South Korea’s Supreme Court has broadened the scope for recognizing deathbed wills written down by others, ruling that a person’s limited ability to communicate does not necessarily invalidate a will made outside standard forms such as handwritten, recorded or notarized wills.
According to legal sources Monday, the Supreme Court overturned a lower court ruling against a plaintiff who had been in a nearly four-year legal dispute with a bank over the validity of a will left by his maternal half brother.
The plaintiff’s half brother made an emergency oral will while hospitalized in April 2021, saying he would leave him all his assets, including bank deposits and the right to recover a housing jeonse deposit. He died three days later.
Under South Korea’s Civil Act, wills are subject to strict formal requirements. An emergency oral will is permitted only in urgent circumstances, such as illness, when a person cannot use standard forms, including handwritten, recorded or notarized wills.
In such cases, the testator states the will orally and a witness writes it down, reads it aloud and receives confirmation that it is accurate.
The plaintiff later sought to receive about 96 million won ($65,300) in deposits listed in the will as part of the deceased’s assets. He filed a lawsuit in August 2022 after the bank refused to release the money.
In the initial trial, the main issue was whether the bequest covered all the deceased’s assets or only specific assets listed in the will. The first court sided with the bank, saying the plaintiff had not sufficiently proved that the deceased had no assets other than those listed in the will.
In the appellate trial, the dispute shifted to whether the will met the requirements for an emergency oral will. The bank argued that such a will is valid only when no other form is possible, and that the deceased could have made a will by recording or through a notarized document.
The appellate court accepted the bank’s argument. It said the deceased appeared capable of understanding his assets, the meaning of the bequest and the beneficiary at the time the will was written, making it difficult to conclude that he could not have made a recorded will.
The court acknowledged that the deceased had been recorded saying he would give all his assets to the plaintiff. But it ruled that the recording itself did not satisfy the Civil Act’s requirements for a recorded will, as it did not include the deceased stating the date or a witness orally confirming the accuracy of the will.
The Supreme Court disagreed, saying the appellate court erred in concluding that the deceased could have made a recorded will.
“At the time of the will, the deceased was wearing an oxygen mask due to breathing difficulties, had difficulty pronouncing words normally and appeared to have had difficulty continuing to speak freely,” the court said.
“It would have been significantly difficult for him, without assistance from a third party, to independently write a holographic will or record his own voice to state the purpose of the will, his name and the date.”
The court also noted that the man died three days after making the will, saying it could not be concluded that he had been able to make a will in another form.
It sent the case back to the Seoul Central District Court for reconsideration, effectively siding with the plaintiff.
forestjs@heraldcorp.com
