According to the understanding of the Superior Court of Justice (STJ - Superior Court of Justice), a testament without the testator's signature cannot be validated, even if there is agreement from the heirs and written in his own hand. Find out more.
Although it is possible to relax the formalities prescribed by law to declare the validity of a testament, this relaxation of formal rigor does not reach the apocryphal document, even if written in one's own hand.
This was the understanding of the Third Panel of the Superior Court of Justice (STJ) in the judgment of a special appeal filed against the decision of the Court of Justice of the Federal District (TJDF) which considered that the lack of the testator's signature and the reading of the document before the witnesses would not be sufficient reasons to invalidate the act.
According to the ruling, although the testator's signature was not affixed to the private document, “the testimonies of the witnesses, combined with other circumstances and documents, reliably show that the testament, written in his own hand, expresses the testament of the deceased, a fact not questioned by any of the heirs.”
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At the STJ, however, the understanding was different. The rapporteur of the appeal, minister Villas Bôas Cueva, acknowledged that the court has already agreed to relax the rigor of the formalities required by law in relation to inaccuracies regarding witnesses (such as the number of witnesses and the reading of the testament for them), as long as the document be written and signed by the testator.
“In this case, in addition to the lack of reading it to witnesses, the testament itself is apocryphal, denoting doubt even about the completion of its creation. Therefore, even if it is admitted, in extremely exceptional cases, the relativization of the requirements contained in items II and III of article 1,645 of the CC 1916, it is imperative, in order to recognize the validity of the private testament, that it has been written and signed by the testator ”, said the minister.
Although the situation was analyzed from the perspective of the 1916 Civil Code, in force at the time of the act, the rapporteur highlighted that the same understanding applies to the 2002 CC, with the innovation brought by articles 1,878 and 1,879.
“From a careful reading of the aforementioned articles, one can clearly see the requirement, in any case, for the presence of the testator’s signature. It should be noted that the signature, in addition to being a legal requirement, is more than a mere formality, consisting of a true assumption of the validity of the act, which cannot be put into perspective”, he concluded.
Source: STJ
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