| The testate succession system is an important part in the whole system of successionlaw. As the basis for determining the effect of wills, the effective requirements have beenregarded as the core of the testate succession system. The rules in force about the effectiverequirement had been made in the Succession Law 1985. These rules suited to the sociallife of 1980s'. With the development of economy and society, the properties owned by theChinese people have increased greatly. The number of people who dispose of his or herestate by will after death has also increased gradually. But, the defects of the law in forcemade the relevant rules difficult to fit for the social needs. Meanwhile, the making ofChinese Civil Code has been in progress. The testate succession system will be includedinto the Volume Succession. In fact, the local studies on the effective requirements of willsfrom a macroscopical perspective were still little. There is no doctoral dissertation on thistheme also. Therefore, it is necessary to develop the systemic study on this theme. Thisstudy will be useful to making the Civil Code and deepening the relevant theories of willsand providing the guideline for judicial practice.The dissertation is formed by three parts: the introduction, the text and the conclusion.In the first part, the introduction outlines the background, the present status quo and thesignificance of the research. The text comprised of five chapters:Chapter one "The Outline of valid requirement of the testament" is divided into threesections. Section one "The definition of valid requirement of the testament" reviewswording origin of the requirement of the testament, which differs from the establishmentrequirement, operation requirement and valid requirement, and on the basis of this the paperexplains the meaning of valid requirement of the testament. Section two "the significanceof valid requirement of the testament" starts from the review of the significance of thetestament and its limit to analyze the significance of valid requirement of the testament,mainly including the favor of humanity respect, reasonable allocation of resources and theinspiration of social creativity and the cultivation of respecting the old. But somerestrictions exist in the testament, which can be concluded as people with inferior mentalitymaybe misapply the testament; testator which abuses the freedom of making the will maybeimpairing family interests or depressing the effect of using the legacy; the difficulty infinding out testament intention maybe bringing the conflict and increasing judicial burden. The significance of valid requirements of testament rests with getting over the limit of thewill, including concretely three aspects: first is the favor of safeguarding the truthfulness ofthe testament; second is the favor of maintaining regular process of family life; third is thefavor of protecting social public interests. Section three "The Classification of ValidRequirements of Testament" differs the substantial requirement from formal requirementand discusses the content of every category. The substantial requirement includes mostlythe requirement of testamentary capacity, the requirement of genuine intention, thequalification requirement of testament beneficiary, the requirement of portion for familyand some other substantial requirements. As for the formal requirements, it includes twoaspects, namely the manner of making the will and the qualification of testamentparticipator, and at the same time the rigid of formal requirement is contained. Furthermorethe paper thinks that the formal requirement of testament should be classified into the validrequirement of it after discriminating particularly the classification of the formalrequirement.Chapter two "The Historical Origin of Valid Requirement of Testament in Two FaimlyLaw" is divided into two sections. Section one "The Valid Requirement of Testament inRoman Law" firstly reviews from the substantial requirement and the formal requirement,then comments on it synthetically. In Roman law, besides certain age and mental degree,the testator and the beneficiary should also meet with a series of conditions of socialrelation, otherwise not qualified. Under this instance the provision in fact imposes statepolicy on the substantial requirement of testament, which make it as the tool ofimplementing related political goals. Moreover the condition requires the appointment ofheir and the mention of all certain heirs, or else the will is not valid; when the testatordisposes the legacy, he cannot impair the right of obligatory portion which is owned byimmediate family, otherwise the immediate family has the right of requesting the removalof the testament or putting forward the appeal of remedying the obligatory portion. Allthese measures limit the freedom of making the will, which provides with certainguarantees for the immediate family of the ancestor. Regarding with the formal requirementof the testament, the content of early testament should be made publicly in officialoccasions, even the testament is required to pass the consideration and the vote, which hasthe dense public tint. However