The Third Panel of the Superior Court of Justice (STJ) ruled that the unavailable part of the estate, intended for the necessary heirs, can be included in a will, as long as this does not prejudice the share to which they are entitled by law.
In the case analyzed, the author of the inheritance made a will distributing his entire estate among his daughters (necessary heirs) and nephews (testamentary heirs). The Court of Justice of São Paulo (TJ/SP) accepted the daughters’ question about the inclusion of the portion reserved for the necessary heirs in the division of inheritance, arguing that the will should cover only the available portion of the estate.
However, the Superior Court of Justice (STJ) ruled that it is possible to mention the unavailable portion intended for necessary heirs in the will, as long as this does not reduce their legally established share. The reporting judge in the case emphasized the importance of balancing the protection of necessary heirs with the testator’s freedom.
Thus, the decision of the TJ/SP was reversed and the will was considered valid, respecting the testator’s wishes within the legal limits.
