유언대용신탁과 유류분- 유류분 반환 청구의 대상이 되는 재산의 범위를 중심으로 -

There are ongoing debate over whether an inter-vivos trust for will substitute may be subject to a claim for the forced share. Among affirmative views, opinions diverge on whether the trust corpus or the beneficiary’s interest should be included in the calculation base, and on whether the trustee or the beneficiary bears the restitution duty. Despite the growing use of such trusts and the likelihood of increasing disputes, the Supreme Court has yet to render a decision on the matter. This study assumes that an inter-vivos trust for will substitute is subject to a forced share claim and adopts the trustee donation theory as its analytic framework. When the trust property is transferred to the trustee, the decedent’s estate is effectively diminished. Accordingly, under Articles 1114 and 1118 of the Civil Code, the trust property should be included in the base for calculating the forced share. The forced share holder may claim restitution from the trustee or from the principal beneficiary who received the trust corpus, regardless of the latter’s good faith, since the holder’s protection prevails over that of a gratuitous beneficiary. However, fruits generated after the decedent’s death fall outside the scope of the forced share; thus, when a bona fide trustee has already transferred such fruits to an income beneficiary, neither party bears a restitution obligation.