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Chapter 14 Questions and Answers about Marriage and Inheritance (13)
When applying, the parties should submit the following materials: (1) The identity certificate of the applicant, the identity certificate of the agent and the power of attorney, and the power of attorney from foreign countries or Hong Kong, Macao and Taiwan regions should be notarized by the local notary office or an institution or personnel authorized by the Ministry of Justice . (2) Death certificates of the decedent and the deceased heir.The death certificate should generally be issued by the public security department or the hospital where the decedent died; if the decedent died abroad or in Hong Kong, Macao and Taiwan, the death certificate should be notarized by the local notary office or an institution or personnel authorized by the Ministry of Justice. (3) Proof of property rights of the inheritance, such as house ownership certificate, land or homestead use right certificate, registered stock, etc. (4) The proof of the kinship of the decedent, and the proof of whether there is any person who depends on the decedent.Generally, it is issued by the personnel department of the unit where the heir or decedent works according to its file records, and the scope of the certificate is limited to the scope of the legal heirs determined by the inheritance law. (5) Wills made by the decedent during his lifetime, including notarized, self-written, written on behalf of, recorded, and oral wills. (6) Other relevant materials.Such as testamentary witnesses' certification materials, estate list, statement or certification materials of other heirs renunciation of inheritance rights.If the decedent is declared dead, the judgment of the people's court declaring the death must be provided.

45. Can the notary office revoke the notarial deed of bequest?

Mr. Zhou has a "Notarial Letter of Acceptance of Bequest", and the inheritance was bequeathed by his grandmother.Six years after the notarization, Zhang's father requested legal inheritance and applied to the notary office to revoke Zhang's "Notarial Certificate of Acceptance of Legacy". The legal basis for revocation is Article 6 of the Provisional Regulations on Notarization.

Zhang believes that during his grandmother's life, especially when he was seriously ill, his father never asked the old man, and his grandmother was served and cared for by Zhang.

Then, when the notarial office considers the evidence provided by the party to be "insufficient", does it have the right to revoke the notarial certificate?
Analysis according to law
Because Zhang is the second-order legal heir of his grandmother, the "Notarial Certificate of Acceptance of Bequest" is actually a notarized will.The will will take effect after the death of the grandmother. If Zhang’s father applies to the notary office for revocation, according to the provisions of Article 23 of the “Rules for Notary Notarization of Wills”, the notary office, after investigation and verification, can only rescind the content of the notarized will if part of the content is indeed illegal. Revocation of the notarial certification of the illegal part of the notarized will.It can be seen from this that there can only be one reason for revoking a notarized will, that is, "the content is indeed illegal." Therefore, it is illegal for the notary office to revoke the notarized will on the grounds of "insufficient evidence". According to Article 67 of the Notary Procedure Rules, a complaint to the local notary association is required to maintain the validity of the original notarial will.

tips

The testator must make a will in accordance with the will form stipulated in the "Inheritance Law", otherwise, it will not have legal effect.my country's "Inheritance Law" stipulates that wills can be in five forms: self-written, written on behalf of, recorded, oral, and notarized. The first four forms of wills cannot be revoked or changed by notarized wills. The last notarized will established by the person shall prevail.

46. ​​How to notarize a will?

Wang encountered the following problems in the notarization of wills:
1. The application for notarization of the will is filled out by the interested party who accepts the estate. The testator stamps it, and presses the handprint on the place where the payment is made. The seal of the testator has been kept in the hands of the interested party who accepts the estate for many years. ?
2. The notarial certificate of delivery is signed by the interested party who accepts the estate, but the testator has not signed for it, and there is no entrustment procedure. Is this okay?
3. The will is written by a notary on behalf of a notary, and the testator’s name seal is stamped on it, and the testator has the ability to write and has been a senior cadre for many years, but it is only a seal, not a signature?

4. Is there no executor and custodian in the notarization of the will?
5. It is written in the will that the testator bought the house, but in the notary’s transcript, it is said that the house was bought by the interested party who accepted the inheritance. Is such inconsistent notarization legal?

