In recent years, with the rapid development of China's social economy, the personal property of residents has also increased significantly. At the same time, inheritance disputes caused by the inheritance of personal wealth have become increasingly prominent. In order to properly arrange personal property, the establishment of a will is an effective method, and the most crucial issue is to ensure the legality and effectiveness of the establishment of a will, so as to truly realize the wishes of the testator.

 

The forms of wills include fair wills, self written wills, written wills, wills made in the form of audio recordings, and oral wills. After the Civil Code came into force, printed wills and wills made in the form of audio recordings were added, providing people with more options. Among these numerous ways, the most convenient way for testators is to write a will by yourself. Therefore, this article will only focus on writing a will by yourself and discuss with readers the relevant precautions and risk prevention involved in writing a will by yourself.

 

1、 Current situation of inheritance disputes from the perspective of big data

 

The author obtained a set of relevant data by searching the "inheritance dispute" cause of action in the "Wicko First" database, with the "Beijing area" as the regional limit:

 

From this set of data, it can be seen that the number of "inheritance disputes" has remained relatively stable in recent years, and the amount of the subject matter of cases is usually large. Cases with an amount of more than 500000 yuan account for 63.6% of all such cases. The main type of disputes is "legal inheritance disputes", which is due to the fact that the deceased did not plan his or her property in advance, leading to disputes between heirs. Therefore, how to properly handle the inheritance of personal property after a hundred years and avoid unnecessary litigation burden is a practical issue that we ordinary people should seriously consider. Next, this article will only focus on self written wills and discuss in detail relevant situations and issues that may have an impact on the effectiveness of self written wills.

 

2、 The Influence of Defects in the Formal Elements of Self written Wills on the Validity of Wills

 

Article 134 of the Civil Code states that a self written will shall be written and signed by the testator, with the following year, month, and day indicated. The content of this provision may seem simple, but with a slight carelessness, a small flaw or omission may lead to the self written will being deemed invalid because it does not meet the legal form requirements. Below, this article will specifically analyze what form issues may lead to the determination of self written wills as invalid through judicial cases in the Beijing area.

 

（1） "The self written will, which indicates the year and month, but does not indicate a date, is deemed invalid."

 

In the case of the testamentary succession dispute between Lin Mou1 and Lin Mou2 [(2018) Jing 0105 Min Chu No. 97252], the testator distributed and disposed of the property in a self written will, and signed his name at the signing place, but the date was "September 2001", without specifying the date. Therefore, after the testator's death, other legal heirs do not recognize the validity of the will.

 

The court held that, in terms of the validity of the self written will in this case, Article 17, Paragraph 2, of the Inheritance Law of the People's Republic of China stipulates: "The self written will shall be written in the testator's own handwriting, signed, and marked with the next year, month, and day." In this case, judging from the testator's self written will, its meaning is clear and the intention to dispose of the estate is clear, but since the self written will is only marked with the next year, month, and no specific date, The statutory formal requirements of a self written will that do not comply with the provisions of the inheritance law. A will that is not made in strict accordance with the formal requirements prescribed by law shall be null and void.

 

（2） "The will written by the owner without specifying the next year, month, or day, but with the date printed on the paper used for writing, is still considered invalid."

 

In the second class inheritance dispute case between Li and Yu [(2021) Jing 01 Min Zhong No. 2076], the holder of the self written will, Li, believed that the will was valid and claimed that although the will did not specify a date, it was written on the back of the medical order printed paper for hospitalized patients from the Endocrinology Department of X1 Hospital, which showed that the printing date was 15:04 pm on November 14 (Note: 2018), From the printing date on the back of the will, it can be inferred that the time for making the will is from 15:00 on November 14, 2018 to November 22 of the same year. "The will was written by the deceased Yu Mou-3 in his own handwriting and also signed by his name, and it should be recognized as legal and valid.".

 

The court held that on the issue of the validity of a self written will, the will has legal effect when the testator dies. When there is a dispute over the authenticity and content of the will, the true meaning of the will cannot be explored because the testator has already died. Therefore, in order to ensure the authenticity and reliability of the will, guide the parties to establish the will correctly and prudently, and minimize inheritance disputes arising from the will, the law stipulates strict formal requirements for the will, emphasizes that the will should be established in the manner prescribed by the law, and separately stipulates its formal requirements. "When a natural person makes a will, he or she may choose the form of the will prescribed by law at will, but if the will he or she makes does not meet the form requirements prescribed by law, the will cannot have legal effect.". "If a will is not made in strict accordance with the formal requirements prescribed by law, the people's court shall determine that it is invalid.".

