نوع مقاله : مقاله پژوهشی
نویسندگان
1 استادیار، گروه حقوق خصوصی و اسلامی، دانشکده حقوق و علوم سیاسی، دانشگاه تهران، تهران، ایران.
2 دانشجوی دکتری حقوق خصوصی، گروه حقوق خصوصی، دانشکده حقوق، دانشگاه شهید بهشتی «ره»، تهران، ایران.
3 دانشجوی دکتری حقوق خصوصی، گروه حقوق خصوصی، دانشکده حقوق و علوم سیاسی، دانشگاه علامه طباطبائی «ره»، تهران، ایران.
چکیده
کلیدواژه‌ها
موضوعات
عنوان مقاله [English]
نویسندگان [English]
∴ Introduction ∴
In most of the world's legal systems, the creation of a ‘will’ requires the observance of certain formalities. These formalities are stipulated by lawmakers because they serve crucial functions, including demonstrating the genuine intention of the testator, preventing fraud, and facilitating and regulating the legal proceedings related to wills. Iranian law recognizes only official, self-written (handwritten), and secret wills as legally effective. Similarly, in American law, the legal validity of a will is contingent upon it being formal, self-written (handwritten), or notarized. The central legal issue then arises as to whether the withdrawal or revocation of the will requires the observance of these same formalities.
∴ Research Question ∴
The core inquiry of this research is: whether the withdrawal of the will requires the observance of formalities or not?. This question is rooted in the functional aims of formalism, specifically asking whether the goals of protecting the testator's intention, preventing deception by forgers, and regulating legal proceedings require that the withdrawal (revocation) should also be based on formalities.
∴ Research Hypothesis ∴
The research implicitly hypothesizes a divergence between the two systems. It is expected that the position of American law is clear, maintaining that the legal validity of withdrawal depends on the satisfaction of certain formalities. In contrast, the hypothesis suggests that in Iranian law, the wording of Article 838 of the Civil Code, the silence of the Probate Code (Qanoon-e Omoor-e Hesbi), and Imamiya jurisprudential views traditionally indicate that withdrawal does not require formalities. However, the hypothesis implies that a precise analysis, considering the functions of formalism, reveals ambiguity regarding the non-formal nature of revocation in the Iranian legal framework.
∴ Methodology & Framework, if Applicable ∴
This article utilizes a descriptive-analytical method to address the research question. The methodological approach involves an analysis of both legal systems. The framework specifically contrasts the clear formalist position of American law with the ambiguous non-formalist view traditionally held in Iranian law, analyzing how the functions and aims of stipulating formalities at the creation phase relate to the requirement of formalities at the revocation phase.
∴ Results & Discussion ∴
The research confirms a contrast between the two systems. In American law, the position is evident and clear; the legal validity of withdrawal depends on specific formalities, whether the revocation is achieved in writing or by conduct. Conversely, the results show that in Iranian law, the wording of Article 838 of the Civil Code, the silence of the Probate Code, and Imamiya jurisprudential views indicate that revocation does not require formalities. Nevertheless, the research highlights that this non-formal view in Iranian law remains ambiguous upon accurate analysis of Article 838 and consideration of the essential functions of legal formalism. Notably, because the requirement of formalities in American law can sometimes lead to the neglect of the testator’s true intention, solutions have been proposed—such as the Harmless Error Rule and the use of Constructive Trust—to allow for the circumvention of these formalities in specific cases. However, these solutions have not yet been accepted due to their inherent weaknesses.
∴ Conclusion ∴
The conclusion confirms that, unlike American law where the validity of revocation is clearly formalist and dependent on satisfying specific statutory requirements, Iranian law is generally interpreted as accepting non-formal revocation based on Article 838 of the Civil Code and jurisprudential consensus. However, the study posits that this non-formal interpretation in Iranian law is problematic, as the objectives behind imposing formalities for the creation of a will (such as protecting intent and preventing fraud) are equally relevant to the revocation phase. The implication is that the current legal status in Iran, which suggests non-formality, is fraught with serious doubt because allowing non-formal revocation jeopardizes the very integrity and protective function established by requiring formalities for the initial creation of the will.
کلیدواژه‌ها [English]
)
