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.
In any study of the law of succession in England, it is important to note that the law governing succession to land originally developed separately from the law governing succession to movable property (known as “chattels” in English).
Until the Middle Ages, wills were not used to determine who should inherit land. Instead, the common law determined the identify of the heir. The 20th century saw the adoption of the principle of primogeniture, under which the land of somebody who died was inherited by the eldest son or “first born”. The principle of primogeniture was subsequently replaced by statutes, which provided that the distribution of both immovable property and movable property could be determined by wills.
In the case of movable property, wills had been used from very early times to determine the distribution of property after death. Originally, disputes concerning succession to movable property were subject to the jurisdiction and supervision of the church and its ecclesiastical courts. The role of the church remained until the establishment of common law courts, known as probate courts, in the 19th century.
The law governing wills in England was influenced by Roman law when the concept of a testament was recognised. Under this concept, the law recognised that a person could determine during their lifetime how property should be distributed after their death. Emerging alongside this development was the concept that an intermediary, known as an executor, was required to supervise and deal legally with the property.
Ultimately, statutes enacted by parliament covered the field previously governed by the common law. A key statute in the area of succession was the Statute of Wills of 1540.
THE HISTORY OF WILLS IN CHINA
By the time of the Tang and Song dynasties, the law recognised the validity of wills, subject to certain rules against depriving wives and children of their inheritance rights. By the time of the Southern Song period, however, written laws governing succession became paramount and largely replaced the concept of succession by will.
The paramountcy of the written law over wills was consolidated in the Qing dynasty, although wills were often recognised on a supplementary basis. The primary reason for the paramount status of written law was the need to maintain the family unit for social and political stability. In particular, the concept of communal or family property was of critical importance. Under this concept, the family head was considered to be the “custodian” of family property, rather than the “owner” of family property (for a discussion about customary law, see China Business Law Journal, volume 8, issue 6: Custom and Law).
Today, provisions on succession and wills are contained in the Civil Code. With effect from 1 January 2021, these provisions repealed and replaced the Law of Succession.
REQUIREMENTS FOR CREATION OF A VALID WILL
In England, the Statute of Wills of 1540 required that a will of land should be in writing (for a discussion about writing as a formal requirement for creating valid contracts, see China Business Law Journal, volume 2, issue 2: Contract or agreement – which is correct?). Later, the Statute of Frauds of 1677 provided that a will of land should be signed and witnessed by “three or four credible witnesses”. Under the requirement concerning witnesses, a beneficiary of the will did not qualify as a “credible witness” and it was necessary to find independent witnesses to create a valid will.
A will is unique in terms of operating as a unilateral document, and not as a contract, for determining how property should be distributed after death. Throughout history in both England and China, it has been recognised that oral wills may be created in certain circumstances. In some common law jurisdictions, for example, oral wills can be made by military personnel. In addition, in both China and some common law jurisdictions, it is recognised that handwritten wills, known as holographic wills, do not need to be witnessed.
In common law jurisdictions, the law governing wills typically requires that the person creating the will have testamentary capacity (i.e. has the mental capacity to create a will), that it is clear from the document that a will is being made, and that the will be signed and witnessed by at least two witnesses. In many common law jurisdictions, the prohibition against beneficiaries acting as witnesses has now been abolished.
In China, the Civil Code contains provisions governing wills (see articles 1133 to 1144). It is interesting to note that the Civil Code recognises that a handwritten or holographic will does not need to be witnessed (article 1134), unlike a printed will, which requires two or more witnesses (article 1136). In addition, the Civil Code maintains the rule that the beneficiaries of a will are not qualified to act as witnesses (article 1140(2)).
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.