No.<\/p>\n
Under Articles 2179, 2181, and 2182 of the Portuguese Civil Code, a will is a unilateral, individual, and personal legal act. Testamentary intent belongs exclusively to the testator and cannot be delegated to an attorney-in-fact, legal representative, court-appointed companion, or family member.<\/p>\n
Accordingly, it is not legally possible to:<\/p>\n
Testamentary succession is based on the testator\u2019s personal and individual intent. When that intent cannot be validly formed or expressed, a third party cannot create it, even if the proposed solution is considered reasonable, equitable, or consistent with the family\u2019s interests.<\/p>\n
The starting point is Article 2188 of the Portuguese Civil Code, which provides that all persons whom the law does not declare incapable of doing so may make a will.<\/p>\n
Under the current Portuguese regime for adults subject to protective measures, the existence of a protective measure does not, by itself, establish a lack of testamentary capacity.<\/p>\n
On the contrary, Article 147 of the Portuguese Civil Code provides that an adult subject to protective measures may freely exercise personal rights unless otherwise provided by law or ordered by a court. The right to make a will is expressly included among those personal rights.<\/p>\n
Three situations must therefore be distinguished:<\/p>\n
A lack of testamentary capacity should therefore not be presumed merely because a protective measure is in place. A restriction of the right to make a will is an exception and must result from the law or from an individualized and properly reasoned court decision.<\/p>\n
A recurring error can still be found in legal practice. When a protective measures judgment prevents a person from making a will, some interested parties and their attorneys seek court authorization for the companion to make a will on the protected person\u2019s behalf.<\/p>\n
That request is legally inadmissible.<\/p>\n
Court authorization may be relevant to certain financial or property transactions carried out by a legal representative when the law subjects those transactions to judicial oversight. However, court authorization cannot convert a strictly personal act into an act that may be performed through representation.<\/p>\n
In other words, a court may authorize the companion to carry out certain transactions within the scope of the companion\u2019s representative authority. A court cannot authorize the companion to exercise a right that belongs exclusively to the protected person.<\/p>\n
The companion cannot decide:<\/p>\n
These decisions are part of the personal and nondelegable core of testamentary freedom.<\/p>\n
The answer depends on the specific circumstances.<\/p>\n
If the protected person retains sufficient judgment to form and express testamentary intent, but the protective measures judgment restricts the right to make a will, the matter should not be presented as a request for the companion to make a will on the protected person\u2019s behalf.<\/p>\n
The appropriate legal procedure may involve:<\/p>\n
One option is to ask the court to reassess the protected person\u2019s capacity to make a will personally. A very different and legally inadmissible option is to ask the court to authorize the companion to create testamentary intent on the protected person\u2019s behalf.<\/strong><\/p>\n If the person lacks the capacity to form and express free and informed testamentary intent, no procedural mechanism permits that missing intent to be supplied through representation.<\/p>\n Not automatically.<\/p>\n A judgment establishing protective measures and restricting the right to make a will has the effect specified in the judgment. It does not automatically invalidate a will that was validly executed before the judgment.<\/p>\n Accordingly, an earlier will is not invalid merely because protective measures were subsequently imposed and the right to make a will was restricted.<\/p>\n However, the judgment\u2019s identification of an earlier date associated with an inability to understand the declaration or freely exercise intent may constitute relevant evidence. In certain circumstances, it may support a factual inference of incapacity and lead to the will being set aside.<\/p>\n The following must therefore be distinguished:<\/p>\n Pupillary substitution is governed by Article 2297 of the Portuguese Civil Code.<\/p>\n A parent who has not been wholly or partially deprived of parental responsibility may designate, in the parent\u2019s own will, heirs or legatees who will inherit from the child if the child dies before reaching 18 years of age.<\/p>\n The substitution operates on what may be described as the active side of the child\u2019s succession<\/strong>. The parent does not merely name a substitute to receive the parent\u2019s estate if the child is unable or unwilling to accept it. Instead, the parent designates the person who may inherit from the minor child if the child dies before reaching the age at which the child could make a will.<\/p>\n It is therefore an exceptional form of substitution and a limited departure from the principle that no person may make a will for someone else.<\/p>\n A parent names a 10-year-old child as an heir and provides in the parent\u2019s own will:<\/p>\n \u201cIf my child dies before reaching 18 years of age, I designate my sibling as the child\u2019s pupillary substitute.\u201d<\/p>\n If the parent dies and the child later dies at age 15 without ascendants or descendants, the designated person may be called to inherit from the minor under the substitution.<\/p>\n The clause does not mean that the designated person represents the minor or necessarily administers the property during the child\u2019s lifetime. The substitute is called to inherit only if the event specified in the law and the will occurs.<\/p>\n Pupillary substitution requires:<\/p>\n The restriction must involve an actual deprivation of parental responsibility. It should not be confused with decisions regarding the child\u2019s residence, the joint or exclusive exercise of particular parental responsibilities, or child protection measures.<\/p>\n The substitution ceases to have effect:<\/p>\n Upon reaching adulthood, the child will generally be able to determine personally, through a will, how the child\u2019s property will pass. There is therefore no longer a basis for allowing the parent\u2019s earlier substitute designation to prevail.<\/p>\n Quasi-pupillary substitution, governed by Article 2298 of the Portuguese Civil Code, extends the pupillary substitution mechanism to adult children who have been judicially barred from making a will.