Do you want to leave a house or savings to a friend, a niece or nephew, or a younger person who has cared for you for many years, but are unsure how to arrange it legally? Under Taiwan's Civil Code, these individuals are usually not statutory heirs. Without advance planning, even a deep emotional bond does not necessarily give them the right to receive property after your death. In this situation, a “bequest” is one of the most commonly used legal tools.

What Is a Bequest?

A bequest refers to a testamentary arrangement by which a testator gratuitously gives part or all of his or her property to a designated legatee through a will. It is a unilateral juridical act. This means that the creation of a bequest does not require the legatee's consent or participation. As long as the will complies with the statutory form requirements, the bequest specified in the will takes effect automatically upon the testator's death（Civil Code, Article 1199）。

Common situations in which a bequest may be used include leaving property to persons outside the scope of statutory heirs, such as：

• Non-statutory heirs：such as a boyfriend or girlfriend, cohabiting partner, close friend, or long-term caregiver.

• More distant relatives: for example, where a person who already has children also wishes to provide for grandchildren, nieces, or nephews who are not statutory heirs under the law.

• Charitable donations：donating estate assets to a specific legal entity or charitable organization.

Because heirs and legatees usually have opposing interests, bequests often become a source of intra-family disputes. Once part of the estate is allocated to a legatee, the portion available to the heirs will necessarily decrease. For this reason, the planning and implementation of a bequest must be handled carefully, as discussed below.

Differences Between a Bequest and an Ordinary Gift

Many people confuse bequests with ordinary gifts, but the two are different in legal nature：

What Are the Requirements for a Valid Bequest?

Because a bequest forms part of a will, it does not become effective merely because the testator made an oral instruction. In practice, the following requirements must generally be satisfied:

1. Testamentary capacity and statutory form：The testator must be at least 16 years old, and the will must comply with one of the five statutory forms under Civil Code Article 1189: holographic, notarized, sealed, dictated, or oral will.

2. The legatee must be alive：Under Civil Code Article 1201，the legatee must still be alive when the will takes effect, namely at the time of the testator's death. Otherwise, the bequest has no effect.

3. The subject matter must be eligible：At the opening of succession, the property subject to the bequest must belong to the testator's estate.

4. The bequest must not infringe the reserved portion：Although a person is generally free to dispose of estate property, the disposition must not violate the mandatory rules on reserved portions under the Civil Code.

Why Can't Friends, Nieces, or Nephews Directly Inherit? Understanding the Statutory Order of Succession

To understand why bequests are especially important for these intended recipients, it is necessary to first understand who qualifies as a statutory heir. Under Civil Code Article 1138, in addition to the surviving spouse, heirs inherit in the following order:

Many people mistakenly believe that if a sibling dies before the decedent, the sibling's children may inherit by representation. However, under Civil Code Article 1140, succession by representation is limited to first-order heirs. In other words, if a child dies before his or her parent, the grandchildren may have room to inherit by representation. By contrast, if a sibling dies before the decedent, the sibling's children do not step into the sibling's position as heirs.
Put differently, without advance arrangements through a will, adoption, or other legal tools, nieces, nephews, friends, and similar individuals generally cannot obtain statutory heir status solely because they provided care or had a close relationship with the decedent. This is one of the most common reasons for using a bequest.

Is a Bequest Limited by the Reserved Portion?

The purpose of the reserved portion system is to ensure that statutory heirs receive at least a minimum share of the estate, regardless of how the decedent allocates property in the will. This mechanism prevents the decedent from excessively favoring certain heirs or legatees in a way that would impair the lawful interests of other statutory heirs.

Reserved portion ratios under Reserved portion ratios under ：

• For lineal descendants by blood, the reserved portion is one-half of their statutory share.

• For parents, the reserved portion is one-half of their statutory share.

• For the surviving spouse, the reserved portion is one-half of the statutory share.

• For siblings, the reserved portion is one-third of their statutory share.

• For grandparents, the reserved portion is one-third of their statutory share.

Key Takeaways

1. In principle, a bequest cannot defeat the reserved portion.

2. If the value of the bequest exceeds the portion that may be freely disposed of and infringes an heir's reserved portion, the affected heir may, under Civil Code Article 1225, claim abatement against the bequeathed property for the insufficient portion. If there are multiple legatees, abatement is made in proportion to the value of the bequests received by each legatee. Therefore, if you wish to leave property to a friend, niece, or nephew, you must first confirm whether there are statutory heirs with reserved portion rights, such as a spouse, children, or parents, and calculate the reserved portion in advance. Doing so reduces the risk that the bequest will later be abated or become the subject of litigation.

