The new rules of the Civil Code can record and video the will, and the court precedent tells you the precautions

Article 1137 of the Civil Code A will made in the form of audio or video recordings shall be witnessed by two or more witnesses. The testator and the witness shall record their names or likenesses, as well as the year, month, and day, in the audio or video recording.

On February 24, 2021, the Tianjin Jinnan District Court held a public trial and pronounced a judgment in court on a case involving an audio or video testamentary succession dispute.

Basic facts of the case

The heirs are husband and wife, with three children, a daughter and two sons. The wife died and the husband died of cancer in 2019. During the husband's hospitalization, witnessed by the two brothers and others, outsiders recorded that after his death, he left the property in his name to his daughter.

After the death of the husband, the younger son had an opinion on the will and did not cooperate with the daughter in the transfer of the property. The youngest son died of illness before suing. According to the law, the inheritance to be inherited by the younger son is transferred to his heirs, namely his wife and children.

On September 15, 2020, the daughter sued the wife and children of the eldest and younger sons to the court, demanding that she inherit the property in her father's name in accordance with her father's will. During the trial of the case, the eldest son said that he would give up the inheritance of the disputed property.

The court held that although the name, year, month and day of the witnesses in the video were not clear, the portraits of the heirs and the persons present were recorded in the video, and the two sides had no objection to the time of recording, the persons present and the recorder. Based on the specific circumstances, the video meets the formal requirements of Article 1137 of the Civil Code of the People's Republic of China on audio or video recording wills, and should be an audio or video will. However, there is his wife's share in the disputed property, so according to the law, the part of the will that belongs to his wife's share is invalid, because his wife has not made a will, and this part of the estate should be handled according to the legal inheritance.

What should I pay attention to when making a video will?

First, there must be more than two witnesses present to witness. The witness must have the corresponding witness ability and have no interest in the heirs of the will or the bequeathed. Witnesses who meet the requirements should be present to witness and participate in the whole process of making audio and video wills.

Second, testators and witnesses shall record their names and likenesses in audio or video recordings. In a recorded will, the testator and the witness shall record their names by oral means, indicating the identities of the testator and the witness, and embodying the witness's presence. In a video will, the testator and the witness shall display their portrait, and at the same time record the portrait, their names can be indicated by oral or other means, so that the identity of the testator and the witness, the process of the testator making the will and the witness present can be known through the video screen.

Third, the testator and the witness shall record the year, month and day in the audio or video recording. Since audio or video wills are easy to be forged or tampered with, and the time of establishment of the will is an important factor in judging the authenticity and validity of the will, the audio and video will should also reflect the time of the establishment of the will. When making a will in the form of an audio or video recording, the testator and the witness shall indicate the time of establishment of the will by oral or other means in the process of audio or video recording.

Fourth, the sound of the video screen should be clear. When recording a video, the picture should be continuous, choose a place with sufficient light, ensure that the picture is clear, and can clearly see the faces of the testator and the two witnesses, if the video is blurred, the will will be invalid. Also pay attention to the compositional proportions of the picture, and the entire face of the testator must be photographed into the picture. During the filming process, the testator and witness's voice should be clear and loud and can be heard clearly.

Fifth, save the video in its entirety, do not edit it. Pay attention to saving the original video and video recording carriers such as mobile phones and video cameras, because videos are easily tampered with by technology, and the copied videos often cannot be accepted by the court as evidence. If possible, it is recommended to use professional recording equipment for recording. Do not post-process and edit the recorded video, and the video will will be found invalid if it is edited, edited or forged, or the content is tampered with.

Fifth, the testator should clearly distribute the property. It is best to draw up a property distribution plan and make an inventory of the basic situation of your own property. How much personal property the testator has and to whom these properties are distributed must be clearly stated in the video, and there can be no ambiguity, otherwise disputes will be disputed even in court in the future.

Can the Civil Code apply to a video will made before 2021?

Article 3 of the Several Provisions of the Supreme People's Court on the Validity of Application time clearly stipulates: "In civil dispute cases arising from legal facts before the implementation of the Civil Code, where there are no provisions in the laws or judicial interpretations at that time and the Provisions of the Civil Code have provisions, the provisions of the Civil Code may be applied, except where the lawful rights and interests of the parties are significantly derogated from, the legal obligations of the parties are increased, or the reasonable expectations of the parties are deviated from." ”

That is to say, even if a will is established in video form before the entry into force of the Civil Code, the provisions of the Civil Code may be applied as long as there is no obvious derogation from the legitimate rights and interests of the parties, an increase in the legal obligations of the parties, or a deviation from the reasonable expectations of the parties.

Source: Jinnan Court, etc

Source: Shijiazhuang Pufa