This master thesis examines the interpretation of formal requirements when establishing a will according to the Inheritance Code. Chapter 10, paragraph 1 contains the main formal requirements for an ordinary will. The formal requirements are based on principles to preserve the testator’s intent. According to the legislator, the testator’s intent should be considered and preserved to the greatest extent possible, if the testator has established a valid will before deceasing. To gain validity, the will must contain a declaration and the testator’s signature in writing. The signature must also be signed or declared in front of two witnesses. However, the law does not specify any requirements of personal signatures, or if the signature needs to be written by a pen. This opens for a discussion if wills can be signed with electronic signatures. Additionally, the law does not protect a valid will from disappearing since the formal requirements do not require any formal registration that a will exist. Hence, there is a lack of regulation and interoperation of the formal requirements. The purpose of this thesis is to examine if the formal requirements fulfill their essential purposes of the protection of a testator’s intent and if the protection can be enhanced with electronic signatures. The results of the research are as follows: Chapter 10, paragraph 1 does not explicitly prohibit electronic signature, although a personal signature is customary. Advanced electronic signatures, based on EU regulations and the interpretation of Swedish legislation and case law, should not be denied legal effect unless there is a specific national law that requires a personal signature. Although there is no explicit law that prohibits an electronic signature on ordinary wills, the legislator has not commented on this. There is a substantial need for guidance by the legislator on this issue, and guidance whether a copy of a will is equally valid as the original document. In conclusion, the Inheritance Code does not require a personal signature for a valid ordinary will. Protection of the testator’s intent can be enhanced with an electronic registration of the will; however, this requires that the will can be established in an electronic way. Hence, the signature must be an electronic signature. The formal requirements should not extend to a mandatory registration of the will, but the registration should be voluntary.
| Identifer | oai:union.ndltd.org:UPSALLA1/oai:DiVA.org:su-229134 |
| Date | January 2024 |
| Creators | Le, Lilian |
| Publisher | Stockholms universitet, Juridiska institutionen |
| Source Sets | DiVA Archive at Upsalla University |
| Language | Swedish |
| Detected Language | English |
| Type | Student thesis, info:eu-repo/semantics/bachelorThesis, text |
| Format | application/pdf |
| Rights | info:eu-repo/semantics/openAccess |
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