수탁자를 수익자로 하는 유언대용신탁의 효력

Although will substitute trusts are established for estate planning, it is true that there are still legal issues that have not been clarified. One of them is the effect of a trust which is designating the trustee as the sole posthumous beneficiary. There has not been discussed enough on this issue, and the courts’ different rulings have caused questions and confusion. However, if the trustee is designated as the sole beneficiary in the trust agreement, it cannot be recognized as a trust and the trust agreement should be deemed void. Even if the trustee is designated as the sole posthumous beneficiary in the trust agreement, the trust is established validly as long as the living beneficiaries exist. If the trustee is designated as the sole posthumous beneficiary in the trust agreement on the premise of the existence of the trust, such a provision is invalid and the trust is terminated upon the death of the settlor. The trust property now belongs to the remainderman. On the other hand, if the trust agreement provides that the trust is terminated upon the death of the settlor and the trustee acquires the remainder, the validity of the trust agreement or such provision is not in question. Upon termination of the trust, the trustee acquires the trust property as its own property, and the conflict of interests doesn’t matter. Since the settlement of a trust cannot infringe upon the forced share rights, the right holder can claim the return of the property from the trustee to the extent that the forced share is insufficient.