The Conflict and Priority Rules of Testamentary Inheritance and Legal Inheritance in Ningbo

The elderly person made a handwritten will during their lifetime, leaving a house to the youngest son. The other children contend that the will is invalid and demand that the estate be divided equally according to statutory inheritance. Which takes precedence—testamentary succession or statutory succession? To state the conclusion upfront: as long as the will is lawful and valid, testamentary succession prevails over statutory succession. The complete order of priority is: “legacy support agreement> testamentary succession or bequest> statutory succession.” However, a will may only dispose of the testator’s own lawful property; any portion that is invalid or left undetermined shall still be distributed in accordance with statutory succession.

1. validity order: will takes precedence over legal succession

Article 1123 of the the People's Republic of China Civil Code states:"After the inheritance starts, it shall be handled according to legal inheritance; if there is a will, it shall be handled according to testamentary inheritance or legacy; if there is a legacy support agreement, it shall be handled according to the agreement. "This article delineates three levels of priority: the first level, the bequest and maintenance agreement (the bequest and the dependant agreed that the dependant shall bear the obligation of birth and death, and the bequest will give the property to the dependant after death) has the highest effect. A legacy support agreement takes precedence over a will, and a will takes precedence over statutory succession—this is the legislature’s greatest respect for the deceased’s autonomy of will.

Two inferences of the subrogation rule are worth noting: firstly, the undisposed property, the property involved in the invalidation or partial invalidation of the will, and the share involved in the relinquishment or loss of the right of inheritance by the heir to the will are returned to the legal inheritance; secondly, the premise of "if there is a will, it should be done according to the will" is legal and valid -- there are problems in any link of formal requirements, the priority of the will is broken.

Six Forms and Formal Elements of 2. Wills

Articles 1,134 to 1,139 of the Civil Code provide for six forms of wills, each with strict requirements:

1. Self-written Will (Article 1,134): The testator shall write all the contents, sign and indicate the year, month and day. A will that is signed after being printed is not a holographic will.
2. Holographic Will (Article 1,135): It shall be witnessed by two or more witnesses, with one of them acting as the scrivener; the testator, the scrivener, and the other witnesses shall all sign it, and the year, month, and day shall be indicated.
3. Holographic Will (Article 1,136): It must be witnessed by two or more witnesses present at the time of execution. The testator and the witnesses shall sign each page of the will and indicate the year, month, and day—“signing each page” is the element most easily overlooked in a printed will.
4. Audio and Video Recorded Wills (Article 1,137): There shall be two or more witnesses present, and the testator and the witness shall record their names or portraits, as well as the year, month and day in the audio and video recording.
5. Oral Wills (Article 1388): It can be set up only in a critical situation, and more than two witnesses must be present to witness it; after the critical situation is eliminated, if the testator can make a will in writing or in the form of audio or video recording, the oral will made is invalid.
6. notarial will (article 1,139): it is handled by the testator through a notary institution, with strong proof and standardized procedures.

There are statutory exclusions regarding the qualifications of witnesses (Article 1,140): Persons without civil capacity, persons with limited civil capacity, and other persons who lack the capacity to act as witnesses; heirs and legatees; and persons who have an interest in the inheritance or bequest—none of these may serve as witnesses. Witness qualification defects will directly lead to the invalidity of the will.

The common form defects in practice also include: the printed version of the self-written will is only signed (which does not meet the requirements of "autographed"); the probate will has only one witness; the printed will omits to sign a certain page; the audio and video recording will does not dictate the year, month and day in the video; the witness invites the legatee or his close relatives. These defects are virtually impossible to remedy after the testator’s death; the only recourse is through handwriting analysis or witness testimony, both of which entail high costs and significant uncertainty—whereas while the testator is still alive, a new will can be executed, but once executed, any subsequent changes directly affect its validity. With respect to a will that is in doubt, heirs may, during litigation, apply for handwriting examination or request the attendance of witnesses; however, conducting a comprehensive, item-by-item review of the requisite elements in advance constitutes the most cost-effective “health check.”

Conflicts between the invalidity of 3. wills and several wills

Article 1,143 of the Civil Code stipulates four invalid situations: (1) The will made by a person without civil capacity or a person with limited civil capacity is invalid; the will made by the (II) under fraud or coercion is invalid; the (III) forged will is invalid; if the (IV) will is tampered with, the tampered content is invalid. Capacity is the focus of the review-whether the will has full civil capacity at the time of the will can be proved by medical records, witness statements, etc.

With regard to the conflict of several wills, the third paragraph of Article 142 of the Civil Code stipulates: "If there are several wills with conflicting contents, the last will shall prevail. "It is worth noting that the Civil Code has abolished the priority effect of notarized wills-there is no longer the old rule that" notarized wills have the highest effect and must be notarized to change ", and later self-written wills, printed wills, etc., can also be changed or revoked as long as the form is legal. The criteria for determination have shifted from “whether or not a document is notarized” to “the chronological order of events” and “the legality of the form.”

