Currently, the law on testaments in Vietnam is an issue that is always of interest to many people. In this article, Lac Duy & Associates will provide you with an overview of the commonly used testament templates and notes drawn from practical experience on the above issue:
1. What is a testament? Classification of testaments
As defined in Article 624 of the Civil Code No. 91/2015/QH13 promulgated by the National Assembly of the Socialist Republic of Vietnam on November 24, 2015, effective from January 1, 2017 (“Civil Code”), “a testament is an indication of an individual’s will to transfer his/her property to others after death”.
From the above concept it is understandable that the testament is a unilateral legal act that expresses the will and desire for the division of the estate of the testators’ estate their death. A testament is also one of the very important documents for resolving legal disputes over inheritance rights and inheritance under the laws of Vietnam and the world.
According to the provisions of Article 627, Article 628 and Article 629 of the Civil Code, testaments are classified into 02 (two) categories as written testaments and oral testaments as follows:
- Written testaments include: (1) Written testament without witnesses, (2) Written Testaments with witnesses, (3) Written Testaments with certified documents, (4) Certified written Testaments;
- Oral testaments: Oral testaments can be made in cases wherea person’s life is threatened by death and a written testament cannot be made. After 03 months from the time of oral testaments, if the testator is still alive, sane and wise, oral testaments shall be automatically annulled.
2. Overview of the legal provisions on inheritance according to testaments should be noted:
Currently, the inheritance under the testament is being adjusted in accordance with the general provisions of Chapter XXII of the Civil Code (including 25 articles from Article 624 to Article 648). However, the Civil Code is a general law governing civil relations, so when considering in detail an issue of inheritance under a testament, we need to be based on the nature of the case, the nature of the inheritance and other relevant legal relationships to consider the overall legal documents applicable to each other specific field such as the Land Law (for inheritance is land, real estate), the Enterprise Law (for inheritance as shares, contributed capital),….
3. Contents of testaments
According to Article 631 of the Civil Code, the testament consists of the following main contents:
“1. A testament consists of the following main contents:
a) The date of making a testament;
b) Full name and place of residence of the testament-making person;
c) Full name of the person, agency or organization entitled to the estate;
d) Heritages left behind and places where heritages are available.
2. In addition to the contents specified in Clause 1 of this Article, the testament may have other contents.
3. A testament must not be abbreviated or written with the symbol, if the testament consists of multiple pages, each page must be numbered and signed or pointed by the testator.
In case of erasing or correcting a testament, the person who writes the testament himself/herself or the witness shall sign next to the place where the testament is erased or corrected.”
In addition to the above-mentioned main contents, when drafting and making a testament, it is necessary to add other relevant contents to limit disputes that arise later.
4. Legal testaments:
Article 630 of the Civil Code provides for legal testaments as follows:
“1. A legal testament must fully meet the following conditions:
a) The person who made the testament is clear and wise while making the testament; not to be deceived, intimidated, coerced;
b) The contents of the testament do not violate the prohibition of law, are not contrary to social ethics; the form of testaments is not contrary to the provisions of law.
2. Testaments of people aged between full fifteen and under eighteen must be made in writing and must be agreed on the making of testaments by their fathers, mothers or guardians.
3. The testaments of physically restricted or non-written witnesses must be made in writing by witnesses and certified or authenticate.
4. Written testaments without noticing or authenticity shall only be considered legal, if fully meet the conditions specified in Clause 1 of this Article.
5. Oral wills are deemed legal if oral testaments express their final will in front of at least two witnesses and as soon as oral testaments express the final will, witnesses record, sign together or point points. Within 05 working days after the oral testaments show the final will, the testaments must be authentically certified by not officers or competent agencies for certification of signatures or points of witnesses”.
5. Validity of the testament
Article 643 of the Civil Code has the following provisions on the validity of a testament:
“1. The testament is effective from the time of opening the inheritance.
2. A testament is not valid in whole or in part in the following cases:
a) Heirs according to testaments die before or die at the same time as the testators;
b) Agencies and organizations designed as heirs no longer exist at the time of opening the inheritance.
Where there are many heirs according to the testament but there are people who die before or die at the same time as the test makeer, one of the many agencies or organizations that are designed to inherit under the testament no longer exists at the time of opening the inheritance, only the part of the testament related to this individual, agency or organization is not valid.
3. The testament is not valid, if the estate left to the heir is no longer available at the time of opening the inheritance; if the estate left to the heir is only a part, the part of the testament on the remaining estate remains in force.
