Viewpoint | How to make a legal and effective probate will to leave no regrets --- from a probate succession dispute
Published:
2021-02-19
1. the facts of the case
The plaintiff Luo Mou filed a claim to the court:
1. According to the law, the house located in a certain road in a certain district of Jinan City shall be owned by the plaintiff;
2. The costs of litigation shall be borne in accordance with the law.
Facts and reasons: The decedent Luo Moumou and Zhang Moumou are husband and wife. They have two children after marriage, namely Luo Moumou and Luo Xiaomou. The decedent Luo Moumou died on April 3, 2020. Zhang Moumou died on June 1, 2018. The parents of the decedent Luo Moumou died before Luo Moumou, and the parents of the decedent Zhang Moumou died before Zhang Moumou, the house located on a road in a district of Jinan City was obtained by the two heirs through the housing reform. The two heirs left a will on April 26, 2011, indicating that the house was owned by Luo after his death and the will was the true meaning of the two heirs. In line with the law, Luo Xiaomou has been occupying and using the house after the death of the two heirs, which seriously infringes on Luo's legitimate rights and interests.
Luo Xiaomou argued:
Luo claimed that the house involved in the case belonged to him, without facts and legal basis, and the will provided by him should be recognized as an invalid will. The house involved in the case should be jointly inherited by Luo and Luo Xiaomou. Although the will in this case is a proxy will, it is a printed one, and there is a possibility that it has been formed in advance. The formation process does not conform to the formal requirements stipulated by law. Although the two lawyers witnessed the will process, they did not write on the spot. The will should be deemed invalid. The video CD attached to the proxy will provided by Luo has exceeded the time limit for proof, and the video should not be recognized. Luo Xiaomou to the two heirs to do the main support obligations, and life difficulties, the division of his estate should be taken care.
Facts of the case ascertained through the trial:
The decedent Zhang Moumou died on June 1, 2018, and the decedent Luo Moumou died on April 3, 2020. Luo Moumou and Zhang Moumou had two children of the plaintiff and the defendant, and the second decedent's parents Both died in the two. Luo Moumou, the registered owner of a house located in a road in a district of Jinan City, and Zhang Moumou, the co-owner, registered on January 20, 2005. The ownership was acquired by means of house reform and purchase. The house was not sealed up and mortgaged.
Luo Moumou and Zhang Moumou made a will on April 26, 2011. The will stated that "In order to prevent inheritance disputes, a lawyer from a law firm is specially invited as a witness to the will, and a lawyer from a law firm is entrusted to write the will as follows: As I am old, in order to prevent accidental death and inheritance disputes, I hereby make this will. The property handled by this will is as follows:
1. It is located in a certain road in a certain district of Jinan City, with a construction area of 73.69 square meters. The real estate certificate number is the house No;
2, for the above-mentioned property rights testator will treatment opinions are as follows: after the death of the testator, the above-mentioned property is all inherited by his daughter Luo;
3. This will is made in two copies, one copy is kept by the person making the will, and one copy is kept by a law firm, and the two copies have the same legal effect.
Han and Li, lawyers of a law firm, examined and witnessed the authenticity of the above-mentioned will, and issued a lawyer's certificate. During the trial, the defendant Luo Xiaomou proposed to verify whether the signatures of the two decedents in the will were his own signatures. Later, because he could not provide the inspection materials, the identification could not be carried out.
