legal master

Chapter 16 Questions and Answers about Marriage and Inheritance (15)
The children mentioned in the inheritance law include legitimate children, illegitimate children, adopted children and stepchildren with dependent relationship.Parents, including biological parents, adoptive parents and step-parents in a dependent relationship.Brothers and sisters, including brothers and sisters of the same parents, half-brothers and sisters of the same father or half-mother, adoptive brothers and sisters, and step-siblings with fostering relations.If the heirs of these two orders give up inheritance or there is no heir of these two orders, the inheritance belongs to the state; if the decedent was a member of a collective organization during his lifetime, the inheritance belongs to the collective organization.

55. How to deal with illegal parts in the will?
When A was 11 months old, he was adopted by Mr. and Mrs. C as an adopted child. He got married and separated when he was 20 years old.After A gets married, he often takes care of his adoptive parents.The two children were also raised by adoptive mothers. In 1994, her adoptive mother suffered from breast cancer. Couple A tried to cure her and took care of her after the operation. In 1998, his adoptive father died of illness. In 1999, her adoptive mother married Ding again.A believed that her adoptive mother was ill and should not remarry, but she did not listen to her advice, and since then she has not been in contact with her adoptive mother. When C was seriously ill in 2002, four directors of the street residents' committee were invited to witness and made a written will, all of her property, including two houses, were all inherited by Ding.After C's death, A and D had a dispute over the inheritance of two houses.A sued the court on the grounds that the two houses belonged to his adoptive parents, he was the heir of his adoptive parents and should be inherited by him; the will of his adoptive mother was instigated by Ding and should not be recognized.Defendant D claimed that he and C were husband and wife, and that all property should be inherited by him.

Analysis according to law
my country's "Inheritance Law" stipulates that citizens can make a will to designate personal property to be inherited by one or more legal heirs.Therefore, making a will is a right enjoyed by citizens and is legal.However, the property disposed of by the will must be personal property, and cannot dispose of other people's property or jointly owned property, infringing on the rights of others; nor can it arbitrarily deprive the legal heir of the right of inheritance, infringing on the rights of the heir.

C makes a will, designating one of the two legal heirs, her husband and adopted son, to inherit the property, and the other legal heir A is not without the ability to live independently, so her will is legal and valid, and should be recognized and protected.However, the two houses disposed of by C's will were originally the joint property of C and his ex-husband B, and one of them was owned by B. After C's death, the inheritance of this house should be jointly inherited by C and A. Now C makes a will All the two houses were inherited by Ding, which violated the rights of adopted son A.This part of the will is illegal and invalid, and therefore must be corrected. Article 38 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": "The testator disposes of property belonging to the state, collective or other people in the will, and this part of the will shall be deemed invalid."

tips

According to the "Inheritance Law", citizens can freely make a will and dispose of their property after death; they can also revoke or change their own will at any time and anywhere.There are generally two ways to revoke a will:

1. Use a certain method to declare the revocation or modification of the original will.The testator may make a statement in writing to revoke or change the original will to the notary office that made the original will or to the scriveners and witnesses of the original will.

2. Make the original will lose its legal effect by making a new will. Paragraph 20 of Article 2 of the "Inheritance Law" stipulates: "If there are several wills with conflicting contents, the last will shall prevail." For conflicting wills, if there is a public will, the last notarized will shall prevail; if there is no notarized will, the final will shall prevail.If the testator originally made a notarized will, the original notary office still needs to handle the revocation, and the original notarized will cannot be revoked by self-writing, proxy writing, recording, or oral will.

3. If the behavior of the testator before the will is contrary to the intention of the will, so that the property disposed of by the will is lost, partially lost, or the ownership is transferred or partially transferred at the beginning of the inheritance, the will is deemed to be revoked or partially revoked.

