유류분과 신탁

Abstract

Forced Share and Trust Choi, Joon-kyu This article examines: ① the means of calculating forced share; ② the subject matter of a forced share; and ③ the party against whom to claim for a forced share, in case where either an inter-vivos trust for will substitute, a testamentary trust, or a trust with successive beneficiaries is established. The main conclusions are as follows. First, as a contract for the benefit of a third party, an inter-vivos trust for will substitute is often substantively a gift mortis causa granting beneficial interest in trust to a beneficiary. As such, it is reasonable in principle to include the value of the beneficial interest in the base property in calculating forced share, and allow the holder of forced share to claim for the return of forced share against the beneficiary, by way of claiming the transfer of beneficial interest. However, in cases where there is no beneficiary in trust or where it would be manifestly unfair for the holder of forced share to be allowed only the beneficial interest, the successor entitled to forced share may claim for the restitution of trust estate against the trustee. In such cases, the value of trust property should be included in the base property in calculating forced share, regardless of the point at which the revocable inter-vivos trust was established. Second, where a testamentary trust is settled, it is reasonable to allow both the restitution of trust estate and the transfer of beneficial interest in trust. As the trust property belongs to inheritance estates in case of testamentary trust, the successor entitled to forced share may claim for the restitution of trust estate against the trustee. Forced share guarantees successors some portion of inheritance estates. But in view of the substance of a testamentary trust as a bequest granting beneficial interest in trust to a beneficiary, the holder of forced share may also claim for the reversion of the beneficial interest. Third, where a trust with successive beneficiaries is established, the value of beneficial interest of the second, successive beneficiary should also be included in the base property when calculating forced share. The successor entitled to forced share has a claim against not only the first beneficiary, but also the second, successive beneficiary for the transfer of future beneficial interest.