Comment On The Joint Will And Its Legislation

Testamentary succession is one of the inheritance modes in the law of succession in our country, which reflects the true meaning of the testator to dispose of his heritage after the death, and in reality people’s demand to make a will also become more and more intense. With the continuous development of market economy, more and more joint wills have appeared in the practice, but the joint will is not legislated clearly in our country. Domestic scholars have a variety of doctrines about the nature, validity, change and revocation, etc of joint wills. In abroad some countries have already affirmed the effect of common wills by law or legal precedents, while others forbid wills made by two or more persons jointly. This leads to the situation that joint will causes many disputes in the process of implementation, not only the perception of judicial but also the applicable standards of the law are different. Usually similar cases are very different verdicts. Clearly based on the real need of the society, the joint will has been highlighted as an important legal issue. There is an urgent need to incorporate it into the constraint of law in order to provide guidance for social practice. In recent years many legislative proposals about the succession law also increase rules of husband and wife co-will. The article begins with the basic theory of joint will and gradually analyzes related legislation at home and abroad, then combined with our history and current situation, builds our joint will system for the inadequacy of current legislation based on recognizing the effectiveness of joint will limitedly, so as to provide some references for solving related problems in theory and practice. In particular, besides the prologue and conclusion, the article is divided into three chapters.The first chapter starting from the basic theory of joint will, elaborates on the concept and types of joint will and defines its nature, clear joint will of material meaning is the focus of this article, and analysis joint will not only has characteristics of general testament, also has its own legal characteristics.The second chapter discusses status of legislation on joint will in our country and the identification of its effectiveness. Briefly describe our relevant legislation is pale, summary and compare China’s current academic views about the co-will——the affirmation doctrine, the denial doctrine and the compromise doctrine combined with foreign legislation on joint will. Then based on our tradition, social needs and judicial practice, together with advantages of joint will, the author arguments that China should affirm the effectiveness of joint will limitedly.The third chapter, the focus of this article study, is to build our joint will system based on the compromise doctrine. The author puts forward the concrete legislative proposals for the basic system of co-will, its subject, object, content, form, establishment, the entry into force and the invalidation, the change and revocation of joint testament, the execution of joint will, hoping to improve our system of joint will.