A Civil and Commercial Law Perspective | Oral Last Words May Not Be Valid
Published:
2025-04-02
This article analyzes a case of inheritance dispute involving an oral will, delving into the requirements for its validity, witness requirements, and the numerous issues faced in practice. It aims to clarify the accurate application of oral wills within the legal framework and to provide theoretical and practical references for resolving similar legal disputes.
Abstract:This article analyzes a case involving an oral will and inheritance disputes, delving into the requirements for the effectiveness of oral wills, witness requirements, and the many problems faced in practice. It aims to clarify the accurate application of oral wills within the legal framework and provide theoretical and practical references for resolving similar legal disputes.
Keywords:Oral will; Effective requirements; Witness system; Inheritance
I. Introduction
In inheritance legal matters, oral wills, due to their special nature and flexibility, play an important role in specific emergency situations. However, due to the special nature of their form, oral wills are more prone to disputes in the identification and execution process compared to other forms of wills. This article uses the case of Zhao's will inheritance dispute as a starting point to analyze in detail the key points and difficulties of oral wills in practical application.
II. Basic Case Information
Zhao and Zhang Moumou registered their marriage in early 1995 and had a son, Zhang Mou, at the end of 1996. In January 2010, Zhao and Zhang Moumou divorced by agreement. Because Zhang Moumou's family was the only one in four generations, it was agreed that Zhang Mou would be raised by Zhang Moumou, and Zhao would pay 700 yuan in support each month. After that, Zhao remarried; although she did not have any more children, she devoted herself entirely to her new family, buying a house for her stepson, arranging his wedding, and taking care of her grandchildren.
In early 2022, Zhao was diagnosed with squamous cell carcinoma. During treatment, she felt guilty for neglecting Zhang Mou over the years. In early November 2024, Zhao transferred 300,000 yuan from her Alipay account to Zhang Mou while in the hospital and told him the Alipay Password. While conscious, Zhao, in the presence of a nurse and caregiver, stated that she also had 100,000 yuan in a fixed bank deposit, which would belong to Zhang Mou after her death. At the end of the month, Zhao passed away, and Zhang Mou then claimed inheritance of the 100,000 yuan bank fixed deposit.
III. Lawyer's Opinion Analysis
(I) Key Factors in Inheritance
Whether Zhang Mou can inherit Zhao's 100,000 yuan bank fixed deposit hinges on whether Zhao had the capacity for civil conduct when she made the oral will before her death, and whether there is sufficient evidence to prove the existence of the oral will. At the same time, it is uncertain whether the 300,000 yuan transferred to Zhang Mou by Zhao belongs to Zhang Mou. If Zhao and her remarried husband did not sign a prenuptial agreement regarding property ownership, the remarried husband may claim to revoke the gift on the grounds that the property is jointly owned by the couple.
(II) Analysis of the Requirements for the Effectiveness of an Oral Will
1. Concept of an Oral Will
An oral will is a form of will where the testator expresses their wishes regarding the disposal of their estate verbally. In emergency situations, when the testator is unable to use conventional will forms such as self-written, proxy-written, printed, audio-visual recording, or notarized wills, an oral will becomes an option to fulfill the testator's wishes. It should be noted that a will, as a civil legal act related to death, takes effect upon the death of the testator.
2. Statutory Form and Conditions
Emergency Situation Restriction: Making an oral will requires the condition that the testator is in an emergency situation. Although the law does not explicitly define "emergency situation," it usually refers to situations where the testator is unable to make a will in other forms due to objective factors such as a sudden illness.
Validity Period Stipulation: An oral will has a specific validity period. After the emergency situation is resolved, if the testator objectively has the conditions to make a will in other forms, regardless of whether they actually make a new will or not, the original oral will automatically becomes invalid.
Requirements for Validity, i.e., Testamentary Capacity: The testator must have testamentary capacity, i.e., the qualification of a natural person to dispose of their own legal property through a will. According to Article 1143 of the Civil Code of the People's Republic of China, only persons with full civil capacity are qualified to make a will.
Real Intention: The will must reflect the true wishes of the testator, i.e., the expression of intent is voluntary and consistent internally and externally. If the testator makes a will under duress or coercion, the will is invalid because the expression of intent is not genuine. "Duress" refers to the perpetrator intentionally conveying false information or concealing the truth, causing the testator to make a testamentary expression based on a misconception; "coercion" refers to the perpetrator using illegal means to threaten the testator, causing them to make a will against their true wishes out of fear.
