자필증서유언의 개선방안

Abstract

A will is legally effective upon the death of the testator, and it is a unilateral act that requires an established form. Civil act is taking the stance of strict formalism towards the wills, but excessive formalism can rather bring the ramification of disregarding the intent of the testator. Countries such as Germany, France, Japan, the UK, and the USA had required strict formalism on wills during the early days. However, these countries have revised the law or have become more relaxed with formality, since requiring strict formalism at the circumstances of dispute could not reflect the intent of testator fully. This approach is strict about asking the requirement of wills itself, but it is largely reducing the emphasis of the formality towards the interpretation of those requirements when the intent of the testator is it guaranteed. Accordingly, in terms of the interpreting civil act, as long as it retains the stance of strict formalism by categorizing the will as a formal act, the requirement of a will should be interpreted in a relaxed manner only if the true intention of the testator is assured while the lack of requirement itself should still be rigidly interpreted. In case of a will by holograph document, the testator must write the whole text of the will in his own handwriting. When some parts of the will is written by a person other than the testator, the part that is written by the testator’s own handwriting should only be considered as a valid will. Therefore, the testament is only effective when the part written by other person was a mere supplementary one, and the intent of the testator can be clearly delivered. In terms of the date, it will be void when the date requirement is never been written. However, if the true intent of the testator is assured, it should be interpreted in a flexible manner for the date is not a fundamental factor of a will. Since the date requirement in a holographic will is only at issue in terms of making the order or determining the capacity to make a will, it is desirable to be resolved through the revision of the clause. For the domicile requirement, it is advisable to eliminate the domicile requirement, since it is not only an excessive restriction but also unconstitutional to require the domicile information. Again, requiring the testator to affix the seal to the holographic will is an excessive limitation while it is also unconstitutional. Therefore, it is desirable to delete this requirement from the law for the legislative purpose. Accordingly, I suggest the article 1066 of the existing civil act to be revised as follows: “(1) In order to make a will by holograph document, the testator must write with his own handwriting the whole text, his full name, the date, and the domicile. (2) In order to make any insertion, deletion or other alteration of letters in a holograph mentioned in paragraph (1), such correction must be made in the testator’s own handwriting. (3) In case when a holographic will mentioned in paragraph (1) is suspected of the validity for there is no statement made regarding the time and place where the will was written, the will shall be deemed as valid if it is possible to confirm where and when it was written with other kinds of proof.”