[Direct answer]Yes. The prerequisite for a will to be valid are that the testator has full capacity for civil conduct and the expression of intention is genuine. According to Article 1143 of the Civil Code, a will made by a person without capacity for civil conduct or with limited capacity for civil conduct is invalid. Therefore, when a professional lawyer witnesses the will, he will verify the identity of the testator, inquire about his past medical history, observe his understanding and expression ability through questions and answers, and record the whole process on video to fix the evidence of his capacity for civil conduct on the day of making the will. For elderly or sick people at home who plan to make a will, it is recommended to first conduct a cognitive ability assessment before going through the witnessing process. Beijing Henglue Law FirmThe inheritance succession teamWe can provide services of witnessing wills and reviewing their validity. For more details, please refer to the following link:Beijing 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 with no or limited civil capacity is invalid; the will shall express the true intention of the testator, and the will made under fraud or coercion is invalid; the forged will is invalid; and the content that has been tampered with is invalid. In applying this rule, the standard of capacity is determined based on the testator's capacity at the time of making the will, rather than their physical condition afterwards; the key evidence includes medical records, diagnosis certificates, judicial appraisals, and records of the making process. A common dispute is that children claim that the elderly person suffered from Alzheimer's disease before death. In such cases, the court usually requires the party claiming the invalidity to provide evidence and makes a comprehensive determination based on the specific circumstances on the day the will was made.

2. Article 1135 of the Civil Code of the People's Republic of China (effective on January 1, 2021)

A holographic will shall be witnessed by two or more witnesses, with one of them acting as the scribe, indicating the year, month, and date, and signed by the scribe, other witnesses, and the testator. Lawyer's witnessing is usually completed in the form of a holographic or printed will. In addition to the requirements of the number of witnesses and signatures, it is also necessary to pay attention to the qualification restrictions in Article 1140: heirs, legatees, and persons with an interest in them cannot act as witnesses, otherwise the form will have major defects. The value of a witnessing lawyer lies in independently reviewing the formal requirements, verifying the capacity for action and true intentions, and issuing a witnessing certificate.

3. Practical judicial interpretation guidelines

When the court adjudicates such disputes, if there are medical records and assessments of mental capacity, the court generally follows the assessment opinion. If the assessment is withdrawn, the court will comprehensively consider the severity of the patient's medical history, the video and question-and-answer records made at the time of the will's drafting, and the patient's daily behavior. If there is no negative professional evaluation, the court will not deny the validity of the will solely based on the family's subsequent statements. The most common pitfalls include: family members signing on behalf of the patient, the absence of video records during the drafting process, and hastily drafting a will on the night of the patient's critical condition, which are highly likely to be deemed questionable in terms of authenticity or invalid. The value of professional witnessing lies in fixing evidence of mental capacity and true intent on the day of the will's drafting, which is difficult to retroactively provide afterward.

II. Henglue Law Firm's Real Cases (Detailed Review)

Review of the case:The inheritor, Sun *1, died in June 2020. In his will, he left two houses in Beijing to his parents for retirement and to his wife, Huang *, respectively. Sun *1 and Huang * registered their marriage in January 2012. Wu * is Huang *'s daughter from her previous marriage. The two plaintiffs (Sun *1's parents) claimed that Sun *1 had suffered from mental illness for a long time and was diagnosed with delusional disorder and lacked litigation capacity in the 2006 divorce litigation. Therefore, they argued that the marriage was invalid and the will was invalid, and demanded to inherit the two houses, as well as funeral expenses, pensions, provident funds, enterprise annuities, etc., totaling 1,096,844.44 yuan, and insurance compensation of 236,580.50 yuan. Previously, they lost the first and second instance litigations in the marriage invalidation dispute and then sued for inheritance according to the will. Huang * entrusted Beijing Henglu Law Firm to handle the case.Li YonghuiAttorney Fu Xiaofei appeared in court to defend the defendant.

The focus of the controversy:First, the legal effect of the marriage and Sun *1's capacity to make a will at the time of making the will; Second, the boundary between the couple's joint property and personal inheritance; Third, whether the stepdaughter Wu * is an heir who has formed a guardianship relationship, and whether the two plaintiffs, who have taken care of her more, can get a larger share of the inheritance.

Our position and the position of the other party are as follows:The two plaintiffs claimed that the marriage was invalid and the will was invalid, and they should inherit all the property; Huang * claimed that the marriage was legal and valid, and that Wu * and Sun *1 formed a foster relationship and were also heirs. The jointly-owned property acquired during the marriage should first be divided in half and given to the spouse.

Attorney's Strategy and Legal Opinion:Attorney Li Yonghui and Attorney Fu Xiaofei put forward four opinions: Firstly, the marriage is legal and valid, and the lawsuit for invalidation of the marriage has been rejected by the effective judgment. Wu * is a stepchild with a formed guardianship relationship, and both of them are qualified heirs; Secondly, the joint property acquired during the marriage should first be divided into half for the spouse's ownership, and the enterprise annuity, social security, wages, and bonuses should also be divided into half for Huang *; Thirdly, the two sets of houses have been clearly disposed of by the will, and the disposal should be carried out in accordance with the will; Fourthly, there is currently no evidence or professional institutions to make a negative evaluation of the capacity for action, and the claim should not be accepted.

