The number of joint wills has been gradually increasing, among which spousal joint wills predominate. China’s Inheritance Law and other relevant laws and regulations contain no explicit provisions on the legality of joint wills. The legal team has also encountered practical issues concerning joint wills in case practice. Today, we analyze key legal points of joint wills based on a real-life case.
Case Recap
Ms. A, the principal, has two parents, Mr. B and Ms. C, who had three children in total during their marriage. In 2000, while of sound mind and clear consciousness, the couple made a holograph joint will with the following terms:
- The two real estates registered under the names of Mr. B and Ms. C shall be inherited by Ms. A. The property transfer procedures were completed in 2010, and Ms. A has obtained ownership of the houses.
- The bank deposits of Mr. B and Ms. C shall be managed on their behalf by Ms. A.
- The remaining balance of the couple’s savings shall be divided equally among all siblings, with appropriate preferential consideration given to Ms. A.
Mr. B passed away in 2011. Upon learning the contents of the will, his other children were furious, accusing Ms. A of defrauding their parents’ estate. They repeatedly assaulted Ms. A and threatened to force her to hand over all bank deposits belonging to Mr. B and Ms. C.
In early 2015, the other children forcibly took Ms. C away from Ms. A’s home, barred her from meeting Ms. A, and demanded that Ms. C make a new will to redistribute the marital joint property.
Case Comment & Legal Analysis
1. Validity of Joint Wills
A joint will refers to a single will made by two or more testators based on a common declaration of intent, for the disposition of property owned individually or jointly by the testators.
In practice, joint wills are mostly made between spouses, and occasionally between trusted relatives or friends. There are no explicit legal provisions governing the legality of joint wills in China. Nevertheless, as a civil juristic act, a joint will established by testators through mutual expression of intent embodies the principle of freedom of civil conduct. Since the law does not prohibit joint wills, a joint will shall be deemed legally valid if its contents do not violate laws, administrative regulations or public order and good morals.
In this case, the couple made the joint will of their own free will only in respect of their jointly owned property, and the will shall be confirmed as lawful and valid.
2. Entry into Force of Joint Wills
A joint will involves two or more testators, who in most cases pass away at different times. Its validity does not take full effect merely upon the death of one testator.
Generally speaking, upon the death of some testators, part of the will may take effect, but estate division is not allowed. The joint will shall become fully effective only after all testators have passed away.
The spousal joint will made by Mr. B and Ms. C is a will effective upon a fixed term. Before Ms. C’s death, the will has not fully taken effect, and the heirs may not divide the estate in accordance with the will.
3. Validity of Unilaterally Amending a Joint Will
If the testators fail to agree on circumstances for will modification, disputes are highly likely to arise. Typical controversies include: whether the surviving testator has the right to re-dispose the willed property after the death of the other testator; whether designated heirs may first divide the share of the deceased testator; and whether the surviving testator may re-allocate their own property share.
In this case, after Mr. B passed away, Ms. C was still alive. Dissatisfied with the spousal estate arrangement, their other children forced Ms. C to make a new will favorable to themselves. This directly harmed Ms. A’s legitimate rights and interests and triggered the inheritance dispute.
Given the absence of express provisions on joint wills in current laws and regulations, two mainstream viewpoints exist in judicial practice and legal academia regarding the modification of joint wills:
The first view holds that under China’s Inheritance Law, a citizen may make a will to designate one or several statutory heirs to inherit their personal property; a testator may also revoke or amend their own will. Therefore, if one party to a joint will modifies the original will and changes the ownership of their own half share of the property out of true intention, such modification shall be deemed lawful and valid.
The second view imposes restrictions on the modification of joint wills in two scenarios:
- Where all joint testators are still alive, any party insisting on modifying the will may do so but shall bear liability for breach of contract in exchange for freedom of contract.
- Where some testators have passed away, the surviving testator is generally not permitted to amend the will, unless the joint will explicitly reserves the right of modification for the surviving testator under specific agreed circumstances.
The author holds that a joint will arises from the mutual consensus and joint declaration of intent of all parties. Any modification shall abide by the contractual consensus of all testators. No single party may alter the entire contents of the joint will or dispose of the other testator’s estate by way of modification.
However, if a testator only modifies the disposition of their own property share, such act should be permitted in accordance with the spirit of the provision that “a testator may revoke or amend the will made by himself/herself” under the Inheritance Law.
Combining the facts of the case and judicial practice, we advised Ms. A that the joint will made by her parents is lawful and valid. Although Mr. B has passed away, Ms. C is still alive, so estate division cannot be conducted through statutory procedures for the time being.
Meanwhile, Ms. C enjoys the freedom to dispose of her own estate and may modify the provisions of the joint will concerning her own property share, provided that she does not infringe upon Mr. B’s property share.
If Ms. C amends the will in compliance with the demands of her other children, thereby violating Ms. A’s legitimate rights and interests, Ms. A may seek legal remedies through judicial channels.