Research On The Freedom And Restriction Of Testamentary Succession Of China

Testamentary succession is formed based on the development of social economy andprivate ownership, with the difference between statutory succession and intestatesuccession, the latter is more reflected to protect the personal free will of the testator. Inrecent years,“Lu Zhou legacy case”,“Hang Zhou legacy case” and other similar caseshave happened. We should be aware that the will discretion is not absolutely unlimitedfreedom, to prevent the excessive will discretion may break up family love, even toimpact on social harmony and stability, to prevent the testator to escape his familyobligation, so the freedom of testament need to be restrained. This paper uses caseanalyzing method and comparative approach in the process of writing, and it divided intothe following four parts:The first part is the analysis of the status quo of China’s will discretion andlimitation, to describe the characteristics of the current inheritance disputes, and how tostipulate the will discretion and it’s constraint In China’s current legislation. The secondpart is the analysis about the general theory of the principle of will discretion, to justifyrestrictions on will discretion from two aspects of the legal basis and realistic basis, andto summarize the deficiency of our current law in the will discretion and limitation ofexisting regulations. The third part is comparative approach on reference to the countriesof Anglo-American Legal System and Continental Legal System, to find the feasiblemeasures which are suitable for China’s actual situation. The fourth part is the legislativeproposals on the protection of will discretion and it’s restriction: first, a clear attitude andprinciple is to protect will discretion, to cancel a notarial will holding the highesteffectiveness, and to create the system of designating alternate inheritor; Secondly, weshould lead the principle of public order and good customs into the law of inheritance,and the rules to deprive daughter’s and those people who are incapability of work right ofinheritance are invalid. Finally, to establish special portion system that suited to Chinesenational conditions, so that to reduce family conflict and to realize the balance betweenthe will discretion and it’s restrictions on it.