[Direct answer]It cannot be completely cancelled. According to Article 1141 of the Civil Code of the People's Republic of China (effective January 1, 2021), a will shall reserve a necessary share of the estate for an heir who lacks the ability to work and has no source of livelihood. Minor children usually belong to this category of subjects entitled to a reserved share; if the will fails to make such a reservation, the necessary share shall be deducted for the child first when handling the estate, and the remaining portion shall be distributed according to the will. The amount of the reserved share shall be determined based on the actual needs of the child's living, education, and medical care, combined with the scale of the estate. If a will has been made but no provisions have been made, it can be amended by making a new will; in the event of a dispute, the guardian may claim on behalf of the child within the three-year statute of limitations. It can be handled first throughLegal services for inheritance and family property divisionAndBeijing Henglu Law FirmEvaluate the plan.

I. Problem background and typical scenarios

In remarried families, families with children born in middle age, and families with a large age gap between fathers and sons, testators are prone to leaving all their property to their spouses or children from previous marriages, ignoring their younger children. There are also elderly people who believe that "you can leave your property to whoever you want", completely excluding their minor children. While testamentary freedom is protected by law, it is not without boundaries — the law mandates that necessary shares must be reserved for heirs who lack the ability to work and have no source of livelihood. After the neglected party dies, the children's living and education expenses remain unresolved, and guardians and other heirs often end up in legal disputes. By that time, even if the claim for a mandatory share is established, it will be difficult to repair family relationships. A legally compliant will made during one's lifetime could have avoided this dispute.

II. Key points of contention

  • The determination of the mandatory reserved share: It shall be based on the time when the will takes effect (when the decedent dies). Whether the minor lacks the ability to work and has no source of livelihood is basically established; those who have reached the age of majority and have independent income are not within the scope of mandatory reserved share protection, and the two parties often argue about this.
  • The amount of the "necessary share": The law does not stipulate a fixed proportion, and it needs to be determined based on the local living standard, the total amount of the inheritance, and the situation of other heirs. There are often great differences between the claimant and the defendant regarding how much should be left and how much should be kept.
  • The management of minors' property: The inheritance obtained by the child shall be managed by the guardian, and the guardian shall not dispose of it without authorization; whether the will appoints an executor and how to prevent misappropriation are issues that need to be considered especially by families with remarried spouses. Family arrangements can be referred to for reference.Divorce litigation and legal services for family disputes.

III. Professional analysis by Henglue Law Firm

The validity of a will and the protection of heirs' shares often intertwine in individual cases. In a bequest dispute handled by Henglue Lawyers, Zhang * and Zhou * were a married couple with five children. House No. 201 was the couple's jointly owned property. After the couple's deaths, Zhang *6 (the son of Zhang *3) submitted copies of the "Confirmation Letter", "Will 1", and "Will 2", claiming that the house was bequeathed to him and suing Zhang *1 and the other four children, as well as Wang *1 and Wang *, as defendants. Zhang *1 and the other four children entrusted Henglue Lawyer Li Yonghui to represent them in court. The lawyer pointed out in court that the "Confirmation Letter" lacked an original copy and was not deemed authentic. Zhang *6 also failed to provide evidence to prove that Zhou * had made a will, so his share could not be inherited by him. Zhang *6 claimed that the "Confirmation Letter" was a promise of renunciation of inheritance made by the heirs during the lifetime of the decedent, but such a promise of renunciation should be made after the decedent's death, which was not legally binding. The first-instance court ruled that the "Confirmation Letter" was inadmissible as it lacked an original copy, and even if it were authentic, it did not meet the formal requirements for a printed will. "Will 1" was invalid as it lacked witness signatures, while "Will 2" was a valid holographic will and should be admitted. Zhou *'s one-half share of the house was divided equally among the six defendants, with each receiving one-twelfth share. Zhang *'s share, according to "Will 2", was inherited by Zhang *6 as seven-twelfths. Zhang *6 appealed, claiming that the "Confirmation Letter" was a gift or a promise of renunciation of inheritance, but the appellate court held that it was neither a valid gift nor a legally binding promise of renunciation of inheritance, upholding the original judgment. The core of this case is that the validity of a will depends on its formal requirements. Similarly, even if a will is valid, if the decedent left a mandatory shareholder (such as a minor child) but failed to reserve a share for them, the estate must first be distributed after deducting the mandatory share before being distributed according to the will—there are always legal boundaries to testamentary freedom.

IV. Practical suggestions and legal basis

At the legal basis level: Article 1141 of the Civil Code (effective January 1, 2021) is the direct basis for the mandatory reserved share; the Interpretation (I) of the Inheritance Chapter of the Civil Code of the People's Republic of China by the Supreme People's Court (effective January 1, 2021) also explicitly states that if the testator fails to reserve a share of the inheritance for an heir who lacks the ability to work and has no source of income, the necessary share of the inheritance shall be left for such heir when handling the inheritance, and the remaining portion may then be dealt with in accordance with the distribution principles specified in the will; Article 1155 stipulates that when dividing the inheritance, the share of the fetus shall be reserved. If the fetus is stillborn at the time of delivery, the reserved share shall be dealt with in accordance with the legal succession; Article 1133 allows the testator to appoint an executor; Article 35 stipulates that guardians shall perform their duties in accordance with the principle of maximizing the interests of the ward, and shall not dispose of the ward's property except for safeguarding the ward's interests; Article 188 stipulates a three-year statute of limitations. At the practical advice level: When making a will, specify the proportion or amount of the reserved share for minor children; appoint a trustworthy executor to supervise the execution; for those claiming the mandatory reserved share, prepare proof of the children's age, schooling, and lack of income sources. For more experience in handling disputes over inheritance shares, please refer to the relevant materials.Legal services for inheritance and family property division.

