First, notarize the will
Notarization of wills is an activity that notaries prove that the testator's act of establishing wills is true and legal in accordance with legal procedures. A notarized will is a notarized will. Generally speaking, notarization of wills requires the following conditions:
1, the testator must have full capacity for civil conduct: when making a will, the testator must be mentally normal, have normal thinking consciousness or language expression ability, and be able to clearly express his true meaning. A will made by a person without or with limited capacity for civil conduct is invalid.
2. The will of the testator is true: the content of the will must be the expression of the testator's own true will, and there is no coercion or deception by the testator. A will made by a testator under duress or deception has no legal effect.
3. The content and form of a will shall not violate the law or public interests. The content and form of a will shall conform to the provisions of the Inheritance Law of People's Republic of China (PRC) and other relevant laws, and shall not contradict them.
4. The property disposed by the testator must be his personal legal property: the testator's property is owned by the husband and wife or the family. The testator can only dispose of his personal property, and it is invalid to dispose of the content beyond his personal share in the will.
5. The testator shall personally go to the notary office to apply for notarization of the will, and cannot entrust others to handle it.
A notarized will takes effect when the testator dies. Before the notarized will takes effect, the parties, interested parties and notaries shall not disclose the contents of the will.
Second, since this book will
A will refers to a civil legal act that the decedent disposes and arranges his personal property and related affairs before his death, and takes legal effect after his death. According to the Inheritance Law of People's Republic of China (PRC), if the deceased left a will before his death, testamentary inheritance shall apply; If the decedent did not make a will before his death or the will was invalid, the inheritance shall be handled in accordance with the provisions of legal inheritance. An effective will must have statutory formal and substantive requirements. A will with both formal elements and substantive elements is a valid will, and a will without any of them or with only one of them is an invalid will.
A valid will has two basic elements:
1, will is the true meaning of the testator, and it is a personal unilateral act of the testator without the consent of the heir or legatee;
2. The will must be made independently by the testator himself, and there can be no agent, including the legal representative of a person with no capacity or limited capacity.
Wills are divided into self-written wills, proxy wills, notarized wills, recorded wills and oral wills. Generally speaking, the will should be written by the decedent himself, and such a will is written by himself. However, after the implementation of the Inheritance Law, the law put forward strict requirements for the formal elements of wills, stipulating that a self-written will must be written and signed by the testator himself, and at the same time, it must indicate the year, month and day, either of which is indispensable, otherwise the will is invalid.
Third, the will of the book
Ghost will, also known as ghost will, refers to the will written by others after the testator dictated the contents of the will. China's inheritance law has made strict provisions on the form and elements of the proxy will, that is, the conclusion of the proxy will must be witnessed by more than two witnesses, one of whom will write on behalf of the book, indicating the year, month and day, and be signed by the agent, other witnesses and the testator on the spot. An agent may not have an interest in the property disposed of in his will. According to the provisions of China's "Inheritance Law of People's Republic of China (PRC)", the following persons cannot be witnesses of the agent's will: persons with no capacity or persons with limited capacity; Heirs and legatees; A person who has an interest in an heir or legatee.
The reason why the form of proxy will is strictly required in legislation is that the will disposes of the testator's estate, which involves the vital interests of the testator, the testator's heirs, the testator's close relatives and other interested parties, and the proxy will is not written by the testator himself, so the authenticity of the will is often difficult to be guaranteed. Strict regulations on the form and essential elements of the will by proxy will help to improve the authenticity of the will, thus effectively protecting the legitimate rights and interests of all parties.
In practice, the dispute between the two sides focuses on the testimony of the will. According to the inheritance law, there should be two witnesses present to witness and sign the will. In practice, it often happens that only one person witnesses and signs it, which does not meet the legal conditions of the will, so it is an invalid will. After the proxy will is invalid, the decedent had no other valid will before his death, and there was no legacy and legacy support agreement. Therefore, if there is legal inheritance, all his legal heirs should inherit the inheritance according to law.
situation
The night before Liu died, in front of his four sons and three daughters, his wife Qin wrote a will: leave all his house shares in Fengtai District to his eldest son (a pseudonym). After writing the will, Liu pressed his handprint, but forgot to write the date. Lao Liu died the next day. The youngest daughter, Liu Mohong (pseudonym), sued Liu Mouming to the court and demanded to inherit her father's house heritage. The eldest son thinks it is natural to inherit his father's share by will.