3. Legality of Will Content
Scope of Property Disposal: The testator can only dispose of personal property, not the property of others, and the content of the will must not violate the mandatory provisions of laws and administrative regulations, and must not violate public order and good customs.
Preventing Forgery and Alteration: Forged oral wills are invalid, and the altered portions of an oral will are also invalid. This is to protect the testator's legitimate property rights and autonomy of will. If the forger or modifier is not an heir and causes losses to the heir, they shall bear tort liability.
(III) Witness System for Oral Wills
1. Witnesses Present Throughout
The making of an oral will requires the presence of two or more witnesses throughout the entire process. The witnessing method is to listen to the content of the will and record it truthfully. The law does not specify the method of recording, but witnesses should try their best to remember the content of the will.
2. Witness Qualifications
Although the law does not specifically make detailed provisions for witnesses to oral wills, witnesses should meet the general conditions for will witnesses and comply with relevant restrictive regulations.
3. Excluded Situations
Persons Without Civil Capacity: Persons without civil capacity (minors under eight years of age and adults who cannot discern their own actions) and persons with limited civil capacity (minors over eight years of age who cannot fully discern their own actions and adults) cannot serve as witnesses to a will due to cognitive limitations.
Heirs, Beneficiaries, and Parties with Interests: Heirs, beneficiaries, and their numerous parties with interests (such as spouses, children, and parents) cannot serve as witnesses because they have interests in the estate, lest it affect the authenticity and fairness of the will.
Creditors, Debtors, and Joint Business Partners of Heirs or Beneficiaries: These individuals, as parties with interests, also do not have the qualifications to witness a will.
IV. Case Summary and Reflections
(I) Key Points of the Case
The focus of this case is to determine whether Zhao's disposition of property before his death was a genuine expression of his will, and whether he had the testamentary capacity at that time. Zhang needs to provide sufficient evidence to prove that Zhao had the capacity to make a will. At the same time, the impact of Zhao's illness on his judgment, the proof of the oral will, and whether the caregiver and nurse are willing to testify are crucial issues.
(II) Nature and Disposition of Property
Zhao's Alipay transfer of 300,000 yuan, in the absence of an agreement on the ownership of marital property, may involve unilateral disposition of jointly owned marital property and is therefore invalid. The validity of the gift should be judged based on the specific circumstances. If it is Zhao's personal property and a voluntary gift, then the gift is valid; if it is jointly owned marital property, Zhao has no right to dispose of it alone, and the jointly owned marital property should be divided first, and the part belonging to Zhao should then be handled according to legal inheritance. In addition, whether the 300,000 yuan transfer was voluntary, and whether there was any fraud or coercion, also needs to be proven by evidence.
V. Conclusion
Oral wills have a special status in inheritance, but due to their special form and the complexity of proof, they are prone to disputes in practice. Through the analysis of this case, we have clarified the strict conditions and witness requirements for the effectiveness of oral wills, and emphasized that when handling inheritance cases involving oral wills, we must strictly follow the legal provisions, comprehensively review the evidence, to ensure that the true wishes of the testator are realized, and to uphold the legitimate rights and interests of the parties and the fairness and authority of the law.
Legal Links:
《Civil Code of the People's Republic of China》
Article 1138 Oral Will: A testator may make an oral will in an emergency. An oral will shall be witnessed by two or more witnesses. If, after the emergency has subsided, the testator is able to make a will in writing or by audio-visual recording, the oral will shall be invalid.
Article 1143 A will made by a person with no civil capacity or limited civil capacity is invalid. A will must express the true intention of the testator, and a will made under fraud or coercion is invalid. A forged will is invalid. If a will is altered, the altered content is invalid.
《Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China》
Article 109 When the parties prove facts such as fraud, coercion, or malicious collusion, as well as facts of oral wills or gifts, the People's Court, if convinced that the possibility of the fact to be proved can exclude reasonable doubt, shall determine the existence of that fact.
《Supreme People's Court's Several Provisions on Evidence in Civil Litigation》
Article 86 When the parties prove facts such as fraud, coercion, or malicious collusion, as well as facts of oral wills or gifts, the People's Court, if convinced that the possibility of the fact to be proved can exclude reasonable doubt, shall determine the existence of that fact.
In the case of facts relating to procedures such as litigation preservation and recusal, the People's Court, based on the statements of the parties and relevant evidence, may determine the existence of the facts if it is considered that the possibility of the facts exists.
(Declaration: This article is a summary of the author's views based on experience, and is for exchange and discussion only.)
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