Jin Jin, a professional lawyer specializing in real estate in Beijing, specializes in real estate sales, borrowing names to buy houses, real estate inheritance, right confirmation, demolition and relocation of real estate disputes, vacating houses, public housing disputes, central housing, military housing, divorce real estate division and other real estate cases. With more than 19 years of experience, he has led a professional real estate legal team, handled a large number of real estate cases, and accumulated rich litigation experience. (In order to protect the privacy of the parties and avoid unnecessary disputes, the names of the parties in the following cases are pseudonyms, if there are any similarities, please contact us to revoke them.) )
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1. Plaintiff Zhang Mouying alleged
Zhang Moukui and Zhang Mouying are brother and sister. Their father died in 2004, and their mother Gao Mouju died in 2019. On December 26, 2007, Gao Mouju invested in the purchase of a 503-room house, which was registered in Gao Mouju's name. On June 7, 2013, Gao Mouju and her husband's public rental housing were demolished and relocated to three houses, one three-bedroom and two one-bedroom. The three-bedroom apartment has been sold by Gao Mouju before his death. The two one-bedroom units are 203 and 805 rooms.
On September 18, 2016, Gao Mouju made a will under the witness of two lawyers in Beijing, stating that the houses in rooms 503, 203 and 805 were the joint property of his parents, and Gao Mouju's share of the estate was inherited by Zhang Mouying. Zhang Mouying sued and demanded that her mother's share be inherited according to the witness's will.
2. Zhang Moukui argued:
The mother's will is invalid. At the time of the Will, my mother was in the medical treatment and was delirious and incapacitated. The will was not what she really meant. The mother is illiterate, unable to effectively understand both verbally and literally, unable to correctly express her consciousness, and does not know what the relevant compensation content is, housing and resettlement funds, and cannot be effectively disposed of.
3. With regard to the witness of the Will dated September 18, 2016, the court described it as follows:
1. The full text of the "Testament": "My name is Gao Mouju, and my wife's name is Zhang X, who passed away on August 14, 2004. We have a son Zhang Moukui and a daughter Zhang Mouying. At the beginning of 2016, the testator suffered a recurrence of heart disease, and Zhang Moukui was not sent to the hospital in time, and the testator decided to revoke the "Will" made on January 11, 2014. Now I voluntarily in the 100th century, all my property shares will be inherited by my daughter Zhang Mouying: 1. My daughter Zhang Mouying will inherit my share of my property in the Daxing Housing Resettlement Agreement signed by CB69; 2. My share of other property will be inherited by my daughter Zhang Mouying; 3. My living expenses, medical expenses, funeral expenses and other consumption expenses will be paid from my property share first. The above is my true intention, and my son is not allowed to compete for it. The testator has the signature and fingerprints of "Gao Mouju". The scrivener has the signature of "Tu Mougang" somewhere, and the witnesses have the signatures of "Tu Mougang" and "Duan Mouyuan". The date is September 18, 2016.
2. The content of the lawyer's "Transcript of Conversation": In the transcript of the conversation, lawyer Tu Mougang asked: "Tell me about your property status. Gao Mouju replied: "I signed the No. CB69 "Daxing Housing Resettlement Agreement" involved in the property interests and Daxing District was originally in the name of my wife Zhang X, and I should also have my share." Lawyer Tu Mougang asked: "After you are a hundred years old, what do you want to do with your property?" Gao Mouju's answer was consistent with the will. The transcript of the conversation bears Gao Mouju's signature and fingerprints. There are signatures of "Tu Mougang" and "Duan Mouyuan". The date is September 18, 2016.
3. Video of making a will. In the video, Gao Mouju and Tu Mougang were able to communicate normally, and they were able to smoothly answer their names, ages, and family members. Gao Mouju said that he wanted to make a will.
