Article 1138
The testator may make an oral will in a critical situation. An oral will should be witnessed by two or more witnesses. After the critical situation is eliminated, if the testator is able to make a will in writing or in the form of an audio or video recording, the oral will made is invalid.
1. The main purpose of this article
This article is about oral wills.
II. Evolution of the Provisions
This article derives from paragraph 5 of Article 17 of the original Inheritance Law: "The testator may make an oral will in case of emergency. An oral will should be witnessed by two or more witnesses. If the testator is able to make a will in written or recorded form after the critical situation is resolved, the oral will made is invalid. This article of the Civil Code has made certain amendments to the provisions of this paragraph, amending the "audio will" to "audio and video will". According to the provisions of this article, an oral will refers to the testator's will to dispose of his posthumous property expressed orally in a critical situation, and its expression is oral and not recorded on any medium.
3. Interpretation of Provisions
This article is about oral wills.
An oral will refers to a will that is orally expressed by the testator and witnessed by witnesses in a critical situation, also known as an oral will. An oral will should be witnessed by two or more witnesses. After the critical situation is lifted, if the testator is able to make a will in written or recorded form, the oral will made is invalid.
An oral will must meet the following conditions:
(1) The testator is in a critical situation and cannot make a will in other ways. Critical circumstances refer to the situation where the testator's life is in danger, in war or in the event of an unexpected disaster, and his life is in danger at any time, and it is too late or unconditional to establish other forms of will.
(2) Two or more witnesses must be present to witness. Witnesses shall have no interest in the inheritance, and record the will dictated by the testator, and have it signed by the recorder and other witnesses, indicating the year, month, and day.
(3) After the critical situation is lifted, the testator can use other forms to make a will. Once the critical situation is lifted, the testator should make another will within a certain period of time, otherwise, even if the testator does not make another will, the oral will will lose its legal effect.
This article does not specify how long the testator should make another will after the emergency situation is lifted, that is, it does not stipulate the period of validity of the oral will. An oral will is a simple form of will, which is used as a last resort, so it is necessary to establish a period of validity. It is generally considered that after the emergency situation is lifted, the oral will loses its validity after three months, so as to protect the authenticity of the will. If the testator does not make another form of will within three months after the emergency situation is lifted, the oral will made by the testator will not be recognized.
4. Cases
Yang Jia v. Yang Yi et al., an inheritance dispute case
Facts: Yang and Guo are husband and wife, and they have five children, namely Yang B, Yang C, Yang Ding, Yang Wu, and Yang Jia. Yang died of illness on July 1, 1999, and Guo died of illness on December 11, 2013. The parents of Yang and Guo both died before the two. Mr. Yang and Mr. Guo left a house registered in Mr. Yang's name. Yang Jia sued the court for inheritance. Yang Yi argued that his parents had made an oral wish and informed relatives, friends and neighbors that Yang B would inherit the house owned by Yang and Guo. The court held that, according to the witness testimony and written testimony provided by Yang B, Yang and Guo were not in a critical situation when they stated that the disputed house was owned by Yang B, and that the witnesses had heard the above content at different times and on different occasions, and that the time span was relatively large, and the constitutive element of the critical situation of the oral will was lacking, so this defense opinion of Yang B was not adopted. Therefore, the estates of Yang and Guo were inherited according to law.
5. Analysis
In the case, Yang Yi asserted that Yang and Guo had oral wishes and informed relatives, friends and neighbors that Yang B would inherit the disputed house, but the witness testimony and written testimony provided by him showed that Yang and Guo were not in a critical situation when they stated that the disputed house was owned by Yang B, and that the witnesses heard the above content at different times and on different occasions, and were not present at the same time, and the time span was large. According to the provisions of the Inheritance Law on oral wills at the time of the case, the testator can only make an oral will under critical circumstances, and two or more witnesses must be present at the same time. In the case, Yang Yi's evidence did not meet the statutory requirements for an oral will, and the statements of Yang and Guo did not constitute an oral will, and the court did not recognize the correctness.