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Legal Treatment of the Conflict between the Executor of Testament and the Legal Guardian's Right to Administration of Heritage under the Current Inher

Since the implementation of the Inheritance Law of China in 1985 for more than 30 years, the provisions of the testamentary executor system have only been embodied in Article 16 of the Inheritance Law in principle: "Citizens may make a will to dispose of their personal property in accordance with the provisions of this Law, and may designate the testamentary executor." However, the rights and obligations of the executor and the specific content of exercising the will have not been clearly stipulated, nor has it been involved in judicial interpretation. So, when there is a conflict between the executor of the will and the legal guardian about the management of the estate, how to deal with it?

Let's first look at a case in which the court upheld the legal guardian's right to administer the property of the testamentary heir in civil judgment No. 193 (2016) of Hei 0704 at the beginning of the Republic of China. The court held that although the testator enjoyed the right to dispose of his property, he could not infringe upon the legal guardianship granted by law to the plaintiff as the father of the heir, thus enjoying the right to manage the property of the guardian according to law, and the heir was always guarded by the plaintiff, so the plaintiff, as the legal guardian of the heir, could not infringe upon his property. Enjoy the right of administration according to law.

From this case, we will analyze the following issues in detail:

1. How to determine the guardian of a minor

Article 27 of the General Principles of Civil Law clearly stipulates that the parents of minors are the guardians of minors. This kind of guardianship is based on the legal fact that the guardianship factor of parents for minor children is the birth of a girl.

At the same time, Article 21 of the Mintong Opinion stipulates that after divorce, the spouse who lives with the children has no right to cancel the guardianship of the other spouse over the children. However, unless a party who does not live with the child commits a criminal act or maltreatment against the child or is obviously unfavorable to the child, the people's court considers that it can be cancelled.

One of the duties of the legal guardian is to take care of the life of the guardian, manage and protect the property of the guardian. Therefore, after the death of one parent, the other party has the right to take care of the life of the minor and manage the property of the minor according to the status of the legal guardian. The testator has no right to make a will to deprive the legal guardian. This right. If the testator requests the cancellation of the other party's guardianship before the testator's life, the court can only bring a lawsuit to the court and make a judgment according to its proof.

In addition, another response from the notary office of Yuyao City in Zhejiang Province also reflects to some extent that it is difficult for parents to unilaterally make wills to appoint guardians for their children in accordance with Article 29 of the General Principles of Civil Law.

The notary office believes that although Article 29 of the General Principles of Civil Law stipulates the system of appointing guardians by will (that is, if the guardian's parents act as guardians, they may appoint guardians by will), at least three conditions should be met: first, the main body of appointing guardians by will must be the guardian's parents, one of them is the guardian's parents. The Guardian outside has no right to appoint a guardian by will; secondly, the parents of the guardian are both alive and capable of guardianship. If the guardian is a minor, the parents of the minor are both legal guardians and have guardianship duties. The father or mother may not appoint a guardian by will alone, otherwise they will. The guardianship of the other party will be deprived unless both parents agree or appoint it as a joint testator; thirdly, the way of appointment is a will, which will not be effective unless it meets the formal conditions of the will; and secondly, the will will will only begin when it meets the conditions for its entry into force.

Therefore, it is difficult to get support under the current legal framework for the father or mother as a testator to exclude the legal guardian's guardianship of the minor children's heirs and the management of the inheritance by appointing guardians.

2. Who should manage the inheritance of minor heirs

This issue involves the conflict between the executor's right to administer the estate and the legal guardian's right to administer the property of the guardian. On the one hand, according to the provisions of Article 16 of the Inheritance Law, citizens can make a will to dispose of their personal property in accordance with the provisions of this Law, and may designate the executor of the will. The executor of a will has the right to dispose of and manage property in accordance with the content of the will. On the other hand, according to Article 10 of the Mintong Opinion, the guardian's guardianship duties include the management and protection of the property of the guardian. Therefore, although the guardian himself does not have any right to the inheritance, as the first legal guardian of minors, he has the right to request the testamentary executor to deliver the inheritance to the heir, and to take care of and dispose of it on his behalf in accordance with the law.

At present, the law does not specify the priority of the executor of the will and the legal guardian in the management of the guardian's inheritance. In the judicial cases we have found, the court has not broken through the legal guardianship framework at present, and still adjudicates that the legal guardian enjoys the right to minors or civilians. The right to administer the heritage of persons with capacity for conduct. Therefore, under the current legal framework, there is a certain legal risk for the testator to choose the executor through the will to manage the legacy left to the guardian.

3. How to realize the purpose of the executor to manage the heir's property through the agreement arrangement

In another case, the testator Yin Mou wrote a "Wills", which inherited 200,000 cash from his minor daughter and handed it to Yin Mou's brother for management. The deposit interest can be used as the living expenses of Yin Mou's parents and his wife and children. Yin's house is owned jointly by his wife and children, and his wife has the right of residence, but he must not deal with the sale. Yin Mou, Yin Mou's brother, Yin Mou's wife and daughter all approved and signed. Later, Yin's wife took Yin's brother to court for unjust enrichment and asked him to return 200,000 yuan.

The court of first instance ruled that Yin Mou's act constituted a civil trust. Yin Mou was the principal, Yin Mou's brother was the trustee, and Yin Mou's daughter was the beneficiary. Yin's wife may not ask Yin's brother to return 200,000 yuan. The court of second instance held that the court of first instance held that the legal relationship was correct and that Yin's wife did not provide evidence to prove that Yin's brother had not fulfilled the trustee's duty of diligence and prudence, so it rejected his appeal. But Yin's elder brother should bear the duty of safety and care for the risk of investing 200,000 yuan.

Therefore, in practice, if the purpose of the executor's management of the heir's property is to be successfully realized through the agreement arrangement, legal guardians are often required to sign their consent to the testator's disposition to prove that they have the intention of consenting to the testator's disposition.

To sum up, our lawyers suggest that when making a will or signing relevant agreements, professional lawyers should be consulted to determine whether they conform to the provisions of the existing laws and regulations of our country, so as to avoid unnecessary legal risks.

Author: Li Zhe, Partner of Shanghai G-road Law Firm

This article was originally created by the lawyer of Shanghai G-road Law Firm and represents the author's own opinion. It should not be regarded as the formal legal opinions or suggestions issued by G-road Law Firm or its lawyers. If you need to reproduce or quote anything in this article, please indicate the source.