· Area of Law： State Organs

· Level of Authority： Local Judicial Documents

· Date issued：06-11-2018

· Effective Date：06-11-2018

· Issuing Authority： Higher People's Court of Beijing Municipality

· Status： Effective

Answers of the Higher People Court of Beijing to Certain Difficult Problems concerning Trial of Cases Involving Succession Disputes
(June 11, 2018)
Over recent years, some new situations and new problems have appeared in the cases involving succession disputes accepted by the courts in Beijing. For the purposes of properly settling such disputes, upon the extensive survey by the Higher People's Court of Beijing and a request for broad comments, the courts at three levels in Beijing have reached a basic consensus or mainstream opinion on the relevant difficult problems. On that basis, the Answers of the Higher People Court of Beijing to Certain Difficult Problems concerning Trial of Cases Involving Succession Disputes was adopted at the Ninth Meeting [2018] of the Judicial Committee of the Higher People's Court of Beijing on June 11, 2018.
I. Successors
1. If legal proceedings are instituted for intestate succession, testate succession, or any other cause of action in the classification of single succession, and, in the trial, the parties put forward more than one succession claim including intestate succession, testate succession, legacy, and legacy-based support agreement, what to do?
If, in the trial of a succession case, the parties respectively put forward intestate succession, testate succession, legacy, and legacy-based support agreement, and other succession claims which are different causes of action, the people's court shall grant concurrent trial and describe the cause of action as succession dispute. If numerous parties are involved, and the concurrent trial of different classifications of succession claims renders the legal proceedings inconvenient, the parties shall be provided with clarification for them to bring actions respectively.
2. What to do if the succession has not been separated from property held in co-ownership? What to do when the succession contains the interests of an outside party?
If the succession involved in a succession case has not been separated from the property held in co-ownership, and all the co-owners of said property participate in the legal proceedings as parties to the succession case, the people's court shall provide parties with clarification for them to put forward the claim for separation of family property, grant concurrent trial in the succession case, and describe the concurrent causes of action as separation of family property and succession. If the parties fail to claim separation of family property upon clarification but claim succession to the whole of the property held in co-ownership, the people's court shall decide to dismiss the claim.
If there is evidence of a dispute over the ownership of the succession involved in a succession case with an outside party, the parties shall be provided with clarification for them to first settle the ownership dispute in another case.
3. What to do if there is evidence of possible existence of successors not participating in legal proceedings? Shall the court ascertain the issue by its power?
If in a succession case, there is prima facie evidence of possible existence of successors not participating in legal proceedings, the people's court shall conduct investigation and verification by its power in the substantial trial. If there is no existing evidence, or evidence found and verified by power, of the existence or the successor qualify of a natural person, the people's court shall grant no joinder.
II. Scope and partition of succession
4. Can death compensation, funeral benefits, and survivor benefits be dealt with together in a succession case?
If, in a succession case, each close relation who has the right to death compensation, funeral benefits, survivor benefits, or any other property is involved in the trial of the case as a party and put forward a claim for the partition of said property, the people's court may deal with the partition of the above-mentioned property together in the succession case.
5. Can tenancy of public housing be passed as succession?
If a party claims to succeed to the tenancy of public housing of the decedent, the people's court shall inform the party of applying for the modification of the tenant of public housing to the administrative agency or entity having ownership of the public housing, but if the party insists on the succession claim, the people's court shall rule that the claim be dismissed.
6. If, at the purchase of public housing, the decedent offsets the seniority benefits of his/her deceased spouse against the housing price according to the seniority benefit policy, can the seniority benefits be converted into a sum of money and partitioned as succession?
If, at the purchase of public housing at a cost price or a standard price, policy benefits are acquired against the seniority of the deceased spouse according to the relevant policy issued by the state, the individual part of the value of the property corresponding to the policy benefits shall be devolved as the succession of the deceased spouse.
The reference formula to calculate the value of property corresponding to the policy benefits: (the individual part of the value of the property corresponding to the seniority of a deceased spouse ÷ the market value of public housing at the time of purchase) × the present value of the housing.
7. Can legacy apply to buildings on rural land for residential use?
If a testator makes a legacy of a building on rural land for residential use to a person other than a member of the collective economic organization, and the legatee claims the acquisition of ownership of such building on account of legacy upon the decease of the testator, the people's court shall not grant support.
8. If a rural household consists of parents and their child, and the child neither lives separate nor has been assigned new land for residential use, when a parent dies, can another child who lives separate claim to succeed to a building on the corresponding rural land for residential use?
If a child lives separate from parents, and another child lives with the parents as a rural household and has not been assigned rural land for residential use, and if when a parent dies, the child who lives separate claims to succeed to the building on the rural land for residential use, the people's court shall not grant support. The people's court shall provide clarification that the party may claim to succeed to the value of the building on the corresponding rural land for residential use.
