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Chapter 15 Questions and Answers about Marriage and Inheritance (14)
From the above provisions, it can be seen that a valid proxy will should have the following elements: (1) There are more than two witnesses on site; (2) One of the witnesses is the proxy; (3) The will must indicate Year, month, day; (4) Signatures of the scribe, other witnesses and the testator.The above four elements are indispensable, and a written will without these four elements is invalid.The specific requirements for each element are also different.

The law requires that the witness must be a person with full capacity for civil conduct, and must have no interest in the inheritance or the heir of the estate. More importantly, at least two witnesses must witness the whole process of making the will.The law only substantively guarantees the impartiality of witnesses, but procedural justice cannot be ignored.In practice, in the case of only two witnesses, if one or both witnesses did not fully witness the whole process for a single individual, how should such a will be recognized?We believe that such a written will is invalid, because in this case, there is an objective situation that one witness is not present at a certain point in time, which does not comply with the legal requirement that more than two witnesses must be present Require.A more complicated situation is that if there are more than two witnesses, there are also two or more witnesses present at a certain point in time, but two or more witnesses present at different points in time Witnesses are not the same how to determine?In this case, the key is to see whether there are two or more witnesses who fully witnessed the whole process. If no two or more witnesses witnessed the whole process, even if at any point in time there are two If there are two or more witnesses, such a will should also be deemed invalid.

tips

There are no specific provisions in the law and relevant judicial interpretations on how to act on behalf of the testator. We believe that the act of acting on behalf of the testator should retain the original words of the testator as much as possible, and do not summarize the meaning of the testator too much, so as not to misinterpret the meaning of the testator. In addition, handwriting should be used as much as possible to reduce the amount of typing. If you type on the site of making a will, it is essentially the same as handwriting, and it goes without saying that it is effective.In practice, due to limited conditions, some scriveners often make written records on the spot, which are signed by witnesses, scriveners, and the testator, and then leave the scene to type. The writer and the testator signed it, so there are some problems.It can be seen from the legal provisions that the whole process of writing a will must be formed in the presence of witnesses, scriveners, and testators.Although the proxy transcripts were formed on the spot, in essence, it is not the transcripts that will become legally effective in the future, but the written proxy wills formed by typing. Any difference between the content of the transcript and the content of the written will will cause the written will to be flawed, and in severe cases, it will lead to the invalidation of the written will.

50. Can the pension be inherited as an inheritance?

Couple A and B have a son C, who works as an electrician in a motor factory. They got married in 2003 and moved out. In June 2004, A died on duty. In October 6, the unit where he worked before his death issued a supplementary pension of 2006 yuan.C claimed that the pension should be inherited by their mother and son, while B claimed that all the pension should belong to her on the grounds that she had no job and no source of income. After the dispute, B filed a lawsuit in the People's Court.

Analysis according to law
Pensions, also known as pensions, are paid to family members of the deceased or disabled employees by the state or relevant units in accordance with relevant regulations.Employees of state organs, enterprises, public institutions, and social organizations who are determined to be disabled, completely incapacitated and unable to work due to work-related injuries, the relevant state organs, enterprises, institutions, or social organizations shall issue pensions to the disabled employees until they become disabled. until the employee dies.After the death of a disabled worker, the part that has been paid but not used up and the part that should be paid belong to the estate of the disabled worker and can be inherited.

1.When employees of state organs, enterprises, public institutions or social organizations die on duty, certain pensions will be regularly paid to the immediate family members supported by the deceased according to certain standards until the dependents reach adulthood or lose their support conditions.This kind of pension is paid to the immediate family members of the deceased employee. Therefore, the property belonging to the immediate family members cannot be inherited by all heirs as the estate of the deceased employee.

2. Compensation fees for death caused by traffic accidents. For citizens who die in traffic accidents, the unit responsible for the accident should give a certain amount of compensation fees to the immediate family members supported by the deceased.These pensions are issued to the dependents, and belong to the property of the dependents, not the estate of the deceased, and cannot be divided by means of inheritance.

