A testament is a private and unilateral will revocable act by which a person disposes of all or a part of his / her goods after death.
It is an act for the freedom given to any citizen to test, not test and revoke his / her testament.
A testament is a private and unilateral will revocable act by which a person disposes of all or a part of his / her goods after death.
By using a testament, a person can constitute a foundation, give credit and mortgages, consign revenues, usufruct, superficial or dependence rights or affect property to the horizontal ownership regime.
A testament can also include non-patrimony disposals such as adoptions, assign or revoke the assignment of a guardian or an executor, a confession, a disinheritance or the unworthy successor rehabilitation and the revocation of a previous testament.
A testament can also include informal instructions about the death, the kind of funeral, the disposal of remains, the cremation, charity distribution or suffrages for the deceased’s soul.
Specific cases of legacy are the pious legacies for beneficence or charity works and the public interest legacies.
Dispositions in favor of the soul (cult expenses with the funeral and other charges for the suffrages for the deceased’s soul) are communicated by the notary to the dioceses’ s ordinary where the inheritance opening will take place and to the district city hall for the public interest legacies.
To issue a testament implies a previous meeting with the notary to find out the real will of the executor.
The testament is valid only as the executor clearly expresses his/her will when the document is issued and due to the formalities it is obliged to (issued before a notary and two witnesses) the law guarantees that the executor really wanted and understood what he / she has declared, free from familiar or others ‘pressure who might be interested on his / her goods.
It demands successor capacity due to indignity someone who, by dishonesty or coercion has induced or prevented the executor to make, revoke or change his / her testament.
A testament is a personal act and consequently two people cannot take part by declaring in the same testament (the so-called common hand testament) nor can the testament be made by an attorney or stay dependent on someone else’s will; however, whenever a spouse wishes to leave something belonging to the couple the other spouse can give consent in the same testament.
A testament can be public or closed (common forms), military, maritime, aeronautic, made in case of a public calamity or by a Portuguese person abroad (special forms).
A public testament can be better secured and kept as it becomes a part of the notarial archive and the notary, a specialist and a qualified expert, will examine it and advise the person doing the testament about something he might consider highly dangerous.
On the other side, a closed testament, made with one person’s decision and no help from the notary is better as it does not need to be read loud before the executor and the witnesses except if the executor wishes to do so and the notary will just note and correct some formal mistakes. It can also be revoked with the physical destruction of the document.
The Portuguese law, considering the transcendent character of the testament which will take effect after death, recognizes no judicial value to the oral testament even when it is made before some witnesses (nuncupative) nor does it recognize the written one with no participation of a notary (holograph) , except for the above mentioned special cases when some entities can do the same a notary does, but these testaments have a short validity period.
A testament of a Portuguese person made abroad according to the law in that country only takes effect in Portugal if it was made by a notary or a similar.
Although the testament is a formal document, it can include references to authentic or written documents signed by the executor even if having a different date from the testament, made before or the same day.
It is also possible to use complementary proofs to understand a testament whenever the executor’s will based on that proof has in the testament context as a global act a minimum correspondence even if it is not perfectly expressed.
Who cannot test
Not emancipated minors, those interdicted by psychic anomalies even when they are represented by someone else and legal entities cannot test on penalty of nullity.
Nevertheless, parents can determine an heir in case their minor son / daughter dies during his/her minority or while suffering psychic anomaly and even charge that determined person to take care of their unable son/ daughter.
The capacity to test refers to the signature date in the testament.
A testament can always be revoked, except for adoptions.
The executor cannot deny his/her right for revoking the testament, being the denying considered not written.
Revocation can be expressed, but also tacit in case the executor makes a posterior testament for the part this last one is not compatible with the previous one done.
Even when the later testament is revoked, the first one is not reborn in its purposes, unless the executor has declared it.
Later alienation made by the executor of something in a testament implies a revocation as well as the transformation of that thing made by the executor which has resulted on a different one.
A testament expires in case the beneficiary dies before the executor or he denies what was left and has no children, when the testament is subjected to a suspensive condition and the receiver dies before the verification of that condition, when the beneficiary becomes unworthy or he / she was married to the executor when the testament was issued but the day the executor is dead they are already divorced or judicially separated from people and goods.
The executor can nominate one person or more, who can be or not the heirs or the beneficiaries, for he / she / them to oversee the accomplishment of the will or to execute it, all or a part and give them any power for example to sell goods belonging to the inheritance.