If the above-mentioned child who lives separate remains a member of the rural collective economic organization and has not acquired rural land for residential use, his/her claim for the right to the building on the corresponding rural land for residential use shall be supported.
9. What to do if a building on rural land for residential use left by the decedent is rebuilt or expanded?
The rebuilding or expansion, without the permission of successors, of a building on rural land for residential use, which was owned by the decedent, does not affect the determined portions of the succession of the building on the rural land for residential use.
A successor has the right to require the person making such rebuilding or expansion to be liable to restoring the building to its original state and making compensation for damage, among others, unless the successor actually occupying and managing the building makes such rebuilding or expansion with the aim of residential use or maintenance and management.
10. What to do if a person who contributes to the rebuilding or expansion of a building on rural land of residential use before the decease of the decedent claims the right to such building?
If a person contributes to the rebuilding or expansion of a building on rural land of residential use before the decease of the decedent and thus claims the co-ownership of such building, or an increase in the corresponding portion of the succession, the people's court shall not grant support. For the corresponding compensation claimed by the person, the people's court shall decide whether to grant support according to corresponding evidence, by customs and practices, from the perspective of equity, and on the basis of determining whether the nature of the legal relationship is gift, gratuitous assistance, or debt between relations.
11. What to do if an urban bungalow as succession is rebuilt, converted, or expanded without approval, without a new property certificate acquired, or with the acquisition of a new property certificate rendered impossible, and a successor claims to succeed to the building?
If an urban bungalow as succession is rebuilt, converted, or expanded without approval, without a new property certificate acquired, or with the acquisition of a new property certificate rendered impossible, and a successor claims to succeed to the building, the people's court shall grant support. Nevertheless, the people's court shall clarify in the judgment that the judgment does not serve as the basis for compensation for demolition and relocation; and that whether the building is illegal and whether a property certificate can be granted shall be determined by the relevant administrative agency in accordance with relevant regulations.
12. Can stock options or any other expectant rights that have not been realized by the decedent be claimed as succession?
If the condition for the exercise of an expectation right, such as stock options, does not happen at the time of decease of the decedent, the partition of the succession shall be claimed at the happening of the condition; and if the realization of the expectation right is subject to a corresponding obligation, the successor(s) shall perform the corresponding obligation when succeeding to the right.
13. Can a party claim the right to the succession which has not devolved to his/her spouse at the time of divorce?
If a party acquires succession during the period of marriage which has not actually devolved, and at the time of divorce, his/her spouse claims to recognize and partition the right in the succession, the people's court shall not grant support, but the spouse may put forward another claim at the actual devolution of the succession.
If either spouse claims, on grounds of damage to community property, to determine the renunciation of the succession by the other spouse to be null, or damages, the people's court shall not grant support.
14. What to do to for, in a succession dispute, a claim for the partition of ownership of an urban condominium unit or bungalow?
In a succession dispute, more than one successor claims to partition the succession registered as a condominium unit into more than one immovable real right for devolution, the people's courts shall not grant support.
If in a succession dispute, a claim is made to partition the succession registered as a bungalow into more than one immovable real right for devolution, the relevant administrative agencies shall be first consulted to clarify whether there are conditions for physical partition and the separate immovable property certificates, so as to prevent difficulties in implementation resulting from non-compliance with related policies.
If said property cannot be so partitioned, the people's court shall provide clarification that the parties modify their claim to determine the portions of the immovable real right in succession and partition the actual use.
III. Intestate succession, testate succession and legacy
15. How to determine an adoptive parent or adoptive child to qualify as an heir?
The existence of an adoptive relationship shall serve as the criteria to judge whether an adoptive parent or adoptive child qualifies as an heir. The people's court shall judge the existence of a support relationship comprehensively by the length of support time, the objective existence of economic and spiritual support, the integration of family qualities, and other factors and if necessary, conduct an investigation according to its power.
16. Is an undertaking to renounce the expected succession rights before the opening of succession valid?
If, in a succession dispute, a party claims to recognize that a successor is deprived of succession rights on grounds of his express renunciation of the expected succession rights before the opening of succession, the people's court shall not grant support; but if such renunciation is made in separation of family property or any other agreement involving the arrangement for rights and obligations other than succession rights, the continuity of the enjoyment of the succession rights is contrary to relevant customs and will result in lesion, the people's court shall not support the claim of the party making such renunciation to succeed to the succession.
17. The rules for the determination of required forms of wills.
The people's court shall determine to be invalid a will not made in the strict form as required by law.
The self-written will without a complete signing date shall be invalid. If succession is disposed by will, and the will is in the form required by the law, the disposition shall be deemed valid.
18. The nature and effect of printed will.