4. When a testament is somewhat illegal without affecting the validity of the rest, only that part is not valid.
5. When a person leaves multiple testaments for an asset, only the last testament takes effect.”
A valid testament is a legal testament. From the basis of the study specified in Article 630 of the Civil Code as cited in Section 4, Article 643 of the Civil Code mentioned above, and other provisions of the Civil Code, it can be said that the testament is effective when and only if:
- The testators must have civil act capacity: According tothe provisions of Clause 1, Article 625 of the Civil Code, “Adults who fully meet the conditions specified at Point a, Clause 1, Article 630 of this Code have the right to make testaments to determine their property”. According to Article 20 of the Civil Code, adults who are full 18 (eighteen) years of age or older and do not belong to cases of loss of civil act capacity (Article 22 of the Civil Code), have difficulties in awareness, mastery of acts (Article 23 of the Civil Code) or limit their civil act capacity (Article 24 of the Civil Code). Adults who do not belong to the above cases have full civil act capacity (“The individual’s civil act capacity is the ability of the individual by his/her acts to establish and perform civil rights and obligations” – Article 19 of the Civil Code).
“A person aged between full fifteen and under eighteen may make a testament if he/she is consented to the making of a testament by his/her father, mother or guardian” (Clause 2 of Article 625 of the Civil Code). However, the testament of a person aged between full fifteen and under eighteen years must be made in writing.
- The testator is clear, wise and completely free in terms of will while making a testament: This issue is clearly specified at Point a, Clause 1, Article 630 of the Civil Code. In addition, Clause 2 Article 3 of the Civil Code on the basic principles of civil law stipulates the following: “Individuals and legal parties shall establish, perform and terminate their civil rights and obligations on the basis of their freedom, voluntary commitment and agreement. All commitments and agreements do not violate the prohibition of the law, do not violate the social ethics in effect for the parties and must be respected by other subjects”.
Thus, a valid testament must be a legal testament made on the basis of freedom, voluntary, not deceived, coerced.
- The content of the testament does not violate the prohibition of the law, does not violate social ethics; form of testament not contrary to the provisions of law: This issue is specified at Point b, Clause 1, Article 630 of the Civil Code. When considering this regulation, we need to clarify some issues as follows:
Formally, Article 635 of the Civil Code stipulates that “the testators may request the noticing or authentication of the testament”. Thus, there is no provision for a testament to be notified or authenticed to take effect. However, in Clauses 3 and 4, Article 630 of theCivil Code, there are also provisions: “The testament of a physically restricted person or of anunsymed person must be made in writing by a witness and notified or authenticated“, “A written testament without a noticing or authentication shall only be deemed legal, if there are sufficient conditions specified in Clause 1 of this Article”. Therefore, to ensure the highest legality, the testament should be legally notified or authenticated.
In terms of content, a testament should ensure the existence of the contents specified in Article 631 of the Civil Code and not contain contents that violate the prohibitions of the law (including the Civil Code and other relevant specialized laws) and must not be contrary to social ethics.
- Individuals and organizations that acknowledge inheritance must be alive or alive at the time of opening the inheritance: Please see Clause 2, Article 643 of the Civil Code quoted by us at the beginning of Section 4.
- Inheritance must be in whole or in part at the time of opening the inheritance: Please see Clause 3, Article 643 of the Civil Code quoted by us at the beginning of Section 4.
- This testament is a single or final testament: Please see Clause 3, Article 643 of the Civil Code quoted by us at the beginning of Section 4.
6. Other notes for written testaments:
From practical experience and comparison with the provisions of Vietnamese law, we draw on a number of other issues to keep in mind when making a written testament as follows:
- Ethnic minority people have the right to make testaments in writing or the voice of their ethnic minorities.
- In case the inherited asset is a registered property (such as real estate, automobiles, motorbikes, etc.), to avoid complicated procedures for enjoying inheritance, the testament should be made in writing and certified or authenticated.
- According to the provisions of Clause 1, Article 644 of the Civil Code: “The following people shall still enjoy the inheritance equal to two-thirds of the capacity of an heir under law if the estate is divided according to law, in case they are not entitled to the estate by the person making the testament or only enjoy the share of the estate less than two-thirds of that capacity: a) Minor children, fathers, mothers, spouses; b) Adults who are incapable of working”. However, this provision does not apply to the person who refuses to receive the estate as prescribed in Article 620 of the Civil Code or who does not have the right to enjoy the estate as prescribed in Clause 1 Article 621 of the Civil Code (Clause 2 of Article 644 of the Civil Code).
The above are the most general opinions on inheritance by testament in 2021. In case there is any question, readers can contact Lac Duy & Associates for timely support at:
- Phone: + 84 (28) 3622 1603
- Email: info@lacduy-associates.com or lacduy@lacduy-associates.com
Best regards.