Article 1142
The testator can withdraw or change the will he has made.
After the will is made, if the testator carries out a civil juristic act contrary to the content of the will, it shall be deemed to be a withdrawal of the relevant content of the will.
If there are several wills and the contents of which conflict, the last will shall prevail.
1. The main purpose of this article
This article is about the withdrawal and modification of wills.
II. Evolution of the Provisions
This article is derived from Article 20 of the original Inheritance Law of 1985, which states that "the testator may revoke or change the will he has made." If there are several wills and the contents of which conflict, the last will shall prevail. Self-written, scrivener, audio recording, and oral wills shall not be revoked or altered" and Article 39 of the original Opinions on the Inheritance Law of 1985, which stipulates that "if the testator's behavior during his lifetime is contrary to the expression of intention of the will, and the property disposed of by the will is lost, partially lost, or the ownership is transferred or partially transferred before the commencement of inheritance, the will shall be deemed to be revoked or partially revoked".
3. Interpretation of Provisions
This article is about the withdrawal and alteration of wills and conflicts of wills.
Testamentary revocation refers to the cancellation of the original will by the testator in a certain way after making the will.
Testamentary change refers to the partial modification of the content of the will by the testator after the will has been made.
The conditions for the testator to withdraw or change the Will are: (1) the testator must have testamentary capacity. (2) It must be the testator's true expression of intent. (3) The testator shall personally act in accordance with the methods and procedures prescribed by law: 1) express manner. This refers to the withdrawal or change of the will by the testator with a clear intention. 2) Presumptive approach. This means that although the testator has not withdrawn or changed the will with a clear expression of intent, the law presumes that the testator has withdrawn or changed the will based on the testator's behavior. The following presumption is not allowed to be overturned by the parties with counter-evidence: if the testator has made several wills and the contents of which contradict each other, it is presumed that the previous will shall be withdrawn or changed; if the testator's acts before his death are in conflict with the contents of the will, the will shall be presumed to be withdrawn or modified; and if the testator deliberately destroys or erases the will, the testator is presumed to withdraw the original will.
The withdrawal or modification of a will shall take effect from the moment it is made as long as the conditions for withdrawal or modification are met. The effect of the revocation or modification of a will is that the content of the will that has been withdrawn or changed is invalid.
(1) If the will is withdrawn, the revoked will shall be invalidated from the time when the withdrawal takes effect, and the newly established will shall be the true expression of the testator's intention to dispose of his property, and the validity and execution of the will shall be determined in accordance with the newly established will. If the testator does not make a new will after the will is withdrawn, it shall be deemed that the decedent has not made a will.
(2) If the will is changed, from the time when the change takes effect, the content of the changed will shall be the true expression of the testator's intention, and the validity or invalidity of the will shall be determined according to the changed will, and the will shall be executed according to the changed will. Even if the content of the changed will is invalid and the content of the original will is valid, the will should be confirmed to be invalid according to the content of the changed will.
Where there are several wills that conflict with each other, it shall be deemed that the later will replaces or modifies the original will. Therefore, if the testator makes several wills with conflicting contents, the last will shall prevail, that is, "the validity of the will after the establishment of the will shall prevail". This provision of this article changes the principle of priority of notarized wills stipulated in Article 20 of the Inheritance Law, and is the correct legislative choice.
4. Cases
Che Moumou v. Wan Mouchang et al., a dispute over the return of the original
Facts: Che Moumou and Wan Moumou (died in December 1987) are husband and wife, and have a total of 5 children, namely Wan Mouzhen, Wan Moulong, Wan Mouqin, Wan Mouchang, and Wan Mouxing. Wan Mouchang and Li Moumou are husband and wife. In October 2010, Che Moumou purchased a house from someone else and received a house ownership certificate the following month. In order to facilitate the inheritance of the house in the future, in May 2013, Che Moumou and Wan Mouchang transferred the above-mentioned houses to the names of Wan Mouchang and Li Moumou by fabricating the facts of house sales. On June 1 of the same year, Wan Mouchang and Li Moumou received the house ownership certificate. On June 20, Che Moumou stamped and fingerprinted a printed "inheritance book", which indicated that after a hundred years, Che Moumou's house would be inherited equally by his five children, and the transfer of the house to Wan Mouchang was only to reduce the trouble of inheritance procedures. Wan Mouzhen, Wan Moulong, Wan Mouqin, Wan Mouchang, and Wan Mouxing also signed at the "signature of the heirs" of the will. On July 8, 2017, Che Moumou sued the court on the grounds that he was harassed by Wan Mouchang and revoked the content of the "inheritance letter" that the house would be transferred to Wan Mouchang's name and he would be responsible for the implementation of the estate distribution in the future, requiring Wan Mouchang and Li Moumou to return the ownership of the above-mentioned houses. The court held that the "inheritance letter" was a will rather than a property division agreement, and because the testator Che Moumou had not yet died and had not taken effect, Che Moumou had the right to change or revoke the content of the will at any time, so it supported Che Moumou's claim in accordance with the law.
5. Analysis
The "inheritance letter" in this case is the arrangement made by Che Moumou for his property in advance in order to reduce the trouble of his inheritance procedures after a hundred years. He clearly stated that after 100 years of his death, the entrusted person should divide the property rights of the house among his children, that is, he expressed his will on how the property should be distributed after his death, and there was no intention to transfer the right to dispose of the house before his death, so the document was actually a will rather than a contract or a property division agreement, and whether the heirs signed the document or not did not affect the legal effect of the document. According to the legal provisions of the Inheritance Law in force at the time of the case on the testator who can withdraw or change the will he made, when Che Moumou was dissatisfied with the behavior of the heirs and was unwilling to leave his estate to the heirs listed in the will, he had the right to withdraw and change the will he made according to his true wishes, and no one had the right to interfere. In this case, Wan Mouchang's attempt to prevent the testator Che Moumou from exercising the right to change and withdraw the will he left on the grounds that the "inheritance letter" was an inheritance agreement was an agreement on the grounds that it was not supported by the court.