03/08/2022 09:14

How to make a legal will in Vietnam?

How to make a legal will in Vietnam?

A will is an expression of an individual to transfer his or her property to another person after death. However, in fact, not every will is legal and effective immediately. Nowadays, there are many cases where children and grandchildren take advantage of when grandparents or parents are no longer sane and healthy, forcing them to make a will to leave their inheritance. So are these wills really legal?

A will is a unilateral legal act, so the making of a will must comply with the provisions of the law on inheritance under the will.

According to the regulations on the testator specified in Article 609 of the Civil Code 2015:

"A natural person may make a will to dispose of his or her estate, may leave his or her property to an heir in accordance with law, or may inherit an estate left to him or her under a will or in accordance with law."

Therefore, a will is the expression of an individual to leave their property to others before death. If eligible to make a will, the testator can designate an heir and distribute his assets without anyone's consent.

The provisions of the civil law on testators in article 625 of the 2015 Civil Code are as follows:

Article 625. Testator

1. An adult satisfying conditions prescribed in Point a Clause 2 Article 630 of this Code may make a will to dispose his/her property.

2. A person who is between fifteen and eighteen years of age may make a will with the consent of his or her parents or guardian.

Thus, the testator must be an adult with full civil act capacity. For a person aged between full 15 and under 18 who has property and wants to leave a will, the consent of his father, mother or guardian is required.

Regarding the form of wills: Wills must be made in writing; If you cannot make a will in writing, you can make an oral will

A will is considered legal when it fully meets the provisions of the law on wills in the Civil Code 2015 of Vietnam.

Article 630 of the 2015 Civil Code  provides for legal wills as follows:

Article 630. Lawful wills

1. A will must satisfy the following requirements in order to be lawful:

a) The testator was of sound mind when he or she made the will; and he or she was not deceived, threatened or coerced into making the will;

b) The contents of the will are not contrary to law or social morals and the will complies with legal formalities.

2. A will made by a person between fifteen and eighteen years of age must be made in writing and with the consent of the parents or guardian of such person.

3. A will made by a person who is incapacitated or illiterate must be made in writing by a witness and must be notarized or certified.

4. A written will which is not notarized or certified shall be deemed lawful only if it satisfies the requirements provided in Clause 1 of this Article.

5. An oral will shall be deemed lawful only if the testator orally expressed his or her last wishes before at least two witnesses who immediately thereafter recorded those wishes in writing and signed or fingerprinted the document. Such will must be notarized or certified within five working days of the date on which the testator orally expressed his or her last wishes.

Specifically, in Judgment 11/2016/DSPT on the request to declare an illegal will by the People's Court of Quang Tri province at the first instance hearing on June 22, 2016:

On October 21, 2010, Ms. Tran Thi B, who was 87 years old, old and weak, no longer lucid and illiterate, (Mr B's mother) and Mr. Le Quang T (Mr B's younger brother) went to the People's Committee of Ward D to make a will which gave the entire area of ​​1,048m2 of land owned by her father and mother to Mr and Mrs. Le Quang T and Mrs. Tran Thi L. In August 2014, Mr. B and some of his sisters saw that Mr. T voluntarily transferred the land to others, so they had just known a will. This leads to the reason why Mr. Le Quang B requested the Court to declare that the will made by Ms. Tran Thi B on October 21, 2010 is illegal.

Plaintiff Mr. B, defendant Mr. T, persons with rights and obligations related to Ms. H, Ms. T, Ms. S and the Civil Service Committee of Quarter T, Party Committee of Quarter T, Elderly Association of Quarter T, Both leaders of the Le Q faction admitted that at the time of making the will, Ms. Tran Thi B was 87 years old and Mrs. B was illiterate and could not read. Pursuant to Clause 2, Article 658 of the 2005 Civil Code, the fact that Ms. B is illiterate, cannot read and cannot sign, must ask a witness and this person must sign for certification in front of a competent person certified by the People's Committee of Ward D. The person competent to authenticate of the People's Committee of Ward D certifies the will in front of the testator and witnesses.

According to the provisions of Article 654 of the Civil Code 2005 stipulating that the testator's heirs under the will of the testator may not testify for the making of the will. According to the regulation, Tran Thi B's will, made on October 21, 2010 without witnesses is contrary to the law.

Therefore, the trial panel declared the will of Ms. Tran Thi B to be invalid.

Moreover, according to the law, making a will is not too complicated, but it is necessary to ensure certain conditions for a will to be legal and legally valid.

In conclusion, if a will is made in a state of mind that is no longer lucid, the will may not be considered a legal will and  not be valid before the law.

Thanh Ngan

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