Article 1139
A notarized will shall be handled by the testator through a notary public.
1. The main purpose of this article
This article is about the provisions of notarized wills.
II. Evolution of the Provisions
In the process of compiling the Civil Code, Article 17 of the original Inheritance Law was split and amended, and this provision is derived from the provision of Article 17, Paragraph 1 of the original Inheritance Law that "a notarized will shall be handled by the testator through a notary public". Compared with the first paragraph of Article 17 of the original Inheritance Law, this article has not made substantial changes in the content, but only changed the term "notary public" to "notary public institution" in the original article to maintain consistency with the relevant wording of the Notary Law.
3. Interpretation of Provisions
This article is about the provisions of notarized wills.
A notarized will refers to a will made through a notarized form prescribed by law, and the relevant procedures and forms are prescribed by law. Notarization of a will is different from notarization of a will: notarization of a will is an activity of the notary office to prove the authenticity and legality of the testator's act of establishing a will in accordance with legal procedures. A notarized will is the most stringent will, which can better protect the authenticity of the testator's intention in case of inheritance disputes, and in the event of an inheritance dispute, a notarized will is a true and reliable evidence to prove the testator's intention to dispose of property.
The requirements for a notarized will are:
(1) The application must be made by the testator in person. The testator shall make a will in person, apply for a certificate in person, and provide relevant documents and materials, and cannot have another person handle the notarization of the will on his behalf.
(2) The testator shall personally write the will or dictate the will in front of the notary, and the notary shall review the will or draft will, and the testator shall sign and establish the notarized will, and shall indicate the place and year, month and day of the establishment of the will.
(3) The notary public shall comply with the rules of recusal.
(4) The notary public shall make a notarization in accordance with the law. If the following conditions are met, the notary office shall issue a notarial certificate: 1) the testator's identity is true and he has full capacity for civil conduct; 2) the testator's intention is true; 3) the testator proves or guarantees that the property disposed of is his personal property; 4) the content of the will does not violate the provisions of the law and the public interest, the content is complete, the written expression is accurate, and the signature and production date are complete; 5) the procedures for handling the certificate comply with the regulations. If the above conditions are not met, notarization shall be refused.
4. Cases
Wang v. Liu, a dispute over the validity of a notarized will
Facts: Wang's parents, Liu's maternal grandparents, Wang Mouxin, and Yu jointly applied for the establishment of a notarized will in 1996, and the property involved included the entire building. After Wang's death, Yu XX separately applied for the establishment of a notarized will in 2007, and the property involved was the share of Yu XX in the above-mentioned building. After Yu Moumou died, Wang Moumou and Liu Moumou sued the court over whether the notarized will was valid. The court of first instance held that for the above two notarized wills, although the testator did not sign them, he had affixed his private seal or fingerprint, and clearly stated that he would not make audio or video recordings. According to the relevant provisions of the "Notarization Procedure Rules", the applicant shall sign or seal the application form, and if it cannot sign or seal, the applicant shall leave his fingerprint, so the above-mentioned notarization documents are valid. The court of second instance upheld the judgment of the first instance. When Wang Moumou applied for a retrial, he claimed that on April 22, 2011, under the witness of two lawyers, Yu Moumou remade a will, and the will indicated that all the parts of the disputed building were inherited by Wang Moumou. The retrial court held that the lawyer's testimony of the will was a written will, and it could not revoke or change the notarized will, so the above-mentioned lawyer's testimony of the will was not sufficient to overturn the original judgment.
5. Analysis
A notarized will is the most effective will stipulated in the Inheritance Law of the Mainland, and according to the relevant regulations, it can exclude self-written wills, written wills, recorded wills, and oral wills. When a lawsuit arises due to a dispute over a notarized will, the court shall examine whether the notarized will is an expression of the testator's true intention and whether it meets the formal requirements prescribed by law. The court may not make a judgment on the validity of a notarized act that violates the notarization procedure, but the court shall conduct a review in accordance with the provisions on civil evidence as to whether a notarized will that violates the notarization procedure can be used as the basis for a verdict. As for the two notarized wills in this case, although the testator did not sign the wills, he stamped his private seal or fingerprint on them, and made it clear that he would not make audio or video recordings. According to the relevant provisions of the Rules of Notary Procedure, the applicant shall sign or seal the application form, and if it cannot sign or seal, he shall leave his fingerprint, so the form of notarized will in this case does not violate the provisions and should be valid. According to the provisions at that time, a notarized will had priority effect, and the application of a scrivener will could be excluded.