How can a foreigner make a will to leave his real estates in Vietnam to his beneficiaries?

A Malaysian citizen who lives in Malaysia with his family including a Malaysia wife and 3 children (all 18 years old above) contact us for this matter. Per the discussion, he has invested in/ has been entitled to 2 real estates in Vietnam, being 2 units in a resort located in a Central province in Vietnam, based on contracts signed by him and the resort owner. He wants to make his will to leave his properties in Vietnam to his wife and 3 children as the executors and beneficiaries (the “Will”).

To answer the title question, BLawyers Vietnam pointed out 5 issues for that person to consider: 

1. Applicable laws

As that person is a Malaysian citizen, the civil relation regarding his Will making and the inheritance is considered as the relation with a foreign element pursuant to Civil Code 2015 of Vietnam. In principle, the international treaties between Vietnam and Malaysia are first applied for such relation, then Vietnamese laws are applied.

So, he needs to check whether any treaties between the Vietnamese Government and Malaysian Government regulating his Will making and the inheritance.

2. The testator, the heirs and the administrator under the Will

There are 3 notable issues as follows:

a. Capacity of the testator to make the Will

For a will to be valid in practice, the testator must have his capacity to make a will is in accordance with laws.

Civil Code 2015 regulated that the foreigner’s capacity to make, alter or rescind his Will, shall comply with laws of the country where he is a citizen (i.e., Malaysia in this case). Thus, he needs to check with the laws of Malaysia about his capacity to make a will.

b. Conditions of the heirs under the Will

An heir under a will is the person who has the right to inherit and receive the inherited properties after the testator’s death. The heirs must be alive at the time of commencement of the inheritance or, if such person is born and alive after the commencement of inheritance, must have been conceived prior to the time when the deceased dies pursuant to Civil Code 2015.

He also needs to know which cases the heirs cannot inherit the property under the Civil Code 2015.

c. Administrator of the inherited property and distributor of the inherited property

Per that person’s intention, he wanted to appoint persons who are “Executors of the Will”. However, pursuant to Civil Code 2015, the Will should mention who is the administrator of the inherited property and who is the distributor of the inherited property.

3. Content of the Will

Pursuant to Civil Code 2015, the contents of the Will shall cover:

  1. The date on which the will is made;
  2. The full name and residential address of the testator;
  3. The full names of the subjects entitled to inherit the property (i.e., the beneficiaries/ heirs under the will);
  4. The inherited properties and their location; and
  5. Other contents (if any).

The contents of the Will are not contrary to laws or social morals of Vietnam.

Regarding the inherited properties stated in the Will, a testator has the right to leave his own property as an inherited property after his death.

Pursuant to Civil Code 2015, the property comprises objects, money, valuable papers and property rights which are divided into movable and immovable property. In which, the immovable property includes:

  1. Land;
  2. Houses and constructions attached to land;
  3. Other property attached to land, houses and constructions;
  4. Other property as prescribed by law.

Accordingly, the property right attached to the immovable property are also considered as immovable property right. Thus, his right over the properties in Vietnam could be deemed as immovable property right.

4. Validity of the Will under the laws of Vietnam

The Will takes effect from the time of the testator’s death. However, a will is considered invalid in whole or in part in the following cases:

i. All heirs die or no longer exist before or at the same time as the testator;

In case there are many heirs under the will and one of them dies or no longer exist before or at the time of the testator’s death. Upon the testator’s death, only the part of the will related to that heir will not take effect.

ii. The inherited properties are no longer available at the time of the testator’s death; if only part of the properties remains, the will on such remaining part is still valid.

In case a will has an illegal part that does not affect the validity of the remaining parts, only that part is invalid.

5. The formalities of the Will to be recognized in Vietnam

The formality of the Will must comply with the law of the country in the place where the will is created/ made (that is, a will is written, signed, and/ or notarized in that country) or the countries other than Vietnam belong to one of the following cases under Civil Code 2015:

  1. The country in which the testator resides at the time of making the will or at the time of the testator’s death;
  2. The country of the testator’s nationality at the time of making or at the time of the testator’s death;
  3. The country where the inherited immovable property is located (that is Vietnam in this case).

Thus, such foreigner can make his Will in the countries listed above. In case he makes his Will in a country other than Vietnam, he should check whether such Will’s formality shall be recognized under Vietnamese laws.

Another issue is the language of the will: In case such will was made in a foreign language must be translated into Vietnamese with a certification by the authority of Vietnam.

The above is our sharing for reference only. This case is roofed with specific documents, so that it is not an application for all foreign-element inheritance cases pursuant to laws of Vietnam.

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.

Date: 03 March 2023

Writers: Tram Nguyen & Minh Ngo

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