Insights

Can Ningbo will attach conditions? Is "no support, no inheritance" valid?

Ningbo Author：LuXu WANG

In Ningbo, many elderly people include an “additional condition” in their wills: the house is to go to the child who takes care of me; if anyone fails to look after me, they can forget about inheriting anything. This type of arrangement is legally referred to as a will subject to obligations. To state the conclusion clearly: a will may impose obligations or set conditions, but the legal effects of “imposing obligations” and “setting conditions” differ. If an obligation is imposed, and the heir or legatee fails to perform it, upon request by an interested party or a relevant organization, the people’s court may revoke their right to inherit the bequeathed property subject to that obligation. By contrast, if a will sets a condition for its effectiveness, and that condition is not fulfilled, the relevant provision of the will has no legal effect whatsoever. At the same time, not just any “condition” can be included in a will: provisions that restrict freedom of marriage, deprive an heir who lacks the capacity to work and has no source of livelihood of their statutory share, or otherwise contravene the law—no matter how clearly they are set forth in writing—may be deemed invalid. Below, by drawing on the provisions of the Civil Code and several real-life court cases, we will thoroughly explain this issue.

1. What exactly can be attached to a will?

What can be attached is "obligation"

The content of the will is mainly to dispose of property, but the testator can assign certain obligations to the heir or bequestee at the same time of distributing the property. Common and lawful obligations include:

  • Care for specific relatives, such as requiring heirs to continue to care for elderly spouses, sick siblings after their own death;
  • Payment of maintenance on a regular basis, for example, a child who acquires a property pays a certain amount of maintenance to a relative every month;
  • Maintenance and repair of ancestral homes or specific houses, such as requiring them to remain in their original condition and to be inspected and repaired on schedule;
  • To undertake funerals and sacrifices, such as handling funeral affairs and offering sacrifices to ancestors on an annual basis;
  • Paying debts or supporting minor siblings, such as paying off arrears with acquired inheritance and supporting underage siblings.

The above obligations are "as" or measurable payments, with the characteristics of performance and judgment, recognized by law.

Content that cannot be attached

Some of the content that looks like "conditions" actually steps on the red line of the law:

  • Restrictions on the freedom of marriage, such as "no remarriage" and "giving inheritance without marrying another person", are interference in the freedom of marriage and violate legal provisions and public order and morals and are null and void;
  • Deprivation must keep a share, the Civil Code requires the will to keep the necessary share for the heirs who lack the ability to work and have no source of income, "whoever does not obey will not give a cent" if this part of the share is touched, the corresponding content will not take effect;
  • Restriction of personal freedom, compulsion to believe, and request to engage in illegal activities, such "obligations" are illegal in themselves and the agreement is invalid;
  • Other requirements that are clearly contrary to public order and good morals.

In a word: attached obligations should "fall on money and things" and should not be "locked in people". Obligations are only tenable when they pertain to the acquisition and transfer of property; once they involve the coercion of persons, they may be deemed invalid.

2. distinguish between "obligatory" and "conditional"

This is the most critical and confusing point of the full text. Many disputes arise precisely from conflating the two, and when writing, the effects of the two are often confused as well.

Obligations: The will has entered into force and the obligation is a "burden"

In a compulsory will, the distribution of the estate itself is determined, and the obligation is only a burden attached to the heir or bequestee. For example: “The house registered under my name shall be inherited by my eldest son, but the eldest son is required to pay his mother a monthly living allowance of one thousand yuan.” “The ownership of the house has been determined: the eldest son, as the heir, has acquired the property. If he fails to fulfill his obligation without just cause, other parties (interested persons or relevant organizations) may petition the court to revoke his right to inherit the ‘burdened’ portion of the estate.” In other words, the imposition of an obligation pertains to the “performance” thereof, with the consequence being the revocation of that particular right, rather than rendering the will invalid from the outset.

Conditions: Whether the conditions are fulfilled or not determines whether the will will take effect or not.

A will with conditions for entry into force is treated as a prerequisite for the validity of the will. For example: “If the youngest daughter continues to care for her mother for a full three years after my death, the house shall belong to the youngest daughter.” At this point, the condition that “care shall be provided for a period of three years” does not constitute an additional burden; rather, it is a prerequisite for the validity of the will. If the condition is not met, that particular provision of the will shall not take effect, and the house shall be disposed of in accordance with the other valid provisions of the will or by statutory succession.

