口授證書遺言과 유언에 있어서 口授의 意義 - 대상판결 대법원 2006. 3. 9. 선고 2005다 57899

STUDY ON THE MEANING OF ORAL STATEMENT IN A WILL AND AN ORAL WILL

&nbsp;&nbsp;In the case of oral will, one’s last will and testament is done when the testator is on the brink of passing away, so that his capability of oral statement or its very existence comes into question. Oral statement means in conveying the testator’s last intent by verbal. In order to secure the testator’s real intent, the testator is supposed to directly convey his free intention in front of witnesses or a notary. Whether the testator’s intention is described in an ambiguous language, with the help of an interpreter or a doctor, by a mere gesture or through the judgement of witnesses or a notary comes into question.<BR>&nbsp;&nbsp;According to the analysis as to the judicial precedents of public certificate will or oral will, failing to answer questions in a verbal way or showing a mere positive or negative sign by gestures when the testator leaves his last intent is not recognized as good as having an oral statement by the civil code. The testator need not state the whole intent of his testament. And when a third-party person prepares a draft and makes a general statement overall, it is recognized as good as having a clear intent of the testament. It is actually necessary to judge whether the oral statement is valid, taking into consideration the background, motive and rightfulness of the testament rather than the mere existence of verbal statement.<BR>&nbsp;&nbsp;Besides, it is not deemed inappropriate to omit some parts of the oral statement or change the order of verbal statements when the true intent of the testator is correctly described with regard to the content and the testator himself gets involved with writing a will of his own free intent, viewed from the entire process of making the will. If an interested person deeply involved with the content of the will writes it himself, hindering the true intent of the testator from being secured, it is necessary to seriously consider whether to recognize the oral statement. It should be construed as valid, though, for another person to write a testament, when it merely helps secure the clarification of the statement.<BR>&nbsp;&nbsp;A disease often reduces the testator’s capability of discernment or judgement by far. According to some judicial precedents of a patient’s oral will, the question of whether he is capable of making a will is closely related to the ability of an oral statement. When a disease reduces both the physical and judgemental ability of the testator so conspicuously as to make him unable to declare his intention even by gestures, his ability of a will comes into question. When taking into consideration whether a patient is able to make an oral will, it should be examined in relation to the question of his discerning capability to make a will, since the substantial judgement as to the oral will depends on testator’s ability of making a will regardless of the existence of verbal expressions. The question of whether the testator is capable of making a judgement, a discernment or a ability of will closely related to the ability of oral statement. Since a will is based on the assumption of the testator’s discerning ability, it should be deemed invalid when he lacks enough judgemental ability so conspicuously.<BR>&nbsp;&nbsp;An oral will is a system that is recognized as a special method of making a will with ease when the testator is unable to make a holographic will. It requires standard procedure of oral statements however. I think, therefore, people with hearing and speaking disabilities consequently cannot execute these types of will. It is thus necessary to be considerate of people with hearing and speaking disabilities, so thar they could execute a oral will by allowing interpretations and approving the contents of the will to the testator and witnesses through readings and interpretations.