3. The pensions issued due to the disability and sacrifice of revolutionary soldiers are in accordance with the provisions of the Military Service Law of our country. Active soldiers who participated in the war or were injured and disabled on duty shall be assessed by the army for the disability level, and the disabled soldiers will be issued a pension certificate and a one-time pension. These pensions are issued to disabled soldiers and belong to their personal property, which can be inherited by their heirs as inheritance after their death.

If a soldier in active service dies or dies of illness, according to the Military Service Law of our country, the state shall issue a lump-sum pension to his family members; if his family members are unable to work or have no fixed income and cannot maintain their lives, the state shall issue pensions on a regular basis. It is owned by the family members of soldiers, and cannot be treated as their estate after the death of soldiers.

Therefore, in this case, A died on duty, and the pension issued by his unit before his death was issued to B himself, so naturally it cannot be listed as inheritance, but should be fully owned by B.

tips

Remember that pensions are divided into two types: one is the pension issued to employees or disabled soldiers who are injured on duty; the other is the pension issued to their families after the death of citizens.The former can be legally inherited as inheritance under certain circumstances, while the latter is not the estate of the deceased citizen, but the property of the family of the deceased.

51. Before the father was alive, his birth certificate gave up "inheritance", what is the effect of the paper?

Xiao is the third son of Uncle Xiao, who works in other places. Uncle Xiao and his eldest son lived in the countryside. Because the conditions in the countryside were not good at that time, after Xiao returned home, he signed a written statement with his elder brother and second brother, stating that his father will live in the countryside after a hundred years. , he renounced the inheritance.But Xiao still sends money to his family every year. In the 90s, Uncle Xiao built a factory in the countryside relying on his own craftsmanship, and his life became more and more prosperous. However, Xiao’s factory in the city was not as good as each year, and life became more and more difficult. . Uncle Xiao passed away in 2004, and Xiao went home to take care of the funeral with his elder brother and second brother. The two elder brothers said, "You have given up inheritance, so we each have half of father's property." Xiao wanted to ask, what else did he have? No right to inheritance?

Analysis according to law
Whether Xiao has the right to inherit the inheritance mainly depends on whether he has given up the inheritance.

Article 25 of the "Inheritance Law" stipulates: "After the inheritance begins, if the heir renounces the inheritance, he shall express his renunciation of inheritance before the estate is disposed of. If he fails to express it, he shall be deemed to accept the inheritance." According to the provisions of this article, the renunciation of inheritance must be The statutory time limit is made: that is, "after the inheritance begins and before the inheritance is divided." Xiao Mou gave up the "inheritance" when Uncle Xiao was alive. At this time, Xiao Mou only enjoys the right of inheritance in the objective sense, or it is called inheritance in theory. The right of expectation, this kind of inheritance right is exclusively enjoyed by the heirs, which can neither be waived nor transferred.Therefore, Xiao’s written evidence expressing his renunciation of “inheritance” belongs to this situation. As long as Xiao does not explicitly express his renunciation after the inheritance begins and before the estate is disposed of, it is presumed that he has accepted the inheritance.

tips

For similar situations in the above-mentioned cases, the parties can obtain strong evidence support through notarization of renunciation of inheritance rights.The notarization of renunciation of inheritance rights refers to the notary office's legally proving that the heir's renunciation of his right to inherit the inheritance of others is a true and legal activity.

Our country's laws allow citizens to voluntarily give up their inheritance rights, but the waiver of inheritance rights should be clearly expressed in accordance with the law.

1. Give up the jurisdiction of notarization of inheritance rights.The party concerned shall submit an application to the notary office in the place of his domicile or the place where the act took place.

2. Application for notarization of renunciation of inheritance rights.The right of inheritance is an important civil right of citizens, and it is the right of citizens to inherit the estate of others according to law.Therefore, the notarization of the renunciation of inheritance rights must be done by the heir himself, and no one else is allowed to act on his behalf.