in the late stage the formality of testament is simplified, andthe proving function is more explicit. As an important character in Roman inheritance law,the testament should be made according to specific language format, but the character isalso gradually weakened in the late stage of Emperor Politics. Furthermore the rigid of valid requirement of testament is challenged from the stage of Emperor Politics: thedisposal of special estate of military service can be entitled with certain immunity right ofsubstantial requirement, and swordsman can obtain more plenty of immunity right offormal requirement when he makes the will, which embodies the policy of encouragingjoining the army in certain degree and objectively advances the effect of simplifying thevalid requirement of testament. Section two "The Valid Requirement in law from MiddleAges to Modern Times" reviews it during two stages, one is early middle ages, and theother is from metaphase of middle ages to modern times. In the early middle ages validrequirement in law is relatively scattered on the whole, and it belongs to the mixed lawwhich is comprised of unwritten law and Roman law. In the metaphase of middle ages, thecanon law prescribes that the testament can be made on the presence of one clergyman andtwo or three witnesses, and even if it falls short of formal requirement, it still can beassured of the testator's genuine will, the force may be acknowledged. In European land,notarization testament which is produced the profanity of above manner by plus its inherentholographic wills formed the general manner of formal requirements in civil law countries.Because of the impact of canon law, England abandoned the formal requirement oftestament in Roman law, and through the reform of 1677 Statue of Fraud and 1837 Will Actstrengthened formal requirement again, and lastly formed the main manner in common lawcountries. Simultaneously it produced the compulsory portion in French style fromunwritten law, and after succeeding from Roman law, the compulsory portion in Germanstyle is formed, so the essential model is established in the aspect of compulsory portion incivil law. From 12A.D. to 14 A.D. it gradually formed the dower portion which limited thefreedom of testament in England, and the basic style in America is settled. However themainland in the British discarded the tradition by 1837 Will Act until another set of systemof compulsory portion of testament is formed in the firs half of 20th century. Thus the coreframe of valid requirement of testament in two family law basically formed.Chapter three "The Valid Requirements of Testament in Two Family Law" is dividedinto two sections. Section one "The Valid Requirements of Testament in Civil LawCountries" selects France, Germany, Italia, Swiss and Japan for reviewing the validrequirements of testament. Section two "The Valid Requirements of Testament in CommonLaw Countries" selects British, America and Australia for the same thing. The paperexplains the valid requirements of testament from two aspects including substantialrequirement and formal requirement in every country's law.Chapter four "The Analysis of Valid Requirement of Testament in Modern Two Family Law" is divided into two sections. Section one "The Analysis of Substantial Requirement ofTestament" respectively analyzes it from four aspects including testamentary capacity,manifest of genuine meaning, qualification of testament beneficiary and portion of family.With respect to the traditional theory about testamentary capacity there are two kinds,namely "yes" and "no", and the will can only be made by oneself, however these ideas donot accord with present legislative practice. The two-cent model is simple but too rigid; sothe addition of "the limit of testamentary capacity" can quarantee to show the justice ofsingle case. In civil law countries, the legislation generally opposes proxy testament, and insome common law regions, it can be allowed to appoint proxy in making the will ofincapable testamentary people. Compared with each other, these two manners have someadvantages and disadvantages. The confirmation factors of testamentary capacity mainlyinclude age and mental condition, and on the whole the requirement of testamentarycapacity should be under the requirement of trade capacity. In the aspect of manifest ofgenuine meaning only in some countries the legislation outlines it expressly, and mostcountries have the real intention of protecting manifest of genuine meaning of testator inthe valid requirement concemed with qualification of beneficiary and the manner of makingthe will. With regard to the qualification of beneficiary, the provisions in most countriesfocus on some aspects hereinafter: the guardian cannot become the beneficiary of testamentof the minor, and some participators making the will cannot become the beneficiary, inaddition the man in special relation to qualified beneficiary without testament cannotbenefited from the will also. Most countries require that people losing the qualification ofinheritance has the qualification of benefit from the testament; however some legislationforbid such type of people