56. What is the effect of a will recorded with a tape recorder?
In 2005, Guan's mother made a will stating that her grandson and Guan's sisters would jointly inherit the property.After the mother made the will, the grandson went uncharacteristically and failed to fulfill his duty to support the grandmother, which made the old man have no food and clothing.This made the mother very angry, and she decided to revoke the original will and make a new will, hoping to prevent her grandson from inheriting the property.At that time, due to repeated thinking of the old man, the notary office did not go through the formalities. In 2006, when the mother became seriously ill, she immediately invited her distant nephew, brother and sister Qiu, to record her will with a tape recorder: After death, the real estate will be given to the three daughters, not to the grandson.At that time, the mother was sane and used the method of question and answer when making the will.So, is the will recorded by Guan's mother with a tape recorder valid?
Analysis according to law
With regard to testamentary succession, our country's law recognizes it.But first of all, it is necessary to find out whether the content of the will conforms to the laws and policies of the country, and whether it reflects the socialist moral principles of supporting the elderly, helping the young, and solidarity and mutual assistance.The will cannot deprive or reduce the legal heirs who are minors, who have lost the ability to work and who have difficulties in living.Secondly, the testator must have the capacity to act when making the will and should be a person of normal mental state; thirdly, the will must reflect the true intention of the testator, free from coercion and deceit.If the will meets these three principles, it means that the will is true and legal.Such a will can be established and is protected by law.

There are several ways to make a will: one is a written will (including self-writing and writing on behalf of two); the other is an oral will; the third is a recorded will; the fourth is a notarized will.Regardless of the form of the will, there must be reliable proof and certain conditions must be met before the will can be established.

Regarding whether the will (recorded will) made by Guan's mother is authentic and legal.Paragraph 17 of Article 4 of my country's "Inheritance Law" stipulates: "A will made in the form of a recording shall be witnessed by more than two witnesses." If this condition is met, a will in the form of a recording has legal effect and should be protected by law. .According to the situation, Guan's mother had asked for a re-notarization of the will because her grandson failed to fulfill her duty of support and assistance.This fact can be proved by a notary public.Qiu's brother and sister are uncles and sisters of Guan's, and they have no inheritance relationship with Guan's mother's property. It can also be said that they can only be confirmed after witnesses who have no interest in them.If it can be proved that Guan's mother has the capacity to act when making a will, then the will can be established, has legality, and is protected by law.

tips

In practice, the following points should also be paid attention to when recording a will:

1. It is best to record the conversation between the witness and the testator on the audio tape, such as the voice of the testator agreeing to their testimony.

2. As mentioned above, recorded wills are easy to be forged, tampered with, etc., so it is best not to use this form.

57. Is a will valid without the consent of the legal heir?
Huang's father owns a building and two bungalows.He made a will during his lifetime, saying: After his death, one of his buildings will be owned by Huang's younger sister, and the two bungalows will be owned by Huang, and Huang's younger sister will pay two-thirds of the funeral expenses, and Huang will pay one-third. one.This will was written by Huang's father himself, but Huang's opinion was not sought in advance.Huang believes that this is an obvious act of favoring Huang's younger sister, which violates the principle of equality between men and women in the "Inheritance Law". Is Huang's statement correct?

Analysis according to law
A will is a unilateral legal act.That is to say, as long as the testator makes the will in a legal manner according to his true intention and without coercion or deceit, and the content is legal, it can take effect without the consent of the legal heir or anyone else. agree.Therefore, the view that a will made by a testator without the consent of the legal heir is invalid has no legal basis and is wrong.

In addition, Huang believes that Huang's father's move violated the principle of equality between men and women, and he misunderstood the content of the principle of equal inheritance rights. "Equality", this kind of equality does not mean that your father's share is evenly distributed, so Huang's statement is not correct.

tips

Pay attention to several situations in which a will is invalid, according to Article 22 of the "Inheritance Law": (1) A will made by a person with no or limited capacity to act is invalid; (2) The will must express the true will of the testator. A will made by fraud is invalid; (3) a forged will is invalid; (4) if a will has been tampered with, the tampered content is invalid.

