By João Valle Teixeira Busnardo and Paola Haiduscki

In wills and gift instruments, it is common to include clauses of incommunicability, non-attachability, and inalienability. These provisions aim to protect the transferred assets, preventing their premature liquidation and generally preserving them within the family.

Restrictive clauses usually remain in force until the death of the donee or heir; however, there are situations in which, prior to that event, maintaining the restrictions may no longer be justified. This is the case, for example, of a rural property subject to a non-attachability clause that prevents the asset from being offered as collateral to obtain agricultural credit—often essential for the exploitation of the rural property itself.

In such cases, restrictive clauses may be cancelled before the death of the donee or heir, provided that either (i) the donor, while still alive, expressly agrees to the cancellation, or (ii) it is demonstrated through judicial proceedings that maintaining the restriction is no longer justified.

According to the case law of the Superior Court of Justice (STJ), a restrictive clause is deemed no longer justified when the following criteria are met: (i) there is no evident risk of patrimonial reduction for the owners or their heirs (particularly risks of prodigality or dissipation of assets); (ii) the encumbered asset, due to surrounding circumstances, has become a source of financial burden greater than the benefits it provides; (iii) there is a genuine interest of the persons whom the clause itself seeks to protect, allowing for better use of their assets and, consequently, a higher level of well-being, as it may be presumed the grantors of the clauses would have intended under such circumstances; (iv) a long period of time has elapsed; and, finally, in cases of gifts, (v) the donors are already deceased (Special Appeal No. 2,022,860/MG, Reporting Justice Ricardo Villas Bôas Cueva, Third Panel, decided on September 27, 2022, published on September 30, 2022).

For these reasons, the inclusion of restrictive clauses in gifts and testamentary dispositions should always be preceded by a careful analysis of the specific case, taking into account not only the will of the grantor, but also—so far as possible at the time the instrument is drafted—the perspective of future patrimonial, family, and economic circumstances.