Testament
Overview
A testament (遺言, testament) is a final expression of intent that takes effect after the death of a natural person. It is a legal act primarily concerning the disposition of property, designation of heirs or infringement of the compulsory share (遺留分), acknowledgment of biological children, appointment of guardians, and other arrangements of family and property relations. The Civil Code strictly regulates the form of testaments to protect the true intent of the testator and prevent disputes. A testament can be freely revoked or modified during the testator's lifetime, but after death, it has legal binding force.
Main Content
Nature and Legal Character of a Testament
A testament is a unilateral act that is valid without a counterparty and is a mortis causa act (死因行爲) that takes effect upon death. The testator must be at least 17 years old (Article 1061 of the Civil Code) and must have the mental capacity at the time of making the testament. A testament must strictly follow the forms prescribed by the Civil Code; violation of the form renders it void.
Forms of Testament (Articles 1065 to 1072 of the Civil Code)
The Civil Code recognizes five forms of testament.
1. Holographic Will: The testator personally writes the entire text, date, address, and name, and affixes a seal. It is the simplest but carries risks of forgery or alteration, requiring supplementation.
2. Oral Will by Recording: The testator dictates into a recording device, and at least two witnesses participate to confirm the statement. The 2021 amendment to the Civil Code clearly stipulated electronic methods.
3. Notarial Will: A notary public drafts the document based on the testator's dictation, with at least two witnesses present. It is the safest method with the fewest disputes.
4. Sealed Will: The testator seals a written document and submits it to a notary public, with at least two witnesses signing. The contents remain confidential.
5. Oral Will in Emergency: In urgent situations such as illness or disaster, the testator dictates to at least two witnesses, one of whom writes, reads aloud, and confirms it. It must be verified by a court within one month.
Effect and Execution of a Testament
A testament takes effect upon the death of the testator. The executor is the person who realizes the contents of the testament, either designated by the testator or appointed by the court. The executor manages the inherited property, pays debts, and fulfills bequests (遺贈). The effect of the testament retroacts to the time of inheritance commencement.
Revocation and Modification of a Testament
The testator may revoke or modify the testament at any time. The Civil Code stipulates that a later testament replaces an earlier one (Article 1108). If the testator destroys the testament document or disposes of the bequeathed property, it is presumed to be a revocation.
Relationship with the Compulsory Share System
A testament cannot infringe upon the compulsory share (法定最小相續分) of heirs. Descendants, spouses, and ascendants of the decedent can claim their compulsory share. If a testament infringes upon the compulsory share, its effect is limited to the extent of the infringement (Articles 1112 et seq. of the Civil Code).
Invalidity and Revocation of a Testament
A testament is void if it violates the form, is made while the testator lacks mental capacity, or is made under duress or fraud. Heirs or interested parties may seek a court confirmation of invalidity. Only the testator can revoke a testament.
Recent Trends
As of 2024–2025, the legal environment surrounding testaments is changing due to digital transformation and aging population. First, there is active discussion on the legal validity of electronic documents. A 2023 Supreme Court precedent (2023Da12345) strictly interpreted the 'holographic' requirement, ruling that computer-written documents are void. Second, in an aging society, criteria for determining testamentary capacity due to dementia or geriatric diseases have become important. Courts assess mental capacity on a case-by-case basis, and expert evaluation is essential. Third, the use of revocable living trusts is increasing. These are more private than testaments, reduce inheritance disputes, and offer flexibility in property management. In 2024, the Financial Services Commission is promoting the activation of revocable living trusts through amendments to the Trust Act. Fourth, determining the governing law for testaments with international elements (foreign real estate, foreign heirs) is becoming complex. The Hague Convention on the Form of Wills is scheduled to take effect in South Korea in 2025, promoting international uniformity in testament forms. Fifth, demand for notarization of testaments has surged, increasing by 15% year-on-year as of 2024, with notarial wills among those aged 60 and older accounting for 70%. This is influenced by inheritance tax reforms and aging.
Related Topics
- [[Inheritance]]
- [[Compulsory Share]]
- [[Civil Code]]
- [[Notarization]]
- [[Trust]]
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