「合法」遺囑ABC

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1998 / 10月

文‧李光真



一、親手寫遺囑 遺囑最常見的形式是「自書遺囑」,書寫時從第一行「遺囑」、第二行「立遺囑人某某某」開始,從頭到尾每一個字都必須用手書寫,電腦打字的遺囑是無效的。

此外,立囑人的姓名必須和身份證上的名字相符合,避免用別號或是「父字」之類的字眼。遺囑最後別忘了還要再簽一次名。

對某些攸關權、財歸屬的遺囑,為了避免遭人竄改,立囑人在遺囑最後還要註明本篇遺囑在第幾行有增、減或塗改多少字,並且在塗改處簽名。

二、載明年月日 由於遺囑是死後才生效的法律文件,只要立囑人還有意識,隨時可以更新遺囑。因此遺囑效力的認定是採取「後立遺囑推翻前立遺囑」的原則,而「前」、「後」順序的認定概以遺囑上的年月日為準。

要小心的是,有些人會把不同版本的遺囑留給不同的親人,也有人會自己翻來覆去立好幾份遺囑;這其中只要有一份遺囑忘了寫日期,就會形成「不知道那份是最後版本」的困擾。

三、與法律抵觸的部份無效 預立遺囑,可以隨心所欲地分配財產嗎?法律的規定是「不能」。

林玫卿律師指出,立囑人能自由處分的財產只有一半,其他的一半還是必須依民法繼承編的繼承順序來分配。這是為了保障某些子女「不討父母歡心」而被任意剝奪繼承權。

此外,依據民法,遺產之繼承和「性別」或「排行」都無關;一般習俗,長子繼承大部份家產、或是強迫出嫁的姊妹拋棄繼承權等,其實並不合法;即使寫在遺囑裡,這部份也是無效的。

四、遺囑「進階級」 自書遺囑,並不需要有「見證人」,然而為了怕遺囑的真偽受到懷疑,立囑人也可以請「沒有利害關係」的親友做見證人。

在某些財務狀況複雜、或是多位繼承人意見紛歧的案例中,有時會發生遺產稅無法繳納,而導致繼承人財產被查封、甚至被限制出境的情形,這時遺囑中若有指定「執行人」,則繳稅責任將落到執行人頭上。站在保障遺囑繼承人的立場,立囑人可以慎選有專業能力的執行人;不過一般民眾若不懂法律和稅務,可千萬不要當別人的遺囑執行人。

由於法律問題相當棘手,如果自己的情況複雜,下筆前不妨請教律師,才能讓自己的心願圓滿達成。

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EN

The ABCs of a Legal Will

Laura Li /tr. by Jonathan Barnard


A) Write your own will

Wills are most often written by the will holders themselves. In Taiwan the first line reads "Final Will and Testament" and the second line reads, "This is the will of . . . ." From start to finish the entire will must be hand-written. Computer-printed wills are not valid.

What's more, your name must match the name given on your identification card. Avoid nicknames and such phrasings as, "Daddy writes. . . ." Don't forget to sign your name at the end of the will.

For wills involving custody rights and money, you should append a footnote, explaining where changes have been made so that people can not tamper with the will. Write your signature next to each change.

B) Write the year, month and day clearly

Because your will only goes into effect after you die, you can change it at any time as long as you are still mentally "competent." Determination of the legal validity of competing wills follows the principle that a later will takes precedence over an earlier one. And "later" and "earlier" are determined by the dates written on each will.

You must be careful about this: Some people give different versions of a will to different people, and others are constantly changing their minds and thus leave many different wills. If you forget to write the date on your will, then it will result in people not knowing whether it is the final version.

C) If it's illegal, it's invalid

Is it possible to write a will to dispose of your estate however your heart desires? According to the law, no.

Lawyer Lin Mei-ching points out that a testator can only dispose of half of his property entirely according to his discretion. The other half must be divided in accordance with the articles of the civil law governing inheritance. This is so unfavored sons and daughters won't lose all their rights to a parent's estate.

What's more, according to civil law, gender or sibling order have no bearing on how an estate is divided. In common practice, the bulk of an estate often goes to the oldest son, or pressure is put on married daughters to renounce their rights to their parents' estates. Yet such practices are illegal, and passages of a will that call for them will not have legal validity.

D) Advanced will writing

When creating a will, you don't need a witness. Yet if you fear that the authenticity of your will may be called into question, then you might want to ask a "disinterested party" who is a close friend to serve as a witness.

In certain cases where the property situation is extremely complex, or when inheritors disagree among themselves, it may sometimes be impossible to collect inheritance tax. The estate will then be temporarily put under the custody of the court, which may even prohibit beneficiaries from leaving the country. When the will appoints someone as its executor, the responsibility of ensuring that the inheritance tax is paid falls on his or her shoulders. From the standpoint of protecting the inheritors of an estate, it is important to select an executor who has professional understanding of probate law. People who don't understand the law and tax matters should avoid at all costs being appointed an executor of someone else's will.

Because the relevant laws are difficult to get a handle on, if your situation is complicated, why not first ask a lawyer for advice about your will before you sign it, so that things will proceed as you intended?

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