Is a Will Valid if the Testator Does Not Reserve the Share of the Inheritance of an Heir Who Lacks the Ability to Work and Has No Source of Income?

An Analysis of an Inheritance Dispute Case in the Hongshan District Court of Wuhan City

The Changjiang Daily recently published a case of inheritance dispute heard in the Hongshan District Court of Wuhan City. The husband died, leaving three different wills, and the parents, wife and adopted daughter started a lawsuit, but the three wills were all found to be invalid by the court.

Origin of the Case

In October 2001, Cui and Zhang registered their marriage and did not have any children after the marriage; in 2014, they adopted a daughter (born on 3 December 2011).

In April 2020, Cui passed away due to illness, leaving a property and more than 170,000 yuan of provident fund in his name.

In January 2021, Cui’s parents filed a lawsuit in court, demanding that all the property in their son’s name and the provident fund be inherited by the old couple.

Wife Zhang asserted that she had agreed with Cui, for the two sets of property bought within their marriage, one set would be in the possession of Cui, the other set would be in the possession of Zhang. Zhang promised not to participate in the distribution of the estate in the name of Cui, but under no circumstances could the daughter’s right of inheritance be deprived.

The Testator Made Three Wills During His Lifetime

In March 2017, Cui hand-wrote a will that the property in his name could be left to his daughter as inheritance.

In June 2018, Cui hand-wrote a will that all property (including real estate) would be inherited by his parents.

In December 2019, Cui left a video will to redistribute the property after he passed away. His provident fund, annuity, pension will be left to his daughter as education fund; his personal property would be distributed in accordance with the law; his parents, Zhang and his daughter would each get a quarter of the share.

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The Three Wills Made by the Testator Were All Found to be Invalid by the Court.

The court held that: Cui left three different wills, an audio-video will as well as two self-written wills, during his lifetime. According to the law, if there are several wills with conflicting contents, the last will shall prevail (subject to validity). These three wills are invalid because they either lack formalities, or their contents do not conform to the law, or because they contradict with the contents of the earlier wills.

  • The last will is a video will made in 2019. An audio-video will must have more than two witnesses present, while the testator and the witnesses also need to record their names, portraits and time in the audio-video. Cui’s will did not have more than two witnesses and did not meet the formalities of a video-recorded will, and was therefore invalid.

    The succession of Cui’s estate should thus be handled according to his will made in June 2018, however:

  • The second will is a self-written will made in 2018. According to the law, the testator should reserve the inheritance share for the heir who lacks working ability and has no source of livelihood. In this will, the necessary share is not reserved for his adopted daughter (a minor) and is therefore invalid.
  • The first will is a self-written will made in 2017, which left the property in his name as an inheritance to his daughter alone, but then conflicted with the intent of the two subsequent wills and did not take legal effect.

The court ruled that: Cui’s parents and daughter each inherit one-third of the share of a property in Cui’s name and half of the provident fund of more than 170,000 yuan.

Legal Commentary

The author believes that if the self-written will made by Cui in 2018 is complete with the required formalities, the fact that the court only found the will invalid on the grounds that it did not reserve the inheritance share for the heir who lacked working ability and had no source of income is evidently inappropriate.

First, in the spirit of legislation, natural persons enjoy the freedom to dispose of private property, including the freedom of testation.

Article 13 of the Constitution of the People’s Republic of China provides that “the state shall protect the right of citizens to own and inherit private property in accordance with the provisions of law.” The definition of a will in Article 2 of the Detailed Rules on Will Notarisation promulgated by the Ministry of Justice in 2000 is that: “a will is a unilateral legal act in which the testator disposes of his or her personal property or handles other affairs in the manner prescribed by law during his or her lifetime and which takes effect at the time of his or her death.” In short, a will is a unilateral legal act entered into by the testator during his lifetime that takes effect at the time of his death. The inheritance section of the Civil Code grants a natural person the right to freedom of testation. It provides that a natural person may make a will to dispose of his or her personal property and decide independently when, how, to whom, and how much property is to be transferred, etc. Although these provisions do not explicitly state the freedom of testation, private law autonomy in the field of inheritance law is expressed in the form of freedom of testation, which is reflected in, inter alia, the freedom of testamentary act, the freedom of will content and the freedom of will formalities (six legal forms of a will).