58. Should two or more witnesses be present to witness the written will, recorded will and oral will?

Hao’s adoptive father passed away in January this year, and A possessed all his property. Hao claimed his right of inheritance to him. A took out a will of his adoptive father written by him, which claimed that all the property would be inherited by him.At that time, Hao asked for witnesses.A said that she was the only one present at the time, and no one else was there. So, is this will valid?
Analysis according to law
According to Article 17 of the "Inheritance Law" of our country: "A will should be witnessed by two or more witnesses, and one of them will write on behalf of him, indicating the year, month, and day. The signature of the person." Article 18 of the "Inheritance Law" also clearly stipulates that the heir cannot be a witness of the will.According to the above regulations, a will written by A alone without the signature of other witnesses is an invalid will. More importantly, as an heir, A has a direct interest in inheriting the estate, and it is illegal to be a witness of the will.Therefore, Hao's adoptive father's will is legally invalid, and in this case, it will be handled according to legal inheritance.

tips

Note that the following people cannot be witnesses to a will:
1. Persons with no capacity for conduct or persons with limited capacity for conduct;

2. Heirs and legatees;
3. A person who has an interest in the heir or legatee.

59. Are oral wills made in emergencies always valid?

In May 2005, Ge's father was critically ill and was admitted to the hospital. When Ge's siblings went to guard the ward, his father said in front of Ge's siblings, two doctors and two nurses at the critical moment: "It seems that I am dying. After my death, all the property in the family will be left to your stepmother A." Later, after the doctor's rescue and careful treatment, my father recovered and was discharged from the hospital. At the beginning of May 5, Ge's father suffered a sudden attack of illness, and the rescue failed, and he died in the hospital.After his father died, he left behind 2006 houses, a deposit of 5 yuan, a color TV, a refrigerator, some furniture, and some clothes.Stepmother A proposed that in May 9, Ge's father left an oral will in the hospital, and that all the inheritance should be inherited by her. She also said that the father's oral will was witnessed by two doctors and two nurses, and the will was legal. Succession shall be handled by will.

Brother Ge believes that although his father had an oral will when the emergency was over, he did not handle other forms of wills such as self-writing, writing on behalf of him, or notarization after the emergency was resolved. Therefore, the oral will is invalid and should be handled according to legal inheritance.

Analysis according to law
Paragraph 17 of Article 5 of my country's "Inheritance Law" stipulates: "In a critical situation, the testator may make an oral will. The oral will should be witnessed by two or more witnesses. After the critical situation is lifted, the testator can use written or If a will is made in the form of a recording, the oral will is invalid.”

According to this provision, an oral will must meet three conditions to be valid: first, it must be in a critical situation; second, it must be witnessed by more than two legal witnesses; No other form of will can be made.An oral will is valid only if the above three conditions are met.

Ge’s father made an oral will in the hospital in May 2005. First, he made it in a critical situation; second, he had two doctors and two nurses as legal witnesses. If the father dies, the oral will made by him will become a valid will and should be handled according to the testamentary succession.However, after Ge’s father made an oral will in a critical situation in May 5, he was cured and discharged from the hospital. It has been a year since his death. , recorded or notarized form of will.Therefore, the oral will he made during the crisis in May 2005, although there were legal witnesses, was invalid due to the dissolution of the crisis.If Ge's father recovered from his illness and was discharged from the hospital until he died of a sudden illness, there was no other form of will, and it should be handled according to legal inheritance.

tips

Note that since the authenticity and accuracy of the content of an oral will is difficult to judge, it can only be used in critical situations, such as when the testator is critically ill or dying.

60. What is a testator?
He's father is illiterate. He heard that oral wills are not legally valid, so he wanted to find a scrivener. So what is a scrivener?
Analysis according to law
Although my country's inheritance law does not explicitly stipulate the qualifications of testamentary scriveners, according to general theory and trial practice, anyone who undertakes wills as scriveners must meet the conditions stipulated by law, that is, have the qualifications of testamentary scriveners. qualifications.Otherwise, the will has no legal effect.

