20-07-2021

Legacy revocation: validity and effectiveness

The TS declares the full validity and effectiveness of the legacy granted, since the testator always preserved her will to transmit mortis causa the good legacy while maintaining her capacity. The alienation therefore did not depend on a voluntary act of hers, which could be interpreted as a tacit manifestation of revoking the legacy, but rather a consequence of a judicial authorization requested by the guardian.

The majority doctrine, in the interpretation of art. 869.2 CC , as well as jurisprudence, also considers it as a manifestation of the tacit revocation will of the testator, and not as a transformation of a certain legacy into another of someone else’s.

Ultimately, the alienation, by any title, of the property that is the object of the legacy, carried out by the testator himself, must be understood as an unequivocal legal act of his will to render it without effect, in such a way that the same freedom that determined the constitution of the Legacy now makes it possible to deprive it of effectiveness by means of a legal transaction of this kind, which constitutes a tacit expression of revocation.

And to the point this is so, that an eventual recovery of the alienated thing, which is reintegrated into the domain of the deceased, does not allow the legacy to recover its effectiveness, unless it is verified by a resale agreement, as an expression of the will of the testator of reserving the possibility of reacquire the thing and not dispose of it definitively.

The interpretation of art. 869.2 CC leads to the fact that it is the voluntary act of the testator that allows the legacy to be rendered ineffective, so if the alienation does not depend on his will, it retains its effectiveness by subrogation.

Therefore, the decisive thing to understand that a legacy under the protection of art. 869 of the Civil Code is the tacit will of the donor “mortis causa” or testator expressed through a transformation or alienation of the thing, which is even deduced from the text of the article when it says that the return of the thing to the domain of the testator even if it is due to the nullity of the contract, it does not restore force to the legacy.

A second conclusion also generally accepted by the doctrine is the one that affirms that forced disposals, as events independent of the will of the testator, cannot be revocative because they lack the element on which to base the presumption that the deceased wanted revoke the legacy. A characteristic example of forced alienation that does not extinguish the legacy is forced expropriation, as happens with the non-voluntary transformation of land consolidation.

Under the aforementioned jurisprudential precedents and the considerations set out, we must uphold the appeal filed; Since the alienation of the legacy property carried out by the guardian and legatee, to meet the needs of her ward and deceased, with judicial authorization, cannot be considered as a manifestation of the testator’s will to revoke on the effectiveness of the litigious order .

The testator always maintained her will to transmit the good legacy “mortis causa” while maintaining her ability. The alienation therefore did not depend on a voluntary act of hers, which could be interpreted as a tacit manifestation of revoking the legacy, but rather a consequence of a judicial authorization requested by the guardian.

Therefore, in the collision between the interests of the legatees and the heir, it is necessary to consider the former subrogated in the remainder of the sale price, once applied to satisfy the needs of the testator, which was the cause that justified the alienation of the legacy property and not the externalized will of the deceased, through its own legal act, which can be interpreted as a tacit manifestation of revocation.