Will is invalid due to excess of the right to dispose of property in Vietnam

Specifically, in the Appellate Civil Judgment No. 10/2020/DS-PT dated May 20, 2020 on disputes over property inheritance, property ownership and disputes related to the request to declare public documents. invalidity certificate has the following specific contents:

"Mr. T and Mrs. K divorced in 2004 and divided the husband and wife's common property. Mrs. L and T have been married since 2008. After Mr. T's death (2014), he left a will to divide his property between his two children, TX and B. In 2017, TX's grandchild suddenly passed away and Mrs. K requested to inherit TX's inheritance.

Ms. L has a counterclaim that Mr. T's will is forged and that the property on the land is her family's property, in which she also has the right to use it. Mr. T is not allowed to arbitrarily dispose of the common property without her consent."

The People's Court of Son La province has decided: Declare the will of Mr. Hoang T made on August 14, 2014 invalid for the determination of the land use right of 10,580m2. Land that has not been granted a land use right certificate; invalid for the determination of ½ of the value of the house which is the common property of Mr. Hoang T with Mrs. L.

Currently, the Law on Marriage and Family 2014 of Vietnam stipulates the common property of husband and wife as follows:

Article 33. Common property of husband and wife

1. Common property of husband and wife includes property created by a spouse, incomes generated from labor, production and business activities, yields and profits arising from separate property and other lawful incomes in the marriage period; except the case prescribed in Clause 1, Article 40 of this Law; property jointly inherited by or given to both, and other property agreed upon by husband and wife as common property.

The land use rights obtained by a spouse after marriage shall be common property of husband and wife, unless they are separately inherited by, or given to a spouse or are obtained through transactions made with separate property.

2. Common property of husband and wife shall be under integrated common ownership and used to meet family needs and perform common obligations of husband and wife.

3. When exists no ground to prove that a property in dispute between husband and wife is his/her separate property, such property shall be regarded as common property.

Therefore, any property listed among the above-mentioned properties will be considered as common property of husband and wife. Accordingly, both husband and wife have the right to possess, use and dispose of such common property. But in fact, how to exercise the right to dispose of common property so as not to violate the provisions of the law and lead to disputes between parties is not well understood.

Decree 126/2014/ND-CP  of Vietnam has the following provisions:

Article 13. Possession, use and disposition of common property of husband and wife

1. The possession, use and disposition of common property shall be agreed upon by husband and wife. In case a husband or wife establishes and performs transactions related to the common property to meet the essential needs of the family, the consent of the other party is considered, except for the case specified in Clause 2 of this Article. 35 of the Law on Marriage and Family.

2. …

In the above situation, Mr. T determines that all assets on the land, including pre-marital property and also the part of property formed during the marriage with L (common property), is beyond her powers even though the will has been notarized and authenticated. Therefore, the Court determined that the will that Mr. Hoang T left behind was valid for the division of land use rights as well as the value of Mrs. L's property in the marital property.

In conclusion, the current law respects the right of husband and wife to agree on their own in the disposition of common property, including the making of wills. Even though the will has been notarized, it is still invalid because the spouses voluntarily make a will to leave the common estate without the consent of both husband and wife.

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