This issue is the 20th case study.
There is a Legal Proverb in the West called "The Law Does Not Protect the Sleeper on Rights", which means that the law only protects those who actively claim rights, not those who are lazy in claiming rights.
This sentence is applied to legal provisions, the most common of which is the statute of limitations system. However, there are some specific legal provisions that may not be known to everyone, such as the legal knowledge mentioned in this issue.
As is customary, let's look at a case first.
Brief facts of the case
The court found the following facts:
Zhao and Zhang had a son and four daughters together before their deaths, namely Zhang Jia, Zhang Yi, Zhang Bing, Zhang Ding, and Zhang E, and Zhang Xiaojia was the son of Zhang Jia. Zhang died in 1985.
In December 1988, Zhao purchased a house in Changsha for 40,000 yuan and asked someone to renovate it at a price of about 50,000 yuan for a contractor's package.
In 1994, the Changsha Municipal Real Estate Administration Issued a "Private House Ownership Certificate" (Long House Private Character No. ××) to Zhao, indicating that the house was located at No. 67 and 71 MiaoGaofeng in the Southern District, completed in 1990, with a construction area of 272.6 square meters, and the house was a three-story brick-concrete structure. After the house involved in the case was completed, Zhang Xiaojia and his parents lived together with Zhao in the house involved in the case.
On May 21, 1997, through the contact of Zhang Xiaojia's mother Chen, Chen XX, a notary at the Changsha Notary Office, went to the house involved in the case and witnessed Zhao stamping on the "Will", which read: "Testator: Zhao Mou, female, born on September 18, 1922, now lives in No. 71 Miaogaofeng, South District, Changsha City." I have a private house, located in the south district of Changsha City, with three floors, a total of 17 rooms, and a total construction area of 272.6 square meters.
Because I am old and unwell, I am afraid that after my death, my children will have property disputes, and now that I am conscious, I have made the following will:
First, the above-mentioned real estate, after my hundred years, is all inherited by my grandson Zhang Xiaojia, and others have no right to interfere;
2. The aftermath is handled with the children;
3. This will is made in triplicate and is a public will without the need for an executor.
Testator: Zhao Mou. Surrogate: Zhang XX. ”
Since then, Zhang Xiaojia went out to study in 1999, his parents divorced in 2002, his mother Chen mou died of illness in 2003, and his father Zhang Jia moved to another place in 2003. On February 4, 2007, Zhao passed away. On June 22, 2011, Zhang Xiaojia became the head of the house involved in the case.
On February 14, 2019, Zhang Xiaojia applied to the Changsha Municipal Notary Office for a notarization of acceptance of the bequest, which believed that Zhao had died on February 4, 2007, Zhang Xiaojia requested to accept the bequest on the same day, and the remaining legal heirs of Zhao except Zhang Jia all raised objections, so on August 13, 2019, they informed him not to apply for notarization. Zhang Xiaojia then sued the Tianxin District People's Court of Changsha City, demanding the inheritance of the house involved in the case, triggering a dispute in the case.
It was also found that Zhang Jia said that his ex-wife Chen never mentioned the matter of notarizing the bequest, and he did not find the notarial certificate in the closet drawer of his current residence until the spring of 2019. Zhang E's household registration is also in the house involved in the case, but his self-report is not the same household as Zhao's household registration, and the original Zhao household registration is now Zhang Xiaojia after Zhao's death.
Verdict
After trial, the Tianxin District People's Court of Changsha City rendered a first-instance judgment: all of Zhang Xiaojia's litigation claims were rejected.
Zhang Xiaojia appealed against the first-instance judgment. After trial, the Intermediate People's Court of Changsha City, Hunan Province, rendered a second-instance judgment on June 24, 2020, rejecting the appeal and upholding the original judgment.
The litigation costs of both trials in this case were borne by Zhang Xiaojia.
The court held
This case is a bequest dispute, and the focus of the dispute is whether the notarized will made by Zhao is valid and whether Zhang Xiaojia can obtain the ownership of the house involved in the case based on the will.