Secondly, in terms of legal rules, either by the Civil Code or the current judicial interpretation, the testator’s failure to reserve the necessary share for a specific party in the will in accordance with the law does not invalidate the will entirely, but only such part in the will. This rule is more clearly reflected in Article 25 of The Interpretation (I) of the Supreme People’s Court on the Application of Book One Succession of the Civil Code of the People’s Republic of China: “Where a testator does not make reservation for the share of the estate to a successor who has neither the ability to work nor a source of income, necessary share of the estate shall be left to the successor at the time of disposing of the estate, and only the remaining part can be disposed of according to the distribution principle determined by the will.” In contrast, the fourth clause of Article 1143 of the Civil Code states that “where a will has been tampered with, its affected parts shall be void.” If the consequences of an altered will are also limited to the invalidation of the altered content, it is then clearly improper to hold entire will invalid solely because it does not reserve a share of inheritance for an heir who lacks the ability to work and has no source of income.

Thirdly, in judicial practice, if the will does not reserve the necessary share for the person who lacks working ability and has no source of income, then when the estate is divided, the share to which he/she is entitled should be separated and the rest should be executed according to the will. According to the Supreme People’s Court Guiding Case No. 50, the court held that Article 19 of the Law of Succession of the People’s Republic of China provides that “reservation of a necessary portion of an estate shall be made in a will for a successor who neither can work nor has a source of income.” In this instance, when Guo made his will, he knew that his wife was pregnant and did not reserve the necessary share of the inheritance for the fetus in the will, and that part of the content of the will was invalid. Article 28 of the Law of Succession of the People’s Republic of China provides that “at the time of the partitioning of the estate, reservation shall be made for the share of an unborn child.” In summary, after deducting the inheritance share reserved for the fetus, the remainder of Guo’s estate can be handled according to the distribution principle determined by the will. With reference to a case announced by Wuxi City Intermediate Court in Jiangsu province, the court held that the self-written will made by Hua during his lifetime met the requirements of a valid self-written will in terms of formality. However, the content of the will did not reserve the necessary share of the inheritance for the heir Hua (minor daughter), who lacked working ability and had no source of income. This was contrary to the law, and the content was invalid because it violated the mandatory provisions of legal validity. In the specific distribution of the inheritance, the existing law does not specify the necessary share of the inheritance. In this case, the necessary share of the inheritance should be reserved for the daughter Hua, while respecting the testator Hua’s autonomy to ensure the basic living consumption and expenditure of the former.

In reality, it is necessary to take into account the limited knowledge and understanding of the law by the general public, so the court should be more prudent in determining the invalidity of the will. In this case, if the formality of the self-written will made in 2018 is in accordance with the law and the intention is true, but the testator did not reserve the inheritance share for the heir who lacks the ability to work and has no source of income, then the content of such part is invalid and the entire will should remain valid. The testator’s freedom of testation should be respected, while the necessary inheritance share should be reserved for specific heirs, and the remaining part of the inheritance should still be distributed according to the principles determined by the will. This is perhaps more in line with judicial principles, reason and human needs. 

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Registered Foreign Lawyer (PRC), JC Legal

Sophie is a member of Guangdong Zhuojian Law Firm’s Matrimonial and Wealth Inheritance Committee, a member of the Shenzhen Lawyers Association Civil Law Committee, one of the founding members of Shenzhen's “Estate Administrator” lawyer directory, and a Registered Foreign Lawyer of JC Legal in Hong Kong, where she practises in the areas of family, inheritance and foreign-related inheritance legal affairs, family wealth planning and inheritance, as well as cross-border legal affairs between mainland China and Hong Kong.