There are many ways to make a will
Handwritten by yourself
Find a lawyer to draft it
Or go to a notary public for notarization
After the implementation of the Civil Code
Added a video will
What kind of video will is valid?
Related cases
The old Yang Tou mentioned below has a son, and he wants to leave the house under his name to his son before he dies, so he found a witness and took a video about the house will with his mobile phone, and a family dispute also arises...
01
Basic facts of the case
The plaintiff Yang Li is the legitimate son of Lao Yang, and Lao Yang's original wife died many years ago. In August 2007, Lao Yang purchased a building through bank mortgage, with a total amount of 178,556.51 yuan. Among them, the down payment is 51556.51 yuan, the loan amount is 127000 yuan, and the loan term is 180 months. In September 2009, Lao Yang registered his property. Lao Yang and defendant Li Lin registered their marriage in November 2014, and after marriage, they jointly repaid the mortgage loan of the house involved in the case, and repaid it early in January 2022. The total principal and interest of repayment was 158415.57 yuan, and the total interest was 31415.57 yuan. Among them, from November 2014 to January 2022, the principal was 66,321.84 yuan, and the interest was 9,801.01 yuan, totaling 76,122.85 yuan.
In early July 2021, Lao Yang made a video will witnessed by Xiao Mao (Lao Yang's brother), Xiao Xiao (Lao Yang's sister) and legal workers Wang and Li of a legal service firm. Its main content is "I voluntarily own the XX room house located in Building XX of Building XX in XX District, XX County, XX Unit, XX Building, XX Room, after my death, owned by my son Yang Li". At the end of July 2021, the heir Lao Yang passed away due to illness. On the inheritance of the real estate involved in the case, Yang Li and Li Lin could not reach an agreement and sued the court.
02
Referee results
The court rendered a judgment of first instance:
1. The house in Room XX, Unit XX, Building XX, XX Community, XX County, belongs to plaintiff Yang Li, and defendant Li Lin delivers the house to plaintiff Yang Li within 30 days of the effective date of this judgment.
2. The plaintiff Yang Li paid the defendant Li Lin a compensation of 114,835.56 yuan (the bank loan jointly repaid by Lao Yang and the defendant Li Lin and its corresponding property appreciation part) within 15 days from the effective date of this judgment.
After the first-instance judgment was pronounced, neither party appealed, and the first-instance judgment took effect.
03Case interpretation
The crux of this case is the question of the form and validity of the videotaped will.
Video wills are a new part of the Civil Code, which is a new form of will on the basis of the audio will stipulated in Article 17, Paragraph 4 of the Inheritance Law of the People's Republic of China in order to conform to the trend of the times and meet the increasingly rich living needs of the people. Video will refers to the testator's will recorded with a video recorder, camera and other equipment that can record sound and images.
Video wills are lawful and valid, and shall meet the following requirements:
(1) The testator shall personally describe the content of the will. This is determined by the independence of the will. The will must be the testator's own genuine will, made independently by himself, and not assisted or represented by others.
(2) Two or more witnesses are present to witness. According to the purpose of establishing a testamentary witness, the testamentary witness must be a person who can objectively and impartially prove the authenticity of the will, and should meet the following four conditions: first, they have full capacity for civil conduct, and minors, mentally ill persons, and adults who have lost or partially lost their civil capacity must not act as witnesses; the second is non-heirs and legatees; Third, there is no interest in the heirs and legatees; The fourth is to know the language used in the will.
(3) Testators and witnesses shall record their names or likeness in the video recording. When recording names, the following two points should be noted: First, the testator and witnesses should clearly state their real names, that is, the testators and witnesses should clearly state their names registered in the resident identity document or household registration book, and it is best to be able to read out the identity card number to facilitate the identification of the testator and witness; Second, when recording names, testators and witnesses should follow a certain order and in order to ensure the clarity and authenticity of the statement. When recording portraits, the focal length of the video lens should be aligned, not blurred, and the upper body image and the whole body image should be reflected in the video, especially the face image needs to be clearly presented.
(4) The testator and witnesses shall record the year, month, and day in the video recording. When recording, the issues that need to be noted are: first, the testator and witnesses must record the year, month and day in the video; Second, the three elements of year, month and day recorded in the will must be complete, and the year, month and day are indispensable.
In addition, if the testator or witness does not dictate his name and date in the audio or video testament, but writes his name and date on the materials where the will is sealed, such behavior shall be deemed to not meet the formal requirements of the audio and video testament, and shall be deemed to be an invalid will.
In this case, Xiao Mao is the younger brother of Lao Yang and the younger sister of Lao Yang, and belong to the legal heir of Lao Yang's second line to the throne, belonging to the category of "heirs", and according to Article 1140 of the Civil Code, the two cannot be witnesses to the will. Wang and Li were legal workers at the legal service center, and the defendant Li Lin did not provide corresponding evidence to prove that Wang and Li had an interest in the plaintiff, and Wang and Li, as witnesses to Lao Yang's will, complied with the law. In addition, by watching the video provided by the plaintiff, although Lao Yang suffered from illness when making the will, his consciousness was clear, he had the ability to identify and analyze, and he was able to fully and clearly express his opinion on the disposition of the estate distribution involved in the case, which was his true intention to express the distribution of the estate, and the video also completely recorded the whole process of the formation of the video will, which met the constituent elements of the video will, and the will was legal and valid.
(All names in the text are pseudonyms)
Relevant Laws
Civil Code of the People's Republic of China
Article 1137 A will made in the form of audio or video recording shall be witnessed by two or more witnesses. The testator and witnesses shall record their names or portraits, as well as the year, month and date in audio or video recordings.
Article 1140 The following persons shall not be witnesses to a testament: (1) persons without civil capacity, persons with limited capacity for civil conduct, and other persons who do not have the capacity to witness; (2) heirs and legatees; (3) Persons who have an interest in the heirs or legatees.
Article 24 of the Interpretation of the Supreme People's Court on the Application of the Succession Part of the Civil Code of the People's Republic of China (I) The creditors and debtors of the heirs and legatees, and the partners of the joint business shall also be regarded as having an interest in the heirs and legatees, and cannot be witnesses to the will.
Source: Liaoning Pufa Comprehensive Paper News, Shandong High Law, Jiaxiang Court WeChat public account