실무상 문제되고 있는 유언능력 - 하급심 판례에서 추출한 판단기준과 판단요소 -

Abstract

To establish criteria for determining testamentary capacity and extract relevant factors, we analyzed 10 recent lower court cases. The following points were confirmed: Testamentary capacity refers to the mental ability of the testator to understand and judge the meaning and consequences of their actions. A more lenient standard should be applied compared to the level of mental capacity required for other property-related legal acts. Lower courts have continued to recognize testamentary capacity in cases such as wills made by individuals diagnosed with severe dementia or those in a state of confusion before death. The reason for applying a more lenient standard to testamentary capacity is that a will is a unilateral act that enforces the testator’s intentions after death, based on the principle of private autonomy and the constitutional protection of property rights. Moreover, testamentary freedom is subject to limitations, such as the system of reserved portions and the formal requirements of a will, reducing the need for a strict mental capacity standard. The factors for determining testamentary capacity include: 1) the psychiatric condition considering the testator’s age and health status, etc., 2) the form and content of will, as well as the circumstances at the time of the will, 3) the lifestyle before and after the will was made, 4) the rationality of the will in light of the testator’s usual intentions, consistency with their usual behavior and motives, and 5) the outcomes of related legal proceedings, such as adult guardianship. Particularly important is the assessment of the testator's mental state. Conditions like dementia or severe cognitive impairments are major obstacles to determining testamentary capacity. However, since these symptoms can be reversible, the testator’s condition at the time the will was made should be the basis for evaluation. Medical diagnoses are important reference points, but not an absolute standard. More important may be the observations made by the notary or witnesses about the testator's condition at the time the will was executed.