Pham Diem
State and Law Institute of Vietnam
In Vietnam’s current law, the institution of inheritance (including testamentary inheritance) is provided for mainly in the 1986 Law on Marriage and Family, the 1990 Ordinance on Inheritance and the 1995 Civil Code.
Under the law, testamentary inheritance means the transfer of property of decedents to other persons who are still alive under decisions (testaments) of the property owners (testators) before they die.
The testators must be individual property owners with a legal capacity to act. Vietnamese law recognizes that persons who have attained 18 years of age or older are adults and are, therefore, entitled to make testaments to leave their property to their heirs. In addition, persons who are aged between full 15 years and under 18 years old can make their testaments provided that such testaments are made in writing and the making of testaments is consented to by their parents or guardians while they have full power to decide on the contents of their testaments.
The testators have the following specific rights:
First, to designate heirs and disinherit other heirs at law. The property owners may, through their testaments, bequeath their property to any individuals (falling within or beyond the inheritance at law) or any organizations (State organizations, economic organizations, social organizations). The testator’s right to dispose of property is reflected as well in the right to disinherit heirs at law (parents, spouses, offspring, siblings) without having to state any reasons therefor.
Second, to divide their estates to each of their heirs. The testators shall have the right not to divide their estates equally to heirs without having to state the reasons therefor.
Third, to set aside part of their estates for donation or worship. Donations mean property donated to other persons by testators as souvenirs. The donation beneficiaries have full power to own such property without having to shoulder the property obligations left by the decedents. Yet, if the entire estate is not enough for payment of all obligations, the donated property must be used for the performance of the remaining obligations of the decedents. For thousands of years, worship has been a cultural tradition of the Vietnamese people, demonstrating their respects for the decedents and their gratitude to their ancestors. For that reason, the State respects and protects this fine cultural tradition. According to Article 673 of the Civil Code, individuals shall have the right to put aside parts of their property for use in worship. Property used in worship is not considered estates to be divided for inheritance but is assigned to a person for management and worship. Such person shall be designated in the testaments; if not, the heirs may appoint a person to manage the worship estates. In cases where they fail to fulfill their obligations, the heirs may assign the estate portions used for worship to other managers for practice of worship. The worship estate managers must worship the dead and may not use estates for other purposes; they do not have the right to dispose of the worship estates. If the entire estates of the decedents are insufficient for settlement of the decedents’ obligations, estates may not be set aside for use in worship.
Fourth, to assign obligations to heirs. The persons who are assigned obligations and enjoy estates must perform the obligations within the limit of the estates they enjoy. The testators may also assign obligations to persons who are not entitled to enjoy estates. In this case, the persons who are assigned the obligations shall have the right not to perform such obligations.
Fifth, to designate persons to keep their testaments who concurrently act as estate administrators and distributors or to appoint different persons undertaking such tasks separately.
Sixth, to amend, supplement, replace or cancel their testaments.
Testators may make amendments to their testaments. Such amendments usually cover heirs, rights and obligations of heirs, and terms and phrases which are ambiguous.
They may also make such supplements to the testamentary contents as addition of heirs. However, if the property owners are not clear-minded while making their supplements or the supplements are contrary to law or social ethics, such supplements are considered illegal. In cases where the supplements are contradictory to the made testaments, only the supplements have legal effect.
Property owners may make new testaments to replace old ones. If a person makes different testaments at different times and the contents of such testaments do not negate one another, all the testaments are legally valid. If such testaments negate one another, the latest testament shall have legal effect and replace previous ones.
Property owners may also cancel their testaments in one of the following forms:
Destroying by themselves their testaments;
Making another testament and declaring the cancellation of the old one.
All amendment, supplementation, replacement, and cancellation of testaments shall be valid only if they satisfy the conditions provided for making of testaments.
Under Vietnamese law, testaments shall be considered valid when they meet the following conditions:
First, the testators must have capacity for their acts. They are persons aged full 18 years or older, or persons aged between full 15 and under 18 years if they are emancipated by their parents or guardians to make testaments.
