Interpretation of the connotation of Article 33 of the “Law on the Application of Law to Foreign-Related Civil Relations”: “Validity of Wills” - An empirical study based on 50 judgment documents

Abstract

Article 33 of the Law on the Application of Law in Foreign-Related Civil Relations stipulates the applicable law for determining the validity of foreign-related wills. This paper conducts a comparative analysis of the conceptual differences in defining “testamentary validity” between domestic and foreign-related legal contexts in China. It finds that, in judicial practice, the requirements for the validity of wills in foreign-related civil law are ambiguously defined and overly broad in scope. Specifically, the concept of “testamentary validity” not only includes general elements such as formal requirements, the testator’s legal capacity, genuine intention and the legality of the will’s content but also extends to matters of testamentary succession, including the revocation, amendment and specific provisions of the will. In addressing certain foreign-related testamentary succession disputes, China faces a lack of legal provisions and has to turn to the Article 33. The root cause lies in the inherent deficiencies of China’s dual succession legal system. To address this issue, I propose two approaches for improvement: firstly, fundamentally restructuring the system into an “inheritance-will” model; and secondly, refining the rules of testamentary succession by introducing specialized provisions for matters not currently regulated by law. These measures aim to ensure the legality, reasonableness and fairness of foreign-related judicial adjudication.