Analyzes the legal criteria of preference for the attribution of the functions of Head of Household of an inheritance.
*
According to Article 2079 of the Civil Code, the administration of the estate, until its liquidation and division, belongs to the head of the couple.
Article 2087(1) of the Civil Code also states that the head of the estate administers the deceased's own assets and, if the deceased was married under the communion regime, the couple's joint assets.
From the outset, the law lays down the order in which the position of head of the couple should be held.
As such, Article 2080(1) of the Civil Code stipulates that the position of head of the couple is awarded in the following order:
a) The surviving spouse, who is not legally separated, if they are an heir or have a share in the couple's property;
b) The executor of the will, unless the testator declares otherwise;
c) Relatives who are legal heirs;
d) testamentary heirs.
In the case of relatives who are legal heirs (Article 2080(1)(c) of the Civil Code), those closest in rank are preferred - see Article 2080(2) of the Civil Code;
In the case of legal heirs of the same degree of kinship, or among testamentary heirs, those who had been living with the deceased for at least one year at the time of death are preferred - see Article 2080(3) of the Civil Code;
And, in equal circumstances, the eldest heir prefers - see Article 2080(4) of the Civil Code;
*
It should be noted that, despite the legally established preference, there are cases that allow or determine the excusal or removal of the position of head of the couple.
Thus,
For the purposes of excusal, the Head of House may be excused from the position if one of the following circumstances occurs:
1. If they are over seventy years of age;
2. If they are unable, due to illness, to carry out their duties properly;
3. If carrying out the duties of head of household is incompatible with holding a public office.
- cfr. art. 2085.º C.C..
On the other hand,
Any interested party may request the removal of the head of the couple if one of the following situations arises:
1. If he/she has maliciously concealed the existence of assets belonging to the estate or donations made by the deceased, or if he/she has also maliciously denounced non-existent donations or charges;
2. Failure to administer the inheritance with prudence and care;
3. If they have not complied with the duties imposed by law in the inventory;
4. If he/she reveals incompetence for the exercise of the office.
- cfr. art. 2086 of the C.C.
In the event that all the people mentioned in Article 2080 of the Civil Code excuse themselves or are removed, it will be up to the court to appoint the head of the couple - see Article 2083 of the Civil Code.
Furthermore, Article 2084 of the Civil Code states that “By agreement of all the interested parties, the administration of the estate and the exercise of the functions of head of the couple may be entrusted to any other person”.
*
That said,
Procedurally, the inventory process is the appropriate procedural means to end the hereditary communion and proceed with the division of assets (see Article 1082(a) of the Civil Code).
This process can be initiated at the initiative of the head of the couple - in which case, in addition, they must justify their capacity as such (see Article 1097(2)(b) of the Civil Code), or at the initiative of any interested party - in which case, in addition, they must indicate who should hold the position of head of the couple (see Article 1099(b) of the Civil Code).
With regard to the replacement of the head of the couple, article 1103 of the C.P.C. states that, by agreement of all those interested in the division, the position may be assigned to someone else at any time, as well as that the replacement, excusal and removal of the head of the couple are incidents in the inventory process.
*
Now,
In this case, since all the heirs were descendants in the second degree of lineage of the deceased, the eldest grandchild was appointed as the head of the couple, in accordance with the “tie-breaking rule” laid down in Article 2080(4) of the Civil Code.
Another granddaughter challenged the competence of the head of the couple, claiming that “she is in the best position to guarantee the correct administration of the assets of the estate, as she has always been present in the lives of the deceased, especially the deceased, accompanying her at every moment of her life, even living with her in recent years, and even after the deceased went into a retirement home, he continued to spend weekends with her, staying overnight and cooking meals at her family home, where the interested party also lives part of the time, thus guaranteeing the personal and patrimonial monitoring of the interests of the deceased and continuing to manage the rental contracts, issue the respective receipts and carry out necessary/urgent works. “
The court dismissed the other granddaughter's claim to contest the jurisdiction of the head of the couple, because the only fact that could be relevant for this purpose would be having lived with the deceased for at least one year at the time of death (“tie-breaker rule” provided for in Article 2080(3) of the Civil Code, which prevails over the rule provided for in Article 2080(4) (older)).
*
An appeal was lodged against this decision with the Porto Court of Appeal, which assessed the alleged “pre-emption of the preference defined in the substantive scale for the granting of the position of head of the couple”, and the alleged “abusive exercise by the head of the couple”.
The Court of Appeal ruled that, with regard to the alleged “preterition of the preference defined in the substantive scale for the granting of the position of head of the couple”, since the devisee died in 2017, and resided in a nursing home since 2013, it was clear that she did not live with any of her grandchildren.
The fact that, in these circumstances, the devisee spent weekends and holidays with her granddaughter/appellant, where they had meals together, is irrelevant to the subsumption of the rule laid down in Article 2080(3) of the Civil Code.
In addition, the aforementioned judgment emphasized that “The legal criterion for appointment is living in common with the deceased for a period of not less than one year. If the legislator had wanted the criterion to be based on greater knowledge of things relating to the administration of the inherited estate or on the competence of the candidate for head of the couple, the legal provision would have had to be constructed in a completely different way. Furthermore, living in common with the deceased does not constitute any guarantee of greater knowledge of things relating to the administration of the inherited estate, since if the deceased was a capable or suspicious person, he would not have had to pass on this knowledge to those who lived with him.”
With regard to the alleged abuse on the part of the head of the couple, the Court of Appeal ruled that the assumptions of abuse of rights could not be verified in the exercise of the position by the person appointed as head of the couple, and that there was no allegation of any abuse, since, “since the head of the couple is limited to benefiting from the protection conferred on her by law, there is no situation of abuse to justify resorting to the system's safety valve in order to exclude her appointment, by removing the legal rule in Article 2080(4)”.
*
Summary
“- The basis of the ‘impugnation of the competence of the head of the couple’, alluded to adjectivally in paragraph 1(c) of article 1104 of the CPC, which gives rise to an incident of the inventory process, consists of the preterition of the preference defined in the scale established substantively for the granting of the position.
II - Article 2080(1) of the Civil Code defines the order in which the head of the couple should be chosen, assigning third place to relatives who are legal heirs of the deceased (c)).
III - Among the relatives who are legal heirs, those of the closest degree are preferred (no. 2). In the case of legal heirs of the same degree of kinship, preference is given to those who had been living with the deceased for at least one year at the time of death (no. 3) and, in the absence of this nomination requirement, to the eldest heir (no. 4);
IV - These rules can only be departed from in situations of excusal or removal.
V - It is not admissible to subsume situations such as the one in this case under no. 3, in which, although one legal heir has better conditions for the exercise of the position than the others, he merely lives with the beneficiary at weekends and on festive days.
VI - Since the head of the couple, whose competence is being challenged, is limited to benefiting from the protection granted to her by law (in paragraph 4), there is no situation of abusive exercise of the right to justify resorting to the system's safety valve enshrined in article 334 of the Civil Code to exclude the appointment.
VII - Even if this were not the case, once a legal heir has been removed, it would always be necessary to find out who would be responsible for the position, in compliance with the imposed hierarchy.”
Comments