Article 1135
A will written on behalf of the testator shall be witnessed by two or more witnesses, one of whom shall write on behalf of the testator, the scrivener and other witnesses, and shall be signed, indicating the year, month and day.
1. The main purpose of this article
This article is about the provisions of the will written on behalf of the will.
II. Evolution of the Provisions
Paragraph 3 of Article 17 of the original Inheritance Law stipulates: "A will written on behalf of the testator shall be witnessed by two or more witnesses, one of whom shall write on behalf of him, indicating the year, month and day, and shall be signed by the scrivener, other witnesses and the testator." This article of the Civil Code retains the content of paragraph 3 of article 17 of the original Inheritance Law, but the wording is modified. The modifications are manifested in the following three aspects:
First, the provision was amended from one of the provisions of the original Inheritance Law to an independent provision. This amendment is in line with the overall arrangement of the provisions on the form of wills in the succession section of the Civil Code, so that each form of will is independent into a single article, and at the same time facilitates the interpretation and application of the Civil Code.
Second, the content of "indicating the year, month, and day" that was originally placed before the scope of signatories is adjusted to after the scope of signatories. This adjustment is in line with the practice of signing first and then signing the date in linguistic grammar requirements.
Third, the "testator" among the persons who need to sign is adjusted to the front, and the original "and signed by the scrivener, other witnesses and the testator" is amended to "and signed by the testator, scrivener and other witnesses". This is because even if it is a scrivener's will, it is still the testator's intention to dispose of his property after his death, and after the scrivener has finished writing, the testator will first understand (such as by reading or listening) the content of the will and sign it after expressing that it is correct. Therefore, the current provision adjusts the original "testator" to the front, which is not only in line with the behavior and habits of ordinary people, but also reflects that the will is an expression of the testator's intention to dispose of the property after death.
3. Interpretation of Provisions
This article is about the provisions of the will written on behalf of the will.
A will, also known as a will, refers to a form of will written by someone else. If the testator does not have the ability to write or is unable to write the will by himself for other reasons, in order to protect the testator's freedom of will, the testator is allowed to ask others to write the will on his behalf if he meets the statutory requirements. The scrivener will is simple and easy to implement, saves costs, and is convenient for the testator, and the mainland civil will is not very popular, so it is necessary to devise this method to meet the needs.
A scrivener's will must meet the following requirements:
(1) The testator must dictate the contents of the will and be written by a witness. A will is an act that must be carried out by the testator himself, and no one else is allowed to act as an agent. In a will, the testator must also personally express his intention to dispose of the property, dictate it, and have it written down by others. The scrivener is only the testator who dictates the written record of the will, not the testator's agent, and cannot give any opinion on the content of the will.
(2) Two or more witnesses must be present. A testamentary witness is a person who participates in the scrivener will and can prove the authenticity of the scrivener's will. In order to ensure the authenticity of the will, there should be more than two witnesses present. If only one scrivener is present to witness the production of a scrivener's will, it does not have the effect of a scrivener's will.
(3) The scrivener, other witnesses and testators must sign the will, and indicate the year, month and day. After the scrivener has written the will, he should read the will to the testator, and after the other witnesses and testators confirm that it is correct, the scrivener, witnesses and testators present must sign the will and indicate the year, month and day. The testator can use his fingerprint instead of signature, because the law stipulates that the writing of a will is mainly because some people do not have the ability to write their own will, and indeed many people do not even know how to write their own names, so if the testator does not know how to write his own name, he can replace the signature by fingerprint or seal, but the witness of the will and the testator who can write his name must sign the will, and cannot replace the signature by fingerprint or seal.
4. Cases
Fan v. Li Jia, a dispute over the validity of testamentary succession
Facts: Fan lost his husband at an early age, and has a son Li Jia and a daughter Li Yi under his knees. Now my son has married and passed away. Daughter Li Yiyuan married Hubei, married Xing Jia, and gave birth to a son named Xing Yi. The parties divorced in 2008 by a court judgment due to emotional discord. Xing Yi, a legitimate son, lives with Xing Jia. In 2009, after the court presided over the mediation, Li Yi obtained the ownership of the house and handled the house ownership certificate. In April 2017, Li Yi was seriously ill and hospitalized, and when he was sober, he entrusted a second lawyer to write a will on his behalf, indicating that his house was inherited by his mother Fan, and other heirs were not allowed to interfere. The course of the act is evidenced by audio and video recordings. Li Yi died on April 25, 2017. Fan filed a lawsuit with the court, requesting the court to rule that the will made by Li B was legal and valid, and Li Jia should not hinder himself from going through the relevant inheritance procedures in accordance with the law. The court held that Li Yi's will was valid and Li Jia could not interfere with Fan's handling of relevant inheritance matters, so it made a judgment in accordance with the law.
5. Analysis
This case is a dispute over the obstruction of the realization of testamentary succession. In the case, after the decedent Li Yi was seriously ill and hospitalized, he entrusted two lawyers to write the will on his behalf while he was awake, and the process of this act was evidenced by audio and video recordings. Subsequently, Li Yi died. According to the provisions of the Inheritance Law in force at the time of the case, this will is legal and valid. The plaintiff in the case, Fan, is both the testamentary heir and the legal heir in the first order, and no one has the right to interfere with his inheritance of Li Yi's real estate. Under the circumstance that the will made by the deceased meets the conditions for the validity of the will on behalf of the decedent, Li Jia has no right to interfere with Fan's inheritance of the property. If the decedent in the case does not dispose of all the estate in the will, the unprocessed part will be inherited according to the statutory inheritance rules, but because Li Jia is only the second-order heir, even if there is a statutory inheritance, Li Jia still has no chance to inherit the estate.