Not named in the will, who still inherits in Vietnam?

Specifically, in Judgment 47/2017/DS-ST dated September 8, 2017 on the division of inheritance, the summary content is as follows:

“Mrs. Vu Thi L married Mr. Nguyen Van S in 1978. Mr. S previously had a wife and a stepchild named Nguyen Quang S. He currently resides in Phu Hop A hamlet, PB commune, TP district, Dong Nai province. Ms. L and Mr. S were granted a certificate of land use right with an area of ​​100 m2 in plot 68, map sheet No. 21, Hai Giang commune on July 8, 1998. Ms. Vu Thi L and Mr. Nguyen Van S live on this land, which is the common property of her and her husband.

Before his death, Mr. Nguyen Van S left a will with the content of leaving all the land to Mr. Nguyen Quang S. Ms. L completely disagreed with the content of the will, asking the Court to annul the will. S's inheritance in accordance with the law, Ms. L would like to be divided in kind, receive the management and use of the above-mentioned land and accept responsibility for paying the difference for Mr. S."

The People's Court of Hai Hau district, Nam Dinh province has decided: Share to Ms. Vu Thi L the right to manage and use an area of ​​100 m2 of residential land at parcel 68, map sheet No. 21 of HG commune, HH district, Nam Dinh. But Ms. L must pay Mr. Nguyen Quang S 38,000,000 VND (thirty-eight million VND).

When property belongs to a person, that person has the right to dispose of his or her own property after death. But the institution of heirs regardless of the content of the will is the one that restricts part of the will of the person leaving the estate. Because Vietnamese law considers ownership as only a relative right and the owner has the duty to preserve the property for the family and society and does not recognize the individual's complete freedom to dispose of his or her property. Before death, the property holder has the right to dispose of his or her property in the will of whomever he or she wishes but is not completely free in this disposition.

In fact, the "heir does not depend on the content of the will" regulation has been stipulated in the Ordinance on Inheritance in 1990 and Circular 81/TANDTC of Vietnam in 1981. The Court also applies this regulation to the will established at the time of inheritance opening occurred before Circular 81/TANDTC in 1981.

Who are the heirs regardless of the content of the will?

According to Article 644 of the 2015 Civil Code of Vietnam, heirs who do not depend on the will include the following people:

Article 644. Heirs notwithstanding contents of wills

"1. Where a testator does not grant any of the following persons an inheritance, or grants any such person an inheritance which is less than two-thirds of the share that person would have received if the estate had been distributed according to law, such person shall be entitled to a share of the estate equivalent to two-thirds of the share that he or she would have received if the estate had been distributed in accordance with law:

a) Children who are minors, father, mother, wife or husband of the testator;

b) Children who are adults but who are incapable of working.

2. Clause 1 of this Article shall not apply to persons who have disclaimed their inheritance as prescribed in Article 620 or person who are not entitled to inherit as prescribed in Clause 1 Article 621 of this Code."

As a rule, the number of people who are entitled to inherit, regardless of the content of the will, is very small. Because the more this number of people, the more limited the freedom of the estate to be decided. 

Many people mistakenly believe that all people in the first line of heirs will be inherited regardless of the content of the will, but according to article 644 of the 2015 Civil Code, it only includes: "minor children, father and mother, spouses and adult children who are unable to work”. Therefore, not everyone in the first line of heirs is entitled to inherit regardless of the content of the will, but only some people in the first line of heirs are protected by this regulation.

Among those who should be on not in all cases, they are entitled to inheritance regardless of the content of the will. Because according to Clause 2, Article 644, this provision does not apply to those who do not have the right to receive the estate or refuse to receive the estate.

According to the above judgment, although according to the will, Mr. Nguyen Van S left all of his assets to his son, Mr. Nguyen Quang S, in the end, he had to divide a part of his property with Mrs L. Because Ms. L is not divided by Mr. Nguyen Van S according to the will, but she is his legal wife and is not allowed to inherit from her husband, so she will be protected by law under this regulation.

In addition, when applying the regulations on heirs regardless of the content of the will in the division of inheritance, the following issues should be noted:

- Minor children of the estate leavers: In this case, the age of minors is determined at the time of opening the inheritance, that is, at the time of the death of the inheritor.

- Adult children unable to work: The Civil Code currently does not specify this issue. However, Resolution 03/2006/NQ-HDTP did not define but gave some cases considered to be incapacitated. That is: the affected person is no longer able to work due to spinal paralysis, blindness in both eyes, paralysis of two limbs, severe mental illness and other cases prescribed by competent state agencies with permanent working capacity reduction of 81% or more.

- The children of the person leaving the estate will not discriminate between biological children, adopted children, children in or out of wedlock. In case the adopted child must be a legally adopted child. In addition, this right is also recognized for persons who were alive at the time of opening the inheritance or were born and were still alive after the time of opening the inheritance but became pregnant before the leaver died.

- Husband and wife of the person who left the estate: Husband and wife here are understood as the husband and wife here must be the lawful husband and wife of the testator, complying with the law on marriage and family.

- Parents of the estate leaver: Father and mother are understood here as the biological parents, the adoptive parents of the person leaving the estate (excluding the parents of the spouse).

Hopefully, the above article will help you better understand the status of heirs regardless of the content of the will.

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