1. GENERAL DOCTRINAL NOTIONS
At first it is necessary to bring up the law of succession was covered by modifications of the CC, where inheritance was also modified.
As regards the legitimate part to be shared and their likely brought the same receptors as a novelty the inclusion of the surviving spouse in the list of heirs needed (1,845), in competition with the descendants (art. 1,829, I) and, in the absence of these, with the ascendants (art. 1,829, II), being sure that the part is unavailable from legitimate remains, according to the provisions of arts. 1,789, 1,846 and 1,857, § 1 of the civil code by Wills Trusts LPA UK.
This principle was already renowned in the Code repealed, in your articles and 1,721 1,576 that reserved also legitimate heirs, entitled to half of the property of the author of the inheritance. It is true that the CC, in transitional provision (2,042) notes the testator within one year, so that the will shall be done on the validity of the old law, in order to declare just cause the bet legitimate clause. It is important to note that the justification refers only to reduce taxes levied on goods that comprise the legitimate heirs needed, going on, therefore, full freedom to enforce the liens, without any justification to goods the tester determines that leave your half available (1,846, 1,857, §1 and 1,966 of CC).
This treadmill in your art. 1,848, §1, is sealed to the tester to determine the conversion of legitimate goods in other diverse species. That provision was tolerated by the art. 1,723 of substantive civil law. As the forms will already known the same have not been modified, these being: public, and private. With respect to the list of special forms of Testament, the CC added the testament to maritime and military wills Aviation already present in the current status. So, we want to briefly discuss the types of Testament provided for in Civil Code of law, which are designed to: divided into: ordinary, arts. the 1,885 1,862 (the public, the statement and the particular), codicils, arts. the 1,885 1,881, and special, arts. the 1,886 1,896 (the sea, the aeronautical and military).
2. LAST WILL & TESTAMENT WITNESSES TESTAMENTS
The witnesses are the testamentary subjects who have made gifts to the test and has the function of ensuring the freedom to test and ensure the veracity of the provisions.
Cannot be witnesses:
a) the smallest 16 years) (art. 3 (I) of CC)
b) patients with serious physical or mental illness, which prevents the discernment (art. 3, II c/c art. 228, CC II); c) the legatee (1,801, II, CC)
d) the heir instituted (art. 1,801, II, CC) and their ascendants, descendants, brothers, uncles, nephews and spouse, as well as s relatives to the third degree (art. 228, V, CC) and) the blind and the deaf, when the science of the fact that if you want to taste depends on the directions that they lack (art. 228, III, CC) f) the Blind (art. 228, III, CC).
3. The will As the nature of the will is a legal business, its assumptions or external or extrinsic requirements: a) the capacity of the testator; b) legitimisation to test; c) legality. On the other hand are internal or intrinsic requirements: the private autonomy of the testator); the suitability of the operation (Testament may be ordinary or extraordinary; c) suitability of the form (external and internal); d) final cause licit. It is forbidden the will be simultaneous, reciprocal, connective or correspond is strictly prohibited, although I don't find it. And, starting from this assumption, there is no need to talk about two people doing the same will, in the form of agreement as to succession. Expires in five years the right to challenge the validity of the will, the term of your registration date.
4. ORDINARY FORM of WILL
Ordinary wills are:
(I) the public; II-the correspondence; III-the private.
5. The PUBLIC WILL
The first kind of Testament referred to in CC is the so-called public Testament, art. 1,864 to 1,867, so-called because it made by notary of notes, which, as the Law 8. 935/94, it has exclusive competence for this Act. In this way, is the document of credibility and seriousness, in addition to a formal rigour.
The title "testament", doesn't mean it's open to the public, but the formality of your development, obviously, that the provisions of the testator should only be made public after your death, since, in addition to the determinations in order asset may contain personal information, as a recognition of an adulterous child, for example.
For being a solemn act, must be accompanied on your completeness by at least two witnesses, and registered in a proper book. The tester said to the officer your last will, the recording can be written or mechanically, and currently also admitted the form entered, followed by the reading of that record is performed by notary, or by the testator, out loud and in front of this previously quoted group, after the document is signed by the testator, the witnesses and the official.
The place where the will is prepared is the notary's Office generally obeyed the domicile of the testator, there is no reason, however, that the testator to choose the notary's Office of another city, if you so prefer. In exceptional cases, under the conditions and circumstances, for example, the tester's hospitalisation in a hospital, be effected at the place where the patient, being registered in the document, it observed, even in this situation, the area of jurisdiction of the notary, to not make the Act null. For the case of Brazilians abroad, will be able to do it in front of the consular officer, as art. 18 the LICC (introduction to the Civil Code). With regard to witnesses, restrictions resume direct to the persons concerned, i.e. the ascendants, descendants, brothers and the spouse of the testator. Not mutually exclusive to the illiterate public will and the disabled AIDS and the visuals, but there are special rules for these cases, provided for in art. 1,867 1,865, and 1,866.
5.1.
