Wills: Drafting, Court Inspection and Invalidity

A handwritten will (자필증서 유언) costs nothing and can be written alone, so it is the most common type, but it also leads to the most disputes over validity. The whole text must be written by hand, so a document printed from a computer and only signed has no effect. The date must include the year, month and day, so leaving out the day, as in 'October 2026', makes it void.

The address must also be handwritten. Courts have held a will without an address void, and have not recognized a will that was only signed instead of sealed. The seal does not have to be a registered seal, and a thumbprint counts as a seal. Any correction must also be handwritten and sealed at the corrected spot, so if many changes are needed, it is better to write a new will.

With a notarized will (공정증서 유언), the notary questions the testator directly and keeps the original, so there are fewer claims of forgery, and after the death it can be used for registration and banking right away without a court inspection. Two witnesses are needed, and children who will receive property or their spouses cannot be witnesses, so find people with no interest in the will in advance.

Naming an executor at the same time makes it clear who will handle registration and the transfer of deposits after the death. A will can be revoked at any time, and where an earlier and a later will conflict, the conflicting part of the earlier will is treated as revoked (Civil Act Articles 1108 and 1109). When deciding how to distribute your property, also keep in mind that the other heirs' forced heirship share (유류분) remains even if you make a will.

For handwritten, recorded and sealed wills, the person who keeps or finds the will must request a court inspection (검인) from the family court without delay after the death. The competent court is the one where the inheritance began, usually the family court for the deceased's last address. The court sets an inspection date and notifies the heirs, and on that day it checks the form, handwriting and seal of the will and records them in a written record.

A will sealed in an envelope must be submitted as it is; the family must not open it. The court inspection is only a procedure to prevent forgery or alteration and to preserve the will's condition; it is not a trial that confirms the will is valid. So if another heir states at the inspection that 'this is not father's handwriting', the matter is often blocked at the registration stage or the will's validity has to be fought out in a separate lawsuit.

A lawsuit to confirm that a will is invalid mainly turns on two issues. One is a breach of form: for example, a handwritten element is missing, or when a notarized will was made, the testator did not state it personally but simply nodded at a document prepared in advance. The other is mental capacity: whether, at the time of the will, the person could understand and judge who was getting what.

A dementia diagnosis alone does not make a will void. The court looks at medical and nursing records from around the time of the will, cognitive test results, the questions and circumstances when the will was notarized, and whether the content fits the person's usual wishes. If the handwriting is suspicious, collect samples of the deceased's handwriting from their lifetime and request a handwriting examination.

Separately from the claim of invalidity, the time limit for a forced heirship share claim keeps running. In case the will is found valid, it is safer to file a forced heirship share claim at the same time.