Article 1137
A will made in the form of an audio or video recording shall be witnessed by two or more witnesses. The testator and witnesses shall record their name or likeness, as well as the year, month, and day in the audio or video recording.
1. The main purpose of this article
This article is about the provisions of audio and video recordings.
II. Evolution of the Provisions
This article derives from the provision of paragraph 4 of Article 17 of the original Inheritance Law: "A will made in the form of a recording shall be witnessed by two or more witnesses. This article stipulates that a natural person may make a will in the form of an audio or video recording, and the content has the following three changes compared with the content of paragraph 4 of Article 17 of the original Inheritance Law: (1) In the form of a will, the original "audio will" is amended to "audio and video will". The original Inheritance Law only provided for the form of sound recording, but this article adds the form of video recording. (2) In the confirmation method of the testator and witnesses, it is added that the testator and the witnesses shall record their names or portraits in the audio and video recordings. (3) In the provisions on the date of making a will, it is added that the testator and the witnesses shall record the year, month and day in the audio and video recordings.
3. Interpretation of Provisions
This article is a provision for audio and video recordings.
An audio or video will is a new type of will, which refers to the testator's oral will recorded by audio or video recording. In fact, it is an audio-visual will.
Audio-visual wills shall meet the following requirements:
(1) Two or more witnesses shall be present to bear witness, and the witnesses shall bear their respective surnames
Basic information such as name, gender, age, place of origin, occupation, work unit, and home address shall be explained.
(2) The testator shall personally describe the content of the will, and the content shall be specific, and the basic situation of the property shall be explained for the disposition of the relevant property, and the person who will inherit the property shall be explained.
(3) The testator and witnesses shall seal, sign and date the relevant audio-visual materials to determine the time of making the will.
(4) The audio and video will must be opened in public, and after the inheritance begins, in the presence of the witnesses and all heirs who participated in the making of the will, the seal shall be opened in public to maintain the authenticity of the audio and video will.
An audio or video will that meets these requirements shall be legally effective.
4. Cases
Yan Jia v. Yan B, a case of estate dispute
Facts: Yan A and Yan B are identical brothers, and their mother Zhang XX has three sons and two daughters, the eldest son is Yan Jia, and the youngest son is Yan B. Zhang Moumou has a house of 58 square meters under his name. During Zhang's illness in his later years, he was all taken care of by Yan Jia, and all living and medical expenses were also borne by Yan Jia. Based on the fact that the other children did not fulfill all their maintenance obligations, on January 21, 2016, Zhang Moumou, witnessed by two lawyers, was written by others and made a will that all his property would be inherited by Yan Jia after his death. The will is kept by Yan Jia. On January 20, 2018, Zhang Moumou passed away, leaving behind a house that was actually controlled by Yan Yi. After Yan Jia filed a lawsuit demanding that he inherit the house and other property according to his will, Yan Yi provided another will and video, arguing that the house should be inherited by himself. The will was written by Yan Yi's wife and Zhang Moumou's handprint. The video shows a neighbor asking Zhang Moumou whether all his property was inherited by his young son, and Zhang Moumou only replied with "um", without an independent statement. The court held that the form and content of the will provided by Yan Jia were in accordance with the provisions of the law and were therefore valid. However, in the video and the will provided by Yan Yi, the testator did not have a clear and complete statement on how to deal with the disputed house in the video, but responded passively under the questioner's guiding questions, and could not determine Zhang's true intention on this basis, and the scrivener was a young daughter-in-law and had an interest in the heir, so the court did not recognize the validity of the video and the will.
5. Analysis
In this case, Yan Yi provided a video recording and a scrivener will, and the content of the video showed that the decedent responded passively and simply under the questioner's guiding questions, and there was no clear and complete statement of how the decedent would deal with the disputed house, and it could not be determined on this basis that Zhang Moumou's true intention could not be determined, which did not meet the requirements of the Inheritance Law in force at the time of the case on the constitutive elements of an audio and video will, so the only content in the video was not sufficient to constitute an audio and video will, and the court did not determine the validity of the video recording. At the time of the case, although the Inheritance Law of the Mainland only stipulates that a will made in the form of a recorded will should be witnessed by more than two witnesses, if the audio content in the video can clearly express the testator's true intention to make a will, it will of course constitute a valid recorded will.