無效遺贈得否轉換為死因贈與

The Admissibility of Conversion of Legal Effect from Invalid Devise into Gift Causa Mortis

死因贈與雖與遺贈同屬無償、債權、財產、死因行為，社會經濟機能亦雷同，惟遺贈為單方行為，須依遺囑方式為之；死因贈與則為契約行為，原則上意思表示合致，即得成立，未盡相同。近年來，常見遺贈因欠缺遺囑要式而無效之案例，進而衍生能否轉換死因贈與之爭執，實務見解似多採否定說。從二者之意義、性質及異同分析，可認遺贈雖因欠缺遺囑要式而歸無效時，一般而言，除非遺囑人另有意思表示外，應可推知遺囑人確有贈與遺贈財產予受遺贈人之意，而轉換成死因贈與之要約意思表示，惟仍須受贈與人承諾始克成立死因贈與契約，至受遺贈人是否承諾，應個案判斷，非可一概而論。

Although gift causa mortis has been deemed as the same as devise concerning their gratuitous, obligatory, property-related, and mortis causa nature, and their social economic function, devise shall take the form of a will and does not require counter parties as opposed to gift causa mortis which needs mutual agreement as a contract between both parties for the effectiveness. In recent years, lots of cases, in which the devise has been invalid due to defects in the formality of a will, have occurred, and followed by one issue, that is, whether such invalid devise may be converted into gift causa mortis. Judicial practices essentially take negative position towards this question. By analyzing the meaning, nature and differences of both, it can be recognized that generally, when a devise is invalid due to defects in the formality of a will, the intention which the testator is giving the gift to the devisee can be legally presumed, unless the testator stated otherwise. In this situation, such intention may be converted into an offer to conclude a contract of gift causa mortis. However, such contract shall not become effective until the devisee accepts. Whether a devisee has accepted the gift or not shall be determined based on the circumstances of each case, not by a general rule.