Issues that should be paid attention to when a self-written will and a notarized will coexist

Recently, the Beijing No. 3 Intermediate People's Court concluded an inheritance dispute case. The first-instance plaintiff A (female) and the defendants B (female), C (male), D (female) are siblings. His parents left two notarized wills with identical contents during their lifetime, and also left a self-written will on the day the notarized will was made.

In the notarized will, the parents of the plaintiff and defendant left one room in the property (three-bedroom apartment) to B and the remaining two rooms to A, however, the distribution shares of C and D were not explained in the notarized will. During the first instance of the case, the plaintiff A requested to divide the property left by his parents in accordance with the law, claimed the ownership of the house, and paid the three defendants discount compensation. The defendant B claimed that the house should be distributed according to the true wishes of the parents and in accordance with the contents of the will, and disagreed with the claim of the plaintiff A. Moreover, defendant B pointed out that defendants C and D did not Since his parents did not give C and D relevant shares in the notarized will, they have no right to participate in the distribution of the legacy property. DefendantC, D stated that they mostly agreed with the opinions of the plaintiff A, and pointed out that their parents only gave three rooms in the legacy property to A and B, but the toilet, balcony, living room and kitchen were not allocated. While agreeing to allocate three rooms to A and B, the four people were requested to equally share the toilet, balcony, living room and kitchen.

During the court hearing, upon A’s application, the market value of the disputed house was evaluated.

The court of first instance held that inheritance is the legal personal property left behind when a citizen dies, and a citizen can make a will and designate the personal property to be inherited by one or more legal heirs. Notarization of a will shall be done by the testator through a notary office. The inheritance not disposed of by the will shall be handled according to the legal inheritance. On the premise of confirming the legality and authenticity of the notarized will, the court of first instance took into account factors such as the fact that plaintiff A had the largest share in the legacy property and actually lived in the house. On the basis of the value, the plaintiff A was awarded a certain amount of discounted compensation to the plaintiffs B, C, and D respectively.

First instance defendantBI was not satisfied with the verdict and appealed in accordance with the law. Request the court of second instance to exclude the inheritance rights of C and D, and to rule that B and A share the ownership of the remaining house in shares. After the second trial of the case, the incident took a dramatic turn. The second trial verdict completely overturned the first trial verdict. The key to the contrasting results between the first-instance and second-instance judgments lies in the second-instance court’s identification and acceptance of the contents of the self-written will.

The attorney of the appellant in the second instance pointed out that the court of first instance failed to obtain the notarized will files despite the defendantB’s repeated requests, which was not conducive to ascertaining the facts of the case. The appellant's attorney also went to the notary office to try to retrieve the notarized files, but the notary office responded that the attorney could not retrieve the files, only the public prosecutor, procuratorate, and law. In this regard, the court of first instance should assume the obligation to obtain notarized files. His failure to obtain the notarized will files violated the second paragraph of Article 64 of the Civil Procedure Law of the People's Republic of China: "Evidence that the parties and their agents ad litem cannot collect on their own due to objective reasons, or evidence that the People's Court deems necessary to hear the case, the People's Court shall investigate and collect. The People's Court shall comprehensively and objectively examine and verify the evidence in accordance with legal procedures." In the self-written will, the two elderly people clearly explained the distribution of the house, and explained in detail the reasons why C and D did not participate in the distribution of the inheritance. Moreover, the content of the self-written will does not conflict with the content of the notarized will, and can play a role in explaining and explaining the true meaning of the notarized will. Accordingly, the court of second instance recognized the validity of the self-written will and excluded the appellees C and D's inheritance rights. The attorney of the appellant in the second instance also pointed out that it was clear from the self-written will that the appellees C and D were even less likely to participate in the distribution of toilets, balconies, living rooms, and kitchens in the remaining houses without inheritance rights.

Furthermore, the court of first instance made logical errors in determining the facts and violated objective laws. The house at issue in the case is a unit house. The important difference between this type of house and the "Tongzi Building" more than ten years ago is that it has independent kitchens, bathrooms and other supporting facilities. These supporting equipment are closely related to the house itself and do not have the value and possibility of being used independently from the living room. Therefore, from the characteristics of supporting equipment, they are naturally regarded as an integral part of the house and cannot be divided and disposed of independently. The two elderly people who made the will did not allocate other supporting facilities in the legacy property except the rooms, which must be based on this consideration. This point can be seen from the self-written will about "D owns real estate and does not participate in the distribution of real estate in the family; C has purchased a house and has no right to participate in inheritance. "Our house does not It can be clearly seen from the expressions such as "I can give it to him" that the two old people originally intended to allocate the supporting facilities in the left house to A and B through a notarized will. The court of first instance violated the decedent's true intention, which was undoubtedly superfluous and unnecessary.