Tu Mougang asked Gao Mouju about the property, and first asked about the demolition of the house in the city. Gao Mouju replied and demolished three houses, one with three bedrooms and two with one bedroom;
Tu Mougang asked about the situation of the Wufu house in the Montenegrin plot again. Tu Mougang asked: "Your Yizhuang plot, what is the name of Wufu House, that turned out to be the house in your wife's name, right?" Gao Mouju replied: "It's in his name, it may be, I probably know a little bit, it seems to be for my son." ”
Tu Mougang asked: "It was also demolished later, right?" Gao Mouju replied: "It was demolished." Tu just replied: "Okay, okay, that means that it is also demolished." The situation of the house was not mentioned in the video afterwards.
Tu Mougang then asked: "This demolition agreement, the house in this city just mentioned, is it demolished in your name?" Gao Mouju replied: "My son hid it from me and didn't tell me, at that time, his wife died, and he didn't tell me about the demolition after his wife's death." ”
Tu Mougang asked: "Did you sign the demolition agreement for the house in Chengzi that I said?" Gao Mouju replied: "I signed it." ”
Tu Mougang said: "Let me make it clear to you, the premise of making a will is to first ensure that the property you dispose of, including the real estate, is your own." What belongs to you, you can deal with, legally. Gao Mouju replied: "The three-bedroom I want, belong to me, the two one-bedroom apartments, at that time, I said, give me this ......" Gao Mouju thought, Tu Mougang interrupted: "Okay, then wait a while, that question will be involved, I'll give you what to say." What I'm saying now is that this property belongs to your legal property, and you have to deal with it in order to be effective. If the property of another person is disposed of, it should be invalid. Do you understand this?" Gao Mouju replied: "Understood." ”
Tu Mougang asked: "I want to ask, what do you want to do with your property after a hundred years?" Gao Mouju replied: "I, um." Tu Mougang said: "I'll read you the content of the will you asked us to write just now, and you can see if this is the content." After that, Tu just read out the contents of the will. Gao Mouju expressed his approval.
After that, Gao Mouju said that he could not read and write, and he could not write. Tu Mougang wrote the name of "Gao Mouju" at the testator's place, and Gao Mouju used a pen to trace the name of Gao Mouju written by Tu Mouju, and pressed his handprint. Later, the scrivener and witnesses also signed the will.
Judging from the video, the transcript of the conversation and the will were printed before the video was recorded. In the video, Gao Mouju did say that he wanted to revoke the will made in 2014, saying: I had a heart attack in early 2016, I couldn't breathe, my son Zhang Moukui didn't send me to the hospital in time, I was delayed for two or three heads to send me there, and I also had a fight, and I was discharged from the hospital and asked my daughter to help me find a house and move out;
4. The scrivener and witness Tu had just appeared in court to testify. Tu Mougang stated: The first time I saw Gao Mouju was one or twenty days before the will, and the specific property includes three suites, one set of three bedrooms, and two sets of one bedroom; the testimony we did was a share witness, not a physical witness; the will was printed by me, and after the communication was done at her home, there was a printing shop next to her house, and I went to print it, and then I started to record it; Gao Mouju expressed that the Wufu character room had her rights, and it was also within the scope of the will; Gao Mouju meant that the other two one-bedroom houses were first said to her son, and then the old lady was sick, and her son did not take good care of her, so he didn't want to give it to his son; I communicated with Gao Mouju in advance, and she said it at a very long time beforeGao Mouju was illiterate, so I read the contents of the will to her.
After cross-examination, Zhang Moukui did not recognize the above-mentioned will, saying that the will should be made on the spot and made on the spot, and its standard is to meet a high degree of consistency in time and space; It was not that Gao Mouju dictated on the spot and was written down by the scrivener on the spot, but that the scrivener made it in advance and read it to him quickly and intentionally, seriously ignoring the old man's expression and understanding; Gao Mouju was already seriously ill at the time, one day at a time, and the interval between the first understanding of the situation and the second formal will described by the witness was about 20 days, and there are too many uncertainties here, and the "Will" does not meet the formal requirements of the scrivener's will, and cannot be proved to be Gao Mouju's true expression of intent; Although there is Gao Mouju's signature, Gao Mouju is illiterate, has a poor mental state, and is unable to fully understand the content of the will; the "Will" should be clear and specific on the disposal of property, and Gao Mouju has never said in the video how to dispose of the house in Room 503.
