With the development of society and the progress of the times, the legal awareness and legal cultivation of the people are also continuously improving, and more and more people know how to seek legal means to protect their legitimate rights and interests.

The most common is to confirm some common legal effects through notarization, but this also raises some legal issues. The Dohua Family Law and Matrimonial Lawyers have analyzed the following issues regarding the efficiency of notarized wills and notarized gifts in a case concluded by a Shanghai court earlier.

Case Summary:

The elderly had a house and first signed a gift contract with their grandson, agreeing to gift the house in question to the grandson and had the gift contract notarized.

One year later, the elderly sued to revoke the aforementioned gift contract, but the court did not support the claim.

That same year, the elderly made a will, stating that after their death, the house in question would be inherited by their three sons together.

After the elderly passed away, the three sons and the grandson had a dispute over the ownership of the house.

The grandson sued the Shanghai court, seeking to confirm that the ownership of the house in question belonged to him.

Court Decision:

After the court's trial, it ruled that the gift contract between the elderly and the grandson, having been notarized, was not revocable in the absence of evidence proving any legal grounds for revocation.

Although the house in question had not been transferred through property registration procedures, the gift contract was a consensual contract and did not require the completion of transfer procedures as a condition for its effectiveness. The contract was legally valid, and the elderly should fulfill their contractual obligations.

Although the elderly had previously sued the court to revoke the contract, the court did not support the claim, so the notarized will could not override the notarized gift contract. Therefore, the grandson could obtain the ownership of the house in question based on the gift contract.

Dohua Analysis:

1. Why is the ownership of real estate not subject to the requirement of transfer registration in this case?

Firstly, it is important to understand that the effectiveness of a gift contract and the transfer of ownership of the gifted property are two different concepts.

The Civil Code stipulates that general gift contracts (not distinguishing between written and oral gift contracts, but excluding those with social public welfare and moral obligations, and those notarized) are原则上principally deemed to be executory contracts; while gift contracts with social public welfare, moral obligations, and those notarized are deemed to be consensual contracts.

In this case, the gift was a genuine expression of the parties' intentions, and the contract itself was legally valid.

Article 215 of the Civil Code further provides that contracts for the establishment, alteration, transfer, and extinguishment of real property rights shall take effect upon the conclusion of the contract, except where otherwise provided by law or agreed upon by the parties. The failure to register the property rights does not affect the effectiveness of the contract.

Therefore, the failure to register the transfer does not affect the effectiveness of the gift contract.

2. Can a notarized gift contract be revoked arbitrarily before its performance?

No. Although the Civil Code provides that the donor may revoke the gift before the transfer of the gifted property, in order to maintain the seriousness of the contract, the law imposes certain conditions on the revocation of the gift. A notarized gift contract, having been carefully considered by the donor, would be detrimental to maintaining the seriousness of the contract and violate the principle of good faith if it could be revoked arbitrarily.

3. Under what legal circumstances can the donor revoke the gift or no longer fulfill the gift obligations?

Civil Code of the People's Republic of China

Article 663. The donor may revoke the gift under the following circumstances:

（1）Severely infringing upon the legitimate rights and interests of the donor or the donor's close relatives;

（2）Failing to fulfill the obligation to support the donor;

（3）Failing to fulfill the obligations stipulated in the gift contract.

The donor's right to revoke the gift shall be exercised within one year from the date the donor knows or should have known of the grounds for revocation.

Article 664. If the donor dies or loses civil capacity due to the donor's illegal acts, the heir or legal representative of the donor may revoke the gift.

The heir or legal representative of the donor may exercise the right to revoke the gift within six months from the date the heir or legal representative knows or should have known of the grounds for revocation.

Article 665. If the revocation right holder revokes the gift, they may request the return of the gifted property from the donee.

Article 666. If the donor's economic condition significantly deteriorates, seriously affecting their business operations or family life, they may no longer fulfill the gift obligations.

The law grants the donor the right to revoke the gift or no longer fulfill the gift obligations under the aforementioned circumstances, which is actually a supplement and improvement to the arbitrary revocation right, balancing the rights and obligations of the donor and donee. When there are no such legal grounds, the notarized will cannot be revoked.

Therefore, in this case, the subsequent notarized will cannot override the prior notarized gift.