Statutory legacy clauses and the supervening cessation os just cause

Abstract

Article 1848 of the Brazilian Civil Code does not allow testators to attach the statutory legacy part of their estate with inalienability, incommunicability or no garnishment clauses, except when there is just cause, which, in turn, must be expressly provided for in the will. In this respect, the same law that, on the one hand, has furthered protection to statutory legacy, on the other, has not defined what just cause means and has not provided examples, which would not have limited the fact that the term involves an indeterminate legal concept. Moreover, said article does not provide for the termination of said clauses in the event just cause ceases to exist. The Code only addresses the case of the alienation of assets under said clauses by providing that other assets of equal value replace the previous assets under the same clauses. Given the silence of the law, this paper aims to answer the question of whether the disappearance of just cause can result in the clauses on the statutory legacy part of the estate being lifted. Additionally, this paper also presents a proposal for amending article 1848 of the Brazilian Civil Code.