Study On Mutual Wills And Its Enlightenment To China

Although Law of Succession of the People's Republic of China does not provide for mutual wills,Detailed Rules for Notarization of Wills constituted by the Ministry of Justice,permits two or more testators to execute a "joint and mutual will".And there are some local court rules permit spouses to execute mutual wills.Furthermore,the decisions on the disputes caused by the testamentary disposition involving community property in the form of mutual wills,have been consistent with the mutual wills doctrine of German law,British law,American law,Australian law and Canadian law in some aspects.In other words,it seems that mutual wills are instruments unknown to the testamentary law of this country.In fact,they have been used by the public to make testamentary disposition and are allowed by some regulatory documents.Moreover,related adjudicative experience is accumulated,regarded as foundation of the domestic mutual wills system.However,it is undeniable that the research of mutual wills in our country is truly immaturity,comparing with the mutual wills system in Germany law and British law,American law,Australian law and Canadian law.The gap is mainly reflected in the following points.First,the mutual wills agreement with basic function is ignored.Second,the research on the revocation of mutual wills during the joint lives is too general.Thirdly,the obligations of the survivor have not been studied elaborately.Scholars not only rarely focus on the right of the survivor to deal inter vivos with property affected by the agreement,but also have no detailed research on the restriction of testamentary dispositon of the survivor.Therefore,in order to constitute a scientific and reasonable mutual wills system,it is necessary to compare and analyze Germany law,British law,American law,Australian law and Canadian law that have stipulated the mutual wills system,and learn the advanced legislative experience suitable for China.Through the comprehensive analysis of the benefits and pitfalls of mutual wills system in Germany law and Anglo-American law,the following proposed pieces of legislation are put forward for the constitution of domestic mutual wills system.First,the most fundamental prerequisite for an application of the doctrine is that there is a separate mutual wills agreement between the testators.The doctrine should be applicable where two or more persons have made a binding agreement under which they agree that their property should devolve in a particular way on their respective deaths.The specific testamentary disposition is consideration for the other.Second,the mutual wills may be revoked by notice during the joint lives.Third,if the first to die without revoking or altering his or her will and performing his or her own obligation under the agreement,the survivor is not entitled to revoke his or her mutual will.Also,the right of the survivor to deal inter vivos with property affected by the agreement is limited to some extent.