[Direct answer]It's not necessarily invalid. Whether the will made by an elderly person with dementia is valid depends on whether they can recognize the consequences of their actions when making the will. 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; however, being ill does not necessarily mean having no capacity for civil conduct. The party claiming invalidity must provide evidence to prove it. If there is a dispute over the validity of the will, it is necessary to obtain the medical records, video recordings of the will-making process, and witness statements as soon as possible. If necessary, apply for a civil capacity assessment and claim it together in the inheritance litigation. For related handling procedures, please refer to the following link:Legal services for inheritance succession, or consultBeijing Henglu Law Firm.

I. Legal basis and interpretation of provisions

1. Article 1143 of the Civil Code of the People's Republic of China (effective January 1, 2021)

The article clearly stipulates that the will made by a person without civil capacity or a person with limited civil capacity is invalid; the will must express the testator's true intention. A will made under fraud or coercion is invalid, and a forged will is invalid. If the will is tampered with, the content of the tampering is invalid. The applicable premise is that the testator lacked the corresponding capacity to make a will at the time of making the will, rather than simply suffering from a certain type of disease. Alzheimer's disease usually progresses gradually, and the patient usually retains the ability to recognize things in the early stage. Therefore, it cannot be presumed that the will is invalid solely based on the diagnosis certificate. Evidence must be provided around the testator's state of consciousness at the time of making the will, such as hospitalization records, mental status examination records, video footage of the process of making the will, and witness statements, etc.

2. Article 90 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China (effective on February 4, 2015)

The party concerned shall provide evidence to prove the facts on which the claims he/she has put forward are based; if he/she fails to provide evidence or the evidence is insufficient to prove his/her factual claims, the party who has the burden of proof shall bear the adverse consequences. In the case of disputes over the validity of a will, the party who claims that the testator lacked capacity when making the will shall bear the burden of proof, and usually needs to apply for a civil capacity assessment; if the assessment institution refuses to accept the case on the grounds that it exceeds the technical conditions, and there is no supporting evidence such as medical records, the court generally will not accept the invalid claims.

3. Practical adjudication guidelines

The court usually reviews three points: Firstly, the capacity for action must be determined in accordance with Article 24 of the Civil Code through legal procedures, and it cannot be directly declared as having no or limited capacity for action based on the name of the disease; Secondly, the review point is fixed at the "time of making the will". Even if the patient's condition worsens after making the will, it does not affect the validity of the previously made will; Thirdly, formal requirements and the ability to express intent are equally important - for a handwritten will, it requires the testator's handwriting, signature and date; for a will written by a proxy or printed will, it requires more than two qualified witnesses. If there is video evidence to prove that the testator was conscious at the time of making the will, it is more likely to be recognized as valid. Conversely, if the testator was already severely demented at the time of making the will, without medical records or witness video evidence, the risk of it being declared invalid will obviously increase.

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

Review of the case:Sun *1 and Huang * registered their marriage in January 2012, and Huang *'s daughter, Wu *, lived with them. Sun *1 suffered from mental illness for a long time. In the 2006 divorce litigation, he was diagnosed with delusional disorder and was deemed incapable of litigation. He died in June 2020, and his will stated that the apartment at * Park in Beijing would be left to his parents for their retirement, and another apartment at * Apartment would be left to his wife, Huang *. Sun *1's parents claimed that Sun *1 suffered from mental illness, had an invalid marriage, and lacked legal capacity, and sued to inherit the two apartments, as well as funeral expenses, pensions, provident funds, and enterprise annuities totaling 1,096,844.44 yuan. They also claimed insurance compensation of 236,580.50 yuan. Their previous lawsuit for marriage invalidation was rejected by the first-instance court and upheld by the second-instance court. Huang * appointed Beijing Henglu Law Firm as her attorney.Li YonghuiAttorney,Fù XiǎofeiThe lawyer represents the client in court and defends against the lawsuit.

The focus of the controversy:First, whether Sun *1 had the capacity to make a will when he made the will, and whether the will was valid; second, the impact of the validity of the marriage on the inheritance; third, how to divide the marital joint property, and whether Wu *, the stepdaughter who formed a guardianship relationship with Sun *1, was an heir.

Our position and that of the other party are as follows:The two plaintiffs claimed that Sun *1 was incapacitated and the will was invalid, and as parents, they should inherit all the property; Huang *fang believed that the marriage was legal and valid, and Wu * was a stepchild with a fostering relationship. The two sets of houses should be dealt with according to the will, and the couple's joint property such as deposits, pensions, enterprise annuities, and provident funds should first be allocated to the spouse's half share.

Attorney's Strategy and Legal Opinions:The two lawyers argued: Firstly, the validity of the marriage has been confirmed by the effective judgment, and it is unfounded for the two plaintiffs to deny the basis of inheritance by claiming that the marriage is invalid. Secondly, according to the joint marital property system, the property acquired during the marriage should first be divided into half for the spouse, and the rest is the inheritance. Thirdly, there is no evidence to prove that Sun *1 lacked the capacity for action when making the will, and the appraisal institutions did not make a negative evaluation. Therefore, the will should be treated as valid, and the two sets of houses should be allocated according to the will.