Zhang Xiaojia claimed that he did not learn of the house involved in the case from Zhang Jia until January 2019, although Zhang Jia also stated that he did not discover the notarized will until January 2019 and informed Zhang Xiaojia, but in view of the obvious interest between Zhang Xiaojia and Zhang Jia as father and son, this court conducted a detailed review of Zhang Jia's knowledge of the notarized will during the trial.
Zhang Jia stated that he did not find Zhang Xiaojia's mother's notarized will placed there in the wardrobe drawer of his current residence until January 2019, but according to the facts ascertained by the trial, Zhang Jia and Zhang Xiaojia's mother divorced in 2002, and zhang Xiaojia's mother died in 2003 and Zhang Jia moved to his current residence in the same year, and he found the notarized will in the wardrobe drawer 16 years later, which is obviously unreasonable.
At the same time, according to the facts ascertained by the court, the notarization of the will of the heir Zhao X was handled by Zhang Xiaojia's mother, who lived with Zhang Xiaojia after making the will until Zhang Xiaojia went out to study the following year, and since then, after zhang Xiaojia's parents divorced, his mother died, his father moved, the heir Zhao X died and other major changes, during this period, the heir Zhao X and Zhang Xiaojia's mother did not mention and informed Zhang Xiaojia that it was obviously unreasonable.
In addition, Zhang Xiaojia became the current head of the original Zhao family household registration in 2011, and the rental income obtained from the house involved in the case since the death of the heir Zhao was also kept by Zhang Jia, if Zhang Xiaojia knew that he had received the bequest, the above behavior may be regarded as his expression of accepting the bequest and entrusting his father to manage the house on his behalf, but now Zhang Xiaojia and Zhang Jia both claim that zhao mou has made a will to give the house involved in the case to Zhang Xiaojia before January 2019, which shows that the above behavior is not an act made by Zhang Xiaojia based on accepting the bequest. It has nothing to do with bequesting.
In summary, Zhang Xiaojia had already known about the bequest before the death of the heir Zhao Mou, but had not made a statement of acceptance of the bequest until January 2019, which should be regarded as abandoning the acceptance of the bequest, and the court did not support his litigation claim.
Lawyer's opinion
With regard to the bequeathed person's indication of acceptance of the bequest, our law has a clear time limit.
Paragraph 2 of Article 25 of the original Inheritance Law states: "The bequeathed person shall, within two months after becoming aware of the bequest, make an indication of acceptance or renunciation of the bequest." If there is no indication of expiration, it shall be deemed to be a waiver of the bequest. ”
Article 1124 of the current Civil Code: "Where an heir abandons the inheritance after the inheritance has begun, he shall make an expression of renunciation of the inheritance in writing before the estate is disposed of; if there is no indication, it shall be deemed to have accepted the inheritance."
The bequeathed person shall, within 60 days after becoming aware of the bequest, make an indication of acceptance or renunciation of the bequest; ”
Comparing these two provisions of Article 1124 of the Civil Code, the legislator adopted two different models. For heirs, the law tacitly presumes that they accept the inheritance, unless they voluntarily give up in writing, and the bequeathed person has to make an expression of acceptance of the bequest within the statutory time limit, otherwise it is regarded as abandoning the bequest, which shows that the law has a relatively strong protection for the heirs' inherited property.
Therefore, we solemnly remind everyone that if they know that they have been bequeathed by others, they must promptly express their positive expression of acceptance of the bequest to the heirs who have an interest in the inheritance of the estate, otherwise once the court judgment is regarded as abandoning the bequest, the estate treatment will be handled in accordance with the legal inheritance, and the bequest agreement concluded by the heir will also become a blank piece of paper, and the bequeathed person will suffer financial losses.
Special statement: The above views are only personal views, only for sharing and exchange, do not constitute legal opinions, do not serve as a basis for decision-making, and do not bear legal responsibility.
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Source of the case: Changsha Intermediate People's Court of Hunan Province (2020) Xiang 01 Min Zhong No. 901 Civil Judgment