Tiffany Hsiao[1]
The beginning of 2020 saw tumultuous global developments with the outbreaks of the epidemic and the successive death of many domestic and foreign celebrities due to the epidemic or other accidents. One cannot help lament the vicissitude of mundane affairs. Therefore, to properly manage one’s posthumous affairs according to one’s own will and prevent impairment to the bond between one’s family members, it is all the more important to prepare a comprehensive will in advance.
I. Will Dispute Cases:
After the death of Yung-fa Chang, founder of the Evergreen Group, in 2016, he left a will to his fourth son KW Chang as his sole heir, triggering a battle of wills between his three sons he had with his first wife and his fourth son KW Chang. The third son, Kuo-cheng Chang, could not accept his father’s arrangement made before his death and filed a lawsuit against the fourth son KW Chang, claiming that this will was invalid. After two years of trial, the Taipei District Court of Taiwan, the first instance court of this case, rendered the 107-Zhong-Jia-Ji-Su-18 Decision of 2018 in favor of KW Chang. In this decision, the court concluded that the will was truly made by Yung-fa Chang before his death and that the will was valid.
In addition, a senior filmmaker surnamed Pei left an estate worth about NT$100 million, including savings and two luxury houses, which were finally distributed to his apprentices and company employees according to a dictated will. Later, his siblings challenged the validity of the dictated will and filed a complaint with the Taipei District Court to invalidate the will. After trying this case, the Taipei District Court rendered the 105-Jia-Su-82 Decision of 2016, in which the will was invalided on the ground that the qualifications of the witnesses to the will were problematic and that the criteria of a dictated will were not met.
Incidentally, after the death of a long-time artist surnamed Kao, who passed away in 2014, four wills successively emerged, including an audio recording in the possession of his assistant, a will in the hands of his partner surnamed Wu, a will held by his father-in-law, and later a will drafted by Kao’s friend at his request in 2012 when he was in Xiamen. The validity of the will is open to debate. If all wills are invalid, it will be necessary to ultimately revert to the Civil Code, and the heirs will inherit in equal shares.
II. Preparation of a comprehensive will:
From the above high profile will cases in society, it is not difficult to see that many disputes and the risk of invalid and unenforceable wills can arise when a will is prepared incomprehensively. To avoid such an outcome, attention should be paid to the legal requirements of a will at the time of preparation so that the will can be given effect according to the testator’s own will after his/her death. For this reason, it is advisable to seek professional legal counsel to follow the procedure below as soon as possible in order to create a legally valid will, confirm that the will reflects the testator’s wishes, and further ensure the execution of the will.
1. Creation of a valid will:
(1) Confirmation of the testator’s free will and true intent.
(2) Confirming the validity and authenticity of the will.
(3) Confirmation that the manner and content of the will comply with the local laws in Taiwan and the jurisdictions where the estate is located; and if the estate involves different countries, it is necessary to further deal with issues of cross-border execution and tax savings.
2. Custody of a will:
(1) A professional attorney should be retained to set up a safety deposit box for the safekeeping of the will and set up confidential files with relevant information known to and reviewed and accessed only by dedicated individuals in charge of such matter.
(2) Each year, a dedicated individual will periodically confirm if another will is to be created in order to confirm the validity of the will.
3. Effective execution of a will:
(1) Upon knowledge of the fact of inheritance, the professional attorney who has been retained should immediately notify the executor of the will to execute the will.
(2) With respect to relevant inheritance matters, a professional attorney should be retained in advance to provide legal consulting services to the executor of the will and to handle matters relating to the re-election of the executor to ensure the fulfillment of the intent of the will.
Based on the foregoing reasons, to avoid the invalidity of a will, the people are advised to assess the appropriateness of a will when it is being created. The author believes that the above planning will help a testator legally and properly create a will in advance while making tax planning in the will, ensuring the realization of the free will reflected by the testament, confirming the proper execution of the will after the death of the testator and avoiding disputes.
If you need legal counsel concerning any will planning issue, please feel free to contact Lee, Tsai & Partners.
[1] The author is a lawyer at Lee, Tsai & Partners. However, the contents of this article merely reflect personal opinions and do not represent the position of this law firm.