What is legal validity of some types of contract when witnesses die in Vietnam?

What is legal validity of some types of contract when witnesses die in Vietnam?

Please ask, if the witness dies, is the real estate sale and purchase contract valid in case of dispute? And if the witness dies, is the validity of the inheritance contract valid when there is an inheritance dispute later?

Reply:

According to the information you provide us, we can identify the specific problem you are wondering, including two main issues:

If the witness dies, is the real estate sale and purchase contract legally enforceable?

According to the provisions of the Land Law 2013, contracts on transfer, donation, mortgage or contribution of land use rights as capital or the rights to use land and land-attached assets must be notarized or certified, except the case of real estate business.

According to the provisions of the Civil Code 2015, in cases where it is provided for by law that a civil transaction must be expressed in writing, notarized, authenticated, registered or permitted, such provisions must be complied with. A civil transaction violating conditions for validity pertaining to form shall be invalid, except for some special cases

Thus: Pursuant to the above-cited regulations in Vietnam, the contract for the transfer of land use rights and assets attached to land (or the contract of sale and purchase of real estate) must be notarized or authenticated in order to take legal effect. the law.

That is, the current law does not require the contract of transferring land use rights and assets attached to the land to have witnesses.

Therefore: The death of a witness does not affect the legal value of the contract for the transfer of land use rights and assets attached to the land in Vietnam.

If the witness dies, does the inheritance contract have legal effect?

As far as we know, the law does not currently recognize the provisions related to inheritance contracts, so in your case, the following cases may occur:

Case 1: The inheritance contract you are wondering about is the will

According to the Civil Code 2015, will means an expression of the wishes of a natural person, made in order to bequeath his or her property to others after his or her death. Wills must be made in writing; If it is not possible to make a will in writing, an oral will is possible. Written wills include many different types of wills, including written wills with witnesses.

According to this regualtion, in case the testator does not write the will by himself, he may type it himself or ask someone else to write or type the will, but there must be at least two witnesses. The testator must sign or point to the will in front of the witnesses; the witnesses certify the signature and fingerprints of the testator and sign the will.

Any person may act as a witness to the making of a will, except the following persons:

1. Persons who are heirs of the testator under the will or at law;

2. Persons with property rights or obligations which relate to the will;

3. Minors, legally incapacitated persons, persons with limited cognition and behavior control.

On the other hand, according to the provisions of Article 630 of the 2015 Civil Code, the will in this case is legally effective when the following conditions are fully satisfied:

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

- 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;

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

- must be notarized or certified

Thus: If a will is in writing with witnesses, if it fully meets the above conditions in Vietnam, it will be determined to be lawful and valid from the date of notarization or authentication. The later death of the witness of that will does not affect the legal validity of the will later.

Therefore: When a dispute arises, this will is still considered as evidence for the competent authority to consider and settle the dispute in accordance with the law in Vietnam.

Case 2: The inheritance contract you are asking about is the agreement of the heirs

According to the 2015 Civil Code, after being notified of the commencement of an inheritance, or after a will has been announced, the heirs may meet to agree on the following matters:

a) If the testator has failed to appoint an administrator of the estate or a distributor of the estate, or has not determined the powers and obligations of such persons, the appointment of such persons and the determination of their powers and obligations, as the case may be;

b) Method of distributing the estate.

All heirs' agreements must be in writing.

Thus: Pursuant to the above-cited regulations in Vietnam, the law stipulates that heirs have the right to agree with each other on issues related to the settlement of inheritance division, but these agreements must be made in accordance with law. 

However, the law does not require this agreement to have a witness, the death of the witness to the agreement does not lose the legal validity of the agreement on the settlement of inheritance.

Therefore: In case a dispute arises, this agreement is still considered a basis for the competent authority to consider and settle the dispute in accordance with the law in Vietnam.

In addition, the Law on Notary 2014 stipulates that a notarized agreement on division of estate serves as a basis for competent state agencies to register the transfer of land use rights or asset ownership to estate heirs.

Therefore: To ensure the highest legality, the agreement on asset division should be notarized at the Notary Office/Department.

Above is our consulting opinion on the issue you are wondering.

What are procedures to cancel a notarized contract in Vietnam?

 Hi, I have sold a piece of land, signed a contract, the transfer contract has been notarized. So let me ask: Can the notarized land transfer contract be canceled? If yes, what are procedures to cancel a notarized contract?

Reply:

According to the provisions of the Law on Notary 2014, notarized documents take effect from the date they are signed and sealed by the notary public.

Accordingly, in Article 51 of the Law on Notarization 2014 stipulates that the modification, supplementation or cancellation of a notarized contract or transaction may be notarized only with the written agreements or commitments of all parties to that contract or transaction.

Regarding procedures, the cancellation of a notarized contract shall be carried out as follows:

– The parties shall cancel the notarized contract at the place where the notarization has been performed.

- In case that notarial practice organization terminates its operation, transforms, transfers or dissolves, the notary of the notarial practice organization which is keeping notarization dossiers shall cancel the approved contract.

– After completing the notarization procedure to cancel the previously notarized contract, the parties will return to each other what they have received.

Here is the content of the consultation. Hope this information will help you.

Is it possible to cancel a notarized contract for gift of land use right in Vietnam?

My wife and I have a son, the child is married, so my wife and I made a contract for gift of land use right. The contract was notarized. I was in the process of applying for a land use right certificate when my son died. Now my daughter-in-law is married to another man. So please ask: The case of my husband and I. Is it possible to cancel the above contract?

Reply:

Article 5 of the Law on Notarization 2014 provides:

1. A notarized document is valid from the date a notary signs and appends the seal of his/her notarial practice organization to it.

2. A notarized contract or transaction is binding on related parties; in case an obliged party fails to perform its/his/her obligations, the other party may request a court to settle the case in accordance with law, unless otherwise agreed upon by related parties.

3. Notarized contracts and transactions may be used as evidence; details and circumstances of notarized contracts or transactions are not required to be proven, unless such contracts or transactions are declared to be invalid by courts.

4. Notarized translations are valid for use as their translated papers or documents.

The cancellation of a gift contract can only be done when the conditions specified in Article 51 of the Law on Notarization 2014 are met, on notarization of modification, supplementation or cancellation of contracts and transactions as follows:

1. The modification, supplementation or cancellation of a notarized contract or transaction may be notarized only with the written agreements or commitments of all parties to that contract or transaction.

2. The modification, supplementation or cancellation of a notarized contract or transaction shall be notarized at the notarial practice organization that has conducted the notarization and shall be made by a notary. If the notarial practice organization that has conducted the notarization has terminated its operation or been transformed, transferred or dissolved, a notary of the notarial practice organization that is keeping the notarial records shall modify, supplement or cancel the contract or transaction.

3. Procedures for notarization of the modification, supplementation or cancellation of a notarized contract or transaction are the same as procedures for notarization of contracts and transactions prescribed in this Chapter.

So, in the case of your family, because now your son is dead, only if your daughter-in-law has the desire not to continue making the donation. Or refuse to accept the donation of land, the notarization contract will be canceled. And if the cancellation of the donation contract, it must be done at the organization practicing notarization of the donation before in Vietnam.

Best regards!