The 35th Chamber of Private Law of the São Paulo State Court of Justice (TJSP) ruled that a non-seizability clause included in a will does not prevent the seizure of inherited funds when the debt predates the opening of the probate process. The decision was issued by appellate judge Flávia Beatriz Gonçalez da Silva during judicial duty.

The case involved a woman who received an inheritance that was subject to a non-seizability clause. She had a debt of approximately R$ 197,000, and the seizure had initially been overturned by the court based on this testamentary protection.

The creditor company appealed, arguing that the non-seizability clause is meant to protect assets from future debts and cannot be used as a shield against already existing, liquid, and enforceable debts. According to the attorneys, allowing such protection would be equivalent to endorsing fraud against creditors.

Upon review, the judge noted that the debtor did not invoke the non-seizability clause at the earliest opportunity, failed to appeal prior decisions, and only brought up the argument later—despite having had the chance to raise it earlier. This conduct was deemed a case of “pocket nullity” (nulidade de algibeira), meaning a party raises a procedural flaw too late in an attempt to gain undue advantage.

On these grounds, the judge overturned the previous ruling that had protected the inherited assets and reinstated the seizure, allowing the inheritance funds to be used to pay off the debt.

The ruling reinforces that a non-seizability clause cannot be used as a strategy to avoid paying legitimate debts that predate the inheritance. It also underscores the importance of procedural good faith and the timely presentation of legal arguments to prevent parties from using delayed tactics to obstruct enforcement or ambush the creditor.

Read the full article: Dívida prévia à herança anula cláusula de impenhorabilidade