The actual difference between the two

  • The timing of the judgment is different: the attached obligation examines whether the obligation is fulfilled after the will takes effect; the attached condition examines whether the condition is fulfilled before the will takes effect;
  • The legal consequences are different: if the attached obligation is not fulfilled, the right to accept the part of the estate will be canceled (Article 1144 of the Civil Code); if the attached condition is not fulfilled, the part of the will will will not take effect;
  • The direction of proof is different: the attached obligation is to prove "non-performance without justifiable reasons"; the attached condition is to prove "whether the condition is fulfilled".

Understanding this difference is the only way to write the arrangement right: if you want someone to "do not work, you can't get it", it is more appropriate to write it as an obligation; If you want someone to "give it only when you have done it", it is more appropriate to write it with effective conditions.

3. Typical Conventions

"Who supports me, who owns the property"

This is the most common way of writing. In a case heard by the People’s Court of Jieshou City, Anhui Province, an elderly man named Tian gifted his demolition compensation to his eldest son, Liu, and his second son, Liu 1, on the condition that they take turns providing for his care. After the agreed period, the eldest son, Liu, failed to fulfill his caregiving obligations as stipulated. The court determined that he had not performed the duties set forth in the conditional gift agreement and ordered the gift to be revoked, with the return of RMB 85,000. This case demonstrates that stipulating “support obligations” as conditions in a gift agreement is valid; once the obligor fails to perform, the donor (in cases of lifetime gifts) or any interested party (in cases of testamentary gifts) may seek to rescind or revoke the corresponding rights. It should be noted that a will should not directly state, “Failure to provide support shall result in the loss of inheritance rights,” as the loss of such rights is expressly prescribed by law. A more prudent approach is to stipulate support as an obligation attached to the inheritance and to provide that, upon request, the right to inherit that particular portion may be revoked if the obligation is not fulfilled.

"Must be sacrificed every year"

It is possible to write sacrificial sweeps as obligations in form, but such obligations are difficult to enforce and rely more on moral consciousness. In the event of a dispute, courts typically place greater emphasis on whether financial support and daily care have been adequately provided. Therefore, it is advisable to include this provision in conjunction with other enforceable obligations (such as providing living expenses or maintaining the property) to avoid the difficulty of enforcement that would arise from merely stipulating the duty to perform ancestral rites.

"No sale of ancestral homes"

It may be agreed that the heir "shall not dispose of a particular house without authorization and shall remain in its original state", and such restrictions are generally valid within reasonable limits. However, if the stipulation is that the property “shall never be transferred and may not be disposed of by any descendants,” such a restriction—being excessively long in duration and impeding the normal circulation of property—may easily be challenged on the grounds of its validity. A more prudent approach is to collaborate with the executor or supervisor of the will to establish maintenance standards and specify the consequences for non-compliance.

"Caring for underage siblings"

It can be written as an obligation: the heir who acquires the estate is responsible for the living and education expenses of the minor siblings until they reach adulthood. This type of obligation specifies both the beneficiary and the performance standard, making it highly enforceable; its effectiveness is further enhanced when combined with the appointment of a guardian or an executor.

Consequences of non-performance of obligations by the 4.

Legal basis: Article 1144

Article 1144 of the Civil Code states: "Where a testamentary succession or bequest is accompanied by an obligation, the heir or bequeathed shall perform the obligation. If a person fails to perform the obligations without justifiable reasons, upon the request of an interested party or a relevant organization, the people’s court may revoke their right to inherit the portion of the estate subject to such obligations. This provision constitutes the core rule of an onerous will and encompasses three key aspects:

  • The obligor shall perform the obligations attached thereto.
  • the prerequisite for the cancellation of rights is "failure to perform obligations without justifiable reasons";
  • The result is that the people's court "cancels its right to accept the obligatory part of the estate", subject to the "request" of the interested party or the organization concerned ".

