Before starting to discuss this topic, let’s see if a will made by a foreigner in China is enforceable at all.
Article 31 of the Law of the People’s Republic of China on the Application of Laws to Foreign-related Civil Relations states: “For the format of wills, the laws of the land covering the testator’s regular residence or the location where the death occurred, the laws of the home country or the laws of the place in which the wills are conducted shall apply and such wills shall be valid.”
By regular residence, we refer to the place the testator has stayed for more than one year after leaving his/her home country. So as long as the testator has stayed in China for more than one year, he/she can prepare a valid will in line with the Chinese Inheritance Law which will be enforceable in the future, as long as some specific requirements are met.
I. Civil capacity of the testator.
First in the list of requirements is the civil capacity of the testator, which means the testator must be of legal age and sound mind.
II. Witnesses
As in most other jurisdictions, at least two disinterested witnesses must be present at the signing of the will, unless it’s holographic will. Disinterested means that they’re not beneficiaries under the terms of the will, or have no interest in the estate. Of course, the witness must also have the civil capacity to be such or his civil capacity is not limited. In addition, the witness need to be capable to witness, for example, a blind man cannot be witness to a will.
III. Different types of will:
1. Holographic will
A holographic will is one prepared entirely in the testator’s handwriting. As the entire will is handwritten by the testator, it’s not easy to forge and as such a witness is not required. As long as the testator signed it at the very end of the will and clearly states the date he signed it, a holographic will is valid.
2. Will written by another person
For such a will, at least two witnesses are required to be present. One of the witnesses will write the will on behalf of the testator and then, all witnesses and the testator shall sign their name at the very end of the will with the date it is signed clearly stated too.
3. Printed will
A printed will means the entire will is printed instead of handwritten by the testator or someone else. The law provides a stricter requirement for a printed will to be valid. A printed will needs to be signed by the testator and at least two witnesses on each page of the will with the date it is signed.
4. Video or audio will
A video or audio will shall be valid if it’s witnessed by at least two people and the identities of all concerned (names or portraits) and the exact date of the recording clearly stated. However, with today’s technology it’s not so difficult to edit a video or audio and to change the content, so the credibility of the video or audio will is usually an issue.
e. Nuncupative will
In an emergency situation, a testator may make a nuncupative will, meaning a will made orally. A nuncupative will shall be witnessed by two or more people. In addition, once the emergency situation no longer exist and the testator is able to make a will in writing or any other form, this nuncupative will becomes null and void.
IV. Which shall prevail if more than one will exists?
According to the previous Civil Law of the PRC, a notarized will shall prevail if more than one will exists. It means that if anyone wants to withdraw or change a notarized will, the only option is to have a new one notarized as well. Considering the complicated procedure involved, it makes it pretty difficult to change a notarized will. So the legislature makes a change in the Civil Code of the PRC (current law) and provides that the most recent one will prevail.
You may visit the following website to check more information:
Ministry of Justice of the People’s Republic of China
