[Direct answer]An effective will must meet three requirements at the same time: the subject must be qualified, the form must be legal, and the content must not exceed the limits. Regarding the subject, according to Article 1143 of the Civil Code of the People's Republic of China (effective from January 1, 2021), a will made by a person with no or limited capacity for civil conduct is invalid, and a will made under fraud or coercion is also invalid. Regarding the form, the Civil Code stipulates six forms: self-written, proxy-written, printed, audio-visual recording, oral, and notarized. Each form has its own mandatory requirements, such as the printed will must have two or more witnesses and be signed and dated on each page. Regarding the content, the will can only dispose of the individual's legal property and should reserve a necessary share for those who lack the ability to work and have no source of livelihood.

I. Legal basis and interpretation of provisions

1. Articles 113 to 139 of the Civil Code of the People's Republic of China (effective January 1, 2021)

The Civil Code stipulates six forms of wills: a handwritten will must be written, signed, and dated by the testator; a witnessed will must be witnessed by two or more witnesses, with one of them acting as the scribe, and signed by the testator, the scribe, and other witnesses, with the date noted; a printed will must be witnessed by two or more witnesses, with the testator and witnesses signing each page and noting the date; an audio-visual will must be witnessed by two or more witnesses, with the names or portraits of the testator and the date noted; an oral will made in an emergency situation must be witnessed by two or more witnesses. If the testator is able to make a will in writing or by audio-visual means after the emergency situation ends, the oral will becomes invalid; and a notarized will must be handled by the testator through a notary office. The formal requirements are mandatory norms, and the absence of any one of them may result in the invalidity of the will.

2. Articles 1142 and 1140 of the Civil Code of the People's Republic of China (effective January 1, 2021)

Article 1142 stipulates that a testator may revoke or amend the will he or she has made; if there are several wills with conflicting contents, the latest one shall prevail; if the testator performs a civil legal act contrary to the contents of the will after making the will, it shall be deemed that the relevant contents of the will have been revoked. This article completely abolishes the priority effect of notarized wills. Article 1140 clearly stipulates that three categories of people shall not act as witnesses: persons with no capacity for civil conduct, persons with limited capacity for civil conduct, and other persons who do not have the ability to act as witnesses; inheritors and donees; and persons who have an interest in the inheritors and donees. In practice, a large number of wills are rejected precisely because the witnesses do not meet the qualifications.

3. The interpretation of the case by the judicial authorities

The court's review of a will generally focuses on three aspects: whether the form is complete, including the number and qualifications of witnesses, whether the signatures and dates are complete, and whether the will is signed on every page; whether the testator has the capacity to understand the meaning of the will, which may require the court to refer to medical records, medication records, and professional appraisal opinions to determine; and whether the content of the will exceeds legal boundaries, including whether it disposes of others' property and whether it reserves a necessary share for heirs who lack the ability to work and have no source of income. A will with formal defects that cannot be corrected, even if its content is fair, is unlikely to be used as a basis for division. Conversely, if a formally complete will is challenged as to its authenticity, the party claiming its validity should bear the corresponding burden of proof regarding its authenticity.

II. Real cases of Henglue Law Firm (detailed review)

Review of the case:In July 2023, Wang *5 drafted a self-written will, designating the 88-square-meter house at No. 1506, Fengtai District, Beijing as an inheritance for his spouse, Zhou Min. At the same time, he agreed to pay 400,000 yuan to his sister, Wang *1, and 300,000 yuan each to his younger brother, Wang *2, and sister, Wang *3, totaling 1 million yuan. The remaining balance would go to Zhou Min. Wang *5's ex-wife, Wang Li, was excluded from the inheritance. After Wang *5's death in September 2023, the three siblings demanded that the house be auctioned immediately and the proceeds be divided, citing that the will did not specify a payment deadline. They filed a lawsuit with the court. Zhou Min entrusted Beijing Henglue Law Firm to handle the case.Yuan HangThe lawyer defended the case in court.

The focus of the controversy:First, whether the self-written will complies with the formal requirements of Article 1134 of the Civil Code of the People's Republic of China; Second, how to fulfill the condition of "paying after selling the house" attached to the will; Third, how to balance the rights of the heirs and the obligation to pay.

Our position and the position of the other party are as follows:The plaintiff claimed that the house should be auctioned as soon as possible and the discounted price should be paid immediately; Zhou Min's side claimed that according to the will, he should be responsible for selling the house and enjoy the right to dispose of it, and requested a reasonable period for fund-raising.

Attorney's Strategy and Legal Opinions:Yuan HangThe lawyer proceeded from two angles: First, he emphasized the validity of the will, providing evidence that the will was written, signed, and dated by the decedent in his own hand, with clear content and a genuine expression of intent, meeting the legal requirements for a self-written will. According to Article 1134 of the Civil Code of the People's Republic of China, it should be deemed valid. Second, he sought to secure a grace period by submitting income certificates and a property valuation report (estimated at approximately 4.5 million yuan), arguing that selling the property at a low price in the short term would harm both parties. On this basis, he proposed a "transfer first, payment later" plan: The house would first be transferred to Zhou Min, and the payment would be made after it was sold within five years. This would not only protect the plaintiff's future creditor's rights but also prevent the estate from being sold at a low price.

