heirs, revealing the complex articulation between individual freedom and inheritance protection. However, the Superior Court of Justice (STJ) has established a position, based on the theory of apparent authority and the principle of in dubio pro capacitate, that the non-observance of certain formalities cannot necessarily lead to the invalidity of a will, provided that it is possible to unequivocally ascertain the free and conscious will of the testator. Excessive formalism should not prevail over the autonomy of will, in order to preserve the social function of the will and the application of the principles of good faith and legal certainty.