The Research Of Prior Effect Of Notary Testament

Notary testament is one of our five forms of statutory wills, and probate system shouldhave a characteristic of private law which stems from the law of succession. Being madeunder the guidance of notary public who possess legal knowledge and by the rigorousprocedure of notary, the will is not easy to bring out a dispute. Thereby when the probatesystem is enacted, it should be kept the rigorous characteristic which notary law claim.At present, the provisions’ quantity about probate system is very small in Chinese legalstatus; there are only one or two relevant provisions which are related to probate system inChinese Inheritance Law. I observe and study relevant provisions about probate system inInheritance Law、Notary Law、Will Notarization Rules and Notarization Procedure Rules byhermeneutics, and then sum up that the notarized will have prior effect in Chinese legal statusby designing the system of will cancellation. However, in practice, the prior effect of notarytestament sometimes causes the adverse effect that the ultimately true meaning of testator isdifficult to achieve. This disadvantage induces the academic controversy about whether notarytestament should have prior effect or not. In detail, I introduce three theories(NegativeTheory、Certain Theory、Compromise Theory)and the reasons of their legislative proposalsabout this controversy.After brief review of the Certain Theory and the Compromise Theory, taking a stand on thisquestion and I am in favor of the Negative Theory. My view is that notary testament shouldhave priority on weight of evidence rather than the supreme effect. I believe that the theory ofnotary testament without prior effect has a lot of advantages: firstly, my view has strongvitality because we find it meet the value of modern law and testament system by valueanalysis. It takes into consideration the value of freedom、justice and gives attention to two ormore things efficiency and order; Secondly, using the method of article analysis to prove thatthe system of notary testament with no prior effect complies with the legislative idea of thenotary system, and is accord with the regulations’ effectiveness of notarization document inNotary Law and the Law of Civil Procedure of People’s Republic of China, and complies withthe functions of notary agency, and also reflects the consistency of laws and regulations;Thirdly, the method of historical and empirical analyses help to show that notarial wills withno prior force conforms to public’s inheritance habits of our country and the current economic situation, and has the enforceability in practice; Fourthly, this paper selects a series ofrepresentative examples of the two opposite aspects, one side includes Germany, France,Britain, the United States, Japan, Taiwan of China, Hong Kong of China (notarial willswithout priority), the other, Portugal, Russia and China Macao (notarial wills own "the onlyeffect"), as the research objects, using analysis method of comparison to prove that notarialwills without prior force is in line with the legislation trend of the advanced countries andregions, and with the modern developed theory of rule of law.Finally, the author suggests that should change the provisions about the priority of notarialwills in current Inheritance Law. Comparing with other forms of wills, notarial wills shouldhave stronger announcement and public credibility, because of its strict procedures. Formaintenance of the public credibility, in stead of giving the priority, procedural elements ofnotarized wills should be joined into the legislation of the Succession Act, and in the rules ofevidence notarial wills shall be presumed true and lawful. In addition to aforementioned, inthe construction of specific system building, law giver should change the provisions of awill’s cancellation in the current Inheritance law, and through the reasonable design of expressand implied rules on wills’ withdraw and change, it will make clear that notarial wills can bechanged by any kind of ultimate wills, and clarify that the testator’s will finally concludedhave the highest effectiveness.