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遗嘱撤回有明示撤回和法定撤回,法定撤回中有一种形式为物质撤回,是指遗嘱人故意破坏或涂销遗嘱,推定遗嘱人撤回遗嘱该遗嘱部分或全部内容。我国《继承法》未以法条的形式肯定物质撤回遗嘱的效力。物质撤回遗嘱必须是遗嘱人亲自为之,且有破损、涂销或在遗嘱上记明废弃的外在行为。实际情况也有第三人物质毁坏遗嘱,如果是在遗嘱人的指令下毁坏遗嘱,其为遗嘱人意思的延续,但是如果未在授权下第三人毁坏遗嘱的法律后果也应当进一步思考。遗嘱人在无意识情况毁坏遗嘱的法律后果也值得探析。
There are express withdrawal and statutory withdrawal of will. One form of legal withdrawal is material withdrawal, meaning that the testator deliberately damaged or defaced the will, presumed that the testator withdraws part or all of the will from the will. Our “Succession Law” does not affirm the effectiveness of material withdrawal of a will by the law. The material withdrawal of the will must be done by the testator himself, with the appearance of being damaged, overwritten or annulled on a will. In fact, there is also a third-person substance that will destroy the will. If the will is destroyed at the will of the testator, it is a continuation of the testator’s meaning. However, further consideration should be given to the legal consequences of a third person’s destruction of the will if not authorized. It is also worthwhile to examine the legal consequences of the testator’s destruction of the will in unconsciousness.