benefit from according testament. With respect to portion offamily about testament, the main advantage of the compulsory in civil law lies on expressstandard for robustly defending the family; on the other hand the main disadvantage is toorigid to consider practical demands. The main merit of supplying remaining family ofBritish style rests with adjusting to specific instance, and too ambiguous standard is themain defect. In France and Italia, it has great significance for protecting the life of survivingspouse who cannot have the right of compulsory portion to entitle with special rights. Manykinds of portion of family exist in America, and the brilliant character is to protectsurviving spouse. The right of elective share can only be entitled to surviving spouse inAmerica, and the content of it is close to the compulsory portion in civil law, whichgenerally coordinates with the system of respective estate of husband and wife. America'shomestead allowance and personal property set-aside has the advantage of definite standard and minor strict with the freedom of testament, which is deserved to be used for reference.Section two "The Analysis of Formal Requirement of Testament" deals with the mannerof making the will, the qualification of testament participator and the strictness of testament.The key point concerned with the manner of making the will is the classification of themanner. On the surface the classification of the manner of making the will is divided intogeneral testament and special testament both in two families law, however the difference ofthe meaning is too large. In most civil law countries, general testament can essentially beclassified into two kinds: notarial wills and holographic wills; and special wills is theversatility of notarial wills, in which people with equivalent status substitutes for notary,additionally which allows for appearance of general witness under specific conditions. Inmost regions of common law, there is only one kind of testament, namely attested wills.Besides, some regions recognize also holographic wills; and special wills generally meansthe testament made by armyman and seaman, which does not need to comply with formalrequirements of general testament. As for the qualification of the witness of testament, theprimary thing is to deny people the qualification of eyewitness hereinafter: the minor,mental patient, the beneficiary of testament and the interest, the akin to ancestor, peoplewith relation to notary, people with physical deficiency and so on. Traditional theory thinksthat the will is formal legal conduct so formal requirement should be complied strictly.However from the beginning of late 20A.D., many regions in common law begin to set upthe immunity system of formal requirements of testament, and according to it if certaindocument can prove expressly last will of ancestor the will is determined to be valid even ifit is not consistent with formal requirement of testament. The trend in legislation alsoextends to Quebec in Canada and is expressed in Civil Code regulated in 1990's andcontemporarily in Russian Civil Code.Chapter five "The Development and Perfection of Valid Requirement of Testament inOur Country's Law" is divided into three sections. Section one is "The HistoricalEvolvement of Valid Requirement of Testament in Our Country". In our country's ancientlaw, the character of valid requirement of testament rests with rigid substantial requirementand liberal formal requirement. On the whole, the valid requirement of testament in themodern evolvement begins with law reform for prosperity, so main rules migrate fromrelated legislation in civil law countries combined with our country's reality. After the PRChas been established, there is comparatively scattered valid requirement of testament inlegal document, the essential spirit of which lies with the emphasis on assisting the weak inone family concerned with substantial requirement, and the emphasis on the policy of equality of men and women; regarding with formal requirement it is so liberal on the wholeas to be close with traditional law in our country. These scattered rules plus many law draftswhich is completed meantime make the basis of the establishment of related system in 1985Inheritance Act.Section two "Valid Requirements of Testament in Our Country's Present Legislationand Its Disadvantages" deals with valid requirements of testament(including substantialrequirement and formal requirement) in our country's present legislation, and analyzes itsdisadvantages. Although comprehensive in legislation, some limitations exist still.Concerned with substantial requirement, it includes too strict with testamentary capacity,irrational qualification of testament beneficiary which denies people losing heirdom astestament beneficiary and irrational rules which is designed to resolve the identity conflictbetween testament participator and beneficiary. Furthermore, with regard to portion offamily the bound of obligee is too small to rank expressly whether the obligee exists, andthe portion is so general that it can not reflect the degree of family relation and considerfetal interest. As