The court's reasoning and the outcome of the case:The court found that the two sets of houses were Sun *1's personal property before marriage, and according to the will, they were inherited by the two plaintiffs (No. 1042 in Chaoyang District) and Huang * (No. 1002 in Haidian District) respectively; regarding the testator's capacity for testamentary acts, the appraisal institution dismissed the case on the grounds that it exceeded the technical conditions and capabilities, and there was no evidence or professional institutions to make negative evaluations. The opinion that Sun *1 did not have the capacity for testamentary acts at the time of making the will was not accepted. The deposits, pensions, enterprise annuities, and provident funds were first allocated to Huang *'s share and then divided according to legal inheritance. The two plaintiffs, who took care of Sun *1 more during his life, were appropriately given a larger share. The court ordered that all amounts be paid within 15 days, and among the pension and other funds, 423,939.70 yuan would go to Huang *, 221,185.90 yuan to the two plaintiffs, and 92,160.80 yuan to Wu *. This case shows that a medical history does not mean that a will is invalid. When the party claiming invalidity cannot provide evidence, the will shall still be executed as valid. 法院查明，两套房屋系孙某1婚前个人财产，按遗嘱分别由二原告继承1042号（朝阳区）、黄某继承1002号（海淀区）；对遗嘱行为能力，鉴定机构以超出技术条件和能力为由退案，无证据及专业机构作出否定性评价，对孙某1立遗嘱时不具备行为能力的意见不予采信。存款、养老金、企业年金、公积金等先析出黄某份额后按法定继承分割，二原告因与孙某1共同生活照顾较多适当多分，判令各项款项15日内支付，如养老金等款项中423939.70元归黄某、221185.9元归二原告、92160.80元归吴某。本案说明：病史不等于遗嘱无效，主张无效者举证不能时，遗嘱仍按有效执行。

This case is handled by Beijing Henglu Law FirmLi YonghuiThe lawyer (practice certificate number: 11101199611955812, subject to the certificate issued by the judicial administrative organ) acts as the agent.

III. Frequently Asked Questions

Q1: Is the will made by an elderly person with dementia necessarily invalid?

Not necessarily. The standard for determining validity is whether the testator can recognize the legal consequences of their actions at the time of making the will, rather than the name of the disease. Elderly people in the early stages of Alzheimer's disease or during the remission period often still have the corresponding recognition ability. At this time, a handwritten will, signed and dated by the testator, or a will written by a qualified witness in the presence of the testator, or a printed will, may all be recognized as valid. Only if the evidence shows that the testator was completely unable to recognize the consequences of their actions at the time of making the will, will it be deemed invalid according to Article 1143 of the Civil Code. Whether it is valid or not will ultimately be determined by the court based on the evidence.

Q2: How to prove that the elderly person still had the capacity for action when making a will?

Common evidence includes: hospitalization records before and after the making of the will, mental state examinations and scale records; video recordings of the entire process of making the will; testimonies of two or more witnesses without any vested interest; and transcripts and files preserved during the notarization or lawyer's witnessing process. If the beneficiaries of the will also hold the above-mentioned materials, it will significantly increase the difficulty for the party claiming that the will is invalid to provide evidence, which is precisely the significance of regulating the making of wills.

Q3: What procedures should be followed if one believes that the will is invalid?

In a lawsuit for the division of inheritance, a lawsuit can be filed for disputes over testamentary succession, requesting that the will be declared invalid and handled in accordance with statutory succession, while applying for a judicial appraisal of the testator's capacity for making a will at the time of making the will; if the elderly are still alive, they can also apply separately to determine them as persons without capacity for civil conduct. Note that the appraisal is based on objective materials such as medical records and medical visit records. The lack of regular medical visit records will significantly increase the difficulty of providing evidence, so it is necessary to collect and fix evidence as soon as possible.

Q4: How will the inheritance be divided after the will is deemed invalid?

Handle according to statutory inheritance: First, separate half of the couple's joint property for the spouse, and the remaining part is the inheritance; the first order of heirs includes the spouse, children, and parents, and the inheritance should be distributed equally among them in principle. According to Article 113 of the Civil Code, heirs who have fulfilled their main support obligations to the decedent or lived together with the decedent may receive a larger share. Heirs who have the ability to support but fail to fulfill their obligations should not receive a share or receive a smaller share. The court will adjust the share based on the support situation.

Q5: What should I do if I suspect that an elderly person has been tricked into making a will?

The first step is to seek medical treatment promptly and keep a record of the patient's mental state for future evaluation. The second step is to collect clues of fraud, coercion, or lack of genuine intent, such as transfer records, phone calls, and witnesses present at the scene. The third step is to consult a lawyer as soon as possible to evaluate litigation options and, if necessary, file a lawsuit within the statute of limitations. For elderly individuals who are still alive and have clear consciousness, it is advisable to assist them in drafting a compliant will or obtaining a notarization as soon as possible to override conflicting versions of the will.

IV. Suggestions for Protecting Rights

  • For elderly people with cognitive decline at home who plan to make a will, it is advisable to handle it as soon as possible when they are still conscious, giving priority to notarized wills or wills witnessed by lawyers, and simultaneously recording videos to preserve evidence of their clear consciousness.
  • The party intending to deny the validity of the will should first obtain the medical records, consultation records, and medication records, and if necessary, apply for a capacity assessment. They should not claim invalidity solely based on the name of the disease.
  • Before dividing the inheritance, it is necessary to clarify the boundaries between the couple's joint property and the inheritance. The spouse's share should be separated out first to avoid including other people's property in the distribution.
  • If there are disputes over the validity of the will or the share of the inheritance, you can refer to the following provisions for reference.Inheritance of property and the practice of dividing and apportioning family assetsFor column articles, it is recommended to consult a lawyer as soon as possible to develop a litigation plan.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, to avoid missing the statutory time limit. →Inheritance legal services·Attorney Li Yonghui·Beijing Henglu Law Firm