6. The housing involved in the will is evolved from the original housing (welfare housing, the original housing is divided into new housing), the original housing was obtained during the husband and wife relationship, but the wife had passed away for 3 years when the new housing was changed, and now the husband has also passed away Yes, the will says that the house will be inherited by one of the decedents. Is this reasonable?
7. If the above issues are all illegal or in violation of procedures, can the notarial certificate be overturned, and how to sue?

Analysis according to law
1. According to the provisions of the "Provisional Regulations on Notarization", the notarization of wills must be applied by the parties who made the will themselves, and no one else can be entrusted to apply.

Paragraph 16 of Article 1 of the "Provisional Regulations on Notarization": "The party applying for notarization shall submit a written or oral application in person at the notary office. If he entrusts another person to act as an agent, he must submit a certificate of agency power. , Adopted children, wills, signatures and seals, no other person shall be entrusted to act as an agent, and when the parties really have difficulties, the notary may go to the place where the parties are located to handle the notarization affairs.”

2. The will notarization certificate should be signed by the party applying for the notarization of the will, that is, issued by the notary department to the party himself.

Article 21 of the "Provisional Regulations on Notarization": "After the notarization document is processed, a copy of the attached file should be kept. According to the needs of the parties, several copies should be made and sent to the parties together with the original."

3. A will can be written by the testator himself or by someone else.However, the proxy must meet the conditions stipulated in the inheritance law, that is, be signed by witnesses and testators.

Article 17 of the "Inheritance Law": "The notarized will shall be handled by the testator through a notary office. The self-written will shall be written by the testator himself, signed, and marked with the year, month, and day. The written will shall be witnessed by two or more witnesses. , written on behalf of one of them, indicating the year, month, and day, and signed by the scrivener, other witnesses and the testator. A will made in the form of a recording should be witnessed by at least two witnesses. Under certain circumstances, an oral will can be made. An oral will should be witnessed by two or more witnesses. If the testator is able to make a will in written or recorded form after the emergency is lifted, the oral will will be invalid.”

4. An executor may or may not be designated in the will.

The custody of the will can be kept by the testator. If it has been notarized, the notary department should also keep it and keep it confidential.

Paragraph 16 of Article 1 of the "Inheritance Law": "Citizens may make a will to dispose of personal property in accordance with the provisions of this law, and may designate an executor."

Article 23 of the "Provisional Regulations on Notarization": "Notaries shall keep confidential the notarization affairs handled by the notary office."

5. Generally speaking, the notary office should refuse to notarize untrue and illegal facts and documents.In litigation, notarized facts and documents can generally be directly used as evidence, but if the parties do have evidence to overturn the notarized content, the court may not recognize the notarized content.

Paragraph 25 of Article 1 of the "Provisional Regulations on Notarization": "The notary office shall refuse to notarize untrue and illegal facts and documents. When the notary office refuses the party's application for notarization, it shall explain the reasons for the refusal to the party orally or in writing, And explain the appeal procedure for refusal."

Article 67 of the "Civil Procedure Law": "The legal acts, legal facts and documents that have been notarized through legal procedures shall be used by the people's court as the basis for determining the facts. Unless there is evidence to the contrary that is sufficient to overturn the notarization."

6. If the original house belongs to the common property of two old people, when one old person dies, half of the house will become the estate of the old person who died first. If there is no will, it should be divided according to legal inheritance.Now that another old man dies, the old man can only divide his personal property. The property that does not belong to him is not the inheritance of others, and he has no right to decide who will inherit it.

Article 26 of the "Inheritance Law": "The jointly owned property acquired by the husband and wife during the existence of the marriage relationship, unless otherwise agreed, if the inheritance is divided, half of the jointly owned property shall be divided into the spouse's property first, and the rest shall be divided into the spouse's property. The inheritance of the decedent. If the inheritance is in the common property of the family, when the inheritance is divided, the property of others should be divided first.”

7. If other interested parties have objections to the notarization act, they may appeal to the judicial administrative agency, and the judicial administrative agency shall revoke the notarized documents that are indeed inappropriate or wrong.Notarized documents can also be challenged in litigation.

