Joint will of husband and wife in Vietnam

The first-instance civil judgment 33/2020/DS-PT dated May 19, 2020 on the land use right inheritance dispute has the following contents:

"Mr. H and Mrs. T have six children together: Cao Thi Y, born in 1970, Cao Ngoc K, born in 1972, Cao Ngoc S, born in 1974, Cao Ngoc H, born in 1976, Cao Thi Kim T, born in 1979, Cao Ngoc N, born in 1981. On September 1, 2003, Mr. H and Mrs. T made a joint will of husband and wife to divide the land among their children. In December 2005, Mr. H fell ill and died; Now, because Mr. H treats Mrs. T badly, she reclaims half of the 93.8 m2 of land to be divided to Mr. H (= 46.9 m2), which is the land between her and Mr. H's joint will because the joint will with Mr. H has not yet taken effect.

Mr. H would like to pay Ms. T in cash according to the actual transfer price in the assessed locality; The reason is, if Mr. T is paid with land, the area of ​​land that he inherits from Mr. H is not large enough to be granted a land use right certificate in accordance with the law."

The People's Court of Bac Giang province recognized the agreement of Ms. Ngo Thi T with Mr. and Mrs. H.

Inheritance is an institution in civil law of Vietnam, inheritance under the common will of husband and wife is a matter of much concern today, when parents want to leave property to their children and grandchildren. Will is understood as a document expressing the will and aspiration of a person in disposing of property, transferring ownership and right to use property to another person after death.

Article 663 of the 2005 Civil Code stipulates that “Husband and wife may make joint wills to dispose of common property”. According to the Law, a joint will of husband and wife is established on the basis of marital relations and property relations based on consolidated common ownership of the husband and wife's property. This is an agreement of the parties not to create, change or terminate the rights and obligations of the other party, but to unify the common will of both spouses in the disposition of common property for a third party and the distribution of property to the heirs as well as the exercise of other rights of the testator. However, in order to amend a joint will, it is necessary to have the consent of both parties, if not, one party has the right to modify only the part of the property owned by him.

According to Article 624 of the 2015 Civil Code: "A will is an expression of an individual's will to transfer his/her property to another person after his/her death". Due to the difficulty in implementing a joint will in practice, the 2015 Civil Code does not stipulate whether a husband and wife can make a joint will. It can be understood that the above provisions show that the will is the will of the individual, not the will of an individual, from which the law does not prohibit the making of a joint will between husband and wife. Therefore, a joint will is still valid when the conditions specified in Article 630 are met.

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. ...

Meanwhile, according to the provisions of Article 611 of the 2015 Civil Code of Vietnam, the time of opening the inheritance is the time when the person with the property dies. In this case, Mr. and Mrs. T's husband and wife make a joint will to determine the property, because Mr. H died first, his part of the will in the joint will has come into force, and the part of Mrs. T's will has not yet taken effect.  Therefore, Mrs. T can only amend and supplement the will related to her part of the property but has no right to change the content of the will related to the part of Mr. H's estate that has been decided in the joint will. before. The court recognized the agreement between Ms. T and Mr. H as reasonable.

Therefore, the law does not prohibit the making of joint wills between husband and wife. However, in order to ensure objectivity and ease for the beneficiaries of the inheritance, husband and wife should not make joint wills. 

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