 

 

 

（3） The content of the self written will is found to be inconsistent in writing and is considered invalid

 

In the case of the second class inheritance dispute of Zhao Mou [(2020) Jing 01 Min Zhong No. 4231], Zhao Mou 2 issued to the court a "Decision on the Legacy of Real Estate" indicating that it was written on "June 30, 2011", and that it was signed by "Zhao Mou 5" and stamped with the personal seal, "Yang Mou" and the fingerprint, claiming that the property involved in the case was owned by Zhao Mou 2 as a legacy, but other heirs did not recognize its authenticity. After judicial appraisal, it was concluded that the signature handwriting in the "Decision on the Legacy of Real Estate" and the signature handwriting in the sample were written by the same person, but the handwriting on the signing date and the handwriting on the writing date in the sample were not written by the same person.

 

The court held that the date of the bequest is not only an important time node for confirming the legatee's ability to act, but also a basic fact for ascertaining whether the legatee made an expression of intention to the contrary or change the bequest before his death, and is closely related to whether the legatee accepted the bequest within the statutory time limit. Therefore, the date of the bequest should be written by the legatee in his own handwriting and marked with the date of the year. "The date of payment of the legacies involved in the case was significantly flawed and could not be confirmed as written by Mr. Zhao 5. The court of first instance confirmed that the legacies were invalid and ruled that the legacies of Mr. Zhao 5 in the house involved were not improperly handled in accordance with legal inheritance.".

 

（4） "The self written testament appraisal did not provide valid comparative materials, resulting in the inability to obtain an appraisal opinion, and was determined to be invalid."

 

In the case of inheritance dispute between Liu and Wang, the two parties had a dispute over the authenticity of the self written will. With the consent of both parties, the court retrieved the signatures and seals left by the deceased during the corresponding period of time in the relevant bank for comparison based on the clues provided by both parties. However, after reviewing relevant materials, both the Beijing Fayuan Judicial Science Evidence Identification Center and the Beijing Minsheng Physical Evidence Science Judicial Identification Institute pointed out that based on the existing materials, it was impossible to complete the entrusted authentication matters, so they both withdrew the entrusted authentication matters of the case.

 

The court held that Liu, as the party holding the will, should bear the burden of proof for the authenticity of the will. The court of first instance, with the consent of both parties, retrieved the corresponding samples based on the clues provided by both parties and entrusted an appraisal institution to conduct appraisal. However, due to the existing materials, the entrusted appraisal matters could not be completed, and the case was dismissed. Therefore, the adverse consequences of the inability to appraise should be borne by the party holding the will, Liu. In the case where the authenticity of the will involved cannot be determined, Liu's request to inherit all the property according to the will lacks factual evidence, and this court will not accept it.

 

3、 The impact of flaws in the content of a self written will on its validity

 

（1） The content of the self written will is unclear and deemed invalid

 

In the case of Wills Inheritance Dispute between Zhang No. 2 and Zhang No. 4 [(2021) Jing 02 Min Zhong No. 3686], Zhang No. 1 held a self written will, claiming that according to the content of the will, the property of the deceased should be inherited by him. "However, the content of the will is ambiguous, the reference to the property is unclear, and the location of the house is not clearly written. Other heirs do not recognize the validity of the will.".

 

The court held that in terms of the form of the self written will submitted by Zhang Mou1, the will did not contain the words "will"; In terms of content, the expressions "this is reasonable" and "if" have not been used. There is no formal, clear, and specific indication of the intention of the heir to make a formal, clear, and specific disposition of his house after his death. Although all parties have no objection to the signature of the deceased, there are flaws in the content of this will, which should not be recognized as the true intention of the deceased to dispose of his property. The court of first instance does not accept the validity of this will, which is in line with the actual situation of this case.

 

（2） "The testator has no corresponding capacity for civil conduct, and the will made is invalid."

 

In the case of inheritance dispute between Gu and Liu [(2020) Jing 01 Min Zhong No. 656], Gu held a self written will from the deceased, which reads, "We, Wang, have inherited two sets of houses, namely, Room X1, Unit X, Building X, in Yard X, X Street, and Room X2, Unit X, Building X, in Yard B, X Street, to my only biological daughter Gu, with the signing date being December 2, 2007.". Liu did not recognize the validity of the will, believing that Wang was mentally ill and without civil capacity, so the will should be null and void.

 

The court held that the will made by a person without or with limited capacity was invalid and that Wang was suffering from mental illness. The "Diagnosis Certificate" issued by the hospital on March 15, 2007 and the medical records of Wang in November and December 2007 showed that he had been receiving medical treatment for mental illness. In the case of Wang and Liu revoking their marriage dispute, the court issued an effective judgment on July 20, 2007, stating that Gu was the legal representative of Wang in the lawsuit, indicating that Wang did not have the corresponding civil capacity during the litigation process. Before making a will, Mr. Wang must have his legal representative conduct civil litigation, and he suffered from mental illness and continued treatment before and after making the will. Therefore, it is not possible to confirm that he had the corresponding civil capacity at the time of making the will.

