미국 상속법상 유언의 의존적 철회 법리

• 영문명: Doctrine of Dependent Relative Revocation in American Wills
• 발행기관: 한국가족법학회
• 저자명: 이철우(Cheolwoo Lee)
• 간행물 정보: 『가족법연구』第38卷 3號, 65~114쪽, 전체 50쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2024.11.30

국문 초록

The doctrine of dependent relative revocation(DRR) in Anglo- American case law treats a revocation as presumptively ineffective if the testator made the revocation either ① in connection with an attempt to achieve a dispositive objective that fails under applicable law or ② due to a misunderstanding of law or fact. Originating in early 18th-century English decisions on equitable grounds, DRR served as a remedy against severe injustices arising from will revocations based on mistakes of law or fact. The doctrine was subsequently adopted by American courts and has evolved over time to be more commonly explained as a doctrine of conditional revocation. Initially applied only when revocation involved specific revocatory acts, DRR’s applicability expanded by the mid-20th century to include revocations executed by subsequent wills. DRR has significantly contributed to fulfilling testators’ intentions by assessing the effectiveness of will revocations according to whether the testator, if fully informed, would prefer the revocation to stand or be set aside. The modern trend in donative transfers law increasingly seeks to honor the donor's dispositive intent, for instance, through more liberal applications of revival rules and the harmless error doctrine. As these legal mechanisms become more effective in supporting donors' dispositive intentions, the need for DRR may diminish. However, until such measures are widely adopted in state statutes or case law, DRR remains necessary to prevent severe injustices stemming from certain revocations. While numerous influential studies and decisions have systematically developed the doctrine, including its specific formulation in the 3rd Restatement ─ particularly through testator intent analysis with comprehensive comments and reporter’s notes ─ there remains room for greater coherence and consistency in its application.

목차

Ⅰ. 서

Ⅱ. 개념 및 유언의 철회

Ⅲ. 의존적 철회 법리의 연혁과 이론구성

Ⅳ. 의존적 철회 법리가 적용된 경우

Ⅴ. 법리의 역할 및 문제점, 시사점

Ⅵ. 결 어

키워드

유언의 철회 착오 조건부 철회 의존적 철회 무효인 철회 revocation of wills mistake conditional revocation dependent relatve revocation ineffective revocation