It is not an automatic loss, it must be "requested by the person and the court"

The cancellation of such rights does not occur automatically: it requires an interested person or organization to make a request to the court, which will then decide to cancel it. In practice, there are many cases where individuals take possession of an inheritance burdened with obligations but then neglect to address them; however, if no one makes a claim, the court will not intervene on its own. Therefore, designating an executor or a supervisor in the will is crucial, as it allows for timely enforcement when the obligated party fails to fulfill their duties.

How should partial non-performance be handled?

If the obligor performs only part of the property, such as acquiring multiple properties but only taking care of the elderly for a period of time, or only bearing part of the expenses, the court may, in combination with the degree of performance and the correspondence of the obligation, cancel only that part of the estate rights corresponding to the unfulfilled obligation, rather than canceling them all. In the case of Zhong v. Zhu, heard by the Intermediate People’s Court of Shaoxing City, Zhejiang Province, the court determined that the donee had failed to fulfill its duty of support and upheld the original judgment revoking the provision granting a 75-square-meter resettlement apartment as a gift. Similarly, in the case of Chen, heard by the People’s Court of Changning City, Hunan Province, the court also ruled to revoke the gift under the “House Allocation Agreement” on the grounds that the three defendants had failed to perform their duty of support and had even assaulted the elderly person. These cases all reflect the approach of “partial obligations correspond to partial assets.”

The relationship between the 5. and the legacy maintenance agreement and the mandatory retention.

Relationship with legacy maintenance agreement

The bequest maintenance agreement is mutually agreed upon: the dependant assumes the obligation of the heir to live and die, and the property of the heir is bequeathed to the dependant. Its effect takes precedence over the will. If a will is accompanied by a testamentary trust agreement that conflicts with it, the agreement generally prevails. When a will subject to obligations and a testamentary trust agreement both pertain to the same property, particular attention must be paid to their order of precedence to avoid disputes arising from the “double disposition” of the same asset.

Relationship with the must-stay

The Civil Code requires a will to reserve the necessary share of the estate for heirs who lack the ability to work and have no source of livelihood. Even if a will imposes obligations, it may not infringe upon the mandatory share; any provisions that encroach upon the mandatory share shall be void, while the remaining provisions shall remain valid. Furthermore, persons who were financially dependent on the deceased but are not heirs, or those who provided substantial care to the deceased, may be entitled to a reasonable share of the estate (Article 1131). Such considerations should also be taken into account when drafting a will, so as to ensure that the arrangements for obligations align with the actual circumstances of the elderly person’s dependency.

Distinction between two kinds of "attached obligations"

It should also be noted that the "attached obligation gift" before death is not exactly the same as the "attached obligation" in the will: the former applies to articles 661 and 663 of the Civil Code. If the donee fails to perform the agreed obligation, the donator may revoke the gift, and the right of revocation shall be exercised within one year from the date when he knows or should know the cause of revocation; The latter applies to Article 1144 of Inheritance Code, and the interested parties or relevant organizations request the court to cancel. With a lifetime gift, the process is swift, and the return of the gifted property can be demanded immediately; with a testamentary arrangement, it takes effect only after death, requiring someone to assert their rights in a timely manner.

6. the boundary of the effect of the "coercion by will" clause.

The content that restricts the freedom of marriage is invalid

It is understandable that the testator wants his children to take care of themselves, but if "no remarriage" and "no love" are written as conditions for acquiring an inheritance, it constitutes an interference with the freedom of marriage. The Civil Code protects the freedom of marriage; therefore, such agreements are invalid as they violate the law and public order and good morals. It is also important to distinguish: when making its determination, the court does not simply deem a decision invalid merely because it involves refusing to grant a divorce. In the case of Chen v. Li, heard by the Chaoyang District People’s Court of Beijing, the donee undertook to “take full responsibility for her husband’s daily living and refrain from divorce.” Taking into account the context of the gift and the reasonableness of the time frame of the obligation (the donee’s spouse passed away the following year), the court deemed the conditional agreement valid. It is evident that the key lies in whether the obligation entails a compulsory restriction on personal freedom, whether it violates the principle of marital freedom, and whether the purpose of the agreement is legitimate. Demanding or obtaining property in exchange for the condition of “never being allowed to marry” is generally deemed invalid.

