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Necessity of wills clashes with traditional inheritance views

Necessity of wills clashes with traditional inheritance views (Source:Shanghai Daily) By Yao Minji Qingming Festival (Tomb Sweeping Day) i...


Necessity of wills clashes with traditional inheritance views


(Source:Shanghai Daily)

By Yao Minji
Qingming Festival (Tomb Sweeping Day) is dedicated to respect for the dearly departed, but some families' day of reverence is marred by distress and disputes over relatives' wills and distribution of property.
In China, when a parent proposes writing a will or discusses dividing property among heirs, the heirs are supposed to and often do say, "No, stop that kind of talk. You are not dying and you will live a very long time."
Sometimes the discussion ends there and is never resumed, which can result in problems.
Many Chinese still don't feel comfortable talking about death (si), which is believed to bring death itself closer, an unwritten rule and tradition that goes back thousands of years. Even the number four, which sounds similar to death, is considered unlucky and items are never given in fours. A clock (zhong) is never given as a gift because zhong can also mean end.
Still, reality is unavoidable, and an increasing number of Chinese people are seeking legal assistance in writing or certifying wills. It is still a very small number compared with the aging population.
"In general, we receive more cases related to wills than before, but many of the clients are well-off middle-aged people rather than the aging and elderly as one might expect," Wu Dong, senior partner with M&A Law Firm in Shanghai.
"Some of my elder clients told me that they wouldn't want to produce a will or even if they have one, they would not announce it, because they don't want the children to feel uncomfortable about it," Wu tells Shanghai Daily.
Discomfort is universally understandable in that children may feel the will is unfair and think the parent prefers other children over them. In China especially, many people rich or poor feel uncomfortable talking so blatantly about money, as in a will.
Many people die without a will, while others write their will in secret without seeking legal assistance, causing many problems and strange cases in recent years, such as one involving 52-year-old local primary school teacher Chen.
As the annual Tomb Sweeping Day approaches, Chen is still in no mood to arrange the annual family tomb-sweeping outing. She has been preoccupied with the will of her late father, who passed away last November just before he turned 76.
Chen had supported her father financially and emotionally - he lived with her family for the past 12 years and Chen also paid his medical bills, a big concern for many elderly people in China.
Chen's three siblings visited and occasionally contributed money for their father's medical and other costs.
In return, her father left a will stating that his savings and other belongings be divided equally among the three siblings, and that his apartment be left for Chen. The apartment is far more valuable than his savings and the rest of the estate put together. But the will has not been executed. It is not legitimate in all respects.
Chen's father only owned half the apartment, which he had owned with his wife, who deceased. The other half ownership is to be divided among Chen's father, Chen herself and her three siblings, according to China's Law of Succession.
That means, without her siblings' consent, she cannot take the house.
"It doesn't make sense to me. My father is head of family and he shall have the right to decide everyone's belongings," Chen tells Shanghai Daily, confused and furious. "Even if some parts of the apartment belong to my brothers and sister, my father shall have the entire right to decide where their parts go, and he has made the decision. Why doesn't the law support the man's deathbed wish?"
Even in places like Shanghai, where legal awareness and legal literacy are ranked among the top in the country, people are still surprised in probate court all the time when it comes to inheritance and wills.
(Source: Shanghai Daily)
Many wills reflect traditional ideas, some conform to China's Law of Succession, while others do not, in which case such portion will be ruled illegitimate and not be executed, just like in Chen's case.
Wu Zhuli, a 62-year-old retiree, is still upset about her father's will - which leaves only 10 percent of his possessions to her, although she has cared for him for the last 20 years.
The man, who is still alive, leaves the other 90 percent of his estate to be equally divided among Wu's three brothers. He believes that sons should inherit more than daughters, since daughters are traditionally taken care of by their husbands and the sons have huge responsibilities to support their wives and children. That is a legitimate traditional view, but Wu just can't get over how unfair it is.
"He doesn't want me to know about the will, but I've seen it and I've heard about it from my brothers, who only come to visit him on public holidays, which is like less than 10 times a year," she says.
"But what can I do? Parents always prefer sons, and my brothers also consider it the right decision. After all, I'm the daughter who's married out of the family already, even though it was me and my husband who have taken care of him for all these years," Wu adds.
