In a case where Gap, in the presence of a witness Eul before his death, etc., made a testament by an authentic document in the presence of an attorney-at-law in charge of authentication belonging to the law firm, and the validity of the will is at issue, the above authentic document does not meet the requirements prescribed in the Civil Act, and it is hard to view it as falling under “where the client requests the presence of the participant” as prescribed in the Notary Public Act, and thus,

In a case where Gap, in the presence of a witness Eul before his death, made a testament by an authentic document in the presence of an attorney-at-law in the presence of an attorney-at-law in charge of authentication belonging to the law firm, and the validity of a will becomes an issue, the court held that the will by the above authentic document is not effective on the grounds that Eul, who participated as a witness at the time of preparation of an authentic document, falls under the relative of Byung as provided by Article 33(3)6 of the Notary Public Act and is disqualified for witness who cannot participate in the preparation of an authentic document, and the above authentic document does not meet the requirements of a will by an authentic document as provided by Article 1068 of the Civil Act, and in light of all the circumstances, it is difficult to view that the exceptions to the disqualified witness falls under the "where the client requests the participation of the participant" under the proviso of

Articles 1068, 1072, 29(2), and 33(3) of the Civil Act;

Plaintiff 1 and two others (Law Firm Sejong, Attorney Gyeong-tae, Counsel for the plaintiff-appellant)

Defendant

September 4, 2014

1. On July 4, 2008, the deceased non-party 1 confirmed that the will to the effect that "in the event the testator dies, he will testamentary gift to the non-party 2" made by a notary public by a will No. 917 of 2008 (No. 917) is null and void.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Basic facts

A. On May 22, 1927, Nonparty 1 (hereinafter “the deceased”) died on March 27, 2014, and the deceased’s heir is the Plaintiffs and Nonparty 2.

B. On the other hand, on July 4, 2008, a notary public, on July 4, 2008, prepared a testamentary document stating that “The testator bequeathed the real estate indicated in the attached list to Nonparty 2, and the real estate indicated in the attached list bequeathed by the testator shall be transferred to Nonparty 2 in the name of Nonparty 2 if the testator died” (hereinafter “instant authentic deed”).

C. According to the notarial deed of this case, a notary public located in Cheongju-si sought the purport of a will in the presence of Nonparty 3 and the defendant at the office of Cheongung-si, in the presence of Nonparty 4, who is the attorney-at-law in charge of authentication of the above office, and Nonparty 4 written and read it, and the deceased and the above witnesses approved the accuracy and affixed their signatures and seals.

[Ground of recognition] Unsatisfy, Gap evidence 1-1, 2-2, and 2-2, the purport of the whole pleadings

2. The plaintiffs' assertion and judgment

A. The plaintiffs' assertion

Inasmuch as Nonparty 3, one of the two witnesses who are considered to have participated at the time of the will by the notarial deed of this case, falls under Nonparty 4, an attorney-at-law in charge of authentication, and is disqualified for witness, the will by the notarial deed of this case is null and void.

B. Determination

1) Article 1068 of the Civil Act provides that the testator shall demand the tenor of the will in the presence of two witnesses, and the notary shall write down and read it, and then the testator and the witness shall respectively sign or affix their names and seals after approving the accuracy thereof. With respect to the grounds for disqualification of the witness participating in the will, Article 1072(1) of the Civil Act provides that a minor, an incompetent and quasi-incompetent, a person to be benefited by a will, his spouse and lineal blood relatives shall be disqualified. In particular, with respect to the will by an authentic document, Article 33(3)6 of the Notary Public Act provides that a disqualified person pursuant to the Notary Public Act shall not be a witness, and Article 33(2)6 of the Notary Public Act provides that a notary cannot be a witness at the time of preparation of an authentic document.

2) He returned to the instant case and examined the facts that Nonparty 3, who participated as a witness at the time of the preparation of the Notarial Deed, was the Nonparty 4, an attorney-at-law in charge of authentication, and there is no dispute between the parties. The above Nonparty 3 is the blood relative of the spouse of Nonparty 4, who is an attorney-at-law in charge of authentication, and is a disqualified witness who is not able to participate in the preparation of the Notarial Deed as provided by Article 33(3)6 of the Notary Public Act. Thus, the Notarial Deed of this case is a disqualified witness who is not prepared under the presence of two witnesses, unless there are special circumstances, and thus it does not meet the requirements as a will by a Notarial Deed of Article 1068 of the Civil Act. Thus, it is invalid.