3. Materials to be submitted for notarization of renunciation of inheritance rights.When applying for notarization of the renunciation of inheritance rights, the notarization application form should be filled out item by item, and the following materials should be submitted: (1) My identity certificate, such as resident ID card, household registration booklet, etc. (2) Proof of the decedent's death.Before the decedent dies, giving up the right of inheritance has no actual legal significance. (3) Proof of the relationship between the person and the decedent.It can be provided by the unit, the sub-district office or the township government, as long as it can prove that it really enjoys the right of inheritance. (4) A statement of renunciation of inheritance rights signed by the person.According to regulations, when a notary office handles the notarization of renunciation of inheritance, it must explain to the parties his rights, obligations and the legal consequences that will result from renunciation of inheritance rights, so that the parties have a clear understanding of the nature of their actions and the impact that will be produced.The notary office should record the above situation in the notarized transcript, which should be checked and signed by the parties concerned.

4. Review and precautions for notarization of renunciation of inheritance rights.When handling the notarization of renunciation of inheritance rights, the notary office should focus on examining: (1) the identity, capacity for civil rights and capacity for civil conduct of the parties, and whether they really enjoy the right of inheritance; (2) the date of death of the decedent, and whether the declaration of intention to renounce the right of inheritance was made within the statutory time limit.

After examination, the notary office believes that the facts are clear, the evidence is sufficient, the identity of the parties is true, they have full capacity to act, and the intention to renounce the right of inheritance is true and legal, and there is no violation of the law, they should make and issue a notarial certificate of renunciation of inheritance rights in accordance with the law.The notarial certificate becomes effective on the date of issuance of the notarization approval.

52. If the father writes a letter of waiver, does the son still have the right to inherit the house he waived?
A's grandfather had a three-room wooden structure house before his death. After A's grandfather passed away, the house was taken over by A's father.Later, A's father wrote a waiver to let A's uncle take over the three houses, and the owner of the house was changed to his uncle's name.A's father only cares about the ancestral property in the countryside. 20 years later, before his death, A's father left a will saying: The ancestral property has not been divided. After his death, the inheritance share of the three houses will be inherited by A.Now A thinks of suing the court to claim the inheritance of these three houses, is that all right?
Analysis according to law
Article 47 of the Supreme People's Court's "Opinions on Several Issues Concerning the Implementation of the Inheritance Law of the People's Republic of China" stipulates: "The heir shall express in writing to other heirs the renunciation of inheritance. The renunciation of inheritance shall be expressed orally. If it is proved by sufficient evidence, it shall also be determined to be valid.”

In this example, after the death of A's grandfather, A's father and uncle are the first-order heirs, and both have the right to inherit the estate of A's grandfather, and they are all entitled to a part of the estate.Later, A's father wrote a waiver.According to relevant regulations, after the heir expressly renounces the right of inheritance, the share he should inherit will be inherited by other heirs in the same order.Therefore, the ownership of these three houses has been obtained by the uncle.At the same time, A's father took charge of the ancestral property in the countryside, and A's uncle did not raise any objection, and implicitly gave up his right to inherit the ancestral property in the countryside.Since then, in more than 20 years, there have been no inheritance disputes between the two parties. Apparently, a situation of family division and property division has formed in fact. Part of the inheritance of these three houses is that he did not realize that after writing the waiver, he had lost the right to inherit the three ancestral houses, and he and A's uncle had in fact formed a situation of dividing the family and property.Therefore his will is illegal and invalid.After the death of A's father, A can only have the right to inherit the property in the countryside that belongs to A's father, but has no right to inherit the three houses that have already belonged to A's uncle.

tips

Note that disposing of the content of a will that does not belong to one's own property is invalid. Article 38 of the "Opinions of the Supreme People's Court on Several Issues Concerning the Implementation (Inheritance Law of the People's Republic of China)" stipulates that "if the testator disposes of property belonging to the state, collective or other people in the will, this part of the will shall be deemed invalid .” 53. In the event of a dispute over the identity of the heir, how does the court review the judgment evidence to confirm the heir’s eligibility?

A was a person before his death and left several properties. When A's wife B was cleaning up A's estate, he discovered that A had a house in a certain city. C now occupies the house and claims that he is A's illegitimate child. But B thinks that C's claim that he is A's child lacks evidence, so he sues the court.During the court hearing, C provided the following evidence.

1. A copy of the household registration of a police station of a bureau in a certain city, which proves that C has a registered household registration on the household registration, and that he and the head of the household are father and son.

2. An agreement is signed between C's biological mother and A. The content is that A and C's biological mother have a child named C.The agreement has the signatures and seals of C's biological mother and A.