<\/p>\n Under this provision, a parent may designate in the parent\u2019s own will the person who will inherit from a child who is unable to make a will because of a protective measures judgment.<\/p>\n The substitution ceases to have effect when the restriction ends or when the child dies leaving ascendants or descendants.<\/p>\n This mechanism addresses a specific difficulty. If an adult child has been judicially barred from making a will, the child cannot select who will inherit from the child. Within the statutory limits, the law therefore gives the parent the exceptional authority to designate the child\u2019s successors in the parent\u2019s own will.<\/p>\n Quasi-pupillary substitution requires:<\/p>\n The parent is not required to serve as the child\u2019s court-appointed companion. The legal status of a parent making a will and the role of a court-appointed companion are separate.<\/p>\n This is one of the issues that most frequently causes confusion.<\/p>\n In a quasi-pupillary substitution, the parent expresses the parent\u2019s own intent in the parent\u2019s own will<\/strong>, exercising an exceptional power expressly granted by law.<\/p>\n By contrast, when seeking authorization to make a will on behalf of the protected person, the companion is attempting to express intent attributed to the protected person. That type of representation is prohibited because a will is strictly personal.<\/p>\n Quasi-pupillary substitution is therefore not a means by which the companion may circumvent the protected person\u2019s lack of testamentary capacity. It is an independent succession mechanism granted to the parent and exercised exclusively through the parent\u2019s own will.<\/p>\n Pupillary and quasi-pupillary substitutions should not be confused with direct substitutions limited to property left by the parent to the child.<\/p>\n Under the traditional understanding of these mechanisms, the designation may extend to the substituted child\u2019s succession and cover property received by the child from the parent by inheritance or gift, including property allocated as part of the child\u2019s forced share.<\/p>\n Nevertheless, the testamentary clause must be drafted with particular care. The clause should define:<\/p>\n In matters involving wills, the testator\u2019s actual intent is decisive, provided that the language of the will contains at least some indication of that intent, even if imperfectly expressed.<\/p>\n Portuguese case law also indicates that, in pupillary and quasi-pupillary substitutions, the persons who will ultimately inherit can only be definitively identified at the time of the substituted child\u2019s death.<\/p>\n Articles 2297 and 2298 of the Portuguese Civil Code expressly provide that the substitution will lapse if the child dies leaving ascendants or descendants. The statutory language does not identify a surviving spouse as an automatic ground for the substitution to lapse.<\/p>\n However, this does not mean that the spouse\u2019s inheritance rights may be disregarded.<\/p>\n The substitution must be coordinated with:<\/p>\n For this reason, the substitution clause should form part of a broader estate plan, particularly when the child may marry, enter into a de facto union, acquire separate property, or have descendants.<\/p>\n Yes.<\/p>\n A quasi-pupillary substitution ceases to have effect when the restriction on the right to make a will ends. If the protective measure is reviewed and the child regains the legal freedom to make a will, there is no longer a basis for allowing the parent to determine who will inherit from the child.<\/p>\n This solution respects the autonomy of the protected person. Once testamentary capacity has been restored, the child may decide whether to:<\/p>\n Quasi-pupillary substitution must therefore be understood as an exceptional and subsidiary solution, limited to the period during which the child is actually barred from making a will.<\/p>\n Before including a pupillary or quasi-pupillary substitution, the following matters should, at a minimum, be reviewed:<\/p>\n International cases require particular caution. The validity and effect of the substitution may depend on the law governing the parent\u2019s succession, the law governing the child\u2019s succession, and the recognition in another country of the Portuguese protective measures judgment.<\/p>\n A will is not an act of property management or a transaction that may be carried out through representation. It is a personal and nondelegable expression of the testator\u2019s intent.<\/p>\n For that reason, a court-appointed companion cannot make a will on behalf of the protected person, even if the companion has general representative authority and seeks court authorization. A court order cannot convert a strictly personal act into an act that may be performed by a representative. Portuguese courts have clearly rejected requests of this kind.<\/p>\n If the protected person retains the ability to understand and express testamentary intent, the appropriate solution may be to seek a review of the protective measure so that the protected person may personally execute the will. If the protected person lacks that capacity, the companion cannot create or replace the missing testamentary intent.<\/p>\n Pupillary and quasi-pupillary substitutions are different mechanisms. Through these arrangements, the parent does not make a will as the child\u2019s representative. Instead, the parent exercises, in the parent\u2019s own will, an exceptional authority granted by Articles 2297 and 2298 of the Portuguese Civil Code.<\/p>\n4. Does a Subsequent Protective Measures Judgment Invalidate an Earlier Will?<\/h2>\n
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5. What Is Pupillary Substitution?<\/h2>\n
Practical Example<\/h3>\n
6. What Are the Requirements for Pupillary Substitution?<\/h2>\n
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7. What Is Quasi-Pupillary Substitution?<\/h2>\n
Essential Requirements<\/h3>\n
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8. Quasi-Pupillary Substitution Is Not a Will Made by the Companion<\/h2>\n
9. What Property Is Covered by the Substitution?<\/h2>\n
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10. What Happens if the Child Leaves a Spouse?<\/h2>\n
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11. Does the Substitution Lapse if the Protected Person Regains Testamentary Capacity?<\/h2>\n
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12. Practical Considerations When Preparing the Will<\/h2>\n
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Conclusion<\/h2>\n