Civil and Commercial Perspective... The legal effect of the will.
Published:
2023-03-10
Recently, the author received a number of consultations on the legal effect of the will. Some consultants lack the elements of the will, and some cannot obtain the estate according to the will for other reasons. So, how can the testator write a legal and valid will, so that their wishes can be realized? The author intends to combine a specific case to analyze. Brief of the case Zhang and Zhao got married in 1970. After their marriage, they had a very good relationship and gave birth to their second sons Zhang and Zhang. Zhao died of illness in 2000. Zhang was too sad. Later, his youngest son Zhang reassured him and suggested that he find another wife. Later Zhang registered for marriage with Luan, 20 years younger than himself, in early 2001 and gave birth to a daughter Zhang moujiao at the end of 2001. Because of his love for his little daughter and his current wife, Zhang handed over most of his property to his current wife, but he felt ashamed of his two sons. On October 21, 2021, he wrote a will and promised that his pre-marital property would be inherited by his two sons in a hundred years, and then handed the will to his younger son for safekeeping. Zhang died on December 23, 2022, but Zhang transferred the property to Luan before he died. Zhang Mouhua called for advice: Now that the house has been transferred to Luan, can the two brothers get the house according to their father's will? legal analysis 1, will is the will before life according to their own meaning of the property disposition of his death, the will is a unilateral, to-style, civil legal act. From the perspective of civil legal acts, a legal and valid will needs to meet the following conditions at the same time:(1) the actor has the corresponding civil capacity;(2) the meaning is true;(3) it does not violate the mandatory provisions of laws and administrative regulations. 2. A valid self-written will should meet the following elements: (1) The entire contents of the will are written by the testator, self-written will can neither be written by others, nor can be printed with a printer, can only be written by the testator himself with a pen to record its meaning. The whole content here refers to the whole writing of the will, including the main part of the will on how the estate is handled, as well as the will's signature and the year, month and day indicated, which must be written by the will. That is, all the fonts of the will are required to be written by the testator himself, which is the most important formal element of the self-written will. (2) A self-written will shall be signed by the testator. After the will is written, the testator must also write his name at the end of the will. (3) The self-written will shall be indicated by the testator by the year, month and day. It should be noted that this article requires the visionary to indicate "year, month, and day", not just the date. 3. The property involved in the will must be lawfully existing. the author's point of view 1. Inheritance is the property left over from the death of a citizen, and it is the object of the legal relationship of inheritance, that is, the subject of the right of inheritance. If the estate does not exist, the legal relationship of inheritance cannot be established. Only the property left undisposed at the time of the decedent's death is an estate, and the property that the decedent has disposed of before the inheritance begins is not an estate. Specifically in this case, because the estate no longer exists, it does not belong to the scope of the estate from a formal point of view. 2, but specific to the case, Zhang can call the property file to see if the property transfer is in line with the law? Transfer to Luan is a gift or sale? Zhang has the capacity for civil conduct? If Zhang has no capacity for civil conduct when disposing of the property, the disposition is invalid, Zhang can get the property according to the will. The author reminds 1, self-written will must require me to write. The so-called "self-writing" means writing by oneself, which must be written by oneself. The signature and date from the first part of the "will" to the place of deposit should be written by oneself. 2. The testator is not a person with limited civil capacity. In judicial practice, many elderly people suffer from Alzheimer's disease, stroke, brain atrophy and other diseases in their later years and are unable to live normally or even express their wishes normally. If it is shown that they are indeed persons with no capacity for civil conduct or persons with limited capacity for civil conduct, then The will made by him is invalid. 3. The property involved in the will must be real, is the property legally occupied by the will. 4. Guarantee that the will held is the last will. According to the third paragraph of Article 142 of the Civil Code, if there are several wills, the contents of which conflict, the last will shall prevail. 5, the true care of the testator, life filial piety, otherwise, the testator has the right to make a will or disposition of property. To sum up: in this case, although Zhang Mou Xin and Zhang Mou Hua hold Zhang Mou's will, but because Zhang Mou has already disposed of the property involved in the will, if the disposition is legal, Zhang Mou Xin and Zhang Mou Hua have no right to obtain the property according to the will. Legal basis Article 143 of the the People's Republic of China Civil Code: Civil legal acts that meet the following conditions are valid:(1) the actor has the corresponding capacity for civil conduct;(2) the meaning is true;(3) it does not violate the mandatory provisions of laws and administrative regulations, and does not violate public order and good customs. Article 1143 of the the People's Republic of China Civil Code: A will made by a person without capacity for civil conduct or a person with limited capacity for civil conduct shall be null and void. A will must express the true meaning of the testator, and a will made by fraud or coercion is invalid. A forged will is invalid. If the will is tampered with, the tampered content is invalid. Article 1134 of the the People's Republic of China Civil Code: The self-written will is written and signed by the testator, indicating the year, month and month. 4. Article 28 of the Judicial Interpretation (I) of the Succession Code of the Civil Code of the Supreme People's Court: The testator must have full civil capacity when making a will. A will made by a person with no capacity for civil conduct or a person with limited capacity for civil conduct is invalid even if he or she later has full capacity for civil conduct. If a testator has full civil capacity at the time of making a will and later becomes a person without civil capacity or a person with limited civil capacity, the validity of the will shall not be affected.
