Can a later notarized will override an earlier notarized gift?

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 Daohua Family Law Firm has made the following analysis on a case previously concluded by a Shanghai court regarding the effectiveness of notarized wills and notarized gifts.

Case Summary:

The elderly person owned a house, first signed a gift agreement with his grandson, agreeing to gift the house to the grandson, and had the gift agreement notarized.

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

In the same year, the elderly person made a will, stating that the house involved in the case would be inherited by his three sons upon his death.

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

Sunzi sued the Shanghai court, demanding confirmation of the ownership of the house involved in the case as his own.

Judgment of the court:

The court, after hearing the case, ruled that the gift contract between the elderly and the grandson, which has been notarized, cannot be revoked in the absence of evidence proving the recipient has a legal right to revoke.

Although the property in question has not been transferred through the procedures of property ownership transfer, the gift contract is a consensual contract, which does not require the procedures of transfer for its effectiveness. The contract is legally valid, and the elderly person should fulfill the obligations under the contract.

Although the elderly person had sued the court to revoke it, the court did not support it, so the notarized will cannot override a legally valid gift contract. Therefore, the grandson can obtain the ownership of the house involved in the case based on the gift contract.

Dao Hua Analysis:

Why is the ownership of real estate not contingent on the completion of the 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 gift contracts and oral gift contracts, but excluding those with social public welfare and moral obligations, and notarized gifts) are generally deemed to be executed contracts; while gift contracts with social public welfare, moral obligations, and notarized gifts are considered to be promise contracts.

In this case, the gift is a true expression of the intention of both parties, and the contract itself is legal and valid.

Article 215 of the Civil Code also stipulates that contracts between parties concerning the establishment, alteration, transfer, and termination of immovable property rights shall take effect upon the conclusion of the contract, unless otherwise provided by law or agreed upon by the parties; failure to register the property rights does not affect the validity of the contract.

Therefore, the lack of transfer registration does not affect the validity of the gift contract.

Can a notarized gift contract be arbitrarily revoked before it is performed?

No. Although the Civil Code stipulates that the donor may revoke the gift before the transfer of the right to the gifted property, in order to maintain the solemnity of the contract, it requires both parties to the gift contract to be prudent in their establishment and honest in their performance. The law imposes certain conditions on the revocation of the gift. A gift contract that has been notarized is generally one that has been carefully considered by the donor. If it can be revoked arbitrarily, it is not conducive to maintaining the seriousness of the contract and violates the principle of honesty and trustworthiness.

What legal circumstances allow the donor to revoke the gift or no longer fulfill the obligation to make the gift?

The Civil Code of the People's Republic of China

Article 663: If the donee has any of the following circumstances, the donor may revoke the gift:

(1) Severely infringing upon the legitimate rights and interests of the donor or the near relatives of the donor.

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

(3) Failure to perform the obligations stipulated in the gift contract.

The right of revocation of the donor shall be exercised within one year from the date of knowing or should have known the reason for revocation.

Article 664: If the recipient's illegal act causes the donor to die or lose civil capacity, the heir or legal representative of the donor may revoke the gift.

The right of revocation of the heir or legal representative of the donor shall be exercised within six months from the date of knowing or should have known the reason for revocation.

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

Article 666: If the economic condition of the donor significantly deteriorates, severely affecting their production and operation or family life, they may no longer fulfill the obligation of the gift.

The reason why the law grants the donor the right to exercise the revocation right or no longer fulfill the obligation of the gift under the aforementioned circumstances is actually a supplement and improvement to the arbitrary revocation right, thereby balancing the rights and obligations of both parties to the gift. When the aforementioned legal reasons do not occur, the notarized will cannot be revoked.

Therefore, in this case, the later notarized will cannot override the earlier notarized gift.