According to another investigation, Gao Mouju made a will in 2014, saying that the three-bedroom house was left to his son Zhang Moukui, and at the same time, the house was valued at 800,000 yuan, and Zhang Moukui paid Gao Mouju's medical expenses, living expenses and funeral expenses after his death from the discount of the house.
It was explained that for Gao Mouju's estate, Zhang Mouying insisted on inheriting it according to Gao Mouju's "Will" dated September 18, 2016, and did not advocate statutory inheritance.
4. The Court held that:
1. A will is a will witnessed by two or more witnesses and written by one of them. The will should reflect the testator's true intentions. With regard to the Will, Gao Mouju was able to smoothly express his family relationship and willingness to make a will in the video, and there was no unclear consciousness asserted by the defendants, but the willingness of Wang's will did not exist as unclear as claimed by the defendants; Moreover, Gao Mouju could not read and write, and his understanding of the written will was entirely derived from the scrivener's interpretation of it.
2. The scrivener is a professional lawyer, and he should know that as the scrivener, he should fully listen to and respect the testator's expression of intent, and clarify the scope of property disposed of by the testator. Judging from the video, when the scrivener inquired about the demolition of the property, not only did not listen carefully to Gao Mouju's opinions, but interrupted Gao Mouju's expression, memory, and thinking many times.
Throughout the video, Gao Mouju never clearly expressed what the properties he wanted to dispose of, and the scrivener did not sort out Gao Mouju's property, and in the will read by the scrivener to Gao Mouju, the property was written in general as "my share of my property in the "Expropriation Agreement" and "all my other property", which is obviously misleading to the testator.
Moreover, the Will and the transcript of the conversation were printed before the interrogation, and the entire interrogation process did not correspond to the transcript of the interrogation.
Therefore, the court held that the content in the transcript of the conversation could not reflect Gao Mouju's true intention.
3. Gao Mouju expressed his intention to establish a will, but the property he wanted to dispose of did not include the three houses in dispute, for the following reasons:
(1) As mentioned above, Gao Mouju had donated the house in room 503 to his grandson Zhang, and in the process of the scrivener inquiring about the house in Wufu, Gao Mouju also had the expression "it seems to be for my son", and the "will" did not mention the demolition of the word Wufu or the house in room 503, and the understanding of "all other property" to include the house in room 503 did not conform to the actual situation at that time.
(2) When the scrivener asked about the house demolished in the city, Gao Mouju said, "The three-bedroom house I want belongs to me, and the two one-bedroom apartments, at that time, I said, give me this ......" and was interrupted by the scrivener. Judging from the above expressions, Gao Mouju did not regard the two one-bedroom apartments as the property he wanted to dispose of when he made the will.
(3) Gao Mouju made a will in 2014, specifying that the three-bedroom house of the Chengzi relocation plot would be inherited by Zhang Moukui, and required Gao Mouju's medical expenses, living expenses, and funeral expenses to be paid from the three-bedroom house payment. Later, Gao Mouju had a conflict with Zhang Moukui due to maintenance issues, and had the idea of revoking the 2014 will, which was also mentioned in the "Will" and video at issue.
Combined with the above circumstances, the court held that the "Will" dated September 18, 2016 was Gao Mouju's disposition of the three-bedroom house, but the three-bedroom house had been sold before his death, and Gao Mouju did not express his intention to dispose of other properties. Therefore, the court did not support Zhang Mouying's request to inherit the houses in rooms 503, 203 and 805 in accordance with the Will.
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