Legal Effect of Gifting Prior to Will
  • Lao Zhang, aged 73, had been taken care of by his nanny, DENG X, since 2004 when his wife passed away. In early 2005, Lao Zhang and DENG X registered for marriage. Subsequently, Lao Zhang left a will designating DENG X as the sole inheritor of his assets to inherit the real estate under his name and a little savings. In March 2006, Lao Zhang passed away due to illness. After the funeral affairs, the son of Lao Zhang, Xiao Zhang presented the real estate ownership certificate under his name demanding DENG X to move out of the property where she and Lao Zhang had lived in. Having been refused by DENG X, Xiao Zhang sued against DENG X with the court, demanding DENG X to immediately empty and return the property. Upon investigation and verification, the court that took up the case learned that, due to considerable differences in age, personality and life habits, Lao Zhang was quite dissatisfied with DENG X after marriage. DENG X’s tantrum throwing each time after visit from Lao Zhang’s children has in particular escalated Lao Zhang’s dissatisfaction with her. Therefore, towards the end of 2005, while being hospitalized, Lao Zhang gifted his real estate to his son Xiao Zhang who was in the hospital to take care of him. The ownership transfer procedures were also completed. DENG X counter pleaded on the grounds that she was the legal spouse of Lao Zhang and she held the will written by Lao Zhang himself, therefore Lao Zhang’s real estate should be inhered by her and belong to her.

    Opinion from the Supreme People’s Court: natural persons that have complete capacity of civil acts have the right to dispose of their personal assets according to their own wish by means of will. The testator also has the right to dispose of his/her assets through gifting while still alive, without being bound by the act or the content of the will. Therefore, in case where the testator acts in contradiction with the will before decease, resulting in loss, partial loss or transfer or partial transfer of the ownership of the assets under disposition of the will, the will shall be treated as revoked or partially revoked. 

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