Research On The Obligatory Wills

Article 21 of the "Inheritance Law" of 1985 establishes a system of compulsory wills,allowing the testator to add obligations in the will and granting a third person the right to supervise the performance of the obligation after the death of the testator in order to realize the will of the testator.It is also related to the free transfer of property.Obligated wills and obligated gifts differ significantly.By comparison,a will with obligation is a special system of additional obligations for unilateral acts.While maintaining the unpaid characteristics of property transfer,it also insists on the construction of unilateral acts.As a system in parallel with the bequest maintenance agreement,the types of obligations attached to the wills with obligations are more abundant,the beneficiaries of the obligations are not limited to the testator himself,and the scope of the obligations performers is wider,which makes up for the deficiencies of the system of bequest maintenance agreements.Obligations attached to a will have special legal implications.The fulfillment of the obligations attached to the will affect the ownership of the estate,and interested parties may intervene in the estate arrangement by exercising the "right of cancellation" after the will has taken effect.The "obligation" attached to the will is not a "condition" and will not affect the time when the will take effect.Conversely,the validity of the will affects the effectiveness of the accompanying obligations.Before the will becomes effective,the performance of the obligation is voluntary;after the will becomes effective,the performance of the obligation cannot be waived.Unless the testator clearly indicates that the execution of the relevant acts of the successor to the estate will affect the effective time of the will,the will should be characterized as a will with obligations.In general,there are very few circumstances in which the obligations attached to a will need not be fulfilled.If the obligor dies or renounces the right to the inheritance before the obligation has been fulfilled,the obligation attached to the will would be transferred with the circulation of the inheritance,unless the obligation possesses personal attributes or the testator makes the contrary.The “obligation” attached to the will is a “burden”.Just as a “burden” is not allowed,the granting of rights is a prerequisite for an additional obligation on the will.At the same time,there are limits to the performance of the obligations,which should be limited to the scope of the benefits received by the successor or legatee.After the successor or legatee accepts the estate,it shall perform the obligations attached to the will.If the obligation is not performed without proper reasons,the interested party may apply to the court to cancel its right to accept the estate.There are two requirements for the exercise of the "right to cancel" : one is that the attached obligations are not performed;the other is that there is no proper reason.In order to avoid undue interference with the testator’s original inheritance arrangements,on the premise of respecting the testator’s will,it is necessary to adopt more stringent standards when judging whether the above requirements are established.Only when the defect of the performance of the obligation exceeds the tolerable limit but cannot be repaired,and the obligor has subjective intentions,can the judging person oblige to perform the obligation without proper reason.The right to cancel will not affect the validity of the will.When delimiting the scope of the partial cancellation of rights,consideration should be given to the cost of time or money already paid by the obligor.The exercise subject of the "right to cancel" must have a direct interest relationship with the relevant heritage rights.After the exercise of the "right to cancel",other contents of the will remain valid and are only considered as legal changes to the object of the estate distribution.In principle,the subject exercising the "right to cancel" obtains the estate and fulfills his obligations,except where the testator makes the contrary.Unlike ordinary wills,the interpretation of the validity of a will is more complicated when it is subject to additional obligations.Obligations attached to a will constitute a part of the content of the will,and will be invalidated because of violations of laws and customs.When making specific judgments,specific problems should be analyzed.In particular,when judging whether a testament obligation is illegal,the theory of conflict of fundamental rights can be introduced to analyze the order relationship between the freedom of will and other conflicting basic rights,so as to determine whether the freedom of the will should be restricted and whether the obligation should be caused by violation Invalid;when assessing whether the obligation of the will is in breach of public order and good customs,subjective and objective analysis can be used to analyze the subjective purpose of the testator and the objective impact of the will,so as to determine whether the obligation is invalid due to the paradox.In principle,the invalid obligation will not affect the validity of other contents of the will.Only if the attached obligation constitutes the sole motive of the will arrangement or is contrary to the custom due to the maintenance obligation,invalidity of the obligation will also result in the invalidity of the content of the will.