She, who was seriously ill, left a will to entrust her only son to her sister, directly attacking Shanghai's first case of designated guardianship in a will: Aunt Chen was seriously ill 6 days before her death

This is a special trial. Both parties are not the plaintiff and defendant, not the prosecutor and defendant, but the applicant and the respondent. There is no common tension between us in court, and in every word we say, there is an indescribable warmth. Because both sides have a common goal - to enable a boy to have a better future.

Yesterday afternoon, the reporter listened to the entire process of the trial of the first case of designated guardianship of a will in Shanghai at the Changning District People's Court. More than an hour later, Gu Xuelei, the presiding judge and the president of the Comprehensive Trial Division for Juvenile and Family Cases in Changning Court, announced the verdict in court, confirming that the applicant and the boy's aunt had become their guardian.

Seriously ill mother leaves her final will

In 2007, Xiao Chen was born in Shanghai. During his growth, he gradually felt that his father Chen's emotions were not very stable, sometimes very gentle, and sometimes very irritable. He not only physically assaulted his mother Ms. Xu, but also physically assaulted himself. Once, Xiao Chen's teeth were knocked out by his father. The reason is that Chen suffers from severe bipolar disorder, which has been identified as a level one mental disability. When Xiao Chen was in her teens, Ms. Xu finally couldn't bear such a life and sent her husband to the Changning District Mental Health Center for treatment. Since then, Chen has been hospitalized and has never taken care of his son, Xiao Chen.

Not long after, misfortune struck this family again. In 2020, Ms. Xu felt unwell and was diagnosed with advanced gastric cancer after seeking medical attention. Ms. Xu is the youngest daughter in the family. Upon hearing this bad news, her elder sister, Aunt Xu, who was already in her sixties at the time, rushed from her hometown in Henan to Shanghai to take care of Ms. Xu and her nephew, Xiao Chen, in their daily lives. A few months later, Ms. Xu's condition gradually stabilized, and Aunt Xu only returned home.

However, Ms. Xu's stomach cancer recurred last year and was even more severe than the previous one. Last October, Aunt Xu once again arrived in Shanghai and has been living there ever since. She helped her younger sister with laundry, cooking, medicine, and wiping herself, while also taking care of Xiao Chen, who was already a freshman in high school at the time, drinking, eating, and living. However, under the ravages of illness, Ms. Xu's body continued to weaken day by day. Knowing that her time was running out, she began to consider what was going on behind her, and the one that made her most uneasy was her only son, Xiao Chen. After careful consideration, she made a decision.

At around 2pm on March 2nd this year, Xu Jun, a staff member of the neighborhood committee where Ms. Xu is located, once again came to visit. "She was seriously ill, and her husband had been living in a mental hospital for a long time, making family life very difficult. Therefore, she was a key focus of our neighborhood committee's assistance, and we would occasionally come to visit her." Xu Jun recalled that when she entered, Ms. Xu was covered in a blanket and lying on a recliner, with a very haggard face. At this point, Ms. Xu is unable to eat normally due to stomach perforation and can only drink water.

Upon seeing Xu Jun, Ms. Xu exerted herself and said she wanted to ask him to help write a will, so that after her death, her sister Aunt Xu could become the guardian of her son, Xiao Chen. Originally, Ms. Xu invited another neighbor to write a will, but the other party was unable to come due to unforeseen circumstances. Coincidentally, Xu Jun came to her door and she asked for his help.

"There are many elderly people in our community who have written wills for them before, so I know that only with a witness can a will be made." At Xu Jun's suggestion, Ms. Xu called her friend, Ms. Yu, who had been friends for more than 20 years. After receiving the phone call, Ms. Yu, who was working outside at the time, rushed over immediately.

"In order to protect the legitimate rights and interests of my son, Xiao Chen, after my death, Xu Jun wrote the will on my behalf as follows: After my death, my sister, Aunt Xu, will serve as Xiao Chen's guardian." After Xu Jun finished writing this will, Ms. Xu looked at it with great courage and signed her own name. Subsequently, Xu Jun and Ms. Yu also signed the will separately. "She was very ill and had difficulty speaking, but that afternoon she talked to me for over two hours and it was evident that she was very worried about her son's future life," Xu Jun said as a witness in court.

Six days after the will was made, 51 year old Ms. Xu passed away. After taking care of her affairs, before she could shake off her sadness, a new question was posed to Aunt Xu and Xiao Chen: Xiao Chen's biological father is still alive, and with Ms. Xu's suicide note, can Aunt Xu really become Xiao Chen's guardian?

All parties work together to support the prosecution

Xiao Chen is indeed a big child. In the eyes of the neighborhood committee officials, he is obedient, sensible, and has good grades. Despite the difficult family conditions, he managed to pass the entrance exam to a key high school in Shanghai through his own efforts, and he will start his second year of high school. However, he is still a minor, and before reaching adulthood, there are still many affairs that require the involvement of a guardian.