When the testament expresses no disposal about the power given by the executor to the beneficiary, this person can provide the executor’s funeral and pay the suffrages expenses, oversee the execution of the testamentary disposals and act as the head.
Law applied to succession
For people living in the EU the law applied for their succession is the usual residence’s unless they make a testament expressing their will to apply for their nationalities’ succession law.
For the Portuguese living outside the EU the law applied for succession is their nationalities’.
Whenever the Portuguese law is applied, the deceased person leaving a spouse, children, grand-children, great-grand-children, parents, grandparents or great-grandparents alive, one part of the inheritance must be kept for them (lone spouse 1/2, spouse and children 2/3, children 2/3 if several and 1/2 if just one, spouse and antecedents 2/3, parents 1/2, grandparents and great-grandparents 1/3), and only the rest can be available.
For a testament to be done or revoked two witnesses are obliged.
If one person is not mentally fit, does not understand the Portuguese language, does not know or cannot sign, the not emancipated minors, the death, dumbs and blinds, those working in the notary’s office, the spouse, the great-great-parents, the great parents, the parents, the children, the grand-children, the grand-grand-children, the brothers, the sisters, the brothers and sisters in law of the notary issuing the act, representing or representing, both husband and wife and a someone getting patrimonial advantage due to the testament, cannot be considered a witness.
The executor and the two witnesses must identify themselves using one of the following valid identification documents: identity card, citizen card or driving license issued by one of the EU countries (or similar, military or diplomatic), passport, residence permit, Brazilian identification document mentioning the holder’s nationality and referring to the Friendship Agreement Portugal Brazil, Angolan, Cape Verdean, Guinean or São Tome identity card.
Whenever a person does not hold one of these documents, he/she can be identified by two witnesses who have one of the above mentioned valid documents.
If one person is not mentally fit, does not understand the Portuguese language, does not know or cannot sign, the not emancipated minors, the death, dumbs and blinds, those working in the notary’s office, the spouse, the great-great-parents, the great parents, the parents, the children, the grand-children, the grand-grand-children, the brothers, the sisters, the brothers and sisters in law of the notary issuing the act, of the applicants, their representatives or represented, both husband and wife and anyone who, due to the act has acquired a patrimonial advantage, cannot be a witness.
In case the testimony is on the executor’s behalf, the witnesses can testify.
For the executor, we also need his/her complete address, nationality, marital status (and, whenever married, the spouse’s name, NIF and marital property regime), and whenever holding a citizen card, the birth parish and council.
For the witnesses, we do not need their addresses nor their marital status.
Notaries give notice to the Central Registration Office about the celebration of public testaments, revoking acts and approval instruments, deposit and opening of closed testaments.
The Central Registration Office keeps registrations about testaments since 1950.
Any person, the notary included, can ask for the act proving the existence of a death person testament on electronic form.
Whenever the executor is alive, the information cannot be given except on his/her own request, certified by his/her citizen card.
The request can be done in person next to the Central Registration Office.
What they are
The notary’s authorship public testaments are written on a special book after a previous analysis of the substantial validity of the executor’s will and they are read aloud, and its content explained to the executor before two witnesses.
Those who do not know (illiterate) or cannot (blind) read or sign can only dispose in the form of a public testament.
The testament can be revoked by a posterior testament or by a revoke testament act.
The notary’s authorship revoke public testament acts are written on a special book after a previous analysis of the substantial validity of the executor’s will and they are read aloud, and its content explained to the executor before two witnesses.
The revoked testament act or the posterior testament which revokes a previous one, must clearly identify the one revoked and indicate its date of issue, the office where it was made, the book, the pages and that office must be informed to record the revocation act.
Even when it is not clearly totally or partially revoked by a posterior testament or by a revoke testament act, the previous testament is tacitly revoked when it is incompatible with the most recent.
The testament and the revoke testament act are considered of public access when the executor’s death is endorsed after the exhibition of the birth act.
What they are
The closed testament is a handwritten testament made and signed by the executor or written by someone on his /her request and signed by the executor himself/herself.
Different from the public testament, the closed testament, whose author is the executor, needs the notary just to note and correct some formal irregularities and to issue his/her approval act before the executor and two witnesses.
The closed testament is read aloud by the notary in case the executor wishes to do so and before the person he/she authorizes.
