Relevant Laws
Article 1135 of the Civil Code of the People's Republic of ChinaA will written on behalf of the testator shall be witnessed by two or more witnesses, one of whom shall write on behalf of the testator, the scrivener and other witnesses, and shall be signed, indicating the year, month and day.
Basic facts of the case
The decedent, Meng and Jiang, had two sons, Meng 1 and Meng 2, and a daughter Meng 3, who died of illness in 2010, and Jiang died the following year due to excessive sadness. Meng and Jiang's parents died around 2000, and Meng 1 had a son, Meng Xiaoyi.
Meng Mou1 believed that the house left by his parents should be inherited by himself and his younger brother Meng Mou2 on the grounds that his sister Meng Mou3 was a foreign-married daughter. Meng Mou3 did not recognize this, so he sued Meng Mou1 and Meng Mou2 to the court, demanding that the real estate left by his parents be divided according to law.
Heard by the courts
During the court trial, Meng Mou1 and Meng Mou2 also claimed that Meng Mou and Jiang had always loved their grandson Meng Xiaoyi very much before their deaths, and repeatedly said that they must give the house to their grandson in the future, and Jiang Mou also left a scrivener will in order to prevent others from competing with his grandson for real estate, indicating that the house would be given to Meng Xiaoyi, so the house should be owned by Meng Xiaoyi. This house has nothing to do with Meng 3, so he does not agree with Meng 3's litigation claim.
In the lawsuit, the court added Meng Xiaoyi as a third party to participate in the lawsuit in accordance with the law, and Meng Xiaoyi said that he accepted the bequest of his grandmother Jiang. Meng Mou1 showed his mother before her deathScrivener will,The Will states:
My name is Jiang, I am old now, and I can't read clearly, so I am now written by Li Mouyang, and I hereby make this will. Meng is my wife, he died of illness in 2010, when he was there, he told me many times, in the future, our house will be given to our grandson Meng Xiaoyi, I have not been in good health recently, I don't want the children to quarrel because of the house in the future, so I decided to wait until I am old, the house in the name of Meng to my grandson Meng Xiaoyi. We also hope that the children will respect our decision. The testator shows the seal of the word "Jiang", the signature of the scrivener Li, and the witness Ji.
During the trial, Meng X 1 applied for the scrivener Li X to appear in court to testify, Li X explained to the court in detail the process of Jiang X making the will, and the witness Ji X did not appear in court to testify because he was on a business trip.
Meng X 1 and Meng X 2 recognized the authenticity of the will and witness testimony, and Meng X 3 did not recognize the authenticity of the will and witness testimony, holding that the seal with the word "Jiang" could not be determined to have been stamped by the mother when making the will.
After trial, the court held that the house involved in the case was purchased during the marriage of Meng and Jiang, and the length of service of the husband and wife was used in the calculation of the house purchase, which belonged to the joint property of the husband and wife.
Questions about Jiang's will. Although Meng asserted that Jiang had left a will on behalf of Jiang during his lifetime, and also provided a will on behalf of the scrivenerHowever, the will was only stamped with the seal of the word "Jiang", and there was no signature of Jiang himselfAt the same time, the plaintiff Meng X 3 raised objections to the authenticity of the will, and when Meng X 1 and Meng X 2 failed to notify the witness Ji X to appear in court for questioning and failed to provide other circumstantial evidenceThe formal requirements of Jiang's scrivener will held by him lacked the formal requirements, and it should be an invalid will.
To sum up, Meng and Jiang have both passed away, and they have not left a legal and valid will, so the house involved in the case should be regarded as the inheritance of the two and inherited by their legal heirs Meng X 1, Meng X 2, and Meng X 3. During the trial, Meng X 2 voluntarily donated his inherited share to Meng X 1, and Meng X 1 also expressed his acceptance of the gift, which the court did not object. The court finally ruled that Meng 3 inherited 34% of the real estate share, and Meng 1 inherited 66% of the real estate share.
Lawyer's statement
In recent years, more and more people choose to make a will to dispose of their future estate, but in practice,There are often situations where the validity of a will is affected by the lack of formal elements of a will.
The main forms of wills are self-written wills and written wills. A self-written will is a will written and signed by the testator himself. A scrivener will is a will written by someone else, but the testator must sign the will in person.
When drafting a self-written will, you need to pay attention to the following:
The will must clearly express the true wishes of the testator and avoid vague or ambiguous expressions;
Secondly, the will needs to comply with the formal requirements prescribed by law, such as the word "will" must be written and the method of property distribution must be clearly specified.
The will must be personally signed by the testator and dated at the signature to ensure the authenticity and legitimacy of the will.
When drafting a scrivener's will, you need to pay special attention to these points:
1.The testator must personally express the contents of the will orally to the scrivener before the scrivener can write it on his behalf;
2.A scrivener will must be noted in the will by the scrivener"Write it for you"and sign, and the testator must personally sign on the will to confirm;
3.The content of the will must truly reflect the testator's wishes, so as to avoid the scrivener from modifying or tampering with the content of the will without authorization.
When making a will, following the above points can effectively avoid affecting the validity of the will due to the lack of formal elements of the will. In addition, when writing a will, it should be as concise as possible, accurate in words, and clearly state the identity of the testator, the time and place of the will, the inheritance information, the distribution plan and other key elements, although the will allows the testator to alter, add and revise, but it is recommended not to alter or delete the key content of the will, if any, it is recommended to indicate the time and sign in the alteration and deletion, and the will should also be dated and signed by all witnesses.