Are essential requirements of the public will:
I-be written by notary or by your legal substitute in your notebook, according to the statements of the testator, may use draft, notes or notes;
II-denominated instrument, be read aloud by the notary to the testator and the two witnesses, both; or by the testator, if you want, in the presence of these and of the officer;
III-be the instrument, then reading, signed by the testator, the witnesses and the notary. The public will can be written manually or mechanically as well as being done by the insertion of the living will in parts printed grade book, since initialled all pages by the testator, if more than one. If the tester does not know, or cannot sign, the notary or your legal substitute shall so declare by signing, in this case, by the testator, and, your signature, one of the witnesses instruments.
The individual entirely deaf, knowing read, read the your will, and if you don't know, will designate who read in your place, present witnesses. To the blind only allows the public, which will be read out loud, twice, once by the notary or by your legal substitute, and the other by one of the witnesses, designated by the testator, doing anything Testament mention in detail. Is null the will drawn up to party of one-word answers provided statement Tester (the so-called Testament INTERROGATION), because his will should be presented unambiguously and divorced from any influence, albeit indirect .
6. TESTAMENT CORRESPONDENCE
As for the will, or to some secret (testamentary card is integrated), it should be noted that, as the name betrays, it is a closed document, written by the testator, or by someone your behest, and signed by that, as provided for in art. the 1,868 1,875 of CC. The writing can be, or mechanics, or by typing in the case of these last two, should be all sheets numbered and signed by the testator.
The statement will must be written by the testator, or by someone else, your signature, and that signed, will be valid if approved by notary or your legal substitute, observed as follows: I-that the testator delivered to the notary in presence of two witnesses; II-that the testator stating that that is your will and you want it to be approved; III-the notary register therefore the auto approval, in the presence of two witnesses, and read, then the testator and witnesses; IV-the auto approval is signed by the notary, by witnesses and by the testator.
The Testament document can be written mechanically, since your subscriber number and log in with your signature, to all the pages. If the notary has written the testament to beg of the testator, may nevertheless, approve it. The Testament can be written in the national language or foreign, by the testator, or by others, I beg your The document should be taken to the notary, that before two witnesses, tilling the term of approval, registered shortly after the last line of the will, which will signed by him, by witnesses and by the testator.
The notary must start the auto approval immediately after the last word of the testator, declaring, under your faith, that the testator delivered to be approved in the presence of witnesses; passing the close and sew the approved instrument. If there is space on the last leaf of the will, for early approval, the notary shall enter on it the your public sign, mentioning the circumstance in the auto. This term of approval, or approval, aims to certify that the document delivered is authentic. If the will has not been drawn up by the testator, but for someone your pray, that person cannot be included as a beneficiary, even if through an intermediary (ascendant, descendant, brother, spouse or partner).
Since the art. 1,872 predicts that they will not be able to have your goods those who do not know or cannot read, are prevented from testing through Savannah the illiterate and the disabled, because they cannot see or read the transcript, to make sure if that was dictated is registered by one who, to your signature, drafted the document, since the deaf and dumb, can make Testament report, as long as the type, and the sign of your hand, and deliver it to the public official, before the two witnesses, write, on the outside surface of the paper or wrap, that's your will, which asks you. Once approved and report, will be handed over to the testator's will, and the notary will launch, in your book, note of the place, day, month and year in which the will was approved and delivered Opening the document, of course, after the death of the author, will be the judge, before the person who introduced him and Registrar. Made the authenticity checks, send the judge, after hearing the public prosecutor, record, archive, and full-fill the will, as art. 1,875.
7. WILL PARTICULARLY
Private, or private will, or also called by some scholars of holographic will (of holograms, whole and graphic, write), is laid down in art. 1,876, CC, FF, has as main characteristic the need to be written in his own hand by the testator, however, by making your mechanical process (typed), or; in the wake of modernity, be typed (of course that should be printed, because the document has to be signed on all sheets by the testator).
The CC stipulates in art. 1,876, which "The Testament particularly can be written in his own hand or by a mechanical process. 1 written in his own hand, are essential requirements to your validity to be read and signed by who wrote it, in the presence of at least three witnesses, who must subscribe to; 2 prepared by mechanical process, cannot contain erasures or white spaces, and must be signed by the testator, after having read in the presence of at least three witnesses, who subscribe.
" According to the above mentioned Institute, in one of the forms of Scripture of the will, this should be signed by the testator and signed by at least three witnesses. The caveat is particular about the will done mechanically, that there can be any kind of blur, erasure, or white space. For your validity in both cases referred to above, is required, in addition to the transcription of the will, the reading of this text by the testator before at least three reputable witnesses and able (to avoid future problems of identification and location, is important that these witnesses are eligible), which also will sign the document, after reading. In the case of writing through mechanical, the action should have been the tester itself (there are differing opinions in the witnesses, given the impossibility of proving whether or not "typed" or "scanned" by the author, becoming so irrelevant, on the confirmation of the witnesses, that the Act was read by the testator), the document shall not contain erasures or white space, all sheets shall be duly initialled by the testator and the witnesses, to have validity.
