유언능력에 관한 연구

초록

Increasing use of wills as a means of succession of wealth in our society has brought an increasing number of will contests. Particularly, with regard to wills made by the elderly or the critical patients, a will contestant usually challenges the testamentary capacity of the testator. It is unanimous scholarly view in Korea that capacity to make a will requires less mental ability than make a contract. It is also generally admitted that a person has a capacity to make a will if he understands the nature and ramification of the will. Scholarly debate over the testamentary capacity, however, has not been active in setting up the criteria for testamentary capacity in detail. From a comparative law perspective, the US court held that mental capacity to make a will requires that: (i) the testator understands the nature of her act, (ii) she knows the extent of her property, (iii) she understands the proposed testamentary disposition, (iv) she knows the natural objects of her bounty, and (v) the will represents her wishes. In this paper, the Supreme Court cases of Korea, dealing with the issue of testamentary capacity, are analyzed in order to find out what standards are used in judging testamentary capacity. The Supreme Court of Korea held that the testator has testamentary capacity if she understands (i) the nature and effect of the act of wills, (ii) the property of the bequest and (iii) the beneficiaries of testamentary disposition. In order to see whether a testator meets these criteria, the Supreme Court of Korea generally checked the following elements: (i) the consciousness of the testator was clear, (ii) verbal communication was possible, (iii) she executed the will on her own, and (iv) the will represents her estate plan of long standing.

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