Civil and Commercial Perspective... The drafting and performance of the bequest.

Published:

2022-03-14

Brief of the case Uncle Zhang and Aunt Wang have three daughters and a son, all three daughters have daughters, and the son has a son. . Uncle Zhang and Aunt Wang love their grandson very much and want to leave their own property to their grandson after a hundred years. How can we make Uncle Zhang and Aunt Wang get what he wants? Lawyer Advice In this case, Uncle Zhang and Aunt Wang can write a bequest in their own hands, with grandparents as bequeaths and grandsons as recipients, and grandparents indicating in the bequest that their property will be owned by their grandchildren after a hundred years. It is important to emphasize here that it must be a bequest rather than a will, because the grandson is not his legal heir and does not fall within the scope of testamentary succession. In order to ensure the validity of the bequest, because the two parties are 70 years old, before the bequest, it is recommended that Uncle Zhang and Aunt Wang file a lawsuit with the local court in accordance with the cause of the special procedure case, and file a judicial appraisal application to request whether they have civil capacity to identify. If the appraisal institution is identified as a person with civil capacity and declared by the court as having civil capacity, a valid bequest may be made. At the same time of writing the bequest, they should also write two pages of autograph for standby (if the legal heir of the old man has any objection to the authenticity of the bequest, he can apply for handwriting identification of the bequest as a test material), and then the two people write the bequest in full, and autograph and date. If the Legacy Agreement exceeds one page, each page shall be autographed. It is best to let the lawyer witness (or notarize by the notary office) the writing process of the bequest, so as to prove the authenticity of the bequest, signature and date written by the two old people. Since the bequest was made unilaterally by the two old men, the grandson did not participate in the whole process and did not need to sign the bequest. According to the relevant legal provisions, the bequest is a private document and is presumed to be true as long as it is signed or stamped by the maker. The intention of the bequest to give the property to another person indicates that although it was made before the bequest, the transfer of ownership of the property did not occur before the bequest's death, and the bequest would have legal effect only after the bequest's death. His grandson must make a statement of acceptance of the bequest within 60 days from the date on which he knows or should have known of the bequest, otherwise he shall be deemed to have waived the bequest. Regarding the starting point of the bequestee "knowing the bequest within 60 days after the bequest", the author believes that because the inheritance starts from the death of the heir, the bequest occurs only after the beginning of the inheritance, so the earliest starting point of 60 days is from the date of the bequest's death. In other words, if the bequestee was informed of the bequest before the bequestee's death, he shall make an indication of acceptance of the bequest within 60 days from the date of the bequestee's death, and if the bequestee did not learn of the bequest until after the bequestee's death, he shall make an indication of acceptance of the bequest within 60 days of the bequest. The concept of bequest The so-called bequest refers to a way of dealing with an estate in which a natural person gives part or all of his legal property to a person other than the legal heir or a state or collective organization in the form of a will. Supreme People's Court judicial view that First, bequests are unilateral, essential civil legal acts. When a legatee gives his personal property to another person by way of a will, he does not need to obtain the consent of the legatee and any other person. The act of bequest must be carried out in the form of a will, in accordance with the legal form of the will. After the death of the bequestee, the bequestee may or may not accept the bequest. Second, a bequest is an act of giving an estate free of charge. The property benefits given by the bequestee to others through bequests are often gratuitous and, even if accompanied by some obligation, generally have no reciprocal nature, and the bequestee is not bequeathed if it gives property obligations (e. g. debts) to others or makes the bequestee's obligations exceed the rights it enjoys. Third, a bequest is a legal act that takes effect on the occurrence of the fact of death. Although a bequest is an expression of meaning made in a will before the bequest, it must take legal effect only after the bequest's death, so it can be understood as a conditional legal act. Before the bequestee makes a bequest without death, he may change or revoke his intention at any time in accordance with the law. Fourth, the bequestee must survive when the bequest takes effect. If the bequestee dies before the bequestee or at the same time as the bequestee, he cannot become a bequestee because the bequest has not yet taken effect, nor can a legal person become a bequestee if it has been revoked or dissolved at the time of the bequestee's death. Fifth, the bequestee must be a person other than the State, the collective or the legal heir. The legal heir cannot be a legatee, but can only be an heir to the will. The heir to the will can only be designated within the scope of the legal heir, and the bequestee can only be designated outside the scope of the legal heir. In addition, the bequestee must have civil capacity, and the bequest written by the person without civil capacity has no legal effect. For example, minors, mental patients, etc. have no capacity for civil conduct, so their bequests have no legal effect. When a natural person gives his personal property in the form of a will to a person other than the state, collective or legal