Disposition boundary of 4. wills: Only personal legal property can be disposed

There is another premise of testamentary validity that is often ignored-the scope of disposition. A will can only dispose of the personal legal property of the testator:

(I) the common property of husband and wife, the share of spouse shall be separated first. For the real estate registered in the name of the testator but belonging to the joint property of husband and wife, the testator can only dispose of his own half share; if the whole house is "left to a certain child", the part beyond his share is invalid, and the court will first give the share for the spouse, and then execute the testator's own share according to the will. If the spouse dies before the testator, the share of the common property belonging to the spouse enters the inheritance of the spouse, and the testator also has no right to dispose of it unilaterally.

The same holds for (II) property shared by the family or shared with others. The part of the disposition of others' share is invalid and does not affect the validity of other parts of the will (rule of partial invalidity).

The (III) estate must first pay off its debts. Article 1,161 of the Civil Code establishes the principle of limited inheritance: the heir shall pay off the taxes and debts payable by the heir in accordance with the law to the extent of the actual value of the acquired estate, and the portion exceeding the actual value of the estate shall not be so limited as to be repaid voluntarily by the heir. Article 1,163 stipulates that if there is both legal inheritance and testamentary inheritance and bequest, the legal heir shall first pay off the taxes and debts with his income, and the insufficient part shall be paid off by the heirs and legatees on a pro rata basis. In other words, the will "sub-property" does not exempt "first debt"-the heir who waives the inheritance is not liable for the taxes and debts of the heir.

5. must-keep and fetal share: Statutory restrictions on testamentary freedom

Testamentary freedom is not absolute. Article 1,191 provides that a will shall reserve the necessary share of the estate for heirs who lack the ability to work and have no source of income. If the will is not retained, the court will first deduct the necessary share for such heirs when dividing the estate, and then execute the will-judging that "lack of ability to work and no source of income" is based on the state at the beginning of inheritance (at the time of the testator's death), such as children with disabilities and no source of income, elderly parents with no pension and no income.

Article 1155 stipulates that the inheritance share of the fetus shall be reserved when the estate is divided; if the fetus is dead at the time of delivery, the reserved share shall be handled according to the legal inheritance. The share of the fetus is a statutory reservation, and the will may not be excluded. These two rules take precedence over testamentary execution and are a legislative protection for vulnerable heirs.

6. the replacement of legal succession: order, subrogation and subrogation

The part of the will that is invalid, undisposed or abandoned by the heirs returns to the legal inheritance track: Article 1127 stipulates that the heirs in the first order are spouses, children and parents, and the heirs in the second order are siblings, grandparents and maternal grandparents; if there is no heir in the first order, the heirs in the second order shall inherit. The subrogation rule of Article 128 has been expanded: if the child of the decedent dies before the decedent, the descendant's immediate blood relative shall inherit in subrogation (without the number of seniority limit); If the siblings of the decedent die before the decedent, the children of the siblings shall inherit in subrogation-nephews can obtain the share in the absence of the first order of inheritance. In addition, after the beginning of inheritance, before the division of the inheritance of the heir's death, its share of inheritance should be transferred to his heir to bear (transfer inheritance), and subrogation inheritance in the main body, time node are different, easy to confuse in practice.

The custody, execution and inheritance registration of 7. wills

the custody after the conclusion of the will also affects the execution: the original will should be properly kept and told to the trusted heirs, and if conditions permit, it can be handed over to the notary office for custody, so as to prevent loss, damage or "destruction after being found" by the interested parties ". After the death of the testator, the heir shall first verify the authenticity and formal requirements of the will, and then decide whether to go through the channel of "notarization of inheritance rights" or "confirmation of litigation rights": if there is no dispute among all parties, all the heirs shall go to the notary office for notarization of inheritance rights, and register and withdraw the transfer of real estate, equity and deposit with notarization. The withdrawal of deposits and wealth management products usually requires a notarial certificate or an effective legal instrument, and early confirmation of financial institution requirements can reduce round trips. Arranging the custody and notification of the will in advance can significantly reduce the regret of "the will cannot be found and the relatives run errands.

8. Common Misunderstandings and Positive Solutions

Misunderstanding 1: If there is a will, it must be done according to the will. positive solution: when a will is invalid or partially invalid, the invalid part still passes the test one by one according to the four items of legal inheritance-formal requirements, capacity of conduct, expression of will and scope of disposition, and the priority of the will will be established.

Misunderstanding 2: Notarized wills have the highest effect and cannot be changed. Positive explanation: the civil code has canceled the priority effect of notarized wills, and the last valid will shall prevail when the contents of several wills conflict; self-written wills or printed wills with legal form and clear content can be changed to the notarized wills made first.