for the disadvantages of formal requirement, there is improper judicialinterpretation of holographic wills, too simple provisions of notarial wills, uncomfortablewith social needs of allograph testament, weak provisions of record testament and irrationalprivileged wills, which makes it irrational to take notarial testament precedence of othertestament formality. Regarding with the rigid of formal requirement of testament it is toohard in our country's regulations. Section three "The Legislative Consideration of PerfectOur Country's Valid Requirement of Testament" states my own opinion. About how toperfect the legislation of substantial requirement main contents is hereinafter: the regulationof limited capable testator; the recognization of qualification of testament beneficiary whichdenies people losing heirdom as testament beneficiary, and under the condition of validwills the settlement of identity conflict between testament participator and beneficiary. Thepaper also thinks we should perfect the system of our country's compulsory portion throughways below: define the right of compulsory portion as the extension of aliment afterancestor's death, and make the condition of aliment as the standard of whether the right ofcompulsory exists, and regulate the referring factors of ensuring the amount of compulsoryportion, and setup the quota of compulsory portion from double points of view includingsingle obligee and collective oblige, and regulate the right of surviving spouse'sinhabitation in prior house and its applying conditions, and regulate the right of set-asideportion about life things of surviving spouse and the filial minor, and set up removal rightof oblige of compulsory portion which is being harmed by others. Concerning the legislative perfection of formal requirement, the dissertation thinks that it is necessary toenrich the regulations of notarial wills, add sealed wills, perfect related judicialinterpretation of holographic wills, add witnessed wills which can include allograph wills,limit the amount of disposing legacy after record wills combined with privileged wills.The conclusion part summarizes the main opinion of this paper. Firstly, theauthor has made thorough and systematic research on the valid requirement for the firsttime, and has filled up the blank of theory research in some degree. The author hasexpounds the relation between the valid requirement and testament, and holds the view thatthe valid requirement is the tool used to overcome the limitation of testament.Secondly, it is the first time to review and explain the valid Requirement of Testamentin modern two family Law. The author has indicated some problems existing in thetraditional theory. With respect to the traditional theory about testamentary capacity thereare two kinds, namely "yes" and "no", and the will can only be made by oneself. Thesehave been broken through by some countries' legislature. In foreign countries, somelegislature has stipulated the conditions of limited testament ability, some legislatures evenhas allowed testamentary incapacity to appoint the testamentary deputy.Thirdly, the author has tidied up the valid requirement of testament systematically, andthe valid requirement of testament laid particular stress on the substantial requirement, andthe formal requirement was not been regulated strictly.On the basis of analyzing the shortcomings of contemporary legislature of our country,using the legislature experience of foreign countries and combining the practice of China,the author has put forward the suggestions of legislature. About how to perfect thelegislation of substantial requirement main contents is hereinafter: the regulation of limitedcapable testator; the recognization of qualification of testament beneficiary which deniespeople losing heirdom as testament beneficiary, and under the condition of valid wills thesettlement of identity conflict between testament participator and beneficiary. The paperalso thinks we should perfect the system of our country's compulsory portion through waysbelow: define the right of compulsory portion as the extension of aliment after ancestor'sdeath, and make the condition of aliment as the standard of whether the right of compulsoryexists, and regulate the referring factors of ensuring the amount of compulsory portion, andsetup the quota of compulsory portion from double points of view including single obligeeand collective oblige, and regulate the right of surviving spouse's inhabitation in priorhouse and its applying conditions, and regulate the right of set-aside portion about life things of surviving spouse and the filial minor, and set up removal fight of oblige ofcompulsory portion which is being harmed by others. Concerning the legislative perfectionof formal requirement, the dissertation thinks that it is necessary to enrich the regulations ofnotarial wills, add sealed wills, perfect related criterion of holographic wills, add witnessedwills which can include allograph wills, limit the amount of disposing legacy after recordwills absorbed by privileged wills, and regulate the rigid of formal requirement oftestament.
|
PDF Full Text Request