If, in a succession case, a party claims the recognition that a printed will is a valid self-written will on grounds of it being made by the decedent, the people's court shall not grant support. Nevertheless, there is evidence excluding reasonable suspicion that a printed will is made by the decedent in the whole process in the form of self-written will, it can be determined to be a valid self-written will.
If the printed will is made by a person other than the decedent, it shall in the form of will written on behalf of the testator as required by the law.
19. Can a common will be determined to be valid? Can a surviving spouse unilaterally revoke or modify a common will?
A will which is jointly made in the name of a husband and a wife to dispose of community property in the form of will required shall be valid. If the party claims the determination that a will is invalid only because the will is written by a spouse and is not in the form of will written on behalf of the testator as required, the people's court shall not grant support.
If a spouse predeceases, the surviving spouse has the right to revoke or modify the content of the will relating to his/her property, unless such revocation or modification contravenes the common declaration of will susceptible to no separation in the common will.
20. If the form of particular will-related property changes not for reasons of the decedent before the opening of succession, can the part of the will affected be considered to be revoked?
If the form of particular will-related property changes not for reasons of the decedent before the opening of succession, such as damages, and the decedent does not declare his/her will by will to make further arrangements for the property whose form has been changed, the original will shall be deemed to have been revoked; unless there is evidence that the decedent is objectively unable to do so.
21. How is the effect of the notarized will be determined if the notarization is revoked?
For a notarized will, if the notarization is revoked on account of the notarization procedure itself or for any other reason, the notarization will shall be without legal effect. However, for a self-written will, will written on behalf of the testator, or recording will prepared by a party on his/her own that the notary office keeps in the process of making a notarized will, the effect of the will shall be determined according to the Succession Law and judicial interpretations.
22. The effect of an earlier will at the time of the revocation of the last will.
If the decedent has made more than one valid will with inconsistent content, and the last will is revoked, the immediate earlier will shall take effect, unless the party otherwise declares his/her will as to whether to restore effect of the earlier will and which will is the will whose effect is restored.
If the decedent has made more than one valid will with inconsistent content, and last will is determined to be invalid, the immediate earlier will shall take effect.
23. What is the principle of apportionment of the burden of proof of the authenticity of a will, and how is the burden of proof be apportioned in the case of impossibility of appraisal?
In a succession dispute, in principle, the party in possession of a will and claiming authenticity of the will shall bear the burden of proof of the authenticity of the will.
In the case that the appraisal of the handwriting is rendered impossible in default of sufficient appraisal and comparison samples, and there is evidence that a party has possession of such a sample but refuses to provide it, the people's court may determine that the party bears the adverse consequences according to the circumstances of the case.
24. If a successor falls under the circumstances of seriously damaging the interests of the decedent or other successor(s) other than those provided in Article 7 of the Succession Law, how is he/she liable?
If a successor seriously damages the interests of the decedent or other successor(s) with the aim of contesting the succession but does not fall under the circumstances provided in Article 7 of the Succession Law, the people's court may reduce the portion of succession that will come to him/her according to specific circumstances.
IV. Payment of debts owed by the decedent and others
25. If each successor expressly renounces succession rights, can the creditor bring an action, requiring successors to pay the debts owed by the decedent?
If each successor expressly renounces succession rights, but a successor has the actual possession, use, enjoyment, or disposition of the succession, and if the creditor brings an action against the successor who has the actual possession, use, enjoyment, or disposition of the succession, requiring him/her to cooperate in paying the debts owed by the decedent, the court may grant support according to the circumstances of the case.
26. Shall each successor participate in the legal proceedings in the case of payment of debts owed by the decedent? What shall be contained in the body of a judgment?
In the case of payment of debts owed by the decedent, if the creditor brings an action only against some successors, the people's court shall provide clarification that the creditor add other successor(s) as defendant(s) to the legal proceedings; if the creditor fails to do so, the people's court shall inform him/her that he/she may lose the claim for corresponding debts and then notify the other successor(s) by power of participating in the legal proceedings as a third party, so as to find the devolution of the succession together.
In the case of payment of debts owed by the decedent, if the people's court decides that successors are liable to payment of debts, the body of the judgment shall read, “Intestate successors A, B, ... shall be jointly and severally pay... to the extent of their respective portions of the succession; and in the case of insufficiency, testate successor (or legatee) C shall pay _%, testate successor (or legatee) D shall pay _%...".
27. Can the donee require a successor to continue performing the gift contract executed by the decedent? Does a successor have the right to revoke the gift?
If the decedent executes a gift contract, agreeing on giving gift property to the donee, and has not performed it before the time of death, the donee shall have the right to require the successor to perform the gift contract; but the successor shall have the right to revoke the gift contract in accordance with Article 186 of the Contract Law of the People's Republic of China.
28. What shall be stated in the main body of a judgment as to ownership of the succession rights in particular property?
In a succession dispute, the people's court shall state in the judgment as to ownership of the succession rights in particular property: __(property) shall devolve to A; instead of stating: __(property) shall belong to A.