Q: Is a holograph will made in the presence of an interested party valid?
Before his passing, an elderly person wrote a note bequeathing his house to one child. The elderly person was illiterate and had no legal knowledge; the contents of the note clearly reflected the intention of another person rather than his own. Only the elderly person and the beneficiary child were present when the note was written, and the other children had no knowledge of it. Is such a document legally valid?
A: Hello. Before answering your question, we first briefly explain what a holograph will is.
A holograph will must be handwritten and signed personally by the testator, with the exact year, month and date clearly indicated. When making a will, the testator may appoint witnesses concurrently to strengthen the validity of the will.
Regarding whether the note left by the elderly person before his death constitutes a valid will: First, the elderly person must have been a person with full capacity for civil conduct at the time of making the will, and the property involved in the note shall be his personal property. Second, if the above prerequisites are satisfied, the validity of the note shall be judged from the following two aspects:
1.Whether the note complies with the formal requirements for a holograph will under Chinese law
The note merely contains a simple expression of intent without the testator’s signature and dated notation. Accordingly, it fails to meet the formal requirements for a holograph will and cannot be deemed a valid holograph will.
2.Impact on the validity of the note due to the presence of the beneficiary child
The beneficiary child was present when the elderly person wrote the note. In accordance with the relevant provisions of the Inheritance Law of the People’s Republic of China, notarization and witness attendance are not mandatory for making a holograph will. However, if witnesses are appointed, they must be persons with full capacity for civil conduct who are not heirs, legatees, or interested parties related thereto.
Even if the note satisfied the formal requirements for a holograph will under the Inheritance Law, the presence and witnessing by the beneficiary child would not strengthen the will’s validity; on the contrary, it would render the holograph will null and void.
In conclusion, the note cannot be regarded as a legally valid will. If the elderly person made no other valid will or legacy-support agreement, his estate shall devolve by way of statutory succession.
A holograph will features easy execution, amendment and revocation, low cost and strong confidentiality. How should one make a genuine and valid holograph will in daily life?
First, the testator must have full capacity for civil conduct at the time of making the will. Put simply, the testator shall be of sound mind, able to fully and clearly express his true intention, and capable of writing personally.
Second, the entire contents of the will must be handwritten by the testator himself, with no ghostwriting by others.
Third, the testator shall sign the will and indicate the year, month and date.
Fourth, the property involved in the will shall be limited to the testator’s personal property.
Tips: To enhance the validity of the will, two disinterested witnesses may be invited to witness the entire handwriting process. After the testator finishes writing the will, the witnesses shall also sign and date the will.