Article 1140
The following persons cannot be witnesses to a Will:
(1) Persons who lack or have limited capacity for civil conduct, as well as 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.
1. The main purpose of this article
This article is about a person who cannot be a witness to a will.
II. Evolution of the Provisions
Article 18 of the original Inheritance Law stipulates: "The following persons shall not be witnesses to the will: (1) persons who are incapacitated or persons with limited capacity, (2) heirs or legatees, and (3) persons who have an interest in the heirs or legatees." This provision reversely regulates the question of the qualifications of witnesses to a will. This article of the Civil Code makes the following two amendments to the provisions of Article 18 of the original Inheritance Law: first, for the sake of legal conceptuality, the persons specified in item 1 are amended from "persons with incapacity and persons with limited capacity" to "persons with no capacity for civil conduct and persons with limited capacity for civil conduct";
3. Interpretation of Provisions
This article is about the qualifications of witnesses to the will.
A testamentary witness refers to a third party who comes to the site of the will making when making a will and proves the authenticity of the will. In addition to self-written wills, all kinds of wills must have witnesses involved, so as to ensure the authenticity of the will and the correctness of other methods, so the authenticity of the witnesses and their creditworthiness, and the authenticity of the testamentary witnesses are directly related to the validity of the will.
The witness of the will must be a person who can objectively and impartially prove the authenticity of the will, and should meet the following conditions: (1) have full civil capacity, (2) have no interest in the heirs and testators, and (3) know the language used in the will.
This article stipulates the qualifications of testamentary witnesses: (1) Persons who lack civil capacity, persons with limited civil capacity, and other persons who do not have the capacity to witness cannot be witnesses. If the testator is a person with full capacity for civil conduct at the time of making the will, and subsequently loses the capacity for civil conduct, the validity of the testamentary witness shall not be affected. (2) The heirs and legatees cannot be witnesses because they have a direct interest in the will, and it is difficult for them to guarantee the objectivity and authenticity of their proof, which is prone to malpractice. (3) A person who has an interest in the heir or legatee is a person who can obtain the inheritance and how much inheritance the heir or legatee can obtain will directly affect his interests, so he cannot be a witness. Such persons include heirs, close relatives of the legatee, as well as heirs, creditors and debtors of the legatee, and partners in joint operations.
A person who does not have the qualifications of a witness to a will cannot be a witness to a will, and the testimony given by him does not have legal effect.
4. Cases
Song Jia v. Song B et al., an inheritance dispute
Facts: Song A, Song B, Song C, Song Ding, Song Wu, and Song Ji are brothers and sisters, and their father, Song, died in 1974. The house where Song lived before his death was a public house, and after his death, his wife Yang continued to live in it, and Yang purchased the house in June 1992 at the price of the housing reform.
In July 2003, due to demolition and resettlement, the house was replaced with the house in question. In May 2003, Mr. Yang made a certificate and a will, which stated that he entrusted someone else to write a will on his behalf, and asked someone to help prove that there was a signature and seal of the declarant Yang, and the signature of the scrivener Su, and the certifiers Zhao and Tian. The will states the year, month and day, and is signed and stamped by the scrivener, two witnesses and the testator. In the will, all of Yang's estate was left to Song Jia to inherit. After Yang's death in October 2014, Song Jia sued the court, requesting the court to order Song B and five others to assist him in handling the house transfer procedures.
The court held that the scrivener and witnesses of the will in the trial were in accordance with the law, and the will also met the formal requirements of the will, so the legal effect of the will should be confirmed and handled in accordance with the will.
5. Analysis
In this case, Yang left a scrivener will and disposed of his estate, while Song Yi and five others challenged the scrivener will provided by Song A and requested the court to declare it invalid. After investigation, the scrivener's will indicated the year, month and day, and was signed and sealed by the scrivener, two witnesses and the testator. Among them, the testamentary scrivener all meet the requirements of the Inheritance Law on the scrivener will, and the qualifications of the testamentary witness also meet the statutory conditions, and there are no circumstances listed in the Inheritance Law that will lead to the invalidity of the will. In this case, the scrivener and the witnesses not only met the statutory requirements, but also testified in court to prove Yang's true intention to set up a will to leave his estate to Song Jia, but Song B and the other five could not provide contrary evidence to overturn it. Therefore, the will is true and valid. The request of Song Yi and the other five should not be supported.