Article 29 of the Civil Code stipulates that if the parents of the ward serve as guardians, they may designate guardians through a will. But the neighborhood committee does not know how to operate, nor is it certain whether this clause applies to Xiao Chen's situation. After learning about it, the staff of the Women's Federation suggested that Aunt Xu and the neighborhood committee seek help from the court and procuratorate, and received positive responses from relevant departments.

The Changning Procuratorate has contacted the District Legal Aid Center, hoping to apply for free legal aid services for Aunt Xu. On May 12th, Wu Fang, a lawyer from Shanghai Yanghe Law Firm, was appointed by the District Legal Aid Center to become the authorized representative of Aunt Xu and did a lot of work.

"Before the formal court session, there is a lot of preparatory work to do." Wu Fang said, for example, to prove the kinship between Aunt Xu and Xiao Chen, but her registered residence is not in Shanghai, so she needs guidance on how to apply to the local police station in her hometown to issue relevant certificates. In addition, Wu Fang also helped Aunt Xu draft an application, visited her family residence and local neighborhood committee, and learned about the situation of the case on site. In June of this year, Aunt Xu officially applied to the Changning Court, requesting the court to terminate Chen's guardianship and designate herself as Xiao Chen's guardian.

"The key point of this case lies in whether the father Chen still has the ability to be a guardian, and whether Aunt Xu is suitable as a new guardian. To clarify these two issues, Gu Xuelei not only went to the residential area where Aunt Xu and Xiao Chen live, inquired about their daily living conditions from the neighborhood committee officials, visited their houses, and also went to the district health center to have face-to-face communication with the hospitalized Chen, to understand his thoughts and concerns.". "After judicial appraisal, Chen was a person with limited capacity for civil conduct. He did not directly express his opinion on the will, but said he believed the country would take good care of the children." Gu Xuelei said that during the conversation, the 53 year old Chen also mentioned that his father and two sisters had passed away, and his mother had no contact with his father after divorce in the early years, "that is to say, Xiao Chen has no relatives with his grandfather."

Before the court hearing, Gu Xuelei went to the hospital to communicate with Chen

In addition, the court also commissioned social workers from the Shanghai Sunshine Community Youth Affairs Center to investigate Aunt Xu and Xiao Chen. In court, the social worker appeared as a witness and read out the social investigation report that took more than a month to form.

The report points out that Xiao Chen's family is facing difficulties, with his mother passing away and his father suffering from mental illness. During his upbringing, he had the closest relationship with his aunt except for his immediate relatives. Auntie has come to Shanghai multiple times to take care of her mother and son, and her life is relatively familiar. His father's condition is prone to recurrence and will have an impact on Xiao Chen's life and studies, making it impossible to monitor minors. The report also states that Aunt Xu has experience in taking care of minors and is willing to take care of and supervise them, possessing certain guardianship abilities.

How to solve economic difficulties

Due to Chen's inability to appear, in order to protect his litigation rights, the neighborhood committee staff appeared as his litigation representative in court. In court, there was no objection to the will left by Ms. Xu, and it was acknowledged that Chen's condition prevented him from continuing to serve as a guardian. Xiao Chen also testified in court and made it clear that he was willing to accept Aunt Xu as his guardian. But when Gu Xuelei asked if he had considered whether Aunt Xu's financial situation might not be able to support him, Xiao Chen remained silent for a long time and said, "I haven't considered it."

The economic situation was the most frequently asked question by Gu Xuelei during the trial. Aunt Xu is already 64 years old this year. Although her body is relatively strong, she has little education and no relatives or friends in Shanghai. She can only do household chores for others. Due to being too old and often unable to find work, the only stable source of income is a meager pension. Can this money support herself and Xiao Chen?

"Their family was originally able to receive subsistence allowance and disability allowance, but since Ms. Xu has passed away, she can no longer receive subsistence allowance." After the trial, Gu Xuelei said that Xiao Chen currently lives in two houses, which are several decades old and do not have an independent kitchen. When Ms. Xu was alive, one of the rooms was rented out for 1000 yuan per month. The mother and son lived in the other room and could only sleep in the upper and lower bunks. "Therefore, the court must consider whether Aunt Xu has enough financial ability to support Xiao Chen after becoming a guardian."

The housing conditions of Xiao Chen's family are not good

This problem has been solved through the efforts of the neighborhood committee. The staff of the neighborhood committee who appeared in court stated that they have helped Xiao Chen apply for a monthly allowance of over 2000 yuan for extremely poor children. Due to Xiao Chen's excellent performance, he has also applied for a scholarship through the Women's Federation. Adding a little inheritance left by Ms. Xu can sustain Xiao Chen's daily life. The staff also promised to continue monitoring the living conditions of the Xiaochen family and providing assistance in case of unexpected difficulties.