3. Defendant’s assertion and judgment

A. Where a notary public prepares a notarial deed by a law firm, the standard for determining “authorized public” in Article 33(3)6 of the Notary Public Act

1) The defendant asserts that the notary public of the notarial deed of this case is not the non-party 4, but the non-party 4 merely puts his signature and seal on the law firm's authority and thus, the non-party 4 does not constitute the " notary public" under Article 33 subparagraph 6 of the Notary Public Act. Thus, the non-party 3 does not constitute the "relative of notary public" under Article 33 (3) 6 of the Notary Public Act.

2) In applying the notarial Acts and subordinate statutes, Article 15-5 of the Notary Public Act provides that an attorney-at-law in charge of authentication shall be regarded as a notary public unless it is contrary to the nature thereof, and in determining whether a notary public's relative is "relative of a notary public" under Article 33-3 (3) 6 of the same Act, deeming an attorney-at-law in charge of authentication as a notary public does not go against the purport or nature of the provisions of the law, and therefore, in this case, it is reasonable to see that the non-party 4, an attorney-at-law in charge of authentication,

3) Therefore, the defendant's above assertion is without merit.

B. Whether it is recognized as a witness of Nonparty 3 pursuant to the proviso of Article 33(3) and Article 29(2) of the Notary Public Act

1) Summary of the defendant's assertion

The defendant asserts that even if the non-party 3 falls under the "relative of a notary public" under Article 33 (3) 6 of the Notary Public Act, according to the proviso of Article 33 (3) of the same Act and Article 29 (2) of the same Act, if the client requests the presence of the participant, the relative of the notary public may be a witness in the preparation of the notarial deed, and the non-party 3 participates as witness in the preparation of the notarial deed at the request of the deceased, so he is qualified as witness.

2) Purport of Articles 33(3) proviso and 29(2) of the Notary Public Act

Article 1072(2) of the Civil Act provides that disqualified persons pursuant to the Notary Public Act shall not be a witness in a notarial deed by a notarial deed. Article 33(3) of the Notary Public Act provides that the proviso of Article 29(2) provides that “where a client requests the presence of an participant” shall be exceptionally recognized pursuant to the proviso of Article 29(2) of the same Act, a person who is disqualified pursuant to the Notary Public Act shall not be a witness in a notarial deed. In the case of a will made by notarial deed, it shall be interpreted that the case where the client requests the participation of the participant is recognized as an exception.

Therefore, the validity of the notarial deed of this case is based on whether the deceased demanded the participation of Nonparty 3 in making a will by a notarial deed.

3) Whether the deceased demanded the participation of Nonparty 3 is recognized

Article 1060 of the Civil Act provides that "a will shall not take effect unless it is in accordance with the method prescribed by this Act" that requires strict formality as to a will. This is also the same in determining the qualifications of a witness required to be effective under Article 1068 of the Civil Act, which is stipulated in the method of a will. Therefore, in a notarial will, whether a will constitutes "where a client requests the participation of a participant" under the proviso of Article 33 (3) of the Notary Public Act and Article 29 (2) of the Notary Public Act, which provides exceptions to the disqualified witness, shall be strictly determined based on objective data in light of the nature of a will by an authentic document.

However, even if Nonparty 3 did not recognize the eligibility as a witness even when Nonparty 3’s statement of No. 2 (notarial will) was examined, no explicit statement was found to the effect that the deceased demanded Nonparty 3’s participation. In light of the strict common sense required by a will by a notarial deed, it is insufficient to recognize that Nonparty 3 had requested Nonparty 3 to participate in the preparation of the notarial deed on the sole basis that Nonparty 3 had a relationship with the deceased, and there is no other evidence to acknowledge this otherwise.

4) Therefore, the Defendant’s assertion on this part is without merit.

4. Conclusion

Therefore, the plaintiffs' claims shall be accepted with due reason, and it is so decided as per Disposition.

Judges Cho Jae-hee (Presiding Judge)

Note 1) In the case of a notarial deed prepared by a notary public, whether an attorney-at-law in charge of authentication falls under the “authorized” of the said provision is determined as follows 3. A.