Second, the testators are voluntary and clear-minded, and not deceived, threatened or coerced while making their testaments.
Third, the testamentary contents are not contrary to law or social ethics.
Under the Civil Code, there are two forms of testament: written testaments and oral testaments.
1. Written testaments comprise the following types:
- Written testaments made without witnesses (Article 658 of the Civil Code);
- Written testaments made in the presence of witnesses (Article 659 of the Civil Code);
- Written testaments notarized by State Notary Offices or certified by the People’s Committees of communes, wards or townships (Article 660 of the Civil Code).
Under Article 663 of the Civil Code, testaments made in writing in the following cases shall also be legally valid:
Testaments of military personnel in active service, certified by the commanders of army units at the company or higher level, if such military men cannot request State Notary Offices to notarize or the commune/ward/township People’s Committees to certify their testaments;
Testaments of persons traveling on board sea-going vessels or aircraft, certified by commanders of such vessels or aircraft;
Testaments of persons undergoing medical treatment at hospitals or other health or convalescent establishments which are certified by the persons in charge of such hospitals or establishments;
Testaments of persons conducting surveys, exploration or research work in mountainous areas or in islands which are certified by the persons in charge of their units;
Testaments of Vietnamese nationals residing in foreign countries which are certified by Vietnamese consular offices or diplomatic missions based in those countries;
Testaments of persons being under temporary custody, serving their imprisonment sentences or discharging their obligations under administrative sanctions at re-education or medical centers, which are certified by the persons in charge of such establishments.
The recognition by Vietnamese law of such types of written testaments has stemmed from the country’s realities, i.e., the lack of objective and subjective conditions for citizens to make testaments with certification of competent State bodies or in the presence of witnesses. In fact, many people, due to their unawareness of legal provisions or for various reasons, do not or cannot go to the People’s Committees or State Notary Offices to carry our procedures for certification.
2. Oral testaments shall be recognized as lawful only when the testators’ lives are threatened by critical ailments, fatal accidents, etc., which prevent them from making written testaments. In this case, the oral testaments must be made in the presence of two witnesses who shall record the testators’ words and jointly sign or affix their fingerprints thereto.
After three months from the time the oral testaments are made, if the testators are still alive and clear-minded, such oral testaments shall be annulled.
According to Article 638 of the Civil Code, testamentary heirs may be persons within or outside the inheritance ranks, or be agencies or organizations. Under Article 640 of the same Code, testamentary heirs may accept or refuse to accept estates; if they accept the estates, they must fulfill the obligations left behind by the decedents corresponding to the estate portions they have received. Agencies and organizations enjoying estates under testaments must also perform property obligations left behind by the decedents.
Prompted by the Vietnamese tradition that, in families, children and grandchildren must respect and nurture their parents and grandparents, parents must bring up their minor or disabled children, and husbands and wives must love and assist each other in daily life, the law permits a number of people to enjoy inheritance without depending on testamentary contents. Under the Civil Code, such people shall include fathers, mothers, husbands, wives, minor children, and adult children losing their working capacity. Each of them is entitled to enjoy an estate portion being at least equal to two-thirds of the estate portion enjoyed by an heir at law.
However, these persons shall not be allowed to enjoy the inheritance if they violate Clause 1, Article 646 of the Civil Code (being convicted of having intentionally infringed upon the life or health of the decedent; of having maltreated or physically or mentally abused the decedent, or of having seriously infringed upon the honor or dignity of the decedent;
having intentionally infringed upon the life of other heirs for the purpose of acquiring part or all of the portions of the estates to which such heirs are entitled; deceiving, coercing or hindering estate leavers while they make their testaments; or forging, changing or destroying testaments in order to acquire part or all of the estates contrarily to the will of the testator).
In short, Vietnam’s legal provisions on testamentary inheritance have not only demonstrated the principles of protecting the testators’ right to dispose of property but also inherited the fine traditions of the Vietnamese people.-