Study On The Preservation And Abolition Of The Priority Validity Of Notarized Testament

China's current Inheritance Law stipulates that notarized testament has priority effect over self-written,written,recorded and oral testament.When multiple testaments exist,the final notarized testament shall prevail,and changes in the content of the previous notarized testament shall be made through re-notarization.In reality,after making a notarized will,citizens will still choose other forms of will to express their wishes based on realistic considerations due to the changes of objective conditions.At this time,other forms of testament are made by the testator after considering the new situation,which is closer to the testator's final will.Whether the testator can be recognized as a valid will and overthrow the notarized testament made before becomes the focus of controversy in theory and practice.In recent years,the number of disputes over notarized testaments has been increasing.While the authenticity of notarized testaments has been questioned,whether notarized testaments should have priority effect has also been controversial.This paper is mainly divided into four parts,the specific contents are as follows:The first part is the introduction.This part introduces the realistic background of the priority effect of notarial will from the perspectives of the state of the testament system and the notarial system and the legislative status quo of foreign countries on the effectiveness of notarial will,and points out the practical significance of the research on the preservation and abolition of the priority effect of notarial will.According to the relevant literature collected,the proposition about the priority effect of notarized testament is mainly concentrated in the scholar's suggestion manuscript.From the books and periodical papers,there are still disputes about whether it is necessary to abolish the priority effect of notarized testament,and in the practice of notarization,the priority effect of notarized testament should be retained.In the second part,starting from the legislative provisions,the author elaborates on the provisions and value considerations of the priority of the validity of notarial testament in the current legislation,and points out that the proportion of citizens choosing to make notarial testament is still not high enough,especially the difficulty of testator changing notarial testament after making notarial testament,and the neglect of other forms of testament and the failure to follow the true will of the testator and other issues in judicial trial.It further points out that the academic circles have questioned the priority effect of notarized testament since the implementation of the priority effect of notarized testament and the current trend of law amendment.The third part elaborates the disputes about the priority effect of notarized testament in detail,points out that there are three opinions about the priority effect ofnotarized testament in the current academic circles,namely,the theory of continuity,the theory of abolishment and the theory of compromise,then summarizes the main reasons behind these opinions.According to the theory of continuity,the priority effect of notarized testament comes from the credibility of notarized documents.Based on the strictness of procedure,it can better reflect the true will of the testator.Even if it limits the testator's right to testament to a certain extent,it is also a legitimate and reasonable restriction,which is conducive to reducing testamentary disputes.In the court's trial process,it also plays a role in saving judicial costs.The abolition doctrine holds that the priority effect of notarized testament is inconsistent with the legislative purpose of protecting the testator's final will by inheritance law.It not only violates the principle of freedom of testament,but also improperly restricts the testator's disposition of personal property,and does not conform to the rules of evidence in the Civil Procedure Law.In the compromise,the testator should be allowed to make a notarized will,and when "special circumstances" exist,he can choose a legal will other than notarization to fix his true will.In the end,the three viewpoints are briefly reviewed.The fourth part demonstrates the necessity of abolishing the preferred effect of notarized testament from the perspectives of the freedom of testament of succession law,the present situation and development trend of notarization system and the autonomy of will in civil law.From the perspective of abolishing the preferred effect of notarized testament,it puts forward some suggestions for perfecting the preferred effect of notarized testament after abolishing it,and points out that after abolishing the preferred effect of notarized testament,five forms of testament should be treated equally.The change and withdrawal of testament should be carried out by the way of testament.The change and withdrawal of notarized testament should allow the testator to choose,but it is better to use the way of re-notarization.In the case of multiple testaments,we should follow the principle of priority of the later testament,and ensure the realization of the testator's final testament to the greatest extent.