This is the kind of simpler will be implemented, however, is considered a imperfect act until it is as valid to justice, so when our surviving the death of the testator, it is necessary to have legal force, the publication in mind, the quote of the heirs of the "whose", and call witnesses to confirm the will, the judge will consider the wishes expressed in the document, as advocates of the arts. 1,877 and 1,878.
If written in his own hand, in which differs from the report testament?
In fact, among them there are huge differences, starting with the question of the participation of witnesses and in the Act of validation. In the particular case, the witnesses sign after reading the full text of the Testament, and are at least three, the validation is given by the publication in court and call witnesses to confirm it; in the report, the witnesses are two; given the knowledge of the content for them, for reasons already cited, but just reading the Declaration of the notary of the Testaments is approved, in the presence of these witnesses, this validation is given by the signature of the notary in the auto approval In addition to the signing of the two witnesses and the tester.
Anyone able and who knows how to practice writing can test for a particular instrument, as well as witness, in this way, these practices are the illiterate, the deaf and dumb, dumb and the blind, given the requirement that the tester read the testament before the witnesses and they have the condition attest that what is being read is what is written and signed the document, however, there are others who understand the opposite, to the blind, in the case of tester, could be given the ability through the use of specific writing ial to this need, as well as reading and verification of this for other people who have specific knowledge of the deaf and dumb and dumb, there are alternatives that can be used and accepted in court.
Requiring the subsequent confirmation of the will through the calling of witnesses, there is a risk that, in not being located, the will cannot be implemented. Although the date is important, this requirement, by itself, does not make the will invalid if not, are there other ways to prove your truthfulness. In art there are 1,879 prediction of a special kind of Testament is what some authors call "EXTRAORDINARY TESTAMENT", this hypothesis is that the will admitted does not contain witnesses, since performed in her own handwriting of the testator and circumstances duly justified in the document (shipwreck, disaster and other emergency circumstances and life-threatening), and can be validated by the Court, and, if applicable, be required the expertise of the spelling of the deceased.
8. EXTRAORDINARY FORM
(Special) WILL Are extraordinary shapes (Special) will: I-Testament seaman; II-aeronautical testament; III-military Testament. Wills that take the special shape are the prenuptuals. There's kind of Testament in extreme, given the imminent risk of the life of the testator, which can be declared orally, in the presence of two witnesses. Not admit other wills beyond the contemplated in this special code.
9. WILL SHIPPING
The will is the maritime Declaration of last will issued on naval vessel, whose recording of the Commander or the Registrar of your board or your legal substitute. The vessel must not be more necessarily located on the high seas as stipulated the old CC, and in a State of danger, admitting the will for any sea voyage of short or long duration. In salt water or sweet. The Testament is made in presence of the Commander (or other competent agent), who shall certify the occurred in the presence of two witnesses (must sign the document) and sign the document, after the testator, by registering it in the logbook. Be, anyway, in power of the Commander (or other competent agent on your missing), so that the competent port authority, delivered by contra-recibo. The maritime lapse in 90 days will, counted from the date of your achievement, if there is no death. Will have no validity maritime will if the boat was docked in port, allowing that the tester develop will in the ordinary form by prior knowledge of the delay for the trip. The record will be made in the logbook
10. AIRCRAFT WILL
The aircraft is Testament to last will of the person declares that was inside of an aircraft in transit. It matters little if the domestic or international's terms and if the flight is a commercial or military, and the preparation of the will to any of these hypotheses before the person appointed by the Commander. So, who will draft the will or the auto approval won't necessarily be the Commander of the aircraft, but the person designated by him for such a coach. In the Institute's is regulated in the same way that the will. Needs to be declared in the presence of two witnesses, as well as on the master or other competent person in your absence. The deadline for your achievement is 90 days under penalty of decadence. The Commander of the aircraft, in this way, will deliver the administrative authorities will first national airport where the aircraft landed, by contra-recibo recorded in the logbook.
11. MILITARY TESTAMENT.
This will only be done in a situation of war, by military and personnel involved in the service of the armed forces, and at the hindrance of the testator to the will under normal conditions.
Are permitted three forms:
a) on the public Testament similitude, in presence of the Commander or commanding officer;
b) particular Testament or the report, in front of two witnesses, an auditor, or an officer or someone that you do sometimes;
c) negative way, as provided for in art. 1,896, is a verbal form, effected in the battlefield or wounds, before two witnesses, which has the task of transcribing these statements later, sign the document and present them to the auditor.
The hearing officer, or officer who will report to notice, in any part of it, place, day, month and year in which it is presented, note that shall be signed by him and by the witnesses. Expires the military will, provided that, after him, the tester's, 90 days in a row, in place where you can test in the ordinary form, unless this will present the ceremonies prescribed in the first paragraph of the foregoing article. Has no effect if the testator's will not die in the war or convalesce from his wound.