Many Chinese fathers assume they are entitled to deal with not only their own property, but also that of their spouses and all of their children, even adult children. Some also believe in "Robinhood" approach of bridging the wealth gap among their children - giving more to poorer children or even going so far as to ask wealthier children to give to poorer children.
"It is very common that many elderly people who come for assistance don't even know what belongs to them. They are perfectly clear about the cash and other valuables, but housing is often the big problem. They don't know how much of the apartment they really own," Shen Yang, who's in charge of Fudan University's Legal Aid Center, tells Shanghai Daily.
The weekly aid service contains advice to the elderly at each of its four branches in the city.
China's Law of Succession was implemented in 1985 and most Chinese people never thought of writing a will until very recently, in the last three to five years.
They simply didn't have much to pass onto their children at the time when ration coupons were widely used, when everybody was supposed to be a proletarian and when everything was supposed to belong to the state. The most valuable possession to inherit, at the time, was parents' jobs, which could be passed on to one child after retirement.
The situation has changed as the country has gotten richer and older. Along with the rapid economic development, people start accumulating private possessions and property. The disposition of these belongings, notably apartments, whose prices have rocketed in the past decade, have caused an increasing number of disputes in and out of court.
China has become an aging society since 1999, with the number of people aged 60 and above 185 million in 2011. In Shanghai, the number was nearly 3.48 million by the end of 2011, according to Shanghai Aging Committee. Based on projections of the United Nations, China's elderly population is to reach 248 million in 2020 and 440 million in 2050.
This means more elderly people and also more kong chao (empty-nest) elderly people, referring to elderly who are left without children to care for them. Problems with will and inheritance mostly occur between those above 70 and their children, around 40 and 50 years old.
The middle-aged parents are not as worried, since most of them have only one child, who will inherit most of the estate according to the law.
According to Shen from Fudan's legal aid center, many elder people inquire whether they could disinherit cold-blooded children, leaving them nothing from their estate, and instead leave their entire estate to the person or persons who cared for them, even if they are unrelated.
Article 13 of the Law of Succession does say that if there is no will, "at the time of distributing the estate, successors who have made the predominant contributions in maintaining the decedent or have lived with the decedent may be given a larger share," yet it isn't specific or cite percentages of the "larger share." This makes it necessary for the decedent to write a will in advance.
Some children are so cold-blooded that the parents have to lure them to care for them with a will that leaves them their estate - or threaten to disinherit them and cut them out entirely if they don't help their parent in his or her old age.
It can also happen the other way around - some children lure the parents to write a will in favor of them, otherwise they threaten not to care for them, sometimes not to even visit them.
Many people are worried that such situations will only get worse in the future, considering China's one-child policy, making each child responsible to support two parents. Willing and unwilling voices
Chen Ying, 35, marketing analyst with a son and a daughter
My mother was almost involved in a law suit with her siblings when my maternal grandfather passed away, and that was ugly. I wouldn't want to see that for my children, since I have two. So I will probably write a will after I retire. I think it's quite necessary.
William Lin, 45, entrepreneur with two daughters, one from previous marriage and one with current wife
It's a bit complicated for me since I have two daughters from two marriages, so I have already inquired with my company lawyer and written my will. But I don't want them to know about it yet and I might change the will at any minute.
Wang Feng, 67, retired technician with a son and a daughter
I don't really see the necessity of writing a will, since all we have will just be shared between the two (grown-up) children equally, which was what my siblings and I did when our parents passed away, and which is exactly what we want for our children.
Wang Zhaolin, 89, retired salesman with three sons and two daughters
No. No. No. A will is bad luck, don't talk about that with me. As for my money, I will just give it to whoever treats me the best.
Zheng Su, 77, retired worker with four daughters and a son
I don't know. I might go to a lawyer, if it's not too expensive, when I know I'm dying.
Jeremy Yu, 32, single, investing strategist
I'm the only child, so it doesn't really matter to me whether my parents have a will. It will all be my money anyway.
(Source: Shanghaidaily.com.cn)

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