Can a Bequest Be Refused? What If the Legatee Dies First?

Although a bequest is a unilateral legal act that may be established without the legatee's consent or participation, the legatee still has the right to choose whether to accept it:

• Renunciation of a bequest: Under Civil Code Article 1206，after the testator's death, the legatee may renounce the bequest. The effect of renunciation retroacts to the time of the testator's death.

• Notice and deemed acceptance: To clarify legal relationships as early as possible, Civil Code Article 1207 allows heirs or other interested persons to request the legatee to state whether he or she accepts the bequest within a reasonable period. If the legatee does not respond by the deadline, the bequest is deemed accepted. Once the legatee accepts the bequest, the legatee generally may not renounce it afterward.

• The legatee dies before the testator: Under Civil Code Article 1201, if the legatee dies before the will takes effect, the bequest has no legal effect. The property subject to the bequest returns to the estate and is inherited by the statutory heirs.

Whether a bequest is invalid because it fails to satisfy legal requirements, or whether the legatee voluntarily renounces it, the property subject to that bequest ultimately returns to the estate and is inherited by the statutory heirs according to law. Common reasons a bequest may be invalid include: the will does not comply with statutory form requirements, such as where a holographic will is not written entirely by the testator personally, or where a dictated will lacks the required number of witnesses; a witness is not legally qualified; the bequest infringes the reserved portion; or the legatee dies before the will takes effect.

Implementation Process for a Bequest and Witness Qualifications

The actual implementation of a bequest usually involves the following steps:

1. Apply for will authentication: Confirm the authenticity and validity of the will.

2. Inventory the estate: Determine the actual condition and value of the property subject to the bequest.

3. Notify relevant persons: The will executor, or if none is designated, the heirs or interested persons, notify the heirs and legatees.

4. Transfer and registration of property: Real estate requires ownership transfer registration, while securities such as shares require transfer procedures.

The length of the overall process depends on the complexity of the estate. In practice, it may take several months.

Witness qualifications are also crucial to the validity of a will. The required number of witnesses differs depending on the type of will. A dictated will must be made in the presence of at least three witnesses, one of whom records the contents of the will. An oral will generally requires at least two witnesses, and even in an emergency, at least two witnesses must be present. Witnesses must be at least 20 years old and have full capacity to make juridical acts. A legatee and the legatee's spouse or lineal relatives may not serve as witnesses. Likewise, the will executor and the executor's spouse or lineal relatives may not serve as witnesses, in order to avoid conflicts of interest that may affect the authenticity of the will.

Designating a Will Executor Can Make a Major Difference

  
Although the law does not require every will to designate a will executor, whether an executor is appointed often becomes a key factor in whether a bequest can be carried out smoothly. Under Civil Code Article 1209, the testator may designate a will executor in the will. The executor may assist with preparing the estate inventory, delivering the bequest, handling transfer registrations, and making necessary notifications, thereby reducing friction during implementation.

Taking registration of real estate bequests as an example, Article 123, Paragraph 1 of the Land Registration Rules provides that when a legatee applies for transfer registration of land ownership based on a bequest, the heirs must first complete inheritance registration, and then the heirs and the legatee jointly apply for registration. If a will executor is designated in the will, then after registration of the will executor and inheritance registration are completed, the will executor and the legatee jointly apply for registration.

In other words, whether a will executor is designated directly affects how difficult it may be for the legatee to obtain the property：

This shows that if a will contains a bequest, especially where the legatee and the heirs may have conflicting interests, such as leaving property to a friend, niece, or nephew instead of a spouse or children, it is generally advisable to designate a will executor at the same time. This can prevent the legatee from being forced to spend time and effort filing litigation merely because the heirs refuse to cooperate in the registration process.

What Other Estate Planning Tools Can Be Used Together with a Bequest?

If the goal is to leave property to a non-statutory heir, such as a friend, niece, or nephew, a simple bequest is not the only tool to consider. In practice, other tools may also be evaluated, each with its own characteristics and limitations:

• Bequest with burden: The testator may require the legatee to perform specific obligations, such as caregiving or ancestral rites. However, the obligations should not be drafted so abstractly that it becomes difficult to determine whether they have been performed.

• Trust: This may be suitable where the testator is concerned that the legatee is too young or lacks financial management ability. The property may be managed by a trustee under the trust agreement and distributed in installments.