The contents that restrict personal freedom and violate public order and good customs are invalid

The requirement that the heirs "must not leave their home", "must live with someone and be monitored", or even "must give up their religious beliefs", etc., is difficult to obtain support because of the personal freedom and human dignity involved. The scope of contractual obligations can be summarized as follows: obligations that are property-based or involve the provision of performance may be imposed, but obligations that restrict personal freedom, marital freedom, or require the performance of illegal activities may not. When drafting a clause, start by asking: Does this provision govern “assets and funds,” or does it govern “people”? The part that governs people carries the greatest risk.

How to write 7. to ensure the implementation

Obligations should be clear, measurable and enforceable

  • State who the obligor is, what the content of the obligation is, the standard and time of performance, for example, "pay a certain 1,000 yuan before the 10th of each month";
  • Clarify the scope of property corresponding to the obligation, write down which suite, which deposit, how much share, so that "the obligation corresponds to the property";
  • Avoid vague expressions, such as "be nice to me" and "be filial", otherwise it is difficult to determine whether to perform in case of disputes.

Select "obligation" or "condition"

If you want to express "cancel if you don't perform", you should use an obligation. If you want to express "it will take effect only after you have done it", you should attach conditions for it to take effect. The two can be used together, but they must be clearly distinguished and each placed in its proper context to avoid self-contradiction.

Appointed executor or supervisor

Article 1133 of the Civil Code allows the testator to appoint an executor who is responsible for the administration of the estate, the handling of claims and debts, and the division and delivery of the will according to the contents of the will. For a will subject to obligations, appointing an executor or a supervisor—such as a trusted relative, the residents’ committee or villagers’ committee, a lawyer, or a notary institution—is of great significance: they can promptly assert the rights when the obligor fails to perform, thereby ensuring that Article 1144 is effectively implemented. It is also possible to agree on periodic reporting and the retention of performance records, ensuring that everything is documented and verifiable.

The form should be legal and can be retained.

Wills can be made by self-writing, writing, printing, audio and video recording, oral, notarization and other forms, but each has its own form requirements. To minimize disputes, it is advisable to prioritize notarized wills or have the will witnessed by an attorney with full video recording throughout the process. In Ningbo, the notarization channels are well-established and should be given priority consideration.

How to deal with 8. disputes

Who has the right to request

According to article 1144, "interested parties or organizations" may request the court to cancel. Stakeholders generally refer to other heirs, legatees, creditors, and other persons who are affected by the failure to fulfill such obligation; relevant organizations typically include the decedent’s former employer, residents’ committees, village committees, civil affairs departments, and the like.

Burden of proof

The party who claims that the obligor "fails to perform his obligations without justifiable reasons" bears the burden of proof, such as providing bank records of unpaid living expenses, witness testimony of unattended witnesses, communication records, medical treatment and escort, etc. If the obligor claims to have “justified reasons” (such as having made every reasonable effort to provide care or being unable to perform due to objective circumstances), they must also furnish corresponding evidence.

How the Court Discretions

The court will, taking into account factors such as the nature of the obligation, the extent of its performance, the fault of the parties, and the correlation between the property and the obligation, determine whether to rescind the obligation and, if so, to what extent. Generally, the principle of proportionality is followed—namely, that obligations correspond to property, and partial non-performance results in partial cancellation—rather than an across-the-board deprivation.

Class Case Reference: In the case of Yan Mouqiu v. Yan Mou Testamentary Succession (Case 52 of Chinese Court's Case of 2023, Marriage, Family and Inheritance Dispute), the decedent was designated to inherit through a notarized will and attached the restriction of "the estate cannot be passed on to a foreign surname". The court determined that the restriction was a restriction on the heir's separate disposition after obtaining the property, and the validity of the claim rather than a prerequisite of inheritance, the content is valid, and the interested party may claim responsibility separately in case of violation. Trial court: Beijing Fengtai District People's Court of First Instance and Beijing Second Intermediate People's Court of Second Instance Case No.:(2021) Beijing 02 Minjing No. 4133; Source: Knowledge Base "Chinese Court 2023 Cases, Marriage, Family and Inheritance Disputes".

