In a case where Gap remarriedd Eul after the divorce, and a testamentary document was prepared between the former wife and Byung, by designating the born sick as the executor of the will to legacy all property to Byung, etc., and then the inheritor made a testament by means of a recording that the property immediately before the death is divided into legal inheritance, the case holding that Byung cannot be deemed as an executor, and thus there is no standing to be a party.

In a case where Gap remarriedd Eul after the divorce between Eul and the former wife, prepared a testamentary document stating that Byung was born as an executor, designating Byung as an executor, and bequeathed all property to Byung, etc., and then the inheritor made a testament by means of a recorded recording stating that the property immediately before death is divided according to statutory inheritance, the case holding that Byung cannot be viewed as an executor, on the grounds that the testament by a notarial document was withdrawn in conflict with the contents of the will by recording, and that Byung did not separately designate an executor by means of a recorded will, and therefore, Byung cannot be viewed as an executor.

Articles 1067, 1068, 1108(1), and 1109 of the Civil Act

Plaintiff (Attorney Choi Ho-ho et al., Counsel for plaintiff-appellant)

Defendant 1 and one other (Law Firm Daejeon et al., Counsel for the defendant-appellant)

September 23, 2015

1. The plaintiff's lawsuit against the defendants is dismissed respectively.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Plaintiff

1. Defendant 1:

A. As to KRW 233,832,556 and KRW 230,977,689 among them, 5% per annum from July 25, 2014 to the service date of a copy of each complaint of this case from August 6, 2014 to the service date of a copy of each complaint of this case and 20% per annum from the following to the date of full payment;

B. The registration procedure for cancellation of ownership transfer registration completed on July 30, 2014 by Daejeon District Court No. 77370, which was completed on July 30, 2014 with respect to the portion of 1/2 of the portion in the attached list No. 2, among the real estate in the attached list No. 2, is implemented with respect to the third real estate in the same list.

2. The Defendant Woori Bank Co., Ltd. will implement the procedure for registration of cancellation of the registration of the establishment of a mortgage near the area of the establishment of a mortgage completed by the Daejeon District Court No. 7371, Jul. 30, 2014.

1. Basic facts

A. Status of parties

1) Nonparty 1 and the Plaintiff were born between the deceased Nonparty 2 (hereinafter “the deceased”) and the former wife Nonparty 3. On February 28, 2005, the deceased re-born with Defendant 1 on November 15, 2005 after the divorce between the deceased and Nonparty 3, and on the same day, Defendant 1 adopted Nonparty 4, a child of Defendant 1.

2) On August 1, 2014, the Deceased died of her former pulmonary cancer.

B. Will, etc. of the deceased

1) On May 13, 2014, the Deceased drafted a testamentary document with the following contents (hereinafter “notarial document of this case”).

In the main text, the ○○ testator, as indicated in the separate sheet owned by the deceased, bequeathed all of the real estate, the number of sale tickets, deposits, installment savings, and other financial assets recorded in the same list, together with Nonparty 1 and the Plaintiff, who is the donee. The testator designated the Plaintiff as the executor. The ○○ testator was the witness: Nonparty 5 and Nonparty 6’s notary: Nonparty 7 of the notary’s office Nonparty 7.

2) On July 14, 2014, the Deceased stated that he was hospitalized in the G University Hospital at the end of the end of the end of the death on July 14, 2014, and on July 15, 2014, Defendant 1 and Nonparty 8: “The principal Nonparty 2 shall make a will that his wife and his children shall divide the property according to the statutory inheritance. Nonparty 2, July 15, 2014,” and Nonparty 8, as a witness, made a will that “the heir shall divide the property according to the statutory inheritance in a correct mental state.” After Nonparty 2 stated as “the testator Nonparty 2, on July 15, 2014,” and written a will by means of recording it with a cell phone (hereinafter “the will by this case”). Defendant 1 signed a written will with the court of Daejeon Family Court No. 2014No1034, Oct. 15, 2014 and signed it by the aforementioned court’s autopsy on July 2018.

C. Legal relationship, etc. on real estate owned by the deceased

1) On June 17, 2014, the Deceased entered into a sales contract with Nonparty 9 and Nonparty 10 on the purchase price of KRW 780 million on the first real estate listed in the separate sheet (hereinafter “instant Dok-dong Housing”), which is owned by the deceased (in the event of a contract, the intermediate payment of KRW 300 million is KRW 30 million on July 10, 2014, and the balance of KRW 42 million on August 5, 2014, and the simultaneous performance of ownership transfer registration). On July 25, 2014, Nonparty 9 and Nonparty 10 transferred KRW 230,9777,689, excluding the remainder of the debt-backed debt-backed debt-backed in the instant Dok-dong Housing, to the deceased’s account (hereinafter collectively referred to as the “Defendant 1’s account”). The two accounts were transferred from July 10, 2014; and Defendant 2307,797,6897 and 789.

