Abstract

Art. 964 of the Civil Code introduces the so-called ban of fiduciary substitution, that is, a disposition in the will whereby the testator imposes upon the heir the obligation to preserve the estate acquired and to leave it to another person. The majority view in literature assumes that Art. 964 of the Civil Code does not allow for a reservation of a condition or a time limit made in the appointment of a testamentary heir when this condition pertains to the death of the heir. This text defends a different view according to which Art. 964 of the Civil Code prohibits a disposition which is an ordinary legacy (legatum per damnationem) of the entire estate (universal legacy) when it is dependent on the heir’s death. It is allowed, then, to testate an ordinary legacy of the entire estate with the reservation of a time limit or a condition concerning the event that should occur prior to the heir’s death. The reservation of a condition or a time limit made in the appointment of a testamentary heir is never allowed because of Art. 962 of the Civil Code.