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Mother uses will to hand custody of son to her sister

By Zhou Wenting in Shanghai | China Daily | Updated: 2023-08-31 09:04

In her final days, a mother in Shanghai left a will handing custody of her son to her sister instead of her husband, a decision that a Shanghai district court recently supported.

It was the first case of designated guardianship through a will in Shanghai, according to the court.

However, unlike most such hearings, the two parties sitting in a tribunal at the Shanghai Changning District People's Court on Aug 22 were not plaintiff and defendant, but a 16-year-old boy surnamed Chen and his 64-year-old aunt.

They were in the tribunal for one reason — to provide a better future for Chen. The aunt, surnamed Xu, had applied to become the custodian of her nephew before he reaches the legal age of 18. Her younger sister died in March, aged 51.

Chen was born in Shanghai in 2007. Since he was a child, his father has had severe bipolar disorder and was diagnosed as having the highest level of mental disability. When the boy was in primary school, the father was placed in a mental health center and has not taken care of Chen since.

The mother was diagnosed with late-stage stomach cancer in 2020. Her older sister, a rural villager in Henan province, headed to Shanghai to help with the daily lives of the mother and son. She didn't return home until her younger sister's health stabilized a few months later.

However, the mother's health deteriorated in October, and her sister rushed to Shanghai again.

In early March, the mother, who could only take in water, decided to make a will authorizing her older sister to take custody of Chen. She asked a worker from the neighborhood committee to write down her will with a friend present as a witness. The mother died six days later.

The neighborhood committee introduced the aunt to the local legal assistance center to help her determine the legal effectiveness of the will. Wu Fang, a lawyer from Shanghai Yanghe Law Firm, was appointed as the woman's attorney. Wu visited her home in Henan, and instructed her how to get material from police to prove her relationship with Chen.

In June, the aunt applied to Changning district court to terminate the father's custody of the boy and designate her as his guardian.

Chief judge Gu Xuelei said that the key to the case was determining whether Chen's father, who still lives in a mental health center, had the capability or not to be the boy's guardian, and whether the aunt could serve as an appropriate new guardian.

Gu visited Chen's neighbors and schoolteachers as well as the father to make assessments.

"The father, 53, also suggested the aunt be his son's guardian. He said he doesn't have any relatives in his family who are still alive and can take care of the son," said Gu, who is also head of juvenile and family cases at the Changning district court.

"Chen is a good boy. He will become a second-year student at a senior high school in the upcoming new semester. Considering that he is still a minor and needs care and emotional support and the participation of an appropriate guardian in significant matters, we made the court decision in favor of Chen's mother's will," said Gu.

He also mentioned that Chen has been granted 2,500 yuan ($340) per month by the Shanghai Civil Affairs Bureau as a subsidy for children in need. Based on his outstanding academic performance, Chen has also been provided with a scholarship from the Shanghai Women's Federation.

Gu said the court is also talking with employment agencies to help the aunt find job opportunities to make a living in Shanghai.

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