In real life, a lot of damages from demolition would involve inheritance issues, just like the current succession case. In the current case, the Courts decide that common proprietors and predecessors are allowed damages in the case of house demolitions. As to how the inheritance should be distributed, all disputes should be brought to court and submitted through inheritance litigations. Lawyer Xie Dong from Shanghai Ganus Law will introduce a succession dispute.
The case involves the plaintiff Li A (from now on referred to as the Plaintiff), and defendants Chen B and Zhou C (from now on referred to as Defendant A and B respectively). Both Defendants hired Lawyer Xie Dong from Shanghai Ganus Law. The Plaintiff is the wife of the predecessor Chen D (from now on referred to as the Predecessor), and the defendants are Chen D’s parents. The Predecessor died from illness on 24th December 2015.
On 13th July 2016, defendant A signed a <demolition damages> contract with a resettlement company with regards to the house at South Dongshan Road, 111 Alley, xx Room (from now on referred to as the House), and he received the damages.
Afterwards, the Plaintiff and the Defendants bought their case to court with their dispute regarding the distribution of the damages. The court decided on 13th June 2017 that the Predecessor should receive the damages of RMB 610,000. The Plaintiff requested to inherit the full amount of damages paid out to the Predecessor, her reasoning being that the Predecessor left a written will before he died, and the contents of the written will states that any damages received from the demolition payout should be given to the Plaintiff. Additionally, the Predecessor had a voice recorded will, with the same content as the written will.
Issue of the case: whether the Predecessor’s will is valid.
II Lawyer’s Thoughts
After understanding the case in detail, we realised the written will in this case was made according to law, together with the voice recorded will which had the same content as the written will, it would be very difficult but not impossible to overturn the will. The handwriting within the will was highly similar to the testator’s handwriting, however Defendants strongly believe that the contents of the will was not what the testator intended.
To this matter, it is not impossible to overturn the will. In order to do that, we have to focus on the details, in order to find fault with the will, luckily for us the law is strict on wills. The following is a step-by-step thought process on how to find faults within the will.
A Check the authenticity of the will, could it have been forged or tempered with
In real life, in many situations, written wills are normally withheld by the successor of the will, situations of forgery or tempering are likely.
Firstly, we need to know in detail the relationship between the testator and the different successors, the extent of the relationships and the background of every successor, in order to speculate the testator’s intentions.
Secondly, we have to strictly inspect the document, such as the handwriting of the testator’s signature, the timing of the signature, the aging condition of the paper as to whether all these coincides with the timing when the will was made.
B Check whether the will was made according to the law
According to <Succession Law> clause 17 subclause 3 stated that: two witnesses must be present in person to witness the making of the will. One of the witnesses will draft, and note the date of the will, and the witnesses and testator must sign the will. Subclause 4 also states that voice recorded wills must include two witnesses as well.
Therefore to have a valid will, firstly there must be two witnesses at the scene, one of which can be the drafter. Secondly witnesses and testator must sing on the will and record the date of the will. Thirdly, the testator must have mental capacity to make a will.
C Important segment: examine witnesses in Court, in order to check whether will was made according to law
We will question the mental capacity of the testator, whether he knew what he was doing at that time. Secondly, we have to question whether the will was made according to the intention of the testator, and whether the signature belongs to the testator. Thirdly, question the relationship between the predecessor, testator, and the beneficiary, whether there are any interests involved. Lastly, whether the witnesses saw the making of the will and the testator signing the will.
My eight questions to ask the witnesses
1. Time, location, how many people, who were the people who were there when the will was made?
2. Content of the will, signatures of the testator and the witnesses?
3. Does the content of the will reflect the true intention of the testator? How can they be sure?
4. During the making of the will, what was the health condition of the testator? Was he sick? How sick was he? Did his illness affect his mental capacity? How to distinguish whether he had the mental capacity or not?
5. Who contacted you to be the witness?
6. Do you know the testator? If yes, what is your relationship with him?
7. Do you know the beneficiary? If yes, what is your relationship with her?
8. Who was or who kept the will?
D Where there any other factors affecting the validity of the will?
Check whether the witnesses have an interest with regards to the will. According to <Succession Law> Clause 18, incapacitated persons; limited capacity persons; beneficiaries; those who will be gifted in the will; those who have an interest in the will, are all not allowed to be witnesses.
Check whether the testator was in a situation of lacked capacity, and had no source of income. According to <Succession Law> Cause 19, the will should preserve the share if the testator lacked capacity or had no source of income.
Check whether the predecessor left any other written documents indicating intention that is different to that of the will.
After investigations made according to the above plan, we realised there were several problems with the will, especially with regards to the validity of the will. After questioning the witnesses, we realised the witnesses had contradictory versions of their story, and some of what they told us could invalidate the will immediately. Hence the witnesses were close friends with the beneficiary for years, hence having an interest in the will. The witnesses did not see the whole process of making the will, they simply signed the will. As to the contradictory evidence as to the drafter of the will, we could not confirm the identity of the drafter. The voice recording did not portray the full intention of the testator, it was an annex, and therefore the voice recording did not fully match the written will. Lastly, the making of the voice recording date was different from that of the written will.
Although the plaintiff’s lawyer provided the will, voice recording, notarized WeChat record etc. to show the intention of the testator, but the above problems still affected the validity of the will.
III The Court Verdict
The Court stated that succession law is strict because the testator has gone, and there is nobody who can reconstruct how the will was made, therefore we have many requirements to affirm the validity of the will. The Testator’s will shall be distributed according to law, according to <Succession Law> Clause 10, 13 subclause 1, 17 subclause 3,
The Predecessor’s house on South Dongshan Road, 111 Alley, xx Room shall receive a relocation benefit of RMB 610,000. And it should be distributed to the Plaintiff RMB 170,000, and to each of the Defendants RMB 170,000.
The two Defendants are an old couple who just lost their only son to illness. The Testator had no income when he was alive, a typical boomerang child. The Defendants paid more than RMB 800,000 to treat their son’s illness. From any point of view, the Defendants could not believe that the Testator would make such a will, to give everything to his wife.
Before the Defendants could recover from the tragedy of losing their young loved ones, another attack struck them in the form of receiving the Court’s orders. Upon knowing about this will, the Defendants’ world was ripped apart. When their son was alive, they did not receive any filialness from him, now that he is gone, all they had was a cold will.
As a lawyer, I do not simply pursue to win the case; I am more interested in justice. After listening to the Defendants for the first time, my heart was burdened with heaviness and stress. This is a different case from previously; the complexity of overturning the will was greater than other cases. Additionally, the results of this case concern the livelihood of these two old people. I kept telling them that they have to believe that the law will be righteous. I spent a great amount of time before every trial, to think about every possible issue within the case, especially towards questioning the witnesses. Finally, my hard works paid off and the Court did not consider the will to be valid.
For a lawyer, it is great satisfaction to be winning a case. I believe, a lawyer should always chase after righteousness and maximise client’s benefits. Through our hard work, we will be recognised by the Court, and by our clients. Those who are alive are re-ignited with life and vigor, and lawyers will continue to re-igni