Arbitragem testamentária e sua viabilidade no ordenamento jurídico brasileiro

• Autor(a) principal: Andrioli, Sofia Esmanhoto
• Data de Publicação: 2024
• Tipo de documento: Trabalho de conclusão de curso
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_SP
• Texto Completo: https://repositorio.pucsp.br/jspui/handle/handle/42336
• topic: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO; Arbitragem testamentária; Arbitragem; Testamento; Partilha; Família; Sucessões; Testamentary arbitration; Arbitration; Testamentary; Distribution; Family succession

This study analyzes the feasibility of using testamentary arbitration to resolve family and succession conflicts, meticulously detailing the current legal provisions, doctrinal interpretation, and related jurisprudence. Testamentary arbitration is a legal concept that involves the resolution of disputes related to the interpretation, application, or validity of testamentary provisions through an arbitral process. In addition, it is the use of arbitration to address issues arising in the context of wills, such as asset distribution, inheritance, or any other matter related to the testator's expressed wishes in their will. It can be understood that testamentary arbitration is compatible with the Brazilian legal system. The Federal Constitution of 1988, in its Article 5, clause XXXV, establishes the principle of the irremovability of the Judiciary, guaranteeing everyone access to justice. However, this principle does not prevent parties, voluntarily and consciously, from choosing to resolve their disputes through arbitration. The Brazilian Arbitration Law (Law No. 9.307/1996) does not expressly provide for testamentary arbitration, but neither does it prohibit it, thus leaving room for its application. Additionally, testamentary arbitration can offer significant advantages, such as confidentiality, the specialization of arbitrators in succession issues, and the expeditious resolution of disputes. In cases involving families or complex estates, arbitration can provide a more suitable and less adversarial environment than traditional judicial litigation. Furthermore, the autonomy of the will is a fundamental principle of Brazilian civil law, which allows parties to freely dispose of their rights, provided they do not violate public order, morality, or good customs. As long as the parties involved voluntarily agree to submit their testamentary disputes to arbitration, respecting the legal requirements of capacity and expression of will, there is no reason to deny them this right. In summary, testam