A will scribe refers to a scribe who is entrusted by the testator to record the content spoken by the testator when the testator makes a will and makes a will after the testator approves it.The reason why a will scrivener is necessary is based on China's national conditions. There are still a certain number of illiterate and semi-literate people in our country. In order to ensure the freedom of these people to make a will, we cannot do without a testator.Even if the decedent has a certain level of education and is able to write the will by himself, due to some reasons, such as physical defects, diseases or other reasons, he can not write the will himself, he can also have another citizen in the notary or other two according to his will. In the presence of witnesses, the will is written on behalf of the will. The will written on behalf of the decedent expresses his intentions accurately and is established after the decedent, testamentary scrivener, and witnesses have signed and stamped the will.At the same time, oral wills are not legally ineffective, but because of evidence. As the saying goes: oral wills are not valid.Therefore, the law advocates the use of a written form in order to retain the certificate and avoid causing too many disputes afterwards, but this does not mean that the oral will will be invalid because of this. Article 17 of the "Inheritance Law": "In critical situations, the testator may Make an oral will. The oral will should have more than two witnesses present.” “However, after the emergency situation is lifted, the testator can make the will in written or recorded form, so the oral will is invalid.”

tips

When writing a will, keep the following points in mind:

1. Reasons for making a will.

2. Witnesses (who have no interest in the parties involved).

3. Entrust XXX (or a lawyer) to write the will on behalf of you.

4. Detailed content of the will (shall not violate relevant state laws and regulations).

5. There are a total of X copies of the above will (the content is the same after checking, and the text is correct), and I hold the original copy, and each witness holds a copy.

6. Signature of the testator, witness, and testamentary scrivener (Nayin).

7. The time and place of making the will (involving issues of court jurisdiction).

61. What is a will witness?Who cannot be a testamentary witness?
Wang wanted to make a will, so he said to his daughter, "Be a witness to me. After I die, I will leave half of my property to you and half to your two older brothers."The daughter said, "It seems inappropriate for me to be a witness!" Then Wang asked, "Isn't a witness just someone who has seen the situation and testified to it? You can't be a witness, who else can be a witness? "Who, then, can be witnesses?
Analysis according to law
A will witness is a person who is present, heard and witnessed when the testator made the will, and who can prove the facts of the will.However, since the will is executed after the testator's death, the testator can no longer explain his intention, so its authenticity is mainly proved by objective evidence.The objective evidence that can prove the authenticity of the will, in addition to the existence of the will itself, is mainly the proof provided by the witnesses of the will in written form or oral statement.Whether the witnesses of the will can testify objectively and comprehensively will directly affect the validity of the will.

Therefore, the Inheritance Law imposes restrictive regulations on the qualifications of testament witnesses. According to the relevant provisions of the Inheritance Law and 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, the following A person cannot be a witness to a will.

One is a person with no capacity for conduct or a person with limited capacity for conduct.Actual capacity is the qualification of individuals or organizations to exercise or enjoy rights, create or perform obligations through their own actions in some specific legal relations.Citizens' behavior ability is based on whether citizens have perfect cognitive ability and perfect behavior control ability.Only when a person has the ability to identify and control the purpose, nature and consequences of his actions through his own will and consciousness, he can independently participate in legal relations in his own name and independently exercise the law with his own conscious actions. A person has the capacity to act only when he has rights and fulfilled his legal obligations. Paragraph 12 of Article 2 of the General Principles of Civil Law stipulates that minors under the age of 10 are persons without capacity for civil conduct. Article 13 of the "General Principles of Civil Law" stipulates: "A mentally ill person who cannot identify his own behavior is a person without capacity for civil conduct."

The second is heirs and legatees.They have a direct interest in the will, and generally speaking, their presence does not help the testator to dispose of the property according to his own wishes without scruples or outside influence.Therefore, the law stipulates that heirs and legatees cannot be witnesses of the will.

(End of this chapter)