유언능력의 판단

Abstract

With the advent of a super-aged society and the increase in the number of wills, disputes over wills are also on the rise. In particular, there are increasing cases of claiming invalidity over wills – which include unreasonable provisions for the survivors - by asserting elderly individual’s insufficient ability to judge due to dementia. The problem is that in cases when the judgment of testamentary capacity is needed, most of them occur after the testator’s death, which makes it extremely difficult to determine whether there was a judgment ability at the time of the will. The general legal theories and precedents do not necessarily require the ability to conduct general property legal acts in order to make a will, and it is believed that having the mental capacity to understand the content of the will and judge its consequences is sufficient. The question of whether a person has testamentary capacity leads to the matter of factual determination; therefore, it is reasonable that precedents and general theories must assess the ability individually for each specific case. However, when examining past precedents, it appears that mental capacity and testamentary capacity cannot always be considered identical. This calls for a review of whether testamentary capacity should be evaluated in the same manner as the mental capacity required for property acts. This study examines the criteria for determining testamentary capacity, whether it should be treated the same as mental capacity, and if not, how it should differ. Additionally, the study reviews the rationale behind setting the testamentary capacity age at 17 in legislation and analyzes the criteria for determining testamentary capacity in the UK, where related precedents are accumulated. In conclusion, there is a consensus that testamentary capacity should be assessed differently depending on each situation. However, among the arguments taken by our conventional wisdom and precedents, it is necessary to establish standards from a subjective point of view, rather than pursuing the rationality of a will by considering various objective perspectives while looking at the ability to make a will similar to the ability to make a decision.