Recently, the author received a number of consultations on the legal effect of the will. Some consultants lack the elements of the will, and some cannot obtain the estate according to the will for other reasons. So, how can the testator write a legal and valid will, so that their wishes can be realized? The author intends to combine a specific case to analyze.
Brief of the case
Zhang and Zhao got married in 1970. After their marriage, they had a very good relationship and gave birth to their second sons Zhang and Zhang. Zhao died of illness in 2000. Zhang was too sad. Later, his youngest son Zhang reassured him and suggested that he find another wife. Later Zhang registered for marriage with Luan, 20 years younger than himself, in early 2001 and gave birth to a daughter Zhang moujiao at the end of 2001. Because of his love for his little daughter and his current wife, Zhang handed over most of his property to his current wife, but he felt ashamed of his two sons. On October 21, 2021, he wrote a will and promised that his pre-marital property would be inherited by his two sons in a hundred years, and then handed the will to his younger son for safekeeping. Zhang died on December 23, 2022, but Zhang transferred the property to Luan before he died.
Zhang Mouhua to call Advisory:Now that the house has been transferred to Luan, can the two brothers get the house according to their father's will?
legal analysis
1, will is the will before life according to their own meaning of the property disposition of his death, the will is a unilateral, to-style, civil legal act.
From the perspective of civil legal acts, a legal and valid will needs to meet the following conditions at the same time:(1) the actor has the corresponding civil capacity;(2) the meaning is true;(3) it does not violate the mandatory provisions of laws and administrative regulations.
2. A valid self-written will should meet the following elements:
(1) The entire contents of the will are written by the testator, self-written will can neither be written by others, nor can be printed with a printer, can only be written by the testator himself with a pen to record its meaning. The whole content here refers to the whole writing of the will, including the main part of the will on how the estate is handled, as well as the will's signature and the year, month and day indicated, which must be written by the will. That is, all the fonts of the will are required to be written by the testator himself, which is the most important formal element of the self-written will.
(2) A self-written will shall be signed by the testator. After the will is written, the testator must also write his name at the end of the will.
(3) The self-written will shall be indicated by the testator by the year, month and day. It should be noted that this article requires the visionary to indicate "year, month, and day", not just the date.
3. The property involved in the will must be lawfully existing.
the author's point of view
1. Inheritance is the property left over from the death of a citizen, and it is the object of the legal relationship of inheritance, that is, the subject of the right of inheritance. If the estate does not exist, the legal relationship of inheritance cannot be established.
Only the property left undisposed at the time of the decedent's death is an estate, and the property that the decedent has disposed of before the inheritance begins is not an estate. Specifically in this case, because the estate no longer exists, it does not belong to the scope of the estate from a formal point of view.
2, but specific to the case, Zhang can call the property file to see if the property transfer is in line with the law? Transfer to Luan is a gift or sale? Zhang has the capacity for civil conduct? If Zhang has no capacity for civil conduct when disposing of the property, the disposition is invalid, Zhang can get the property according to the will.
The author reminds
1, self-written will must require me to write.
The so-called "self-writing" means writing by oneself, which must be written by oneself. The signature and date from the first part of the "will" to the place of deposit should be written by oneself.
2. The testator is not a person with limited civil capacity.
In judicial practice, many elderly people suffer from Alzheimer's disease, stroke, brain atrophy and other diseases in their later years and are unable to live normally or even express their wishes normally. If it is shown that they are indeed persons with no capacity for civil conduct or persons with limited capacity for civil conduct, then The will made by him is invalid.
3. The property involved in the will must be real, is the property legally occupied by the will.
4. Guarantee that the will held is the last will.According to the third paragraph of Article 142 of the Civil Code, if there are several wills, the contents of which conflict, the last will shall prevail.
5, the true care of the testator, life filial piety, otherwise, the testator has the right to make a will or disposition of property.
To sum up: in this case, although Zhang Mou Xin and Zhang Mou Hua hold Zhang Mou's will, but because Zhang Mou has already disposed of the property involved in the will, if the disposition is legal, Zhang Mou Xin and Zhang Mou Hua have no right to obtain the property according to the will.
Legal basis
Article 143 of the the People's Republic of China Civil Code:
Civil legal acts that meet the following conditions are valid:(1) the actor has the corresponding capacity for civil conduct;(2) the meaning is true;(3) it does not violate the mandatory provisions of laws and administrative regulations, and does not violate public order and good customs.
Article 1143 of the the People's Republic of China Civil Code:
A will made by a person without capacity for civil conduct or a person with limited capacity for civil conduct shall be null and void.
A will must express the true meaning of the testator, and a will made by fraud or coercion is invalid.
A forged will is invalid.
If the will is tampered with, the tampered content is invalid.
Article 1134 of the the People's Republic of China Civil Code:
The self-written will is written and signed by the testator, indicating the year, month and month.
4. Article 28 of the Judicial Interpretation (I) of the Succession Code of the Civil Code of the Supreme People's Court:
The testator must have full civil capacity when making a will. A will made by a person with no capacity for civil conduct or a person with limited capacity for civil conduct is invalid even if he or she later has full capacity for civil conduct. If a testator has full civil capacity at the time of making a will and later becomes a person without civil capacity or a person with limited civil capacity, the validity of the will shall not be affected.
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