2) On November 10, 201, the Deceased and Defendant 1 entered into a contract for the sale in lots with Hyundai Industrial Development Co., Ltd. (hereinafter “Modern Industrial Development”) on the content that the two real estate listed in the separate sheet (hereinafter “instant Doandong apartment”) was sold in lots from Hyundai Industrial Development, each of 1/2 shares. On July 21, 2014, Defendant 1 submitted to Hyundai Industrial Development a donation contract prepared as of July 16, 201 with the purport that Defendant 1 will acquire the deceased’s 1/2 shares in the right to sell the Doan Asia-Pacific apartment site as of the purchase in lots, and completed the registration of ownership transfer on July 30, 2014 with the Daejeon District Court No. 7370, Jul. 30, 2014, Defendant 1 completed the registration of ownership transfer to Defendant 300,000,000 won (hereinafter “the maximum debt amount”).

3) On December 8, 2011, the Deceased concluded a contract for sale in which he/she purchased the third real estate listed in the separate sheet (hereinafter “instant genetic food housing”) from Daewoo Construction (hereinafter “Treatment Construction”). Defendant 1 submitted a donation contract prepared on July 18, 2014 to the Construction in which he/she acquired the instant house from the Deceased, and completed the registration of transfer of ownership in Defendant 1’s name on October 8, 2014, with Defendant 1 as the Daejeon District Court Receipt No. 10661, Oct. 8, 2014.

[Reasons for Recognition] In the absence of dispute, Gap evidence Nos. 1 through 7, 9, 10, 14, 16, Eul evidence Nos. 1, 2, 7 through 10, and 23 (including the numbers of evidence Nos. 1, 2, 7 through 10, and 23 (including the numbers of evidence No. 1), the result of each fact inquiry into modern industrial development and treatment construction

2. The plaintiff's assertion

The Plaintiff, along with Nonparty 1 according to the will of this case by the notarial deed of this case, was legally bequeathed from the deceased, all of the financial assets of the deceased including the Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-si

Therefore, the Plaintiff, as the executor of the will of this case designated by the notarial deed of this case, sought the return of unjust enrichment equivalent to the aggregate of KRW 233,832,556,00,000,000,000,000 from the remainder of the Dok-dong Housing of this case between the Dok-si, the Dok-si, the Dok-si, the Dok-si, the Dok-si, the Dok-si, the Dok-si, the Dok-si, the Dok-si, the Dok-si, the Dok-si, the Dok-si, the Dok-si, the Dok-si, the Dok-si, the Dok-si, the Dok-si, and the Dok-si, the Dok-si, the Dok-si, the Dok-si, the Dok-si.

3. Judgment on the main defense of this case

A. Main Safety Defenses

The Defendants, unlike the above contents of the Notarial Deed after the Deceased prepared the Notarial Deed, made a will by recording of this case, stating that the deceased’s property is divided according to legal inheritance. This constitutes a case where a will is withdrawn before and after Article 1109 of the Civil Act, and thus, the Plaintiff cannot be deemed an executor, and the lawsuit of this case filed by the Plaintiff is unlawful.

B. Determination

1) A will by recording as stipulated in Article 1067 of the Civil Act shall be made orally by the testator, his name and date, and a witness who has participated in the will shall be able to accurately and orally state the intent of the will, and the name of the witness who has participated in the will. In this case, the will by recording of this case shall be valid as being made in accordance with the method stipulated in Article 1067 of the Civil Act

On the other hand, a testator may at any time withdraw the whole or part of his will as a will or an act before and after the will (Article 1108(1) of the Civil Act), and in cases where a will conflicts with another will or an act of a birth after the will conflicts with that of the will, the previous will of the part in conflict with that of the will shall be deemed to have been withdrawn (Article 1109 of the Civil Act). Unlike the contents of the above Notarial Deed after the Deceased prepared the Notarial Deed, the fact that the deceased made a will by means of the recording of this case, stating that the property of the deceased is divided into legal inheritance portion. Thus, it is reasonable to deem that the will by an Notarial Deed of this case was withdrawn because it conflicts with the contents of the will by the recording of this case. Since the Deceased did not separately designate the executor by the will by the recording of this case, it is reasonable to deem that the part in which the executor was designated as the plaintiff also withdrawn by

2) In light of the fact that the deceased was unable to make a statement even at the time of his/her will at the time of his/her will due to the recording of this case, the plaintiff recorded several same contents in several times, and that he/she did not have a very good condition with the symptoms of the end cancer at the time of his/her will, the above will is asserted as null and void because he/she made a will against the true will under a very poor condition with the deceased's mental capacity and recognition ability. Thus, according to the health unit, the statement of evidence No. 11 and No. 13, the witness testimony of the deceased, the deceased visited the 2-dong community service center located in Daejeon on the day of his/her will by means of the recording of this case to obtain his/her personal seal impression and certified copy of the will. According to the medical records of the deceased, the deceased did not have any legal knowledge of his/her will from July 24, 2014 to 30, and the deceased did not have any specific evidence of his/her mental character and influence at the time of his/her will.

Therefore, the Plaintiff cannot be deemed as an executor by a will based on the notarial deed of this case. Thus, each of the instant lawsuits based on the premise that the Plaintiff is in the executor’s position is unlawful as being brought by a person who is not a party to the lawsuit. Accordingly, the Defendants’ main defense pointing this out is with merit.

4. Conclusion

Therefore, since the plaintiff's lawsuit against the defendants is unlawful, it is decided to dismiss all of the lawsuits. It is so decided as per Disposition.

[Attachment] List of Real Estate: omitted

Judges Lee Sung-chul (Presiding Judge)