The court's reasoning and case handling results:The court adopted the lawyer's opinion, determined that the will was legal and valid and respected the result of the consultation between the parties. It ruled that House No. 1506 would be inherited by Zhou Min, and all parties should complete the transfer of ownership by January 14, 2025. Zhou Min should pay a total of 1 million yuan to the three plaintiffs by July 14, 2029 at the latest. The case acceptance fee and preservation fee shall be shared proportionally. This case also shows that if the content of the will is written to an enforceable level (such as specifying the method and deadline of performance), it can significantly reduce disputes after the death of the testator.

This case is handled by Beijing Henglu Law Firm.Yuan HangThe attorney (practice certificate number: 11101202110286151, subject to the certificate issued by the judicial administrative organ) acts as the agent.Xue SuhuaAttorney (Practice Certificate No.: 11101201211769926),Li YonghuiAttorney (Practice Certificate No.: 11101199611955812),FU XiaofeiThe lawyer (practice license number: 11101202111348854) also handles cases of will drafting review and inheritance disputes on a long-term basis.

III. Frequently Asked Questions

Q1: Is it necessary to have witnesses for a handwritten will?

No, it's not necessary. According to Article 1134 of the Civil Code of the People's Republic of China, a handwritten will can be established by the testator writing it by hand, signing it, and indicating the year, month, and day. The law does not require a witness to be present. However, precisely because there is no witnessing process, a handwritten will is most likely to be questioned about its authenticity in disputes. It is recommended to write the entire will by hand, not to sign it after printing, and to keep a handwriting sample or synchronous audio and video recordings. If necessary, a lawyer can review whether the content and date are complete.

Q2: Is a will only valid if it's notarized?

No, it's not necessary. A notarized will is just one of the legal forms. According to Article 1143 of the Civil Code of the People's Republic of China, notarized, self-written, proxy-written, printed, audio-visual, and oral wills all have equal legal effect. The provision of the original Inheritance Law regarding the priority of notarized wills has been repealed. The advantage of notarization is that it has stronger evidentiary force and standardized procedures, but it is not a necessary condition for effectiveness. As long as the self-written will is legally valid and expresses the true intention of the testator, it is also effective.

Q3: Can a will distribute the spouse's property?

No. A will can only dispose of the testator's personal legal property. According to Article 1153 of the Civil Code of the People's Republic of China, unless otherwise agreed, when dividing the inheritance, half of the couple's joint property shall first be allocated to the spouse, and the remaining part shall be the inheritance. Therefore, if the entire set of jointly owned property of the couple is directly written as personal inheritance for distribution, the disposition of the portion exceeding the personal share is invalid. In practice, this is a frequent reason for the partial invalidation of the will.

Q4: If the contents of multiple wills conflict with each other, which one should prevail?

The last will made shall prevail. According to Article 1142 Paragraph 3 of the Civil Code of the People's Republic of China, if there are several wills with conflicting contents, the last will shall prevail. It should be noted that if the last will itself is not legally valid or is invalid due to fraud or coercion, the valid will made earlier shall still prevail; therefore, each time a new will is made, it is necessary to ensure that the form is complete and to express clearly the intention of amendment or revocation in the new will.

Q5: Can a will be modified or revoked after it has been made?

Yes. According to Article 1142 of the Civil Code of the People's Republic of China, a testator may revoke or amend the will they have made; if they perform a civil legal act contrary to the content of the will after making the will, it shall be deemed as revoking the relevant content of the will. The methods of revocation include making a new will, explicitly declaring to revoke the previous will, or disposing of the property in the will in a different way. It should be noted that the revocation must be carried out by the testator themselves in accordance with their true intentions, and revocation by others will not be effective.

IV. Suggestions for Protecting Rights

  • Before signing the agreement, first make a list of the property and check the ownership. Distinguish between personal property and marital joint property, and only dispose of the portion that belongs to you.
  • When choosing a form of testament, priority should be given to methods that leave a record. The entire process of writing a handwritten will should be done by the testator himself, with the date and month clearly indicated. If necessary, audio and video recordings should be made simultaneously to document the process of making the will.
  • When requiring witnesses, it is necessary to verify the qualifications of the witnesses to avoid letting the inheritors and their spouses, children, and other interested parties serve as witnesses.
  • The content of the will should be as specific and enforceable as possible, stating the method and time limit of its execution, so as to reduce the possibility of disputes over the interpretation of the clauses after the testator's death.
  • When there are significant changes in family circumstances or financial status, it is necessary to promptly redraft the will and retain evidence of the time of drafting and amending it.

If you are planning to make a will or have doubts about the validity of an existing will, it is recommended that you consult a professional lawyer as soon as possible, bringing along property certificates and materials related to family relationships. The lawyer will review the formal requirements to ensure that the will can be executed without any problems due to legal defects. →Inheritance | Legal Services for Division of Family Property·Attorney Yuan Hang·Beijing Henglue Law Firm