After the trial of this case, the court held that the personal legal property left by the citizen at the time of death constitutes an estate and is inherited and divided according to law. Article 5 of the "the People's Republic of China Inheritance Law" stipulates that after the beginning of inheritance, it shall be handled in accordance with legal inheritance; if there is a will, it shall be handled in accordance with testamentary inheritance or bequest; if there is a bequest maintenance agreement, it shall be handled in accordance with the agreement. A proxy will shall be witnessed by two or more witnesses, one of whom shall sign the book on behalf of the person, indicating the year, month and day, and signed by the proxy, other witnesses and the testator. In this case, Luo Moumou and Zhang Moumou were witnessed by two lawyers of a law firm and made a will on behalf of Han Moumou. The will was signed by Han Moumou and indicated the year, month and day. Luo Moumou and Zhang Moumou signed the will, which met the legal requirements for the form of a will on behalf of the law. The court confirmed the authenticity of the will. Although the defendant Luo Xiaogou raised objections, he did not submit relevant evidence, the defense also lacks factual and legal basis, and the court refused to accept it. The house located in a road in a district of Jinan City (real estate certificate number: Jifangzhizi No.) is a house where Luo and Zhang participated in the housing reform and obtained the property right. It is the personal legal property left over from the death of the two. The plaintiff Luo's claim to inherit the above-mentioned house is based on sufficient facts and laws, the court supported it.
2. the author agent ideas:
1. Because the parents of the two heirs died before the two heirs, but this fact is due to the age and the fact that the plaintiff has little contact with the grandmother's family and the grandmother's family, the plaintiff cannot provide the death certificates of the grandparents and the grandmother's family. Therefore, the author briefly described the fact when writing the complaint and submitted it to the court to find out the fact during the trial.
2. Since a law firm did not give the plaintiff the original carrier of the video when witnessing the will in this case, and the actual situation of the two heirs making the will and the person signing the will did not record the video, the author applied to the court to obtain the original archival materials of a law firm, and demonstrated the evidential effect of the video CD according to Article 61 of several provisions of the Supreme People's Court on evidence in civil litigation, proving that the will is the true intention of the two heirs, confirm the legality of the will.
3. a legally valid will needs to meet the statutory requirements:
1, need to have two witnesses present to witness, by one of them on behalf of the book, that is, the number of witnesses and the number of book-giver should be a total of more than two, not the number of witnesses and book-giver respectively, need more than two witnesses, in addition to the book-giver. Not all people can be witnesses, and the scope of the law is exclusive. The following persons may not be witnesses to a will: (I) persons with no capacity for civil conduct, persons with limited capacity for civil conduct and other persons who do not have the capacity to bear witness; (II), legatees; (III) persons who have an interest in heirs or legatees.
2, the book, the witness needs to sign the will.
The person on behalf of the book and the witness shall sign the will on behalf of the book. Although the proxies and witnesses have actually signed the proxies and witnesses, if they do not sign the proxies and wills, the proxies and wills do not conform to the form of wills prescribed by law, and the wills should be invalid, because in the inheritance dispute cases involving proxies and wills, the proxies and witnesses are also witnesses, which proves that the will is the true intention of the testator, and the testator in the process of making a will does not exist in the case of fraud, coercion, the testator is entirely in the case of voluntary will.
To sum up, a legal and valid will shall be witnessed by more than two witnesses, one of whom shall be signed on behalf of the testator, the bookseller and other witnesses, and shall indicate the year, month and day.
convergence of law articles
Articles 1121, 1122, 1123, 1135, 1153 of the the People's Republic of China Civil Code
Article 121 Inheritance begins at the death of the decedent.
If several persons who have an inheritance relationship with each other die in the same event and it is difficult to determine the time of death, it is presumed that the person without other heirs died first. If there are other successors, it is presumed that the elder will die first; if the generation is the same, it is presumed that the elder will die at the same time,
Article 122 An estate is the lawful property of an individual left behind at 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 succession, it shall be handled in accordance with legal succession; if there is a will, it shall be handled in accordance with testamentary succession or bequest; if there is a bequest maintenance agreement, it shall be handled in accordance with the agreement.
Article 1,135 A proxy will shall be witnessed in the presence of two or more witnesses, one of whom shall be the proxy, and shall be signed by the testator, the proxy and other witnesses, indicating the year, month and day.
Article 1,153 When the property jointly owned by the husband and wife is divided, except as agreed upon, half of the property jointly owned by the husband and wife shall first be divided into the spouse and the rest shall be the estate of the decedent.
If the estate is in the common property of the family, the property of others shall be divided first when the estate is divided.
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