The Supreme People’s court of China has formulated the first batch of seven new judicial interpretations, which will be implemented simultaneously with the Civil Code on January 1, 2021. After the implementation of the interpretation of the Supreme People’s Court on the application of the succession section of the China Civil Code(I) (Hereinafter referred as Interpretation), the  Opinions of the Supreme People’s Court on issues concerning the implementation of the China succession law (Hereinafter referred as Opinions, a piece of interpretation of the old 1985 China Succession Law) and other replies from China Supreme Court regarding application of the succession Law will be repealed at the same time.

 

1. Supplement the stipulation of the starting time of succession

The provisions on the starting time of succession has changed from the original” the date of death of the missing person determined in the court judgment” in article 1 of Opinions to the present “the date of death determined in accordance with Article 48 of the Civil Code shall be the starting time of succession” in article 1 of Interpretation.

Article 48 of the Civil Code: The day when the court renders a judgement to declare the death of a person shall be deemed the date of death of the person; but if the person is declared dead for his disappearance from an accident, the day when the accident occurred shall be deemed the date of the death of the person.

In fact, the new Interpretation adds to the situation of determination of the start time of the succession that “if the person is declared dead for his disappearance from an accident, the day when the accident occurred shall be deemed the date of the death of the person “.

2. Delete the stipulation on inadmissibility and admissibility in estate division proceedings

The new Interpretation has deleted the stipulation in Article 32 of the Opinions: “Those who are entitled to an appropriate share of estate in accordance with the Article 14[1] of Succession Law, knowingly fail to make a request at the time of the division of the estate shall not be accepted generally by court.”

Therefore, the new Interpretation holds that a person who can be given an appropriate estate in accordance with Article 1131[2] of the Civil Code could bring a lawsuit to the court as an independent litigation subject when right is violated. So long as within the statute of limitations, whether above person is aware of their access to part of the estate at the time of the division, does not affect the exercise of their rights later.

3. Definite that testator must have full capacity for civil conduct when making a will

The Interpretation clearly changes the original provision that “the testator must have capacity for conduct when making a will” in Article 41 of Opinions to “the testator must have full capacity for civil conduct when making a will” in article 28 of Interpretation.

The expression of specific provisions in the new Interpretation is to classify the capacity for civil conduct into full capacity, limited capacity, and no capacity for civil conduct, with more rigorous logic, which confirms that the will made by persons with limited capacity is invalid.

4. Change in the form of wavier of inheritance

It is clear in the Article 33 of Interpretation that the wavier of inheritance should be based on the written form. So, the clause in Article 47 of Opinions on verbal waiver of inheritance shall be deleted: “the verbal expression of the wavier of inheritance, if admitted by the heirs or proved by other sufficient evidence, should also be considered valid.”

As the heirs are generally close relatives, for the sake of harmony between relatives, and without causing unnecessary disputes, the wavier of inheritance cannot be “lip service” but should be based on a well-documented written form.

In addition, article 32 of the Interpretation also adds that “the waiver of inheritance shall be expressed to the administrator of the estate or other heir”. The legal status of the administrator of the estate is confirmed laterally, which is in accord with the spirit of the succession section of the Civil Code

5. Changes in the scope of the legacy-support agreement

The provisions concerning the subject of the legacy-support agreement have been revised from the original “supporters or collective organizations and citizens” in Article 56 of Opinions to “organizations or individuals (other than heirs) and natural persons ” in Article 40 of Interpretation. Significant changes have taken place in the scope of the subject. Citizens have been changed to natural persons, which echoes the revision of the General Principles of the Civil Code: The political term “citizen” in the subject of civil equality has been changed to the legal term “natural person”. At the same time, the new Interpretation expands the scope of the legatee and is beneficial to the protection of the interests of the legatee.


[1] Succession Law Article 14 An appropriate share of the estate may be given to a person, other than a successor, who depended on the support of the decedent, or to a person, other than a successor, who was largely responsible for supporting the decedent.

[2] China Civil Code Article 1131 An appropriate share of the estate may be given to a person, other than a successor, who depended on the support of the decedent, or to a person, other than a successor, who was largely responsible for supporting the decedent.


Post time: Jan-18-2021