The Civil Code provides for six forms of a will: a testator-written will, a will written on behalf of the testator, a printed will, a will in the form of a sound or video recording, a nuncupative will, and lastly a notarized will.
Amongst the six forms of a will, the testator-written will is widely chosen for its convenience and confidentiality. There are many cases of succession disputes in which a will is invalidated by a court because the will’s form or content is not fully compliant with legal requirements.
Mr. Yin and Mrs. Yin are spouses, and have three children. Sadly, after Mrs. Yin passed away, Mr. Yin wrote the Succession Decision and signed “the owner of this building, Yin XX, December 2009”. The content of the Succession Decision was: “I have decided that my house in Room xx will be inherited by my eldest son, Martin Yin…”After Mr. Yin passed away, the eldest son Martin submitted the Succession Decision to the court.
A testator-written will does not need to be witnessed by any other person or supported by any other means and will become effective only after the death of the testator. Accordingly, in order to protect the real intention of the testator and prevent others from forging, tampering with or adding content to the will, the Civil Law imposes strict formal requirements on the testator-written will.
In this case, Martin claimed that the Succession Decision was Mr. Yin’s self-written will. Although the Succession Decision was signed in the name of Martin’s father, Mr. Yin, the date of signing, “December 2009”, did not meet the statutory requirements for the form of a testator-written will, which must specify the date of the will. Therefore, the court ruled that the Succession Decision written by Martin’s father was invalid.
Lawyer’s Practice Guide
A valid testator-written will must meet the following requirements:
Firstly, the testator must be a person with full civil conduct capacity. The testator shall attain the age of eighteen years, or attain the age of sixteen years and primarily relying on his/her own labor income for cost of living. Also there should be no circumstances affecting his/her civil capacity, including but not limiting in intoxication, coma or neurological disease affecting his/her consciousness.
Secondly, the will must comply with the formal requirements under the Civil Law: 1) be made in the testator’s own handwriting; 2) signed by the testator; 3) specifying the date of the will’s making.
Thirdly, the testator must have the right to dispose of the property involved in the will. In practice, if one party disposes of the property jointly owned by the spouses when making the will or the testator puts the public rental house into the will for distribution, etc. the disposal of the property right of such property often leads to the invalidation of part or all of the will. Therefore, it is important to ensure the properties involved in the will are your own properties.
Fourthly, the distribution of the estate in a will shall also comply with the law, public order and good morals. For example, pursuant to Article 1141 of the Civil Code, reservation of a necessary portion of an estate shall be made in a will for a successor who has neither the ability to work nor a source of income. Otherwise, the will may be partly invalid.
Fifthly, the content of a will shall be explicit and avoid any ambiguity. We suggest using the full and formal name on the ID card together with the ID card number as the address of the child (instead of the child’s nickname); and regarding the right of disposal of property, it is advisable to avoid using such words that may cause ambiguity as “reside”, “disposal”, “dispose”, etc.
If you would like to find out more with regards to a will, please feel free to contact us at DaWo Law Firm.