Research On The Will With Obligation

A will with obligation(including bequest),also known as a will with burden,is different from a will with pure benefit.The testator of a will with obligation attaches the requirement that the beneficiary of the will must perform some obligation to accept the heritage or specifies the specific purpose of the heritage in the will.The determination of the testamentary nature of the attached obligation is the premise of the determination of the validity of the will,and the determination of the testamentary nature depends on the nature of the attached payment,that is,whether the attached "obligation" is the obligation or the condition.Although the obligations and conditions in the theory of civil law are quite different,it is always difficult to distinguish them in judicial cases.Although the court has made a lot of research on the application of the will with obligations,the understanding and determination of the obligations attached to the will is still in a relatively shallow state.By analysing a large number of cases,the author finds that the most prominent problem in judicial determination of the will with obligations is improper determination,and judges often confuse the will with obligations and conditional will.In theory,there is little research on the will with obligation in academic circles.Some scholars think that the will with obligation is a special conditional will;some think that the nature of the will with obligation is different from that of the will with condition.There is no consensus on the nature of the will attached with obligations,either in theory or in practice.In this regard,the author tries to put forward a new solution,which takes whether there is a causal link in the will attached with obligations as the key factor to determine the nature of the will.According to the domestic and foreign laws and regulations and academic theory,the obligations attached to the will with obligations must be able to perform within a reasonable period of time,in line with the provisions of the law,not against the public order and good customs.In practice,the testator often has the following obligations in his will: supporting,burying,restricting the right to dispose of the heritage,retaining the right to live of the third party,some of which are legal and reasonable,some of which are in the gray area of the law.Without the support of the property law,the restriction of the right to dispose of the heritage destroys the integrity of the ownership,and the content of the public order and good customs is vague,all of which have a certain impact on the validity of the will with obligations.On the contrary,the popular testamentary trust in foreign countries has the characteristics of high maturity and operability,which is the lack of inheritance system in China.In addition,improving other department laws and unifying the legal system are also indispensable means to solve the legitimacy of the obligations attached to the will with obligations.As there are no specific provisions in the inheritance law and other relevant laws,the judgment results and judgment paths of courts at all levels are also different.Some courts think that the performance of testamentary obligations is the premise of the will coming into effect,otherwise the estate shall be handled according to the legal succession;some courts think that the failure to perform the testamentary obligations does not affect the effectiveness of the will,and the estate shall still be inherited according to the will.This phenomenon of different judgments in the same case has seriously damaged the justice and authority of the judiciary.The author suggests that we should establish a systematic interpretation system of wills,learn from foreign post inheritance system,and improve the shortcomings of the inheritance law of our country,so that the testator can enjoy the maximum freedom of wills within the scope of law.