heir, once the natural person dies, the bequestee knows the bequest of the bequestee, there is a problem of accepting or abandoning the bequest. By nature, the acceptance of a bequest or the abandonment of a bequest is a unilateral civil legal act, that is, as long as the bequestee's unilateral expression can have legal effect, resulting in the consequences of accepting the estate or abandoning the estate. Accepting a bequest requires attention to the following issues (1) The subject of the acceptance or abandonment of the bequest. The subject of the bequest may be the bequestee himself or his agent. (2) The time limit for accepting the bequest. The bequestee shall make an indication of acceptance within 60 days (it must be noted that it is within 60 days, not two months) after the death of the bequestee and the knowledge of the bequest. The 60-day representation period is self-knowledge of the fact of the bequest, and the "knowledge of the fact of the bequest" should be understood as "knowledge or should have known". (3) The form of acceptance of the bequest. To accept a bequest, there must be a clear expression of meaning, the so-called clear expression of meaning, that is, the act of expression must be able to confirm the acceptance of the bequest. The form of representation may be written or other forms, direct or indirect, but to the extent that the acceptance of the bequest can be confirmed. If the bequestee has not expressed its acceptance in writing or orally, but its specific conduct can reflect its acceptance of the bequest, it should also be considered to accept the inheritance, and it cannot simply deny its right to accept the bequest without making a written statement. (4) The right to accept a bequest may be transferred to another person. After the commencement of the inheritance, if the bequestee expressly accepts the bequest, he may transfer the right to another person, and other heirs cannot restrict it, which is in fact a disposition of his own property under civil law. Another way of transfer is that after the commencement of the inheritance, the bequestee has indicated that he accepts the bequest, but dies before the division of the estate, and his right to accept the bequest may be transferred to his heirs in accordance with the law. (5) Treatment of obligatory bequests. If the bequest is accompanied by an obligation, it is necessary to perform the obligation in order to receive the bequest, but whether the obligation is performed first depends on the requirement of the bequest of the decedent. In practice, if the obligation can be fulfilled and the legatee fails to do so without justifiable reasons, the people's court may cancel the right to accept part of the estate with the obligation upon the request of the beneficiary or other heirs, and the requesting heir or beneficiary shall be responsible for performing the obligation and accepting the estate according to the will of the testator; if the legatee with the obligation is indeed unable to perform due to objective reasons, etc, the limitation of rights to bequeathed estates needs to be dealt with on a case-by-case basis, which is not explicitly provided for in the current law. Extended thinking: What to do if the bequestee dies before the estate is divided. If the bequestee dies before the division of the estate, the right of his heirs to accept the bequest depends on the expression of the bequest before the bequest. Only when the bequestee expressly accepts the bequest can he enjoy the right to accept the bequest, and if he waives the bequest, he no longer enjoys the right, and if he does not express it, he is deemed to have waived the bequest and does not enjoy the right. Thus, in the case of the bequestee's acceptance of the bequeathed property, the bequestee's heirs have the right to accept the bequeathed property, and if the bequestee renounces the bequest before life or does not express the bequest, the bequestee's heirs no longer have the right to accept the bequest property because the bequestee does not have the right. Relevant legal provisions (1) the People's Republic of China Civil Code Article 1122: An estate is the lawful property of an individual left over from the death of a natural person. Inheritance may not be inherited in accordance with the provisions of the law or in accordance with its nature. Article 1123: After the commencement of inheritance, it shall be handled in accordance with legal inheritance, and if there is a will, it shall be handled in accordance with testamentary inheritance or bequest; if there is a bequest and maintenance agreement, it shall be handled in accordance with the agreement. Article 124: If the heir renounces the inheritance after the inheritance has begun, he shall make a written statement of renunciation before the estate is disposed of; if there is no such statement, the inheritance shall be deemed to be accepted. The donee shall, within 60 days after knowing the bequest, make a statement of acceptance or abandonment of the bequest. 2. Article 38 of the (I) of the Supreme People's Court on the Interpretation of the Inheritance Code of the the People's Republic of China Civil Code: "If, after the commencement of inheritance, the bequestee expresses his acceptance of the bequest and dies before the division of the estate, his right to accept the bequest is transferred to his heirs." 3. Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings (Revised 2019, effective as of May 1, 2020) Article 92 With regard to the authenticity of private documentary evidence, the burden of proof shall be borne by the party who claims to prove the facts of the case by private documentary evidence. If the private document certificate is signed, sealed or stamped by the producer or his agent, it is presumed to be true. If there is any deletion, alteration, addition or other form of defect on a private document, the people's court shall judge its probative force on the basis of the specific circumstances of the case.

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