When it comes to wills, you may notice that this is an issue which has been a source of social concern for a long time, due to controversial stories about family members disputing over inheritance.
As a result, the issue of whether we have ever been conscious of our own departure arises, because the notion of birth, aging, disease, and death is never unknown and is strongly connected with human life. We have gone through and put in a lot of effort to create a nice and meaningful life, in order to acquire a profession and assets for our family, while we are healthy and awake. However, few individuals consider preparing for their own departure, expecting the preservation and transfer of their own assets to others who can maintain and grow them when they are no longer physically present in the world.
Understanding this concern, BLawyers Vietnam would like to provide practical experiences as well as share legal advices related to the issue of wills and inheritance.
Host
Welcome to The Lawyers Talk Podcast of BLawyers Vietnam. My name is Tran Le Phuong Uyen. In this episode, I am happy to share with everyone the legal stories surrounding our daily lives.
Today, I am deeply honored to welcome Lawyer Tran Ngoc Thuyet – Senior Partner of BLawyers Vietnam.
Now, we will discuss an important topic which is the necessity of making a will with Mr. Thuyet.
Guest
Welcome to my dear audiences. Hello Ms. Uyen. I am Lawyer Tran Ngoc Thuyet – Senior Partner of BLawyers Vietnam.
Host
I would like to say thank you for your presence in this podcast’s episode.
Regarding the will, we realize that this is a topic that people have been paying attention to because of the big controversy surrounding disputes of inheritance between family members.
As a result, it is wondered whether people have raised enough awareness about their end of life; and the definition of birth, aging, sickness, and death is ever never strange to us, and it also belongings to human life.
When we have been well-being and of sound mind, we have gone through and spent a lot of our effort to build a prosperous life to accumulate our career and our owned property for the family. However, it is very unpopular for everyone to plan their death, prepare the protection, and the giving towards their owned property to someone eligible for preservation, and development since he or she is no longer existent.
As a lawyer who has a lot of experience practicing in the civil area, Mr. Thuyet please share your perspective about making the will?
Guest
Making the will is considered a common social activity and a legitimate action which is a legitimate right that belongs to everyone regardless of wealth or poverty in many American Europe-developed countries. However, for our oriental society, because this place is influenced by Confucianism, and has a longstanding culture, making the will has been considered a taboo which takes many unlucky things to people and their family.
Because of such prejudice, it easily finds that Vietnamese people are still hesitant to make a will; as well as the discussion related to an individual’s assets and death seems to be a sensitive topic, and to be avoided mentioning directly; along with other customs such as hereditary peer, the first paternal grandson, etc. This is the reason why making a will is less important and necessary in their mindset.
However, from a legal perspective, we should consider a will as a formality of social and legitimate tool that supports an individual in planning to protect his or her inheritance effectively. At the same time, this tool also helps each plan their assets to be beneficiary by the appropriate person in the future, avoiding the circumstance that his or her assets fall into a person with bad intentions.
Additionally, the preparation of a will not only creates a safe legal framework for all an individual’s assets but also contributes to maintaining peace and order in that person’s family. It is understood that people always face the daily problems of bread and butter, so inheritance is one of the legitimate interests that each person can consider. The inquiry is how to ensure that the division of the asset is carried out in a good way, achieves the mutual consent of all heirs by the law, and most importantly, keeps peace and love in the family. The answer is making a will while we are still in existence!
Host
Who has the right to make a will and when is the appropriate period for an individual to do that?
Guest
According to the law, a will is a statement that expresses an individual’s will to transfer his or her assets to others after his or her death. Accordingly, a person may make a will to bequeath his or her assets to the heir under the law or a will. All persons are equal concerning rights to bequeath their assets to others and to inherit assets under the will or the law.
Persons entitled to make a will according to the law as follows:
First, adults who are of sound mind when he or they make the will, and are not deceived, threatened, or coerced into making the will may make the will to dispose of his/of her property.
Second, 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.
Pursuant to the above legal provisions, everyone has the right to make a will to dispose of their property.
Host
What is the Vietnamese law regulated on the rights of the testator and the formality of the will?
Guest
Under the civil law, the testator has the following rights:
- Appointing heirs or to deprive an heir of the right to inherit the estate;
- Determining those parts of the estate which each heir is entitled to;
- Reserving part of the estate as a gift or for worship purposes;
- Designating heirs to perform obligations; and
- Appointing a custodian of the will, an administrator of the estate, and a distributor of the estate.
