“遗嘱形式缓和”之实证分析

我国《继承法》坚持遗嘱的严格要式性,司法实务中一些法官为了维护遗嘱人真意,妥善处理纠纷,缓和或淡化了遗嘱的形式要求,并没有严格地依法办事。本文选取了近年我国的两例司法判例进行分析,借以说明遗嘱形式缓和之必要以及遗嘱形式缓和之合理的"度",同时探讨立法上的应对措施。

Empirical Analysis of Moderation of Wills’ Form

It is well known that will has a restrict requisite in form.The reason of formality is to protect the real intention of a testator.However,the restrict formality is likely to induce a void will when the will itself does not accord with the legally requirement which harms the testator’s interests.In China,on the one hand,the law requires the formality of a will.On the other hand,some judges relieve the strict requirements of the will.In order to discuss this phenomena,this article chooses two cases in recent two years to analyze the necessity and rationality of the diminish of requirements in practice.