Article 26 of the "Provisional Regulations on Notarization": "If a notary office or its judicial administrative agency at the same level or a higher judicial administrative agency finds that the notarial documents issued are inappropriate or wrong, they shall cancel them."

tips

Making a will is a way for the testator to ensure that his legal property can be handled according to his own wishes after his death, and he adopts the method of notarizing the will made by a notary office so that it is protected by law and avoids estate disposal. disputes.Therefore, making a will is a very serious legal issue.The notary office handles this very strictly in accordance with the relevant procedures and requirements.Therefore, the testator must pay attention to the following issues: (1) The will must be made in a clear mind; (2) The testator must provide his relevant legal certificates and corresponding certification materials related to legal property; (3) The will must be written and signed on the spot in front of the notary of the notary office; (4) The content of the will must be kept absolutely confidential unless the testator agrees; (5) The will must include a distribution plan for the estate.

47. Can letters be used as evidence of inheritance?
After Liu's mother passed away, the family house was demolished and split into two. Liu and Liu's father each had a small apartment. After the relocation, Liu's father remarried. The stepmother had a married son. Before the stepmother and father got married, the stepmother wrote to say Her son will not want the Liu family's house.Liu's sister's daughter's household registration is in Liu's father's house, and later Liu's father bought the house. The name of Liu's father and stepmother were written on the real estate certificate, but the purchase was not signed by Liu's sister's daughter (already adult).

Now that Liu's father has passed away, Liu's sister's daughter's household registration is still in the house. The stepmother's son really wants this house, and the stepmother also wants to give the house to his son, but Liu and others disagree. Liu's question Yes, if the lawsuit goes to court, can the stepmother's letter be used as evidence to win the lawsuit?
Analysis according to law
Letters are a kind of documentary evidence in law, and of course they can be used as evidence.Documentary evidence refers to the content recorded in words, symbols, and pictures, documents and other items that can prove the facts of the case.There are two characteristics of documentary evidence: (1) documentary evidence uses its ideological content to prove the facts of the case; (2) the ideological content of documentary evidence is expressed in words, symbols or patterns.Documentary evidence can be replaced by copies, excerpts, or even transcripts.

But in this case, the letter is of little value as evidence.Because Liu's stepmother has the right to change her expression of will, because this expression of will does not require Liu to pay a relative price, and Liu has not acted or suffered losses because of believing in such an expression.Therefore, it can be recovered at any time without actual property disposal.

However, it is impossible for the son of Liu's stepmother to obtain the real estate, which should be handled according to the inheritance law.At least half of it is the inheritance of Liu's father, which can be treated as inheritance.

tips

In the provision of documentary evidence, under normal circumstances, the parties should provide the original documents.Originals include the original, the original, and the copy.The original refers to the original signed and finalized text issued or produced by the document producer, which maintains its original state and can most objectively reflect the content recorded in the text, such as a real estate sale agreement, preferably an agreement initialed by the parties.

The original refers to the text that has been transcribed and printed in full from the original and has the same effect externally.The original originates from the original, and the original is generally kept in the hands of the producer or archived for future reference, while the original is sent to the recipient, such as an approval document for corporate restructuring.A copy is copied or printed in full from the original, but has no effect other than that of the original document.The purpose of making a copy is to inform the relevant units or individuals of the content of the original document, that is, the copy is generally sent to other relevant units or individuals other than the main recipient who need to know the original content, such as the deed tax payment certificate, and a copy is handed over to the registration Organ, this is a copy.

In some cases, photocopies or transcripts of documentary evidence may be submitted.If the parties are unable to submit the original documents to the court, they may submit photocopies or transcripts of the original documents.For this photocopy or transcription, it is best to indicate the source, and it will be stamped after being checked by the original storage department.

48. What if one estate has multiple wills?
When Wen passed away, Wen's wife, son, and grandson had no dispute over other inheritances, but there was a disagreement over a three-bedroom apartment. The wife, son, and grandson each produced "iron evidence"—Wen's will, and all It is clear that the property rights of the three-bedroom house belong to oneself.One family property produced three wills, and it was so deadlocked that no one could convince the other, but each family took their own "ironclad evidence" to the court.