After trial, the court held that Lao Liu's will was written on his behalf, and there should be more than two witnesses to write the will on his behalf, one of whom wrote it on his behalf and indicated the year, month and day; Signed by the agent, other witnesses and the testator. But if the heir has an interest relationship with the testator, he is the beneficiary, and he cannot be the agent of the book. Because Qin and other children are Liu's heirs, and the will is not dated, the will does not have the formal requirements of the will and is invalid.
The court ruled that Lao Liu's share of the property was handled according to legal inheritance, which was inherited by Qin, four sons and three daughters.
Four. nuncupative/oral will
An oral will refers to a will made in an emergency. However, if the testator can make a will in written or recorded form after the emergency is lifted, the oral will made is invalid.
There are certain conditions for making an oral will. First, the testator dies or is in other critical situations. Under normal circumstances, the testator shall not dispose of his property in the form of oral will. Secondly, due to this critical situation, the testator cannot make a will in the form of a written will. In this case, the testator can make a will in writing, ghostwriting or notarization. He shall not make an oral will. Thirdly, there must be more than two witnesses present, and there must be more than two witnesses present, so as to ensure the authenticity of the oral will.
Procedure of oral will: In critical situations such as dying, if the testator finds that there are more than two witnesses present, the testator will dictate the contents of the will. Witnesses can make records, but the contents of the records cannot be modified or corrected by the testator due to emergency. A witness may not take notes, but what the witness remembers shall prevail.
Because oral will is a form of will that cannot be used in other forms due to emergency, and compared with other forms of will, oral will is a form of will with the least authenticity (or the greatest possibility of error). Therefore, once the state of emergency is lifted, the testator can make a will in other forms (such as writing and recording), and the oral will will naturally become invalid. Even if the testator does not make a will in other forms, the oral will is still invalid.
Verb (abbreviation for verb) audio-visual will
Audio-visual will refers to the will established by audio-visual equipment. When making a will in the form of audio and video recording, two or more witnesses shall be present to witness it. After the testator records his will, the witness shall record his witness certificate on the audio-visual tape, seal the tape, and be signed by the witness * * * *, indicating the year, month and day.
Conditions for the entry into force of will
To have legal effect, a will must have both substantive elements and formal elements. As far as China's civil code is concerned, the following four conditions should be met:
1. The testator must have the capacity for rights and conduct. According to the laws of our country, citizens who have reached the age of 18 and are mentally normal are people with full capacity, and such people have the ability to make wills.
2. The content of the will must reflect the true meaning of the testator. If it is forced or deceived, it is invalid if it goes against the true meaning of the testator.
3, the content of the will must comply with the provisions of our laws and policies. In the will made by the testator, state-owned property, some means of production that cannot be inherited and other property that does not belong to others cannot be designated as their own property to be inherited by others; The will should leave a necessary share of the inheritance to the fetus; A legal heir who has lost the ability to work and has no source of income cannot be deprived of the right of inheritance. If the contents of the will violate the above provisions, the violated part is invalid.
4. Will must be legal.
In order to make the will take effect, it is necessary to make a choice in the form of the will, which is of course based on the actual situation. For example, at some critical moments, the testator is allowed to make an oral will, but at the same time more than two qualified witnesses are needed to witness it. After the crisis situation is relieved, the testator can make a will in written form or recorded form, and the oral will made before is invalid.
I hope the above content can help you. Please consult a professional lawyer if you have any other questions.
Legal basis: Civil Code of People's Republic of China (PRC).
Article 134? A self-made will is written and signed by the testator, indicating the year, month and day.
Article 135? A will that entrusts others to write on behalf of others shall be witnessed by two or more witnesses, and one of them shall write on behalf of others, which shall be signed by the testator, agent and other witnesses, and marked with the year, month and day.
Article 136? Printing a will should be witnessed by more than two witnesses. The testator and the witness shall sign on each page of the will and indicate the year, month and day.
Article 137? A will made in the form of audio and video recording shall be witnessed by two or more witnesses. The testator and the witness shall record their names or portraits, as well as the year, month and day by audio and video recording.
Article 138? A testator may make an oral will in an emergency. An oral will shall be witnessed by two or more witnesses. After the emergency is eliminated, if the testator can make a will in writing or in the form of audio and video recording, the oral will made is invalid.
Article 139? A notarized will shall be handled by the testator through a notarization institution.