증여계약서와 사실실험공증에 의한 유언제도의 형해화

Failure of Wills System by Donation Agreement and Notarization of Fact - Possibility of Utilizing the Undue Influence Theory according to Wills Law of the USA -

In the United States, a testament, if a confidential relationship and suspicious circumstances exist in the testament so that an undue influence can be assumed, is considered to be invalid even though the written testament fulfills all the strict formality requirements. However, the personal opinion of the author of this paper is that a disposition document should be considered as an actual will so that it should be valid if it fulfills the due formality requirements but be invalid if it does not meet the formality requirements after a careful examination rather than just nullifying the disposition document which is assumed to be written under an undue influence. This is an interpretation to respect the concerned parties. Eventually, the author of this paper came to a conclusion that in case that the inheritee disposed the inheritance properties by menas of a donation agreement rather than a testament, two level examination methods should be adopted as the basis for determining the validity of the disposition document. That is, the first level is to determine whether there exist special situation to consider the donation agreement as a testament (confidential relationship and suspicious circumstances) or not in the testament, and if the special situations exist, the second level is to determine whether the disposition document meets the formality requirements of a testament or not. The reason of this assertion is to achieve the objective of wills system and to lead the concerned parties to write a testament which meets the formality requirements of a testament.