9. Frequently Asked Questions

1. Is it valid to simply write in a will, “If you fail to provide support, you will not receive any inheritance”? The core meaning of “

‘No support, no provision’” can be achieved through the imposition of obligations, but care must be taken in both the wording and the legal basis. The loss of inheritance rights is clearly stipulated by law, and it is not appropriate for a testator to "declare" a person's loss of inheritance rights on his own; it is more secure to write it as "maintenance is an additional obligation, and if it is not performed, the court may cancel its right to accept that part of the estate at the request of the interested party or the organization concerned" (article 1144), and shall not deprive it of the necessary part.

2. Clearly state, “Whoever takes care of me gets the house.” What if both children provide care?

If the obligation is "care", the standard can be agreed in advance (such as monthly rotation, according to the proportion of payment), or the agreement "all obligations are fulfilled, according to the agreed proportion of distribution". When the agreement is not clear, the court will deal with it in the light of their respective circumstances. It is suggested that the proportion of distribution and the way of judgment should be clearly written in the will to reduce disputes afterwards.

3. Must a will with obligation be notarized?

notarization is not compulsory in the law, but the notarized wills are standardized in form and have strong probative power, which saves more trouble when disputes occur. Ningbo has well-established notarization resources; it is recommended to prioritize notarization, or to have a lawyer witness and record the process on video to document the establishment of the agreement.

4. The obligor just didn't take care of it temporarily, and then he did his duty again. Can he recover it?

Before the court makes the decision of cancellation, if the obligor complements the performance, the interested party may not claim or withdraw the request; the court will also decide according to the actual performance. If part of the estate has been acquired and then fulfilled, the treatment depends on the specific facts and claims, and the evidence should be fixed as soon as possible.

5. If the obligor dies first, what about the legacy with the obligation?

Obligations often have personal exclusiveness, and usually the heirs of the obligor cannot naturally inherit their status of "performing obligations in exchange for inheritance"; if the obligations cannot be performed, the corresponding inheritance should be treated according to other valid contents of the will or legal inheritance, and the specific judgment should be combined with the agreement.

6. Can you write "If you don't carry out my arrangement, you won't be allowed to inherit, and you will have to compensate"?

"no inheritance" can not be set by the testator, but "claim for compensation" can be claimed separately if it belongs to the relief of losses caused by breach of contract or infringement. A more practical approach is to clearly define the obligations, designate the person responsible for enforcement, and specify the consequences of non-compliance, thereby making the enforceable provisions concrete rather than relying on vague threats.

10. Lawyer's Practical Insights

Some people want to "control" their children with a will, and write a sentence of "no support, no inheritance". This kind of arrangement is not completely invalid, but it is necessary to distinguish whether it is "with obligation" or "with conditions". Wills can set obligations for heirs or legatees, such as requiring a child to be responsible for providing for the aged and taking care of the affairs, which is called attached obligations. However, if you do not support, you will be deprived of the right of inheritance ", which uses negative inaction as a condition for stopping, the boundary should be careful, especially the clauses that use wills to" force "spouses and restrict remarriage are often deemed invalid because they violate public order and good customs or freedom of marriage.

In terms of operation, if you want to attach maintenance obligations to the heirs, it is suggested to write a definite "will with obligations", which clearly states the contents of obligations, standards of performance and supervision methods, and specifies who will supervise and how to deal with non-performance. Regarding evidence, when making a will, one may simultaneously record a video explaining their intentions; in the event of a future dispute, the video and witness testimony can serve to demonstrate the testator’s true intent. Another key is to keep a copy: even if the will has obligations attached, it cannot write down the basic share of heirs who lack the ability to work and have no source of income, otherwise the part will be deemed invalid. don't touch this red line, and the share of vulnerable families should be kept enough.

If there is a dispute within the family because of "who is more filial", the will with obligation can become a bargaining chip, but the premise is that the obligation can be verified and can be proved, otherwise it is just a blank text. Avoiding the pit is not to use the will as a tool to control the family-to "do not divorce" "do not move" as a condition to dispose of property, the probability of not standing. In terms of timing, the establishment and notarization of the elderly is the most stable when they are alive and sane. If children have differences in the performance of their obligations afterwards, they can negotiate adjustments or request the court to decide. However, don't expect to use a paper threat clause to solve the maintenance problem. Maintenance itself is a legal obligation and can only go long without pressure from a will.