How to make a will to be effective, this is probably the most concerned issue for the elderly who have the idea of making a will, after all, no one wants to work hard to make things that cannot be used in the end, and their wishes cannot be realized.
However, it is very realistic that some lawyers often say that it is basically difficult to see a truly valid and flawless will when they contact so many clients.
Because the formal requirements of a will are very harsh. If ordinary people are not familiar with the law, there is a high probability that the will will will will be invalid.
Therefore, "fulfillment of will" is the purpose of making a will, while "validity" is the goal of making a will.
So, what kind of will is valid? Let's find out:
.01
The Civil Code stipulates 6 legal forms of wills
At present, the following six forms of wills are recognized in the Civil Code:
1. Self-written will, written by yourself;
2. Write the will, say it yourself, and let someone else write it;
3. Print the will, print out the will, and sign it;
4. Audio and video recordings of wills;
5. Oral will;
6. Notarized will.
There are only these six kinds.
In addition, the following types of wills that we often hear about are legally invalid:
(1) WeChat mini-program to leave a will. Some young people like to leave a will through WeChat mini programs, but in fact, this kind of will is not valid in law.
(2) E-mail wills. Many people will write an email will before traveling, but set a schedule to send it, and then cancel the delivery when they come back from traveling, and if there is an accident, the email will be sent to their relatives smoothly. Such wills are also invalid under the current law.
Of course, if you just leave a non-property suicide note through WeChat or email, such as telling your family to scatter your bones into the sea if you die in the future, there is nothing wrong with these. But if it involves property matters, such as how to divide one's own house and how to divide bank deposits, unless all relatives do not object and follow the implementation, it is fine, but if one heir objects and goes to the court, this kind of will will most likely be judged invalid by the court.
.02
The characteristics and basic requirements of the six forms of will
1. Self-written will.
The Civil Code stipulates that a self-written will shall be written and signed by the testator, indicating the year, month and day.
A few requirements:
(1) The whole process must be written by yourself, no one else can write on behalf of you, and there can be no printed part;
(2) You must sign it yourself. and must be signed in the same name as the identity;
(3) Must be handwritten, must be handwritten
(4) The date must be written, accurate to the day.
A lawyer said frankly: Many lawsuits are due to flaws in the date of payment, and the will is finally judged to be invalid. So, be sure to write the date clearly!
In addition, it is recommended that there should be no alterations, additions or deletions. What does it mean? Just don't make it convenient, directly modify, add or delete on the original will, which is likely to lead to the relevant content being found invalid. So, if you find that you have made a mistake, you can write it again. Or if you must amend, add or delete from the original will, it is recommended to sign and date all the amendments, additions and deletions.
2. Scrivener of will.
If it is inconvenient for the elderly to write, they can write the will on their behalf, but even if it is written by someone else, they need to sign and confirm it in the end. Moreover, the scrivener will needs to be in the presence of witnesses.
According to the relevant provisions of the Civil Code, a will must be witnessed by at least two or more witnesses, one of whom shall write on behalf of the testator, the scrivener and other witnesses shall sign it, indicating the year, month and day. ”
Moreover, there are relevant provisions, "The will made by a person who has no or limited civil capacity is invalid." In other words, if the testator is delirious, the will written on behalf of the testator in this case may also be invalidated.
3. Print the will.
Regarding the printing of wills, the Civil Code also has requirements,
And
Don't think that you just need to sign the last copy of multiple wills and you're done, as this can easily be ruled invalid.
Moreover, although a self-written will can be considered valid as long as it is signed on the last page, it is also recommended to sign and date each page to avoid disputes.
4. Audio and video recordings of wills.
The Civil Code stipulates that "a will made in the form of audio or video recordings 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. ”
That is to say, whether it is an audio or video will, two or more witnesses must be present at the time of recording, and only the video will will be judged invalid.
Moreover, in the video will, the witness must show his face, not only the lower half of the body or only the voiceover. The video will also needs to ensure the continuity of the video, that is, if there is a transition or editing, there is a suspicion of tampering, and the validity is easily questioned.
5. Oral will.
The Civil Code clearly states that "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. ”
It must be clear here that an oral will, no matter how critical, still requires two witnesses.
6. Notarized will.
This is to find a notary public and have a professional notary public witness it, which the law formulates as a separate form of will.
In the past, the Inheritance Law clearly stipulated that notarized wills had the highest validity among all forms of wills, but after the promulgation of the Civil Code, the priority effect of notarized wills was abolished. So, now, no matter what form of will, the last will is valid.
In addition, the Civil Code also stipulates that the following persons cannot be witnesses to the will:
First, persons with no capacity for civil conduct, persons with limited capacity for civil conduct, and other persons who do not have the capacity to witness, such as children
second, heirs and legatees; For example, if the Witnesses are their own children, this is not allowed.
Third, those who have an interest in the heirs and legatees. This includes heirs, legatees, creditors, debtors, co-operating partners, and so on.
.03
There are three specific issues to be aware of when it comes to the form of a will
1. Don't break through the six legal forms.
Or as mentioned earlier, don't think that some advertisements talk about how lofty the WeChat will, Internet will, etc., in fact, this kind of will is purely entertainment and does not have any legal effect at all.
2. As much as possible, do not make a will as a husband and wife.
According to the current regulations, a will can only represent one person and represent the testator's personal wishes.
Therefore, husband and wife should not make a joint will, that is, do not write a will by two people, and then sign the names of both people, this kind of will may also have no legal effect.
3. There is no provision that a seal can be used in place of a signature for any kind of written will. That is to say, any form of will must be signed by the person, and the fingerprint is invalid instead.
There are a few other points that you need to know in advance:
(1) If the will leaves the property to the children, who are married. In response to this situation, the Civil Code stipulates that if the will does not specifically specify, the property inherited by the children belongs to the joint property of the husband and wife.
Therefore, if you want to exclude the co-ownership of the spouses, the will needs to be slightly amended to add something like: "My property is owned only by my daughter and has nothing to do with her spouse", or "has nothing to do with anyone else".
(2) Grandchildren and grandchildren are not legal heirs
The relevant provisions make it clear that grandparents are the legal heirs, but grandchildren are not legal heirs. It's important to keep this in mind.
.05
The best choice for a will
(1) If the family relationship is very simple and the property value is not large, you can consider writing your own will and recording the video at the same time. Note that the video recording here does not mean that it is an audio or video will, but only a proof of the authenticity of the self-written will.
(2) If the family relationship is complicated, there are seven aunts and eight aunts, illegitimate daughters, and children of ex-wives, and the value of property is also large, in this case, at least a notarized will should be issued.