On The Freedom Of The Will And Limitations

In modern law, the freedom of testament means the deceased's devolution of property right on death. The freedom of testament includes the freedom of defining its content, the freedom of choosing its form and the freedom of changing or canceling its content However, in this article the author only elaborates the freedom of defining its content and the limitation. In recent years, the drawbacks of Succession Law of People's Republic of China (1985) has exposed obviously in the judicial practice. In China, the Civil Code is being formulated now. In this background, the perfection of testament system becomes significant in both theoretic and practical view. In modern civilian systems, there has often been a compromise between family considerations and testamentary freedom. It means both the extent and to which private property is recognized and the extent to which testamentary freedom is compromised in favor of the family, a compromise which varies depending on not only whether the family is conceived in a narrow or extended sense but also whether its object is to provide for the need of proximate members or to preserve family power. The means and extent of family protection have varied depending upon the object and concept of family unit. In this article, the author introduces and analyzes the system of testamentary freedom and limitation of two legal systems: English law and Continental law, and criticizes the insufficiency of present legislation on testamentary freedom and limitation in our country, and at the end of the article, the author tries to give some suggestion to perfect it.There are about50,000 words in this article, consisting of four parts.In the first part, the author details with the history and the development of will succession during the slave society, the feudal society, the earlier capitalist society and socialist society. It indicates that the substance of testamentary freedom and limitation is a profit of balance among an individual, the family and the society.In the second part, the author introduces the relating legislations in English law, Continental law and the mainland of China. They are reasonable financial...