Misunderstanding 3: A will can dispose of all the property in the family. Positive explanation: a will can only dispose of personal legal property-the share of the spouse in the joint property of the husband and wife, the share of others in the family, and the necessary share of the heirs that must be retained, all of which are not within the scope of free disposal of the will.

Myth #4: An oral will is valid at all times. positive explanation: oral wills are only valid in critical situations, and more than two witnesses must be present to witness; if a will can be made in writing or in the form of audio recording and video recording after the critical situation is eliminated, the oral wills will automatically become invalid -- the usual oral confession is regarded as a will, which is extremely risky.

9. FAQ

Does having a will guarantee that the inheritance will be distributed according to the will?

Not necessarily. When the will is invalid or partially invalid, the invalid part is still inherited according to the law. Check before conclusion: whether the formal elements are complete (self-written signature must be written in person to indicate the date of the year, printing the will must be signed page by page), whether the will has full civil capacity at the time of the will, whether it is coerced by fraud, and whether the disposition is only the legal property of the individual.

Is a notarized will the most effective?

No. The Civil Code has abolished the priority effect of notarized wills, and the last valid will shall prevail in the event of a conflict between the contents of several wills. A self-written will or a printed will with a legal form and clear content may change the notarized will made first.

What should be done if a will disposes of the surviving spouse’s share?

The portion in excess of the testator's share is invalid. The court will first separate the spouse's share (or deal with the spouse's estate) before executing the will on the testator's own share-affecting only that part, not the other terms of the will.

What if the will does not leave a share for the children who lack the ability to work and have no source of income?

The will does not exclude a mandatory retention. When the estate is divided, the court will first deduct the necessary share for the heir and then dispose of the remaining property in accordance with the will. Such heirs should take the initiative to claim and prepare proof of disability, proof of no source of income and other materials.

Does the inheritance have to be repaid together with the debts of the elderly?

The actual value of the estate is limited (limited inheritance). The heir is only required to pay off taxes and debts within the value of the inheritance, and the excess is not compulsory. If there is both legal inheritance and will inheritance, the legal heir shall first pay off, and the insufficient part shall be paid off by the heir and the bequestee in proportion.

10. Practical Legal Insights

The old man in the family left a will, but the other children said that "it should be divided equally according to the legal inheritance". The key to this kind of dispute is to see clearly the order of validity: as long as the will is legal and valid, the testamentary inheritance takes precedence over the legal inheritance, and the complete order is that the bequest support agreement takes precedence, followed by the will or bequest, and finally the legal inheritance. However, it should be noted that a will can only dispose of one's own legal property, and the part that is invalid or not disposed of is still handled in accordance with legal inheritance. First, establish this framework so that you don’t end up fighting for the wrong direction right from the start.

From the practical point of view, almost all the disputes lie in "whether the will is effective or not. The requirements for different forms of wills are quite strict: a handwritten will must be written entirely in the testator’s own hand, signed, and dated with the year, month, and day; a will that is typed and merely signed does not qualify as a handwritten will.Substitutes, prints, audio and video wills must meet the requirements of form and witnesses, printed wills must be signed page by page, witnesses can not be heirs, legatees or their stakeholders. What the parties have to do is to fix the original will, the witness situation, the physical condition and the meaning of the will at the time of making the will as soon as possible. Once the form is defective, it is almost impossible to make up for it afterwards.

There are still two boundaries to be predicted in advance: one is the exception of testamentary freedom-the share of the heirs who lack the ability to work and have no source of income, and the share of the fetus should be kept in full, otherwise the corresponding part may not take effect; the other is that when there are conflicts between several wills or wills and agreements, priority should be given according to time and nature. When negotiating, the parties are often most concerned about the "face" and "sense of fairness", you can first check the form of the will and property ownership, the risk of invalidity on the table, and then talk about discount compensation. Avoiding the pit tip: don't force the old man to make a new will when he is still alive, and don't preemptively dispose of the estate when he finds the will invalid, which is easy to fall into passivity in the inheritance lawsuit.

Testamentary succession and statutory succession are not mutually exclusive: if the will is valid, it takes precedence; any portions not covered by the will or rendered invalid are governed by statutory succession. For those who intend to make a will, there are four tips: first, make a will according to the legal form and strictly abide by the requirements, print the will page by page signature, proxy and audio and video recording to arrange qualified witnesses; Second, only dispose of personal legal property, involving the joint property of husband and wife, first separate the spouse's share; The third is to reserve the necessary share for heirs who lack the ability to work and have no source of livelihood; fourth, when several wills coexist, ensure that the latest form is legal and the content is clear. For the party asserting the invalidity of a will, the primary areas of review focus on four aspects: formal requirements, capacity to act, manifestation of intent, and scope of disposition. Planning ahead and preserving evidence of the will‑making process is the most cost‑effective way to prevent post‑death family disputes.