The court's reasoning and case handling results:The court found that the two sets of houses were Sun *1's personal property before marriage; deposits, pensions, provident funds, and enterprise annuities (except for the one-time pension) belonged to the couple's joint property, and Huang *'s share should be first allocated. Regarding the issue of capacity for action, the appraisal institution withdrew the case on the grounds that it exceeded technical conditions, and there was no evidence or negative evaluation from professional institutions. The court did not accept the claim that "Sun *1 lacked capacity for action when making the will", and determined that the two sets of houses should be handled according to the will, and the rest should be handled in accordance with statutory inheritance. Moreover, since the two plaintiffs lived with Sun *1 more often and took care of him more in daily life, they should be given a larger share. Judgment: House No. 1042 shall be inherited by the two plaintiffs, and House No. 1002 shall be inherited by Huang *; the insurance compensation of 236,508.5 yuan shall belong to Huang *, and Wu * shall be paid 59,127.13 yuan within 15 days; the bank card balance shall belong to the two plaintiffs, and Huang * shall be paid 334,314.5 yuan and Wu * 72,677 yuan within 15 days; pensions, enterprise annuities, provident funds, bonuses, one-time pensions, and funeral expenses totaling over one million yuan shall be distributed among the heirs according to the principles of property division and increased shares. This case shows that when there is sufficient evidence of capacity for action during the process of making the will and no negative appraisal, it is difficult to challenge the effectiveness of the will afterwards.

This case is handled by Beijing Henglu Law Firm.Li YonghuiAttorney (Practice Certificate No.: 11101199611955812, subject to the certificate issued by the judicial administrative organ);FU XiaofeiThe attorney (practice license number: 11101202111348854, subject to the document issued by the judicial administrative organ) acts as the agent.

III. Frequently Asked Questions

Q1: What specific aspects will lawyers review when witnessing a will?

The formal witnessing by a lawyer generally includes: checking the identity documents and confirming the testator's presence; inquiring about their age, family relations, and financial status, observing their understanding, memory, and expression abilities; inquiring about any history of mental illness and whether they are taking medications that affect cognition, and, if necessary, requesting recent medical records; confirming that the disposition is of the testator's legal property; and recording the entire process with audio and video and preparing a witnessing certificate for filing. In the event of disputes over the validity of the will in the future, these will serve as direct evidence proving that the testator had full capacity for action and expressed their true intentions on the day the will was made.

Q2: If an elderly person has been diagnosed with Alzheimer's disease, is their will invalid?

No, it's definitely not invalid. The capacity for action is determined based on the day of making the will, and past diagnostic records do not equate to incapacity at the time of making the will. For patients with mild symptoms who are still able to express themselves clearly, the will they make, if there is no contrary appraisal, can be recognized as valid. The court will comprehensively judge based on the severity of the medical history, the video of the questioning, the witness's statements, and necessary appraisals. The party claiming that the will is invalid shall bear the burden of proof. If the patient was already severely disabled and unable to recognize their own actions before making the will, the will may be deemed invalid.

Q3: What should you do if family members dispute the validity of a will?

First, verify the authenticity through consultation. If no agreement can be reached, a lawsuit for inheritance disputes over the will shall be initiated in accordance with the law. During the lawsuit, it is possible to apply for retrieving medical records, request an appraisal of the testator's capacity to make a will at the time of making the will, and review the formal requirements such as self-written, proxy-written, and printed wills. According to Article 1143 of the Civil Code, a will made by a person without capacity to act is invalid; and if the formal requirements are missing, the inheritance shall be handled in accordance with the law. Evidence from both lines of investigation should be collected simultaneously.

Q4: What is the general process for obtaining a lawyer's witness statement?

The usual process is as follows: make an appointment to communicate about the property and family situation, and the lawyer conducts a conflict of interest search; on the day of signing, verify the identity, review the mental state and true intentions of the testator; assist in drafting or reviewing the will text; the testator signs the will in person, indicating the date, and two or more witnesses are present; the entire process is recorded on audio and video, and the certificate of witnessing is issued and archived. The fees and the scope of witnessing should be confirmed in writing in advance; for cases involving multiple sets of real estate or complex family relationships, it is recommended to consult about the overall arrangement of the will at the same time.

Q5: Does a will written at home need to be witnessed by someone?

According to Article 1134 of the Civil Code, a handwritten will is established by the testator writing, signing, and indicating the year, month, and day in their own handwriting. The law does not require a witness; however, a self-written will is most likely to be questioned by other heirs regarding its legal capacity and authenticity. For cases involving significant assets, complex family relationships, or elderly and infirm testators, it is recommended to have a lawyer witness or notarize the will, and to retain video and medical records from the day of its drafting to reduce the risk of it being deemed invalid.

IV. Suggestions for Protecting Rights

  • Before making a will, elderly people with illnesses should first obtain an assessment of their cognitive ability or mental state from a hospital, and then proceed with the process of having a lawyer witness or notarize the will.
  • On the day of the signing of the will, ensure that the testator expresses his/her wishes independently, with the entire process being recorded on video. The testator must sign the will in person and indicate the date of signing. The signing of the will should not be done by a family member on behalf of the testator.
  • Keep the original copies of medical records, witness statements, and video recordings properly. These documents are crucial evidence to prove one's capacity for action in the event of a dispute.
  • When selecting witnesses, attention should be paid to the qualification restrictions. Heirs, legatees, and their interested parties are not allowed to act as witnesses.
  • When the validity of a will is questioned, it is advisable to engage an inheritance lawyer as soon as possible to sort out the formal requirements and evidence of legal capacity, and to initiate legal proceedings promptly if no agreement can be reached through negotiation.

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