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A ‘will’ is a person’s final expression of intention during his or her lifetime to determine legal relations after his or her death, and it becomes effective upon the death of the testator.
A will is a sole act that does not require the other party's acceptance, and the testator can freely make a will according to his or her will, and may change or withdraw it at any time.
Our civil law adopts ‘legal will doctrine’ and strictly regulates the method and requirements of a will, and recognizes the validity of a will only if it meets the methods and requirements set by law.
The reason why a strict method is required for a will is to clarify the testator's true intention and prevent legal disputes and confusion, so a will that does not comply with the requirements and methods set by law is invalid even if it is in accordance with the testator's true intention (see Supreme Court decision 2005Da57899, March 9, 2006).
There are five types of wills recognized by the Civil Act: a will by handwritten will, a will by recorded will, a will by notarial deed, a will by secret deed, and a will by oral deed (Article 1065 of the Civil Act).
Since each method has different writing methods and establishment requirements, if any of the requirements are not met, the will may not be recognized as valid.
A handwritten will refers to a will that the testator writes in his or her own handwriting.
For a will made by handwriting, the testator must write the full text, date, address, and name and seal it (Article 1066, Paragraph 1 of the Civil Act).
It is the simplest form of a will as it can be written without separate witnesses or notarization procedures, but in the process of writing it, there are many cases where the methods and requirements set by the Civil Code are not met or disputes arise regarding the authenticity of the will.
A recorded will is a method in which the testator dictates the purpose of the will and records it with a recording device or device.
When making a recorded will, the testator must dictate the purpose of the will, its name, and date, and the witnesses who participated must dictate the accuracy of the will and their own name (Article 1067 of the Civil Code).
A notarized will refers to a method of making a will through a notarized deed prepared by a notary public.
A will made by a notarized deed must be written by the testator in the presence of a notary public with two witnesses, the notary public writes and reads it, and the testator and witnesses must each approve its accuracy and then sign or seal it (Article 1068 of the Civil Act).
Since it is written through a notarization process, the authenticity and proof power of the will are high, and the risk of forgery or falsification is low, so it is used as the most stable method of will. Also, unlike other will methods, there is no need to go through court probate procedures to prove the existence of a will after the testator's death.
However, since the will is made through a notary, the testator must pay all fees.
A confidential will is a method in which the testator writes a will, seals it, submits it to witnesses according to certain procedures, and receives confirmation on the sealed will.
In order to make a will by a secret deed, the testator must seal the deed on which the writer's name is written, submit it in the presence of two or more witnesses, indicate that it is his or her will, write the date of submission on the seal, and the testator and witnesses must each sign or affix their names (Article 1069 (1) of the Civil Act). Additionally, the will seal written as a confidential document must be submitted to a notary public or court clerk within 5 days from the date written on the surface and have the date stamped on the seal (Article 1069 (2) of the Civil Act).
There is an advantage in that the contents of the will may not be disclosed during one's lifetime, but the procedure is relatively complicated, so it is not widely used.
A will by oral receipt refers to a will in which, in cases where it is impossible to make a will in any other way due to illness or other urgent circumstances, the testator speaks the purpose of the will to one of two or more witnesses with the participation of two or more witnesses, and the person who receives the oral reading reads it in writing, and after the testator's witnesses approve its accuracy, each person signs or affixes his/her name and seal (Article 1070 (1) of the Civil Act).
A will by old receipt is an exceptionally permitted method in cases where it is impossible to make a will in any other way due to illness or urgent circumstances. If a will is made by old receipt, the witness or interested person must apply for probate to the court within 7 days from the date the urgent reason ends (Article 1070, Paragraph 2 of the Civil Act).
Probate of a will means that the court investigates and confirms all facts related to the method of the will so that the final will of the testator can be clearly preserved and the contents are clearly known to interested parties.
The person who kept the will certificate or recording, or the person who discovered it, must submit it to the court without delay after the testator's death and request probate (Article 1091 of the Civil Act). However, in the case of a notarial will, there is no need to go through probate, and in the case of a will by old receipt, probate must be applied for within 7 days from the date the urgent circumstances end.
In particular, if the testator made a will in the form of a death certificate due to illness, unless there are special circumstances, the urgent cause should be considered to have ended on the date the will was made, so probate must be applied to the court within 7 days from the date of the will, and it is illegal to apply for probate after the period has elapsed (Supreme Court decision dated December 13, 1989, 89s11).
Probate is a domestic non-lawsuit case, and a person who keeps a will or a recording of the will must request probate at the family court at the place of commencement of inheritance or the testator's address (Article 2 (1) 2 (a) 41 of the Family Litigation Act, Article 44 (7) of the Family Litigation Act).
If there is a dispute over the establishment or validity of the will, it is possible to confirm whether the will is legally valid through a lawsuit to confirm the validity of the will.
In lawsuits confirming the validity of a will, the main issues are whether the will met the methods and requirements set forth in the Civil Code, whether the testator had mental capacity at the time of making the will, and whether the will was made under duress or fraud. Additionally, if there is an issue about the authenticity of the will or whether it has been forged or altered, a judgment can be made based on various evidence such as handwriting analysis, medical records, and witness statements.
Since lawsuits confirming the validity of a will are often carried out together with other inheritance-related disputes, such as division of inherited property and claims for return of reserved shares, it is necessary to comprehensively review and respond to the relevant legal relationships.