Analysis according to law
The legal determination is based on the most recent will.

After the court accepted the case, it was verified that the three wills were indeed written by Wen himself, but none of the three wills indicated the year, month, and day, and the will held by the grandson was signed and stamped by his wife and stated: The will was written by Mr. Wen in a normal body, and he has no doubts about the will.

Based on the above facts, we believe that the "Inheritance Law" stipulates that estates with a will should be inherited according to the will. Although the content of Wen's three wills contradicts, this is allowed by the law. If you want to change your previous will at any time, the later will can negate the previous will, and the law determines that the latest will shall prevail.Since the three wills in this case did not indicate the year, month and day, the order of making the wills cannot be determined, and the three wills lack the valid elements of a will, which makes it more difficult to determine which one is valid.However, since the wife has expressed approval in the will held by the other party, it should be determined that the will is an expression of Wen’s true intention, and the approval of the wife, children and grandchildren on the ownership of the estate house in the will should be regarded as the inheritance. A consensus has been reached on the division of the house, which is legal and valid.Therefore, only one of the three wills is valid, and the wills in the hands of the wife and son cannot be fulfilled, and the three-bedroom apartment should belong to the grandson.

tips

Citizens not only care about how to dispose of their personal property acquired through labor and other means, but also how to distribute it after death.Generally speaking, the person who makes the will knows the specific economic situation of his family members best, understands their mutual obligations, and can make a more reasonable inheritance distribution plan.It should be said that the will system is in line with the fundamental purpose of our country's inheritance law and is conducive to the protection of citizens' personal property ownership.

Some people think that legal succession is more effective than testamentary succession.In fact, this is a misunderstanding. Statutory inheritance and testamentary inheritance are two unified and co-existing inheritance methods.If the decedent has a will, testamentary succession shall apply; if there is no will, statutory succession shall apply.

Article 20 of the "Inheritance Law" stipulates: "The testator may revoke or change his own will; if there are several wills with conflicting contents, the last will shall prevail; self-written, acting written, recorded, and oral wills cannot be revoked. , Change the notarized will."

49. Is the will valid if the witness is not present?
The parents of the four brothers and sisters of the He family each held 16 shares in an economic cooperative in a certain village in a certain city. After the death of their father, the 16 shares they held were not divided. In October 2004, his mother also unfortunately passed away due to illness.The four siblings of the He family had a dispute over how to divide their parents' estate.The eldest sister filed a lawsuit in the basic court of Y City in early 10 on the grounds that she had a will written by her mother, requesting to inherit 2005 of the 32 shares left by her parents according to the will, and submitted a written will to the court.However, the three brothers and sisters of the He family believed that the time, place, and content of the written will did not match the objective facts.After review, the court found that the written will was valid, and ruled that the 20 shares belonged to the elder sister.

After the judgment came into force, the three brothers and sisters of the He family felt deeply unfair, and in March 2006 they appealed to the Civil and Administrative Procuratorate of a certain city's procuratorate in order to seek justice.After review by the procuratorate, it was found that one of the disinterested persons who was acting as the executor of the will did not go to Zhang’s mother’s residence to write on the spot, nor did he know whether there was an oral will at all. The contents of a will were written.

Accordingly, a city's procuratorate filed a protest.The Municipal Intermediate Court made a ruling to revoke the original judgment and remand for retrial.After a retrial, the basic level court of a certain city adopted the protest opinion of the procuratorial organ, and recently ruled that the four brothers and sisters of the He family should each inherit 32 of the 8 shares held by their parents before their death according to legal procedures.

Analysis according to law
A will written on behalf of the testator refers to a will not written by the testator himself, but a will written by the scrivener according to the will of the testator.Due to its non-self-written nature, there are many controversies in practice, and there are also some controversies in the determination of its validity.

According to the provisions of our country's inheritance law, a will should be witnessed by two or more witnesses, and one of them will write it on behalf of the person, indicating the year, month, and day, and signed by the scribe, other witnesses and the testator.

(End of this chapter)