• Insurance: Upon the insured's death, insurance proceeds may be paid to a designated beneficiary. Under Article 16 of the Estate and Gift Tax Act, such proceeds are not included in the total estate amount. However, to avoid later disputes, it is advisable to have the insurance contract and related documents reviewed by a professional attorney in advance and to obtain a complete consultation.

There is no one-size-fits-all answer when choosing an estate planning tool. The proper arrangement usually depends on several questions: Is the goal only to allow the recipient to obtain specific property? Are statutory heirs still alive? Might the will infringe the reserved portion? Different answers lead to different combinations of legal tools. Before making any actual arrangement, it is advisable to consult a professional attorney and conduct a comprehensive evaluation based on the person’s assets and family relationships.

Frequently Asked Questions

Q1: Can a bequest be renounced?

Yes. Under Civil Code Article 1206, after the testator's death, the legatee may renounce the bequest. The effect of renunciation retroacts to the time of the testator's death.

Q2: What happens if the legatee dies before the will takes effect?

Under Civil Code Article 1201, if the legatee dies before the will takes effect, the bequest has no effect. The property returns to the estate and is inherited by the statutory heirs.

Q3: Does the legatee need to pay gift tax?

No. Under Article 23 of the Estate and Gift Tax Act，, when a decedent leaves property at death, the taxpayer must file an estate tax return within six months from the date of death. Under Article 6 of the same Act, taxpayers include heirs and legatees. A bequest takes effect upon the testator's death under Civil Code Article 1199. Because estate tax and gift tax are substantively taxes of the same nature, separate gift tax is not imposed to avoid double taxation. Only estate tax is imposed.

（This position is reflected in the Ministry of Finance, National Taxation Bureau, March 17, 1998, Bei-Qu-Guo-Shui-Er Letter No. 870711414）。

Q4: If there are no statutory heirs, can I leave the entire estate to a friend, niece, or nephew?

If there truly is no surviving spouse and no heir in any order listed under Civil Code Article 1138 reserved portion issues generally do not arise. In that situation, a properly executed will may be used to leave the entire estate to the designated recipient. However, the testator should still pay attention to the will's form, settlement of estate debts, estate tax filing, and whether the legatee is willing to receive the property. In practice, it is advisable to designate a will executor at the same time to facilitate subsequent procedures.

Q5: If family members disagree with my decision to leave property to a friend, what can they do?

If heirs believe that the bequest infringes their reserved portion, they may claim abatement from the bequeathed property for the insufficient portion under Civil Code Article 1225. If they question the authenticity of the will, the parties usually first attempt negotiation in practice. If negotiation fails, they may consider applying for mediation. If mediation still cannot resolve the dispute, litigation may follow. When planning a bequest, it is advisable to preserve the original will, witness testimony, and other complete materials, and to designate a will executor where appropriate, in order to reduce the possibility of later disputes.

Q6: Which is more suitable for leaving property to a niece or nephew: a bequest or adoption?

This depends on the planning objective. If the purpose is simply to allow the person to receive specific property, a bequest is usually sufficient, and the testator may still lawfully revoke or it during his or her lifetime. If the parties already have a long-term parent-child-like relationship involving living together, support, and care, and are willing to assume the full legal rights and obligations arising from adoption, then adoption may be further evaluated. Adoption makes the adoptee a first-order statutory heir, and its legal effect is fundamentally different from a simple bequest. The two should not be confused.

Conclusion: A Bequest Can Fulfill Your Wishes, but It Must Be Planned Carefully

A bequest offers a flexible legal tool that allows a testator to leave property to persons outside the scope of statutory heirs, such as a long-term caregiver, close friend, or younger family member. However, the effect of a bequest remains subject to legal restrictions, including the statutory form of the will and the reserved portion system. If the planning is incomplete, the bequest may face risks of abatement or even invalidity. Disputes may also arise between heirs and legatees during implementation, especially where no will executor has been designated. In such cases, the testator's original goodwill may ultimately turn into lengthy litigation.

This article is for general informational purposes only. Actual bequest and estate planning arrangements must be assessed based on each person’s assets, family relationships, and specific facts. If you are considering using a bequest to arrange the distribution of your property, it is advisable to consult a professional attorney as early as possible. A comprehensive evaluation should cover the form of the will, reserved portion calculation, appointment of a will executor, and subsequent registration procedures, so that your wishes can be carried out effectively. WHP Law Firm provides consultation services related to wills and estate planning. Please feel free to contact us for professional assistance with your estate planning needs.

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