At this point, all the problems seem to have been resolved. But there is one thing that cannot be ignored, which is that the two houses where Aunt Xu and Xiao Chen currently reside are actually under Chen's name, and Chen also has the right to inherit the inheritance left by Ms. Xu. Is there any way to ensure the daily lives of Xiao Chen and Aunt Xu without harming Chen's legitimate rights and interests? In addition, Aunt Xu and Xiao Chen are both old and young. What should they do if they encounter fraud? After much thought, the court found the Changning District Notary Office.

After learning about it, the notary office promised to provide free deposit notarization services for Xiao Chen and Aunt Xu. Simply put, in the future, monthly subsidies will be transferred to the personal accounts of Aunt Xu and Xiao Chen to cover their daily living expenses. The relatively large amount of property left by Ms. Xu, such as her inheritance, is kept by the notary office. If there is a need for large expenses such as medical treatment, Aunt Xu must apply to the neighborhood committee and obtain the money with the neighborhood committee's seal. During this process, the neighborhood committee can also play a role in supervising Aunt Xu.

Finally, the court ruled in court, supporting Aunt Xu's lawsuit and appointing her as Xiao Chen's guardian.

In fact, Aunt Xu also has her own family in her hometown of Henan, as well as a spouse, daughter, and young granddaughter to take care of. However, when her younger sister encountered difficulties and needed someone to take care of her, she came to this unfamiliar city of Shanghai without hesitation and has not returned home for more than half a year now. After the trial, Aunt Xu gave an interview and choked up several times, saying, "My daughter from my hometown is still very supportive of me. This is my sister's last wish, and I will work hard to find a job and take good care of him."

Dialogue with the presiding judge

What is the legal basis for the trial of the first guardianship case designated by a will in Shanghai, and what are the difficulties? After the trial, the reporter interviewed the presiding judge Gu Xuelei on some issues in this case.

Q: This case is a testamentary guardianship case. What is the difference between it and the well-known voluntary guardianship among the public?

Gu Xuelei: Both testamentary guardianship and voluntary guardianship are provisions in the Civil Code. Among them, intentional guardianship refers to adults with full civil capacity who can negotiate with their close relatives, other individuals or organizations willing to serve as guardians in advance, and determine their guardians in writing. When they lose or partially lose their civil capacity, the guardians shall fulfill their guardianship duties. Simply put, it means appointing a guardian for oneself. At present, there are relevant cases in both the court and notary office, and everyone is familiar with them.

And testamentary guardianship is the appointment of guardians for others. Before death, the guardian designates someone as the new guardian for minors and those who have lost their capacity for civil conduct through a will. This situation is relatively rare in practice. Today's case is the first testamentary guardianship case encountered by a Shanghai court after the implementation of the Civil Code.

Q: What is the difference between the termination of Xiao Chen's father's guardianship and the revocation of guardianship in this case?

Gu Xuelei: This is also a special case in this case. Xiao Chen's father is still alive, and he was the legal guardian of Xiao Chen until today's court ruling.

According to Article 39 of the Civil Code, if the guardian loses the guardianship ability, the guardianship relationship shall be terminated. Revocation of guardianship belongs to another situation stipulated in the Civil Code, when the guardian commits serious acts that harm the physical and mental health of the ward; Or negligent in fulfilling guardianship duties, or unable to fulfill guardianship duties and refusing to delegate part or all of their guardianship duties to others, resulting in the ward being in a precarious state; When other acts seriously infringe upon the legitimate rights and interests of the ward are committed, the people's court may revoke the guardian's qualification on the application of the relevant individual or organization.

Based on the circumstances of the case, we believe that this case should be considered as a termination of guardianship. After appraisal, Chen belongs to a person with limited civil capacity and does not have guardianship ability.

Q: According to the judgment, if Aunt Xu incurs significant expenses in the future, she needs to go through the neighborhood committee. Is there any relevant legal basis for this?

Gu Xuelei: According to Article 43 of the newly revised Law on the Protection of Minors, resident committees and village committees shall guide, assist, and supervise the parents or other guardians of minors to perform their guardianship duties in accordance with the law. In judicial practice, this is a clause that is rarely used. We hope to activate it through this judgment and support the neighborhood committee in fulfilling its legal obligations in accordance with the law.

Q: If extreme situations occur and Aunt Xu is not suitable, does Xiaochen have no guardian?

Gu Xuelei: No, not really. If there are no other guardians, then according to the law, the civil affairs department and the village committee where they are located must bear the responsibility of providing protection. In this case, Xiao Chen has already reached the age of 16, so the court has repeatedly questioned and respected his own wishes, and ruled that Aunt Xu should serve as his guardian.