On the writing of a closed testament, corrections, erasures, scratches, writing between the lines, blots or marginal notes shall be avoided, but whenever they exist, they must be validated by the executor himself/herself before the notary’s approval. The notary can help the executor doing this validation.
Succession capacity is needed, due to indignity, from those who deliberately have subtracted, hidden, disabled, falsify or eliminated a closed testament before or after the executor’s death or someone who has taken profit from those situations.
Who cannot do
Those who do not know (illiterate) or cannot (blind) read or sign cannot dispose in the form of a closed testament: they can only make public testaments as they are not able to read a closed testament and consequently control if it faithfully expresses their will.
The closed testament, to be judicially valid, needs to be approved before a notary and two witnesses and its date is, for all legal effects, the same of its approval.
The closed testament is the executor’s authorship, but the approval instrument is the notary’s authorship.
The testament will be read in case the executor wishes to do so and before the person he/she authorizes, but the act must always be read before the executor and two witnesses who will countersign together with the notary all the pages of the testament and sign the approval instrument.
The written words, those erased or disabled by the executor on his/her closed testament after its approval are considered not written.
Destination of the document and its deposit
The executor can keep the document, give it to someone else or deposit it in a notary’s office and in this case the testament must be sewed and sealed.
Sometimes, the executor does not want to deposit the closed testament, but he/she can ask the notary to sew and seal it before giving it back to him/her.
When it is deposited, the closed testament can be taken by the executor when he/she wants.
The closed testament, whenever kept by the executor, can be revoked if physically destroyed.
The executor can take his closed testament deposited in the notary’s office to disable it and consequently revoke it too.
It is assumed that the fact was done by a third if the testament is not in the executor’s assets on the day of his / her death.
The person who had kept the closed testament must present it in a notary’s office within three days after he/she knows about the death.
The closed testament can be opened in any notary’s office except if it is deposit and, in that case, it will be opened in the notary’s office where it had been deposited.
The closed testament can only be opened with the exhibition of the executor’s death act and before two witnesses, becoming of public access after that formality.
Previous will directives
What they are
The vital testament (or DAV) is a document that gives the holder the possibility to mention the health cares he / she wants or not to get, such as:
- Not to be submitted to an artificial support treatment of his / her vital functions.
- Not to be submitted to a futile, useless or inadequate treatment according to his / her clinic report and, in agreement with the skilled professional practices, such as the basic support of life measures, feeding and artificial hydration, which will just slow up the natural process of dying;
- Receive palliative cares appropriated to the respect for his / her right to a global intervention in his / her suffering caused by a serious or irreversible disease, already in an advanced stage, including appropriate symptomatic therapeutics.
- Not to be submitted to experimental treatments and authorize or refuse to take part in scientific investigation programs or clinical tests.
Who can make
The only people who can grant a DAV document must be cumulatively major, not interdicted or disabled by a psychic anomaly and able to give his / her conscient, free and clear consent.
The DAV is freely revoked by the holder.
DAV document is valid for five years from its signature, successively renewed by a confirmation declaration, but it will continue valid with no time limit for the period the holder might be disabled.
DAVs are registered in theRegisto Nacional do Testamento Vital - RENTEV
Power of attorneys for health cares
What they are
Any person can willingly and freely nominate a representative for health cares (pCS) by granting a health care power of attorney (PCS) giving the representative the power to decide about the holder’s health cares, the ones he/ she wants or does not want to receive in case he /she is not capable to autonomously express his / her personal will.
The person can also nominate a second pCS in case the first one chosen is not available.
Who can nominate a health care representative?
The only people who can nominate pCS must be cumulatively major, not interdicted or disabled by a psychic anomaly and able to give his / her conscient, free and clear consent.
Who can be nominated a health care representative?
The only people who can be nominated pCS must be cumulatively major and not interdicted or disabled by a psychic anomaly. The employees in the Registo Nacional do Testamento Vital or in the notary’s office taking part in the act and the health care units’ owners and managers, unless they are relatives to the person giving the power, are excluded.
Revoke and renounce
PCS is freely revoked by the holder and it is extinguished by a renounce of the representative, who must inform, by written, the holder.
A PCS document is valid for five years from its signature, successively renewed by a confirmation declaration, but it will continue valid with no time limit for the period the holder might be disabled.
PCSs are registered in theRegisto Nacional do Testamento Vital - RENTEV