~~~ Making a will is a very professional thing, not as simple as you think!
~~~ Recently, our lawyer represented a legal inheritance case, the client Liu was born of the heir and his ex-wife, Liu lived with his mother after his parents divorced, the decedent and Sun remarried and gave birth to a daughter Liu 2, after the decedent's death, Sun has been occupying and controlling the decedent's estate, Liu in desperation, entrusted our firm to sue Sun, Liu 2 and the decedent's mother Ma to the court, claiming to inherit the decedent's estate.
~~~ In the course of the litigation, Sun submitted a will made by the decedent before his death, and the content of the will stated that all the decedent's estate was inherited by Sun and Liu2. After investigation and verification by the court, the will was narrated by the decedent under the witness of two friends before the decedent's death, one of the friends entered and printed through the computer, and finally formed after the decedent and two witnesses signed, and the defendant also submitted a video of the formation process of the will to the court in order to prove the formation process of the will.
~~~After receiving the will and video served by the court, our lawyers immediately held a meeting with the lawyers in the firm to discuss the form and validity of the will. After sorting and analysis, it was finally confirmed that the will made by the decedent belonged to the form of surrogate will stipulated in the Civil Code.
Article 1135 of the Civil Code stipulates the form of a surrogate will, and the surrogate will shall be witnessed by two or more witnesses, one of whom shall write on behalf of the testator, and be signed by the testator, surrogate and other witnesses, indicating the year, month and date.
~~~ Specific to this case, after discussion, I found that only one of the decedents signed and dated the will in question, the two witnesses only signed the names on the will in question, but not dated, and the video taken by Sun when the decedent made the will only reflected the process of signing and dating one of the decedents, and the signing process of the two witnesses was not recorded.
~~~ So, is the surrogate will not indicate the year, month and date without the witness, the will will must be invalid?
~~~ First of all, from the formal provisions of Article 17, paragraph 3 of the original Inheritance Law of the People's Republic of China, it is only stipulated that the surrogate will should be marked by the surrogate person with the year, month and day, and other witnesses and testators only need to sign without indicating the year, month and day.
~~~ However, after the promulgation and implementation of the Civil Code, the requirements for the form of surrogate wills are more stringent. According to the book "Understanding and Application of the Marriage and Family Inheritance Part of the Civil Code of the People's Republic of China" edited by the Supreme People's Court Leading Group for the Implementation of the Civil Code, the provisions of Article 1135 of the Civil Code, that is, surrogate wills, are understood: "When the year, month and day are indicated at the end of the will, three points need to be noted: (1) The testator, surrogate and witness should indicate the year, month and day and sign the same will. (2) The testator, surrogate and witness need to indicate the year, month and day on the will, otherwise the will is invalid. (3) The three elements of year, month and day indicated must be complete, and the year, month and day are indispensable. ”
~~~ Therefore, if strictly in accordance with the above provisions, the testator, surrogate and other witnesses must not only sign, but also indicate the year, month and day, if the surrogate and witness do not indicate the year, month and day on the will, then the will should be deemed invalid will.
~~~ Secondly, in trial practice, the fact that the surrogate will has not been signed by the witness or surrogate does not mean that the will is of course invalid. From the perspective of the transformation of the form of a surrogate will from the inheritance law to the civil code, the witness, the surrogate, and the testator are required to sign and date, and the legislation pays more attention to the temporal and spatial consistency of the testator's statement and the testimony of the surrogate and the witnesses in the process of making a surrogate will.
~~~ Space-time consistency includes time synchronization and spatial identity, time synchronization is the testator's dictation, the act of writing on behalf of the scrivener and the witness's witness act occur simultaneously or substantially at the same time, spatial identity means that the testator, the surrogate, and the witness must make a will on the same occasion at the same time.
~~~ So how to appreciate the formation of a modern book will and the spatiotemporal consistency of the witness process, first of all, from the will itself, the surrogate, witness, testator sign the same will and indicate the date, month and day, that is, formally prove the spatiotemporal consistency. Secondly, in the absence of witnesses indicating the date, month and date, other evidence can be provided to strengthen the temporal and spatial consistency of the formation of the surrogate will and the witness process, such as audio and video recording of the entire process of the surrogate will formation and witnessing, that is, the spatiotemporal consistency is substantially proved.
~~~ Back to this case, after many arguments, combined with the experience of handling will witnessing, our firm formed the following agency opinion and submitted it to the court: The will involved in this case was only signed by the decedent's name and date, the witness only signed the name, not the date signed, the will was defective, although the two witnesses attended the court to state the process of making the will, and submitted the audio and video recording of the decedent's will, but the video only recorded the process of the decedent's signature, and did not record the formation process of the will, It is not possible to prove that the witness witnessed the formation of the will throughout the testament, that is, the spatiotemporal identity and objectivity of the testamentary witness process cannot be proved according to the existing evidence, which is insufficient to strengthen the flaws in the formal requirements of the will.
~~~ In the end, the court made a judgment finding that the will involved in the case was invalid, and the decedent's estate was distributed among the heirs according to the legal inheritance, successfully protecting the legitimate rights and interests of the settlor.
~~~ Hongjia lawyer reminds you that natural persons need to be cautious in establishing wills, the current law requires more and more standardized requirements for the form of wills, whether witnesses have witness qualifications, whether the content of the will violates the law, whether the process of will formation is standardized, etc. need to be strictly controlled, once the content of the will is defective, the litigation involved will face the risk of being found invalid by the court!
~~~The Witness Department of Beijing Hongjia Law Firm was established in 2017, specializing in probate witnessing and business witnessing business. The firm has formulated strict witness processes and standards to provide integrated services for parties in a process-based team manner. Since its establishment in 2017, Hongjia Witness Department has successfully handled hundreds of testamentary witnesses, has rich practical experience, professional witness lawyers, equipped witness equipment, standardized witness documents, and strives to solve the problems encountered by the parties and ensure that the content and form of the will made comply with the provisions of the law, so as to ensure the realization of the testator's wishes.
~~~Don't lose most of the inheritance that should have been inherited by yourself in order to save the lawyer's witness fee!