The Determination Of Legal Withdrawal Of Wills

After the testator has made a will,he has the right to withdraw the will before the legal effect of the testament caused by his death.Article 20 of the Inheritance Law and Article 39 of the Opinions on the Law of Succession stipulate that the will is legally withdrawn,that is,although the testator has not explicitly stated that the will is withdrawn,according to the performance of the testator,the law has drafted the will to be withdrawn.The legal withdrawal of a will is divided into two forms: one is that the will is deemed to be withdrawn after the testator has made a will,and the will is deemed to be withdrawn;the other is that the testator has made a will and then The subject matter in the will is treated separately,and the will is deemed to be withdrawn.But what is the contradiction with the will,because there is no specific definition rule in our country's legislation.This should be based on the interpretation of the will,in principle,the effective interpretation of the will,in the legislative technique is reflected in the opposite of the will of the testator,and combined with the evidence outside the will to examine whether the testator has the intention to withdraw the will,This is a general recognition rule that contradicts the will.Specific to the specific legal willow withdrawal method,first of all,how to determine the conflict between the former and the will,the key lies in how to correctly understand the relationship between the former and the will,the legislative example has additional and negative,from the will to maintain the will of the testator Starting from the principle of effective interpretation of the will,the former will is a supplementary relationship,that is,the last will is in addition to the former will,and the former will be valid,except for the contradiction of the former will and the possibility that the former will not be realized.The testator is free to withdraw his will,which means that the law cannot be too restrictive,that is,the testator can withdraw the former will with a will,regardless of the form of the will,the current inheritance law gives the notarized will than other forms of will.High legal validity,other forms of wills can also withdraw the notary will from the maintenance of the will of the will.In addition,because the inheritance law of our country does not stipulate the form of the will,the word "will" is not a requirement for the establishment of a will,nor is it a valid element,then the will that meets the requirements for the establishment of the will is a will,rather than presumping it from the legislative technique.As a will,thus,a suicide note that meets the requirements for the establishment of a will has the legal effect of withdrawing the will.Secondly,how to determine that pre-natal behavior is in conflict with the will,because the testimony of the testator's life behavior in the judicial practice is diverse,so the determination of the conflict between the pre-life behavior and the will is more comprehensive and specific from the aspect of the type analysis of the behavior.Through the search of the case,it is found that the probationary behavior of the testator in the judicial practice mainly manifests in two categories,namely,the behavior that causes the change of the property right and the behavior that does not cause the property right to change.The behaviors that cause changes in property rights are mainly manifested in factual actions and disciplinary actions.If the subject of the testament is destroyed by the act of the testator,the testament is withdrawn from the non-controversy,and the testator's re-construction and processing of his property is not changed because the property ownership has not changed.In principle,the testator is not withdrawn.The meaning of the will is more appropriate.In addition,the premature behavior of the testator caused the will to be withdrawn.The premise that the act must be the act of the testator himself,and the judicial practice caused the loss of the object of the testament due to the government demolition,and whether the testament was caused by The legal effect of withdrawal also has different judgments.Because the government demolition is compulsory,the Supreme Court regards the will of the probate to the government's demolition as a relatively inappropriate act of the testator.Based on the principle of effective interpretation of wills,combined with the subrogation rules of the subject matter of the testament,it is determined that the government's demolition remains are not withdrawn,and the heirs inherit the subrogation of the subject matter of the testament,except that the testator has the opposite meaning.In the same way,the disciplinary action that causes the change of property rights should also determine whether the will is withdrawn from the perspective of effective interpretation of the will,because the will is the final punishment of the property by the testator,which must be carefully considered,if based on the will In the behavioral performance,it is determined that the will is withdrawn,which will make the will of the testator impossible.Whether the act that does not cause the change of property rights has the effect of withdrawing the will,should proceed from the investigation of the will of the testator,and if it can combine the testimony of the testator's life and the living environment of the testator,prove that the testator is on the object of the testament.The burden of the act has the meaning that the will is no longer effective,and the will of the testator should be followed,and the will is withdrawn.Judging from this aspect,Article 39 of the Opinions on Inheritance Law restricts pre-natal behavior to too narrow within the scope of behavior that causes changes in property rights,which is not conducive to the willingness of the testator to withdraw the testament,and expands the interpretation of the act of pre-life,so that countries Another form of statutory withdrawal of wills,as stipulated in the legislation,that is,the act of abandoning a will can also be included in the expanded interpretation of the ante-life,thus filling the vacancy in our legislation.