It analyses the application of indignity of succession in the case of a homicide committed by an incompetent person.
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As stated in a published text accessible via the linkhttps://www.tofadvogados.com/post/ir-relevância-do-regime-de-bens-de-casamento-para-efeitos-sucessórios-partilha-de-herança ,
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It is not because the spouse is a legitimate heir that he or she cannot be deprived of the reserved portion.
Although it is not directly related to the marriage regime entered into, in general terms, the author of the succession may, by will, disinherit the spouse (or other legitimate heir), provided that the legal requirements are met, which are as follows:
"a) The person entitled to inheritance has been convicted of an intentional crime committed against the person, property or honour of the person entitled to inheritance, or their spouse, or any descendant, ascendant, adoptee or adopted person, provided that the crime carries a penalty of more than six months' imprisonment;
b) The successor has been convicted of slanderous accusation or false testimony against the same persons;
c) The person entitled to inheritance has, without just cause, refused the author of the succession or his or her spouse due maintenance."
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Now,
In the case in point, a certain person was made a defendant in criminal proceedings and, in the respective proceedings, it was decided that
- the defendant fatally wounded his father and sister (who was pregnant, which he also knew);
- the defendant acted with the realised purpose of causing the death of his father and sister, and of representing that this would be the result of his conduct; and that
- the defendant was considered to be incapable of committing the offences of murder and abortion.
As such, he was finally acquitted of the offence of aggravated homicide in the person of his father, and it was decided that
"he is unimputable due to an irreversible psychiatric illness - Schizophrenia associated with the consumption of cannabinoids - which prevents him from evaluating the illegality of his actions from the perspective of reality;
- by deciding not to impose any penalty on him, by declaring that there is a danger that he will commit further criminal offences, and by imposing a detention order of no less than three years and no more than twenty-five years, the execution of which has not been suspended".
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As a result, an action was brought by the other legitimate heirs, requesting that the respective defendant be declared unworthy of succession in relation to his father, under the terms of article 2034 of the Civil Code or, alternatively, under the abuse of rights institute.
In this case, the judgement states that
"Article 2034(a) of the Civil Code provides for a civil penalty for criminal offences which the law, which enshrines unworthiness of inheritance, requires to be proved beyond all doubt, and therefore requires criminal proceedings to be held in order to establish and prove them.
However, by requiring a judgement of conviction, the legislator did not regulate the cases of acquittal, due to the lack of capacity for legal and criminal guilt on the part of the perpetrator, accompanied by the subjection of the defendant to a security measure. An extensive interpretation of the rule to include homicides committed by an incompetent person would always be debatable, since it would have no reflection, even minimal, on the wording of the precept, which expressly requires a judgement of conviction. Under the terms of Article 9(2) of the Civil Code, a legislative thought that does not have a minimum verbal correspondence in the letter of the law, even if imperfectly expressed, cannot be considered by the interpreter.
The question then remains as to whether we are dealing with a gap to be filled by recourse to analogy or by the creation of an ad hoc rule, under the terms of Article 10 of the Civil Code.
The question is whether we are dealing with a flaw or incompleteness in the law in the sense of a lack of response from the legal system to a legally relevant issue that deserves or requires regulation in the legal system. Or whether, on the contrary, we are dealing with a case that the legislator did not want to subject to the exceptional rule and which therefore follows the rule of the agent's passive inheritance capacity."
The S.T.J. concluded that, moreover,
"the defendant's exercise of the right to inherit constitutes an abuse of the right and as such must be paralysed, and the remaining successor relatives of his father, the plaintiffs in this action, must be called to succeed, under the terms of Articles 2037(1) and 2133(1)(c) of the Civil Code."
(...)
"The defendant's right to inherit is not absolute and its legal nature does not prevent its exercise from having to yield to ethical and social imperatives related to feelings of justice, which include respect for the suffering of the victim's family at the loss of their loved one in a context of extreme violence."
(...)
"The right to inherit from someone whom the heir has killed is a right of a patrimonial nature which, in this case, as well as being contrary to public morality, conflicts with the protection of the right to life and the safety of third parties, as it means a reduction in the state's duty to prevent violence.
The paralysing of this right does not, as we have seen, leave the person considered to be incompetent in a situation of economic weakness, since the state has a duty to provide social support and promote their inclusion in society."; and that
"Acting in abuse of the right, by violating the limits imposed by good morals, is the inimputable subject who, without the capacity for legal-criminal guilt, has attempted to take the lives of his father and sister, and then, without any limitation on his civil capacity, claims the right to inheritance, arising from his status as sole legitimate heir."
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Summary:
"I - Article 2034 of the Civil Code, which sets out a list of causes of unworthiness of inheritance, does not allow a free analogy, but a more limited analogy, based on one of the causes set out in the law. In other words, analogia legis is permitted, but not analogia iuris.
II - This is a question of civil law, with a markedly ethical and moral slant, and therefore the criminal law principle of the prohibition of analogy in mala partem, i.e. against the perpetrator of the offence, does not apply in the area of indignity of succession. In criminal law, we are dealing with the protection of citizens' rights in the face of the punitive power of the state, which can impose measures restricting their freedom, while in the system of unworthiness of inheritance we are only denying the fulfilment of an expectation of inheriting.
III - Analogue application seems inappropriate to the solution of the specific case, since the acquittal of the perpetrator of the crime of homicide, for lack of guilt, due to unimputability, is not similar to the conviction of an imputable individual for intentional homicide.
IV - The solution of the judge creating an ad hoc rule in the spirit of the system, under the terms of article 10 of the Civil Code, is always delicate as it is a similar activity to legislating.
V - Therefore, the case before us must be assessed in the light of the concept of abuse of rights, enshrined in article 334 of the Civil Code, which is strictly objective and does not require the intention of the agent or any judgement of reprehensibility about their conduct.
VI - In order to determine the existence of an abuse of rights, what is important is to analyse the result of the conduct, in light of the values and legal principles in force, and not the conduct itself.
VII - Acting in abuse of the law, by violating the limits imposed by good morals, is an incompetent person who, without the capacity for legal-criminal guilt, attempted to take the lives of his father and sister, and then, without any limitation on his civil capacity, claims the right to inheritance, arising from his status as sole legitimate heir.
VIII - The exercise of the right to inherit the property of a person whom the heir has killed shocks the deepest feelings of most people, and it is repugnant to the legal and ethical conscience that a person can make a profit as a legal effect of a death caused by them, even without the capacity for legal-criminal guilt.
IX - To admit this possibility would be to contradict the normative and constitutional principle of the absolute protection of the right to life (Article 24 of the Constitution), which is also a principle of public order."
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