Wills

THIS COLUMN explores the topic of wills from a historical and comparative perspective. It begins by examining the terminology that is used in English and Chinese. It then traces the history of wills in England and China. Finally, it briefly outlines the formal requirements for the creation of a valid will in common law jurisdictions and China.

TERMINOLOGY IN ENGLISH AND CHINESE

Not surprisingly, death is not a topic that is commonly discussed in casual conversation, particularly if it concerns individuals themselves or their relatives. Discussing death has traditionally been considered a taboo subject in Chinese society on the basis that it is disrespectful or might bring bad luck.

The sensitivity of death as a topic is reflected in the various terminology that is used to describe it. In English, for example, the term “pass away” is often preferred to the more direct term “die”. And in China, the term qushi [去世], which means “to exit the world” is often preferred to the more direct term si [死]. The number four si [四] is considered inauspicious because is shares the same phonetic, although not tonal, pronunciation as si [死] meaning “to die”. In addition, it has traditionally been considered inappropriate to give somebody a clock as a gift because the character for clock, zhong [钟]has the same pronunciation as the character for “end”, zhong [终].

However, as Benjamin Franklin famously said, “in this world nothing can be said to be certain, except death and taxes”. It is therefore important to have an understanding of death and its legal consequences. We will leave the topic of taxes to a later column.

The law of succession is the law governing how property should be distributed or disposed of after death. It is an area that is subject to a huge amount of terminology. It is interesting to note that in English, a wide variety of terms are used to describe the action by which somebody transfers ownership of property by will, including: bequeath, devise, leave, hand down, and pass on. The term “bequeath” was traditionally used in relation to movable property (also known as “personal property” in common law jurisdictions). The term “devise” was traditionally used in relation to immovable property (also known as “real property” in common law jurisdictions).

In both English and Chinese, at least two terms have traditionally been used to describe the document recording the intentions or wishes of a person in respect of the distribution of their property after death. In English, both “will” and “testament” have been used. The term “will” comes from the Old English word “willan” meaning “to wish”.

The term “testament” comes from the Latin word “testamentum”, meaning “will”. The Latin word was used during the time of ancient Rome and comes from the verb “testari”, meaning “to testify”. The term is likely to have arisen out of the ancient practice under Roman law of making oral wills, where a person declared, or “testified to”, their will orally in the presence of seven witnesses.

Subsequently, the terms “will” and “testament” came to be used together (i.e. “will and testament”) in a similar way to other “legal couplets” for which the common law is famous (for a discussion about legal couplets, see China Business Law Journal, volume 1, issue 3: Warranties & misrepresentations).

Similarly, several terms were used in traditional Chinese society to describe a will. These include: yizhu; yishu [遗属]; yishu [遗书]; and yiyan [遗言]. The word commonly used in China today, yizhu [遗嘱], literally means “leave behind instructions”.

It is useful to note three other terms in English. The term “intestate” refers to a person who has not created a will, or who does not have a valid will, at the time of their death. The term “executor” refers to the person that is named in the will to administer the deceased person’s estate. The term “probate” refers to the legal process by which the existence and validity of a will is proved.

THE HISTORY OF WILLS IN ENGLAND

Theodore Plucknett, a famous professor of English legal history, referred to the law of succession as “an attempt to express the family in property”. Noting that in traditional society, families depended on land for their subsistence, Professor Plucknett described property and succession as the “points at which the family sought most eagerly to preserve its stability and safety”.

In England, the term “inheritance” was originally used to describe the process by which the person entitled to inherit land (i.e. immovable property) was determined. Accordingly, the term “heir” referred to the person who was entitled to inherit land under the common law, being the law created by judges in the common law courts.

Andrew Godwin is currently a member of a World Bank team that is advising a central bank in Asia on potential reforms to its mandate. He previously practised as a foreign lawyer in Shanghai (1996-2006) before returning to his alma mater, Melbourne Law School in Australia, to teach and research law (2006-2021). Andrew is currently Principal Fellow (Honorary) at the Asian Law Centre, Melbourne Law School, and a consultant to various organisations, including Linklaters, the Australian Law Reform Commission and the World Bank.