Research On The Mitigation Of The Form Of Constitutive Requirements Of Chinese Will

In the current legal system,China's "Inheritance Law" upholds the strict legislative nature of the form of wills,stipulates five kinds of legal wills,and each has strict formal requirements.However,the application of this provision in judicial practice may not be satisfactory.Through the statistical analysis of actual cases in recent years,the author finds that there are a large number of wills in the judicial practice that do not fully conform to the legal form and its specific requirements.Most courts have determined that such forms of wills are invalid in accordance with the law strictly.By examining the original intention of the legislation,it is not difficult to conclude that since the will is a unilateral act and a cause of death,the will is effective after the death of the testator.Therefore,when the parties have disputes about the authenticity of the content of the will,it is impossible to explore the true will of the testator when he or she makes a will.In this case,the meaning of the form to guarantee the authenticity of the content of the will is self-evident.Therefore,for wills,the legal form should be strictly observed.However,in addition to the wills that cannot be included in the five statutory forms of judicial practice,there is still another will.These kinds of wills belong to the five legal forms of wills explicitly recognized in the Inheritance Law.However,in terms of the forms of wills,they have the defects of specific formal elements.And the two are compared,the latter is the majority.Such shackles are not completely out of the framework of the statutory will,but have the consequences of invalidity.Legislation is intended to protect the will of the testator by setting strict the legal form and its specific requirements.The reality is that a large number of wills have been invalidated,which is inevitably overkill.At the same time,there are also courts that break through the restrictions of the law actively explore the path of willingness to ease the legal form and its specific requirements and combine external evidence to make effective judgments on formal wills.However,because of the lack of uniform applicable rules,there are many contradictions and conflicts within the pursuit of mitigators.Faced with this situation,the legislative level began to loosen the attitude.And many experts' proposals and courts' opinions began to face up to the application of the legal form and its specific requirements.Therefore,in order to meet the needs of judicial practice,it is necessary to ease the legal form and its specific requirements.In view of the status quo of judicial decisions,the legal form and its specific requirements are urgently needed to be practiced.However,it should be noted that easingis not a complete abandonment.It is a product of the balance of interests and must be properly measured.On the one hand,the easing of wills is not absolutely unrestricted,but should be carried out before insisting on the legal form and its specific requirementsl.There are three reasons.Firstly,for legal acts,the form of behavior is an external carrier that means to be known to others.All legal acts cannot exist independently without form.The difference between essential and non-essential behavior is only whether the form is limited to the express provisions of the law.Secondly,is the formality a legal requirement or an effective element? The academic community has no idea about this question.Regardless of the outcome of the debate,formal legality is necessary for the legal act to be effective.Thirdly,the will is a unilateral act and a cause of death.It is completely out of the legal form and its specific requirements and the guarantee of the will of the testator cannot be discussed.On the other hand,it is imperative to moderately ease the will form before insisting on the formal form.This is not only an inevitable trend of historical development,but also an inherent requirement of the legal form and its specific requirements.Firstly,the waiver of wills is the way to achieve the purpose of the will.The formal the legal form and its specific requirements are the same as the purpose of the will of the will,and it is to ensure that the will of the will is realized.What should be applied? The key is to judge whether the two are more conducive to the realization of the will.By examining the current state of judicial practice,it is clearly the latter.Secondly,the easing of wills is the proper meaning of the principle of will.The law is too strict on the legal form and its specific requirements and its specific elements.It is contrary to the meaning of form freedom in the principle of will.Thirdly,the easing of wills is an inevitable requirement for the interpretation of wills.In the strict legal form,if the form is not legal,the will is invalid.At this point,the will explanation has no room for application.Therefore,it is justified to moderately moderate the legal form and its specific requirements.How to achieve the path of easing of the legal form and its specific requirements in China?First of all,it should be clarified that the form of will is an external carrier that guarantees the true intention of the testator,and it must be strictly observed.Judicial referees should proceed from the specific problems existing in actual cases and unify the legal form and its specific requirements mitigation.When there is the legal form and its specific requirements,we cannot be “one size fits all”and deem all wills invalid.We should judge cases based on the specific types and the degree of influence of the person's true meaning.If the formal element has a substantial impact on the realization of the true meaning of the testator,it is a core form element.On the contrary,it is a general formfactor.The five forms of wills prescribed by China's current law are sufficient to deal with the status of judicial practice,so there is no need to add new forms of wills.Therefore,the mitigation of wills should be mainly achieved from specific elements within each form.Specifically,for the core form elements of the will,we should strictly abide by it and there is no room for relaxation.For the general form requirements of the will,it may be treated separately according to the specific circumstances,and in the case of meeting certain conditions,external evidence is allowed to correct the form.