In terms of formality of the will, the will statement shall be in writing. If the will may not be made in writing because of falling into some specific circumstances set forth in the law, an oral will may be made.
However, according to practical experience, a will statement shall be made in writing; except in cases where the testator is threatened by death and cannot make the written will, such will may be made orally by this one.
It should be noted that the will made by a person between fifteen and eighteen years of age shall be made in writing and shall be agreed by a parent or a guardian to make the will.
As a rule, written wills comprise the following types:
a) The written will has no witnesses;
For this type of will, the testator shall write and sign the will him/herself. In addition, the will shall include the contents prescribed by law.
b) A written will with witnesses;
Where a testator is not able to write a will by his or her own hand, the testator may request another person to write the will, but there must be at least two witnesses.
The testator must sign or fingerprint the will in the presence of the witnesses; the witnesses shall acknowledge the signature or fingerprint of the testator and sign the will.
c) The notarization and authentication of the written will.
The written will shall be notarized at a notary public office, or the testator can request a notary public to come to his or her residence to notarize the will. The authentication of the written will shall be processed at the commune-level People’s Committee.
In case the testator cannot read, hear, sign, or fingerprint his or her will, he or she shall request a witness who shall sign the will in the witness of a notary public or in-charge officer with authentication of the Commune People’s Committee.
Accordingly, the written will made by a person who is incapacitated, or illiterate must be made in writing by a witness and must be notarized or certified.
Although there is no distinction under the law between the validity of the written will notarized by notary public offices or authenticated by competent authorities, in practice, most testators select the notary public office to notarize his or her written will because it will certify the entire content of the written will as legally compliant, minimize legal risks arising from such content in the future.
Host
Thanks to Mr. Thuyet’s sharing, the audience can clearly understand the regulations on the testator’s age and rights and the formality of will. However, to ensure that the will is valid, is it right that there are some conditions a testator must fulfill?
Guest
Yes, it is. It is important for people to note that they must satisfy the following statutory conditions:
- 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; and
- The contents of the will are not contrary to law or social morals and the will complies with legal formalities.
Additionally, in some circumstances, the conditions on the formality of the will must be complied with as follows:
- The will made by a person between fifteen and eighteen years of age must be written and with the consent of the parents or guardian of such person.
- The will made by a person who is incapacitated, or illiterate must be made in writing by a witness and must be notarized or certified.
- The written will which is not notarized or certified shall be deemed lawful only if it satisfies all requirements, which I mentioned above.
These are the statutory conditions for the will to be considered as valid. The testator needs to carefully examine whether he or she has fully satisfied the mentioned-above elements to avoid the circumstance in which such conditions are not satisfied that lead to the will potentially invalid at the time of opening the inheritance, causing unnecessary consequences and disputes.
Host
I understand that making the will is essentially planning, and Vietnamese law does not stipulate much limitation on the age of eligibility for making a will. Therefore, after sharing, everyone can easily consider making the will in the future.
There is an issue that everyone is concerned about as follows: Does Vietnamese law have regulations on the statutory content of the will?
Guest
A will statement is to records an individual’s legitimate will for the disposition of his or her property or other issues that this individual wish to be implemented by another person after his or her death. However, first of all, the will’s content shall be presented as follows :
First, the date on which the will is made;
Second, the full name and place of residence of the testator;
Third, the full names of the persons and the bodies or organizations entitled to inherit the estate; and
Fourth, the full and obvious declaration of information with documents and evidence proving his or her ownership rights to each property and its location.
Please note that the will must not be abbreviated or written in symbols. If the will consists of multiple pages, each page must be numbered and have the signature or fingerprint of the testator. And in case the will is erased or corrected, the testator or the witness shall sign next to the erasure or correction.
Host
Yes, these are important notes about presenting the content of the will that everyone needs to remember.
As you just stated above, if an individual falls into an endangered circumstance and there are no conditions for them to make a will, which way they can make their will? And how to ensure their will is valid in such a specific situation?
Guest
The circumstance that you mentioned, according to civil law, is considered as an oral will. The oral will be regulated to anticipate certain cases where individuals are in endangered situations, and of course, it is impossible to write a will in writing as under normal conditions.
However, the oral will shall be required to satisfy the following conditions by a testator:
- After 03 months from the time of the oral will statement; however, the testator is alive, of sound mind, the oral will automatically become invalid.
