论家庭协议和遗嘱之冲突问题

On Conflict between Domestic Agreement and Will

现实生活中,许多父母就其财产的死后处分和赡养事项与其子女订立协议。此类协议实质上乃死因赠与。基于合同自由原则和尊重当事人意思,法院至少应承认书面死因赠与之效力。对于父母就财产之死因处分与其子女所达成之协议,当其和遗嘱发生冲突时,应当以成立在后的死因赠与或遗嘱为准。对于父母就其财产的死后处分与赡养事项和其子女所达成之协议,宜解为以赡养义务为停止条件之死因赠与。当该协议与在后遗嘱发生冲突时,基于诚信原则以及维护受赠与人利益之目的,法院应当否认赠与人之任意撤回权,以该协议为准,从而实现赠与人和受赠与人之间的利益平衡。

In daily life,it is a normal practice for parents to enter into agreements with their children about their caregiving and their property’s proposition after their death.Such an agreement is essentially a gift in prospect of death.The court thus shall respect the principle of freedom to sign a contract and will of all parties involved,and validate the gift.Whenever there are disputes over the agreement and the deceased’s will,the one that is singed up later shall be validated.And,whenever there are disagreements over property’s proposition and caregiving,it is advisable to consider it as a gift in prospect of death with the obligation of maintenance as the condition for its entry into force.When such agreement disagrees with a will,the court shall respect the principle of good faith serving the purpose of safeguarding the donee’s interests,and deny the donor’s right of revocation before validating such agreements so that a balance could be achieved between interests of donor and donee.