[소유권이전등기말소][공2009상,840]
[1] The validity of a will which is consistent with the true will of the testator but has violated the requirements and methods stipulated in Articles 1065 through 1070 of the Civil Code (negative)
[2] The validity of a written will document without a daily statement (negative) is stated only in the annual month (monthly)
[1] Articles 1065 through 1070 of the Civil Code stipulate strictly the method of a will is to clarify the will of the testator and to prevent legal disputes and confusion arising therefrom. Thus, a will contrary to the statutory requirements and methods may not be null and void even if it conforms to the true will of the testator.
[2] Article 1066(1) of the Civil Act provides that “The testator shall write his/her full text, date, address, and name and affix his/her seal thereto.” Thus, a written will shall not have the effect of a written will without stating the date. The date of the written will shall be the date on which the written will is prepared, which shall be the date on which the existence of the ability to make the will is determined or the date is determined after the formation of the will between the written will and another written will. Therefore, the written will shall be stated only in the year and month, and it shall not be effective because the written will cannot be specified as the date on which the written will is prepared.
[1] Articles 1065, 1066, 1067, 1068, 1069, and 1070 of the Civil Act / [2] Article 1066(1) of the Civil Act
[1] Supreme Court Decision 98Da17800 delivered on September 3, 1999 (Gong1999Ha, 2015) Supreme Court Decision 2004Da35533 Delivered on November 11, 2004, Supreme Court Decision 2005Da57899 Delivered on March 9, 2006 (Gong2006Sang, 586)
Plaintiff 1 and five others
Defendant
Changwon District Court Decision 2008Na13085 Decided January 9, 2009
The appeal is dismissed. The costs of appeal are assessed against the defendant.
The grounds of appeal are examined.
Articles 1065 through 1070 of the Civil Act provide that the method of a will shall be clearly defined by the testator and prevent legal disputes and confusion arising therefrom. Thus, a will contrary to the statutory requirements and methods may not be null and void even if it conforms to the testator’s genuine will (see, e.g., Supreme Court Decisions 98Da17800, Sept. 3, 1999; 2004Da35533, Nov. 11, 2004). Article 1066(1) of the Civil Act provides that “The will pursuant to the certificate of completion of the will must be signed and sealed by the testator.” Since the date of the written will is the date on which the testator’s ability to make the will is written, it is not effective to write the will document on the day on which it is prepared, and thus, it cannot be effective to write the date on which the will can be made, and thus, it cannot be written on the date of preparation of the will.
In the same purport, the court below is just in holding that the written will of this case was null and void only on the yearly basis of the preparation of the "202" and without the accurate preparation date, and there is no error in the misapprehension of legal principles as to the will by a written certificate as otherwise alleged in the ground of appeal.
In addition, even if the testator attached his certificate of personal seal impression issued on May 17, 2005 to the written will of this case and attached the certificate of personal seal impression to "for confirmation of the 02-12-Written will" in the column for the use of the certificate of personal seal impression, the testator cannot be deemed to have inserted the specific date in the "202" as the date of preparation or changed the date of preparation into " May 17, 2005" in accordance with the method stipulated in Article 1066 (2) of the Civil Act. Thus, the written will of this case cannot be deemed to be valid. The assertion in the grounds of appeal on this point is without merit.
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Nung-hwan (Presiding Justice)