Incoerência do instituto do rompimento de testamento, consagrado no artigo 1.973 do código civil de 2002, com o princípio da livre manifestação de vontade do testador

Abstract

The legislature established the civil legitimate and testamentary succession, dismissing them equal importance. In order to protect part of the estate of the deceased to the heirs needed, was also established legitimate, which consists of half of the deceased's estate. Thus, upon heirs needed, the tester is provided by act of will have only half of their assets. Otherwise, lacking the necessary heirs, the testator is permitted freely dispose of their entire assets. In this case, if there arise compulsory heir of the testator, which disposed of all of its assets without knowing the existence of this, the will be broken pursuant to the Civil Code art.1973, so that befell the heir inherits all the assets of the deceased. It is argued, then, that the breakup will not violate the principle of free expression of will of the testator, as a kind of constitutional right to freedom, setting an inconsistency within the Civil Code. This discussion becomes relevant, especially when one considers the constitutionalization process of civil law and the legal system as a system composed of rules that keep consistent.