Practical Dilemma And Legal Analysis Of Mutual Testament

With the improvement of China's economic level and citizens' awareness of the rule of law,a growing number of people have chosen to freely dispose of personal property by means of will.In recent years,in addition to ordinary personal wills,mutual testament between husband and wife have also appeared in our country.On the one hand,the tradition in our country is that when one parent is still alive,the child generally does not inherit the property immediately,and usually will not discuss the inheritance of the property until all the parents die.On the other hand,due to the joint property system of husband and wife,it is difficult to distinguish the property between husband and wife.In practice,there are many cases where the content of the will is invalid due to the disposal of the property of the other party.Therefore,many couples are willing to use this kind of will to dispose of themselves or common property,which can ensure that one party will not be affected after the death of the other party,and can maintain the family's harmonious relationship to a certain extent.However,inheritance cases around the question of whether the mutual testament is valid,when to start the inheritance,and whether any party can freely change the testament,etc.,are in a state of chaos because our country has not established a clear mutual testament system for the mutual testament.This paper discusses the mutual testament within the scope of the existing inheritance law on the controversial issues arising in the trial,combined with the doctrine,precedents,and extraterritorial legislation.The text of this paper is divided into three parts.The first part,summarizes the trial dilemma of the mutual testament through the typical cases in judicial practice,and then explores the nature and characteristics of the mutual testament itself to investigate whether there are laws and regulations that can be according to the current legal system.In the second part,in view of the practical dilemma caused by the gaps in China's current laws,it is recommended to establish a system of mutual testament.By absorbing different viewpoints of academia,combining with the legislation of other regions,we explore the necessity and feasibility of establishing a mutual testament system.The third part,drawing on the mutual testament system in German law,gives the system design for the disputes arising in practical cases.First of all,it stipulates the requirements for the establishment of a mutual testament,and secondly,analyzes the effective time and binding force,and balances the interests between the testator,the testator and the heir.A mutual testament means that two or more people have made related depositions through a common meaning,which is characterized by the mutual relevance of the depositions.Therefore,the mutual testament is greatly different from the ordinary will which is belong to the unilateral legal act.However,the mutual testament is used as a way of dealing with the property behind it.It is also not a way of disposing of property in accordance with the agreement between the husband and wife without breaking the law.However,the mutual testament,as a way to deal with the property after death,without breaking the law,may well be a way to freely dispose of property between husband and wife according to the agreement.However,in Chinese academic circles,it is generally believed that a will is a typical unilateral legal act.Therefore,to make a mutual testament have the effect of a will,it is necessary to recognize that the mutual testament is also a form of will within the framework of the current will and give it the effect of a will.In terms of the type of mutual testament,according to the purpose of the testator and the related characteristics of the mutual testament,the mutual testament can be divided into two types: Reciprocal Testament and Mixed Testament.The Mixed Testament is consistent with the concept of the Berliner Testament in German law.Therefore,the relevant provisions of German law can be used for reference when dealing with such wills.There are two interpretations of the Berliner Testament in German theory that produce different effects of real rights,namely the separation mode and the unity mode,and the interpretation rules are clearly defined in the legislation.If the true wishes of the parties are difficult to find out,the will made by the husband and wife ispresumed Berliner Testament-the unity mode.This model excludes statutory inheritance,and the later deceased party obtains the property rights of the first deceased party.In the case of a damaging donation,the heir can request the beneficiary to return the property based on unjust enrichment.Regarding the related depositions in the mutual testament,either party can freely withdraw when both parties are alive,but it shall be expressed to the other party in the form of notarization;upon the death of either party,the surviving party shall be bound by the relevant depositions and shall not be withdrawn.Only when there are special circumstances can the surviving party withdraw,such as retention clause agreed upon between two parties,the surviving party's refusal to accept the estate and the misconduct of the heir.For the related depositions that have taken effect,the surviving party or a third party who can directly benefit from the revocation may request the revocation based on the reasons such as the mistake in content or motive of the intention,coercion,and appearance of legal heirs.