5. Henglue Law Firm's Reminder

The freedom of making a will ends with the mandatory share. Leaving a necessary share for minor children is not only a legal obligation, but also the last step in arranging the children's life and education in the will; if this is omitted, the execution of the entire will will first be "discounted". The above-mentioned gift dispute case is handled by Beijing Henglue Law Firm.Li YonghuiThe lawyer (practice license number: 11101199611955812, subject to the document issued by the judicial administrative organ) acted on behalf of the client. The lawyer denied the authenticity of the "Confirmation Letter" without the original document, argued that the promise to waive inheritance rights during the lifetime of the decedent had no legal basis, and distinguished the essential elements of various will forms. Ultimately, the court ruled that the valid oral will be inherited by Zhang *6 in the proportion of seven-twelfths. If you are involved in inheritance arrangements for minor children or disputes over reserved shares, it is recommended to consult a professional lawyer as soon as possible.

Q1: If the will doesn't leave any share for the minor children at all, is the will still valid?

The will is not invalid as a whole, but the part involving minor children needs to be adjusted. According to Article 1141 of the Civil Code, the will should reserve a necessary share of the estate for heirs who lack the ability to work and have no source of livelihood, and minor children usually fall into this category. If the will does not reserve such a share, the necessary share should be deducted for the child when handling the estate, and the remaining part can then be distributed according to the will. That is to say, the will is still valid within the scope of the reserved mandatory share. The mandatory share shall be determined according to the child's support situation at the time the will takes effect, and the party claiming rights shall provide proof of the child's age, schooling, and lack of income sources, etc.

Q2: How much should I generally keep as a mandatory reserve?

The law does not stipulate a fixed proportion. In practice, it is determined based on the actual needs of the minor children, including the cost of maintaining a general living standard in the local area, the cost of completing basic education and appropriate education stages, necessary medical expenses, and taking into account the total amount of the inheritance and the situation of other heirs. Generally, it is based on ensuring the basic expenses required for their growth until adulthood. If the inheritance is large and the will gives all the property to one party, the court may determine a higher proportion; if the inheritance itself is not much, it will be preserved as far as possible within the feasible range. Both parties who claim or oppose the request for a reserved share should provide evidence about the children's expenditure and income status.

Q3: Who will manage the property inherited by a minor child?

It is managed by their guardians. According to Article 35 of the Civil Code, guardians shall perform their guardianship duties in accordance with the principle of being most beneficial to the guardianship subject. Except for safeguarding the interests of the guardianship subject, guardians shall not dispose of the guardianship subject's property—guardians cannot use the child's inheritance share to repay their own debts or invest and consume at will. In practice, to prevent misappropriation, guardians may appoint executors in the will (Article 1133) to assist in managing and supervising the use of the property in accordance with the agreed purpose, or adopt arrangements such as trusts. If the guardian infringes the guardianship subject's property rights and interests, other interested parties may apply for the revocation of the guardian's qualification and request compensation in accordance with the law.

Q4: If a child only finds out after reaching adulthood that the will doesn't leave them a share, can they still assert their rights?

It can be claimed, but it is subject to the statute of limitations. According to Article 188 of the Civil Code, the statute of limitations for requesting protection of civil rights from the people's court is three years, calculated from the date when the right holder knows or should know that the rights have been infringed and the obligee. During the child's minority, the guardian usually claims on behalf of the child; if the guardian fails to exercise the right, the statute of limitations shall be calculated from the date when the child knows that the inheritance has been divided according to the will and the child has not received the reserved share. When claiming, the child should prepare materials such as the birth certificate, the will, and the situation of the inheritance division to prove that the child is an heir who lacks the ability to work and has no source of livelihood and has not received the reserved share. It is necessary to sue as soon as possible to avoid the expiration of the statute of limitations.

Q5: Can the fetus in the womb also inherit the estate?

Yes. According to Article 1155 of the Civil Code, when dividing the inheritance, the inheritance share of the fetus shall be reserved. This is a mandatory rule set to protect the interests of unborn children; if the fetus is born alive, the reserved share shall be obtained by the fetus and managed by the mother or guardian on behalf of the fetus; if the fetus is stillborn, the reserved share shall be handled in accordance with the statutory inheritance and redistributed to other heirs. Therefore, if the decedent still has a posthumous child at the time of making a will or negotiating the division of the inheritance, the heirs should actively reserve a share for the posthumous child. Otherwise, the division of the inheritance may be flawed due to infringement of the fetus's interests, and the relevant heirs may request that the matter be re-handled.

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