July 5, 2021
As our readers surely know, a will is a record of a deceased person’s wishes and intentions the succession of his or her property upon death.
In China, the Law of Succession of The People's Republic of China (1985) is still the principal legislation governing succession and the making of wills in the country. For foreign citizens in China, the legal regime governing their will shall be that of their home country or where the will was executed, and such wills are recognized in China.
Types of will
Notarial will
This is where someone making a will (known legally as the “testator”) does so through a notary public agency. In case of conflicts, a court will rule in favor of a notarized wills over any other purported wills from the testator after his or her death. A person can only effectively amend a notarial will by making a new notarial will which shall explicitly revoke the former will. The process of making a notarized will makes it more difficult to change and so increases its reliability later on.
Nuncupative will
In an emergency situation, a testator may make a “nuncupative will”, which two or more witnesses shall witness. A nuncupative will is made orally at the time but if the testator can later on make a will in writing or in the form of a sound recording, the original nuncupative will is invalidated.
Holographic or hand-written will
A holographic will is one written entirely in testator's handwriting, which makes it difficult to forge, and therefore attestation may not necessarily be required. However, the testator is required to sign at the very end of the will, clearly indicating the date of signing.
Audio or video-recorded will
A will can be made in the form of a sound-recording, but there must be more than two witnesses. The date and names of the testator and witnesses must be stated and their image must be shown. Still there will always be some room to question the authenticity of video or audio wills since it is easier and easier to manipulate through editing.
Printed will
A printed will refers to an entire will that is printed instead of handwritten by the testator or by someone else on their behalf. The law is stricter on this type of will since it is easier to forge. A printed will must be signed and dated by the testator with at least two witnesses on each page.
Today more people write wills using a computer and sign and date the printed version. However, this raises a question on the validity of the will since its become easier to forge documents in modern times. To avoid any questions, it is still preferred that a will is written out and signed by hand.
Will written by another person
Here someone writes the well on behalf of the testator. Two witnesses are required to watch and attest to the third person actually writing the will. All three people and the testator sign and date their name clear at the end of the will.
Other Considerations
Capacity
The testator must have the civil capacity, that is, being of legal age and sound mind. As a rule, infants and persons of unsound minds cannot create a will.
Witnesses
The witnesses must generally be disinterested and have civil capacity at the signing of the will, just like the testator.
A disinterested witness is one who is not an heir, creditor or otherwise a beneficiary of the terms of that will, or has no interest in the estate. A witness signs the will in the presence of the testator, though they do not have to do so at the same time as the other witness. The witnesses sign to validate the testator's signature.
We hope you found this basic summary of wills in China helpful. If you need additional assistance, please contact us at inquiries@chinalawsolutions.com. All inquiries are treated as confidential.