[1] In a case where an act of birth after a will conflicts with a will, whether a testamentary donee shall be deemed to have withdrawn the preceding (former) will of the part contrary to Article 1109 of the Civil Code (affirmative) / In a case where a testamentary gift is made, whether the testator acquires the right of testamentary donee until the death (negative)

[2] In a case where Gap prepared a notarial deed stating Gap's testamentary gift to Gap's children Eul et al., Gap's modification of the contents of the notarial deed; Gap's modification of the contents of the notarial deed must obtain consent from Eul et al.; Gap and Eul et al. should consult with the notarial deed; where Gap voluntarily modifies the contents of the notarial deed, Gap's donation of Gap's property to Eul et al., Gap's management, disposal, and notarial deed such as treating Gap's property as distribution according to the notarial deed shall be deemed as distribution according to the notarial deed, the case holding that Gap's freedom to withdraw his will would be restricted and de facto nullifying the withdrawal of his will, and the agreement is null and void on the grounds that Gap's disposal of rights acquired by

[1] Articles 103, 1073(1), 1108, and 1109 of the Civil Act / [2] Articles 103, 1073(1), 1108, and 1109 of the Civil Act

[1] Supreme Court Decision 2000Da64427 delivered on June 25, 2002

Plaintiff (Attorney Lee Jong-soo et al., Counsel for the plaintiff-appellant)

Defendant 1 and two others (Law Firm Rate, Attorney Han-ho et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2011Na93423 decided August 30, 2012

The part of the lower judgment against the Defendants is reversed, and that part of the case is remanded to the Seoul High Court. The Plaintiff’s appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. The court below acknowledged the following facts: (a) on November 20, 207, the Plaintiff and the Defendants, who were their children on November 20, 2007, prepared the notarial deed in which the Nonparty would have to recover shares or ownership each of 1/4 shares of the non-party among each of the instant real estate; (b) on December 15, 2009, the Plaintiff and the Defendants would obtain consent (former part of Article 4) if the non-party were to modify the contents of the notarial deed at will, and (c) if the non-party arbitrarily amends the contents of the notarial deed, the Plaintiff and the Defendants would have agreed upon the notarial deed (the latter part of Article 4), and if the non-party donated their property to the Plaintiff and the Defendants, the non-party would be deemed to be a distribution under the notarial deed and thus, it is difficult to view that the non-party’s notarial deed was invalid by deeming the non-party’s non-party’s non-party’s non-party’s non-party’s share to be disposed of the rights of this case’s 1/the notarial property.

2. A. According to Article 1108(1) of the Civil Act, a testator may at any time withdraw the whole or part of his will by will or by an act of birth before the will, and in case where an act of birth after the will conflicts with the will, the entire part of the will in conflict with the will shall be deemed to have been withdrawn by Article 1109 of the Civil Act (see Supreme Court Decision 2000Da64427, Jun. 25, 2002, etc.). In addition, according to Article 1073(1) of the Civil Act, the will becomes effective from the time when the testator dies, and the testator may withdraw the will at any time before the death. Thus, even if a testament was made by the testator, the testamentary donee does not acquire any right until the death of the testator.

B. However, according to the records, the former part of Article 4 of the Agreement of this case, if the non-party, who is the testator, wants to adopt a will based on the Notarial Deed of this case, is required to obtain the consent of the plaintiff and the defendants, and thus, it shall be deemed null and void since the freedom to withdraw the will of the non-party recognized by Article 1108 of the Civil Act is restricted. Furthermore, even if the agreement between the plaintiff and the defendants, other than the non-party, is an agreement between the plaintiff and the defendants, even in cases where the non-party, who is the testator, withdraws the whole or part of the will without the consent of the plaintiff and the defendants or engages in the act of birth in conflict with this, the non-party, who is the testator, shall consult with the will before it, and be deemed as a distribution, and thus, it shall be deemed null and void by Article 1108 of the Civil Act. In addition, according to the records, it is difficult to recognize the validity of the will prior to the death of the plaintiff and the non-party.

C. Nevertheless, the lower court rejected the Defendants’ assertion that the provisions of Articles 4 and 5 of the Agreement are null and void, solely on the grounds as indicated in its reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on will, thereby adversely affecting the conclusion of the judgment. The Defendants’ ground of appeal assigning this error is with merit, and the Plaintiff’s ground of appeal on a different premise

3. Therefore, without further proceeding to decide on the remainder of the grounds of appeal, the part of the judgment below against the Defendants is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The Plaintiff’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating

Justices Park Poe-young (Presiding Justice)