The errors made by the first-instance court in determining the facts of the case directly led to errors in the application of the law and resulted in unfair judgments in the case. In the end, the first-instance judgment was revoked by the second-instance court and the judgment was changed in accordance with the law. Established the appellantB and the appelleeAThe parties share the ownership of the disputed house in shares, and the kitchen, bathroom, balcony, and living room lighting facilities are shared by both parties.

With the great enrichment of material life of Chinese families, many parents can leave considerable material wealth to their heirs in their twilight years. However, as the legal awareness of Chinese citizens is generally weak, there are many defects in making wills. Blood relatives fight over inheritance, and even siblings turn against each other. There are many examples of sibling killing each other.

When different forms of wills coexist, how to determine the validity of a will is extremely important for timely resolution of inheritance disputes, easing family and social conflicts, and promoting procedural fairness and substantive fairness. At the same time, the court's accurate identification of disputed facts can also play an important role in improving judicial efficiency and saving judicial costs.

A will is an important form for the deceased to freely express his or her wishes to dispose and control his or her legal property and rights. Within the limits permitted by law, the free will of the deceased should be fully respected, which is one of the core values ​​that a society governed by the rule of law should pursue.

Wills can be divided into notarized wills, self-written wills, written wills, oral wills, and wills recorded in the form of audio recordings. Article 20 of my country's "Succession Law" stipulates: If there are several wills and their contents conflict, the last will shall prevail; Paragraph 2 of Article 22 stipulates: The will must express the true intention of the testator. Article 40 of the Opinions of the Supreme People's Court on Several Issues Concerning the Implementation of the "Succession Law of the People's Republic of China" stipulates: If a citizen's suicide note involving the disposition of personal property after death is indeed an expression of the deceased's true intention, signed by him and marked with the year, month, and day, and there is no evidence to the contrary, it may be treated as a self-written will. Article 42 of the "Opinions" stipulates: The testator has made several wills in different forms with conflicting contents. If there is a notarized will among them, the last notarized will shall prevail; if there is no notarized will, the last will shall prevail.In the case where several wills coexist, the validity of the notarized will is beyond doubt and should be respected and recognized first. However, when the meaning expressed in a self-written will or other forms of will does not conflict with the notarized will, its content can be used as the explanation and explanation of the notarized will. This makes it easier to understand the true meaning expressed by the person who made the suicide note, and is also conducive to ascertaining the facts of the case and achieving fairness and justice.

In addition, notarized wills are generally neat and concise, which may make the true meaning of the will maker unclear, cause misunderstandings, and create hidden dangers in conflicts of interest among relevant beneficiaries. The existence of notarized records can solve this problem to a great extent. Therefore, notaries need to master the corresponding questioning skills when recording notarization transcripts, and strive to perfectly present the true meaning of the will creator.

The verdict of the first instance of this case was unbelievable to many people. The originally simple and clear facts of the case had to be confirmed through the second instance. The core of the case was confirmed from the original house ownership to the division of real estate. If the civil legal relationship of the case is clarified at the beginning and this main line is followed, the corresponding judicial resources and the time, energy and money costs of the parties can be greatly saved.

The Fourth Plenary Session of the 18th Central Committee of the Communist Party of China adopted the "Decision of the Central Committee of the Communist Party of China on Several Major Issues Concerning Comprehensively Promoting the Rule of Law", which put forward new requirements for the construction of high-quality specialized rule of law teams. It is necessary to promote the formalization, specialization and professionalization of specialized rule of law teams and improve professional quality and professionalism. Although judicial departments at all levels are facing heavy business pressure at this stage, it cannot be denied that the vast majority of judicial staff are dedicated and conscientious in their jobs. However, fairness and justice should be the highest value pursuit of every judicial worker in their work. While ensuring work efficiency, they should also achieve judicial procedural fairness and substantive justice. Especially because of the particularity of the profession of a judge, during the trial of a case, one ten thousandth of a mistake may be 100% unfair to the parties involved!

Author introduction:

Jiang Shanhe—Partner lawyer, attorney in this case

Liu Yanhai—Tsinghua University Law School, Master of Laws