- An oral will is considered valid if the oral testator presents his or her last will in the witness of at least two witnesses, and at the time the testator presents his or her last will, the witnesses shall record his or her will in writing; and signs, or fingerprints in such written will. Within 05 working days from the date on which the testator orally presents the last will, the will must be notarized by a notary public or a competent authority to authenticate the signature or fingerprint of the witnesses.
Therefore, we find that the statutory requirement of making an oral will is having the witnesses, and the result of the oral will shall be in writing and shall be notarized, authenticate their signatures or fingerprints. After completing such procedures, the oral will is recognized by law and has been valid.
Host
When learning about the statutory conditions of a legitimate will, I find that the role of the individual who is entitled to notarize or authenticate and the witness in making a will is also important. Can you please have some notes about the status and role of these individuals?
Guest
As I mentioned above, making a written will shall have witnesses, shall be notarized, or shall be authenticated. Civil law very strictly regulates the conditions of a person who is entitled to notarize or authenticate, and the witnesses for making an individual’s will. To ensure transparency, openness, and objectivity in making a will, not everyone is appropriate to perform the witness role.
Everyone may entitle to witness in making of a will, except the following individuals:
- Heirs by will or by the law of the testator.
- A person whose father, mother, spouse, or child is an heir by will or by law.
- Minors, persons who have lost their civil act capacity, and persons who have difficulties in cognition and behavior control.
A person who is entitled to notarize or authenticate the commune-level People’s Committee may not perform this role if they fall into one of the following cases:
- Heirs by will or by law of the testator;
- A person whose father, mother, spouse, or child is an heir by will or by law;
- Persons having property rights and obligations related to the will.
Because the notarization, authentication, and witness of the will have a significant impact on its validity, we need to pay attention and carefully examine the eligibility of such individuals performing this role.
Host
Through the above discussions, we understand that the factors of implementation, content, and formality will determine the validity of a will. However, there is another important issue that we must consider when making a will, which is the validity of the will.
So, how does Vietnamese law regulate the validity of the will, and what practical issues must individuals pay attention to regarding the validity of the will?
Guest
This is an important issue that any testator must raise their awareness of.
According to the law, a will takes effect from the time the inheritance is opened. The time of opening the inheritance is the period occurring the testator’s death.
In addition, a will may be invalid in entire or in part if the following situations arise:
- The heir under the will dead before or at the same time with the testator;
- The agency or organization designated as the heir no longer exists at the time of opening the inheritance;
- In case there are many heirs under the will, but one dies before or at the same time as the testator, one of the many agencies or organizations designated to inherit under the will no longer exists at the time of opening the inheritance, only the part of the will is related to the individual, this agency or organization has no effect;
- The will is invalid, if the estate left to the heirs is no longer available at the time of the opening of the inheritance; if the estate bequeathed to the heirs is only partial, the part of the will on the remainder of the estate remains valid;
- When the will contains an illegitimate part that does not affect the validity of the remaining parts, only that part is invalid;
- When a person leaves multiple wills to a property, only the last will is valid; and
- For an oral will, after 03 (three) months from the time of the oral testament, but the testator is alive, lucid, and lucid, the oral will is automatically annulled.
Host
Through the sharing of Mr. Thuyet, we understand that making a will and mastering the regulations on conditions for a legitimate will is an essential preparation to protect their property, and their family.
It is also because we will not be able to know in advance what will happen to ourselves, so from the period that we are at the peak of your career and has your full health and intellect, each person should proactively plan, and prepare for himself or herself a will.
The most important thing is that doing this will help our family members easily resolve post-incident issues and minimize unnecessary conflicts between loved ones.
Host
Thank you Lawyer Thuyet for taking the time to share the necessary legal issues and knowledge. I hope that the discussion by Lawyer Thuyet and me will give the audience a comprehensive perspective surrounding making a will under the law.
Guest
Thank you for discussing with me the important topic in this episode. Hope that my sharing has brought the audience a lot of useful legal information about making a will, and most importantly, avoiding the feeling of hesitation about making a will.
Host
Thank you very much, Lawyer Tran Ngoc Thuyet. Dear everyone, the Lawyers Talk Podcast shares about the importance of making a will and would like to stop here. Thank you for listening. Goodbye and see you again in the next episode.
If you have any questions or concerns, please leave a comment below.
Or for more information about BLawyers Vietnam, please see our website below the description.
Goodbye and see you again.
The above is not official advice from BLawyers Vietnam. If you have any questions or suggestions about the above, please contact us at consult@blawyersvn.com. We would love to hear from you.