 

 

（3） "If someone disposes of another person's property in a written will, the contents of the will that are not entitled to dispose of are invalid."

 

In the case of an inheritance dispute between Shan Mou 1 and Shan Mou 2 [(2020) Jing 01 Min Zhong No. 4233], Shan Mou 2 holds a self written will, which states, "From now on, I will transfer a suite of Room 205 buildings located in a certain residential area in Yanqing County to my daughter Shan Mou 2 for inheritance.". After judicial appraisal, the conclusion shows that the signature of "Shan Mou 3" at the "property transfer person" where the sample was signed was written by the same person as the signature of "Shan Mou 3" in the sample.

 

The court held that Shan Mou 3's self written will met the formal requirements of the will. In terms of content, a will can only dispose of the legitimate property left by the testator during his or her lifetime, and the portion of the property disposed of by others is deemed null and void due to its unauthorized disposition. In this case, due to the disposition of ownership by others in the contents of the will written by the deceased Shan Mou 3, the will is partially valid and partially invalid in legal effect. Specifically, according to the facts ascertained by the court, the house involved in the case should belong to Shan Mou 3 and Fan Mou jointly, so the part of Shan Mou 3's disposal of all his property should be valid, but the part of Fan Mou's personal property involved in the disposal should be invalid.

 

（4） The court adjusted the distribution of the estate according to law because the necessary share was not reserved in the written will

 

In the case of inheritance dispute between Xu Mou 1 and Qin Mou and Xu Mou 2 [(2020) Jing 01 Min Zhong No. 8013], Qin Mou holds the self written will of the heir Xu Mou 3, which reads: "In the event of my accidental death, all fixed assets and current assets belong to my wife, Ms. Qin Mou." Qin Mou advocates that the houses and vehicles under the heir's name be inherited by him alone, and Qin Mou enjoys the ownership of the above properties. Xu Mou1 denied the authenticity of the will in the second instance.

 

The court held that Qin submitted Xu 3's self written will, and Xu 1 expressed no objection to the handwriting of the will in the first instance. In the second instance, Xu Mou1 claimed that the content of the will was not written by Xu Mou3 himself and that the will was invalid, but he did not submit evidence to prove it, which was not accepted by this court. "The court of first instance has not made any mistake in proceeding according to testamentary succession, and should maintain it.". Xu Mou 3 and Qin Mou 2, the son of Xu Mou 3, are preschool children. In order to ensure their future life and learning, the necessary share should be reserved for them. The Changping house under Xu Mou 3's name was inherited during the period of their marital relationship with Qin Mou, and should be the joint property of the two people. Half of the property is the inheritance of Xu Mou 3. For the half of the share belonging to Xu Mou 3, the court determined that Xu Mou 2 should inherit 10% and Qin Mou should inherit 40%.

 

4、 Some precautions and risk prevention measures for self written wills

 

（1） The formal requirements should meet the statutory requirements

 

As mentioned above, the establishment of a self written will should meet the requirements of the testator's handwriting, signature, and annotation of the next year, month, and day. All three formal requirements are indispensable, otherwise it will have a significant impact on the validity of the will. The testator's handwriting should maintain normal writing habits and not be deliberately standardized to avoid disputes. At the same time, other written materials of the same period should also be retained for use as reference materials by appraisal agencies. The testator's written materials in banks and government departments can also be retained as reference materials, which are more probative.

 

（2） The writing of a will should be clear and accurate

 

"Self written testamentary proposals should be written on one piece of paper. If there is a large amount of content and multiple pages need to be written, it is best to sign and indicate the date, month, and year on each page. If conditions permit, fingerprints should be printed.". At the same time, the wording of the will should be accurate, the object of description should be clear and specific, and there should be no situations where the reference is unclear. The property certificate number and specific location should be clearly stated on the house, and other properties should also be described specifically to avoid confusion.

 

（3） A testator must have full civil capacity

 

"The testament made by a person without or with limited capacity is invalid. Therefore, if the testator is older, has previously suffered from diseases such as cerebral stroke or Parkinson's disease, is usually unresponsive, and is hospitalized for serious illness before and after making the will, it is recommended that the relevant medical institution issue a diagnostic certificate of the testator's physical and mental condition before making the will,", To ensure that his will can be recognized as legal and valid.

 

(This article is translated by software translator for reference only.)