Um código civil reformado como fator de correção das desigualdades: a construção de uma nova capacidade testamentária ativa à luz do estatuto da pessoa com deficiência

Abstract

With emphasis on the studies of the recent proposal to reform the Brazilian Civil Code regarding the active testamentary capacity of people with disabilities, in light of the innovations brought by the Statute of Persons with Disabilities (Law No. 13,146/2015). It should be noted, first, that the International Convention ratified by Brazil in 2008 represents an important milestone in this process of guaranteeing the rights and fostering the social inclusion of these people. However, even with legal advances, barriers persist that effectively prevent equality and equate people with physically capable people, especially in relation to the freedom to make wills and patrimonial autonomy. Next, there is a demand to demonstrate how the reform proposal interacts with the Statute of Persons with Disabilities and whether, through the indicated changes, it will be possible to marginalize the inequities faced by this group. Its general objective is to reflect on this relationship, correlating the punctual reform of the theory of capacities of the Civil Code that occurred when the Statute of Persons with Disabilities came into force in 2015, and the current proposal for the Reform of this same Code, located between 2023 and 2024, in order to identify if there really is and what it actually consists of the promise of mitigating inequalities through provisions that propose a renewed perception of the testamentary capacity of persons with disabilities and as specific objectives to map the current regulations related to the civil and testamentary capacity of persons with disabilities, challenges that still remain in the practice of wills and to propose solutions to promote the inclusion and autonomy of these individuals in the exercise of their succession rights. The Statute of Persons with Disabilities, although it has achieved relevant theoretical advances, still finds its practical application considerably challenged today in view of the accessibility to testamentary procedures. On the other hand, the full inclusion of persons with disabilities in inheritance rights must be accompanied by continuous adjustments, training of legal professionals and special legislation related to their needs. Thus, in what way are the new legal provisions that intend to govern the testamentary capacity of Persons with Disabilities in this "Reformed Civil Code" sufficient to overcome the challenges faced by these subjects in the preparation and execution of wills, in light of the assumptions introduced by the Statute of Persons with Disabilities in the Brazilian legal system?