3. The investigation records of the cadres of the neighborhood committee prove that they know that A and C are father and son.

However, B still believed that the evidence was insufficient and asked the court for a paternity test.Excuse me, how should the court decide?
Analysis according to law
The conclusion of the paternity test is only one of the evidences to identify the parent-child relationship, and it must be corroborated with other evidence in the case, comprehensively review judgments, decide on trade-offs, and make correct judgments.

The household registration information, the statements of the cadres of the neighborhood committee, the agreement between A and C’s biological mothers, and other evidence investigated by the court have formed a complete chain of evidence, which can prove that A and C are father and son. Therefore, B’s application requires C to act The paternity test has become unnecessary, thus, the court can reject B's request.

tips

This example involves the chain of evidence issue.

Evidence chain refers to the organic combination of evidence materials in legal form collected by the parties in the course of litigation according to the law.The probative ability and probative force of the evidence chain or the life of the evidence chain depends on the inherent objectivity, legitimacy, and relevance of the evidence, as well as the correlation between the evidence and the facts to be proved.Various interlocking evidence endows the chain of evidence with sufficient probative ability and power to prove all the facts of the case.

54. If the heir loses the right of inheritance according to law, can his children find evidence to inherit by subrogation?

Xiao's grandfather passed away early, and his grandmother adopted Xiao's father as an adopted son and Jia as her adopted daughter. The old man worked hard to bring them up.A gets married when she becomes an adult.Xiao's parents gave birth to Xiao after their marriage, and three generations of grandparents lived together. In 1990, his father intentionally killed his grandmother and was sentenced to death by the court for intentional homicide, which was executed immediately.After his father was executed, his mother remarried.Xiao was 18 years old at the time, was studying, and did not want to remarry with his mother, so he still lived in the house left by his grandmother.After the death of the grandmother, there were three tile-roofed houses and some furniture. The adopted daughter A of the grandmother visited Xiao many times and said that she was the only legal heir of her grandmother's estate. Subrogation.

Analysis according to law
my country's inheritance law stipulates that if the children of the decedent die before the decedent, the descendants of the decedent's direct blood relatives will inherit by subrogation.Subrogation inheritance can only inherit the share of inheritance that his father or mother is entitled to inherit. If his father or mother loses the right of inheritance according to law, his younger direct blood relatives cannot inherit by subrogation.According to Xiao’s situation, his father was sentenced to death for intentionally killing the decedent and lost his inheritance rights. Although Xiao is a direct descendant of his grandmother, he cannot inherit by subrogation.

Here, one more point needs to be pointed out: Although Xiao has no right to inherit by subrogation, he does not lose Xiao’s legal qualification as the heir of the second order. That is to say, Xiao still belongs to the scope of the legal heir.However, as the adopted daughter of Xiao's grandmother, A is the first order heir.According to the third paragraph of Article 13 of the "Inheritance Law", "The heir who has fulfilled the main support obligation to the decedent or lives with the decedent can distribute more of the inheritance." Article 3 stipulates: "The dependents other than the heir People raised by the heirs who lack the ability to work and have no source of livelihood... can be distributed to them with appropriate inheritance."

Article 28 of the "Opinions of the Supreme People's Court on Several Issues Concerning the Implementation of the Inheritance Law of the People's Republic of China" stipulates: "Where the heir loses the right of inheritance, the direct blood relatives of the younger generation shall not inherit by subrogation. If the subrogated heir lacks the ability to work and has no source of income, Or if the decedent fulfills more support obligations, it can be properly distributed to the inheritance.”

tips

The order of legal heirs, Article 10 of the "Inheritance Law" clearly stipulates that inheritance shall be inherited in the following order: first order: spouse, children, parents.Second order: siblings, grandparents, maternal grandparents.After the inheritance starts, the heirs in the first order will inherit, and the heirs in the second order will not inherit.If there is no heir in the first order, the heir in the second order shall inherit.In addition, Article 12 stipulates: "Where the widowed daughter-in-law has fulfilled the main obligation of support to the father-in-law and the mother-in-law, the widowed son-in-law shall be the heir in the first order."

(End of this chapter)