Creating a will is an important decision regardless of where you live, but for non-natives living in Vietnam, it can be a complex process. To ensure that the will is legally binding, individuals must follow specific legal requirements when bequeathing real estate to heirs in Vietnam. This process involves navigating the local legal system, establishing the validity of the will, and understanding the key elements that must included in the document. In this context, it is crucial for individuals to understand the legal framework surrounding wills and estate planning in Vietnam and to collaborate with qualified professionals to properly document and legally recognize their wishes.
Applicable law
In principle, the international treaties between Vietnam and Malaysia are first applied for such relation, then Vietnamese laws are applied. For inheritance under a will with foreign elements, Article 681 of the 2015 Civil Code provides as follows:
“1. The capacity to make, change and cancel wills is determined according to the law of the country of which the testator has the nationality at
the time of making, changing or canceling the will.
2. The form of the will must comply with the law of the country where the will is made.”
Thus, in order to resolve conflicts of law over the capacity to make, change and cancel wills, Vietnam applies the law of the country of which the testator is a citizen. The Vietnamese law will apply to determine the subject’s capacity when Vietnamese citizens make, change, or cancel wills and dispose of inheritance, regardless of whether the inheritance is movable or immovable. Vietnamese law will not govern the determination of the subject’s capacity when a foreign citizen makes, changes, or cancels a will to dispose of the inheritance, even if someone performs this act in Vietnam.
The individuals involved in the process of implementing a will are the testator, the heirs, and the administrator
a. Capacity of the testator to make the will
To ensure the validity of a will, the testator must meet the legal requirements for their capacity to create one.
According to the Civil Code of 2015, a foreigner’s ability to create, modify, or revoke their will must align with the laws of their own country, such as Malaysia in this instance. Therefore, it’s necessary to verify his capacity to make a will within the laws of Malaysia.
b. Conditions of the heirs under the will
In the context of a will, the term “heir” refers to the individual entitled to receive the testator’s inherited assets following their passing. According to the Civil Code of 2015, the inheritance period requires the heir to be alive at the time it begins or to have been conceived before the testator’s death and subsequently born alive.
Additionally, the testator must familiarize themselves with the instances in which the Civil Code of 2015 prohibits an heir from inheriting a property.
c. Administrator of the inherited property and distributor of the inherited property
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.
Content of the will
As per the Civil Code of 2015, the contents of a will must entail the following:
i. The date of its creation;
ii. The legal name and residential address of the testator;
iii. The full names of the beneficiaries/heirs under the will;
iv. The specific properties to be inherited, including their whereabouts; and
v. Any additional details, if applicable.
It is important to note that the contents of the will must not go against the legal standards or social values of Vietnam.
Regarding the inherited properties specified in the will, the testator possesses the right to bequeath their personal assets as inherited properties upon their passing. The Civil Code of 2015 categorizes property into movable and immovable forms, which encompass objects, financial resources, valuable records, and property rights. Immovable property is inclusive of land, attached structures (houses or buildings), properties linked to land or buildings, and other assets recognized by law. Therefore, we can consider the testator’s property rights in Vietnam as immovable property rights.
Validity of the will under the laws of Vietnam
Under the following circumstances, the authorities may deem the will wholly or partially invalid, but it becomes effective upon the testator’s death.
i. If it turns out that all of the designated heirs have passed away or no longer exist before or at the same time as the testator, rendering the will invalid in its entirety. However, if the testator’s death occurs before or at the time of one of the named heirs’ death, the will only invalidates the portion pertaining to that specific heir.
ii. If the properties designated to inherited become unavailable before the testator’s death, the will deems invalid.
Yet, if only a portion of the property is still available, the will remains valid on that particular remaining portion. If a will includes an unlawful part that does not impact the validity of the remaining provisions, it only considered invalid that particular part.
The formalities of the will
According to the Civil Code of 2015, individuals must adhere to the laws of the nation where they write, sign, and/or notarize their will in order to meet the formalities required for creating a will. If created outside of Vietnam, it must comply with the formalities of any of the following countries.
i. The nation wherein the testator resides during the will’s creation or the time of their passing;
ii. The nation of the testator’s citizenship at the time of the will’s creation or the time of their passing;
iii. The nation in which the inherited immovable property is situated, in this case being Vietnam.
Therefore, a foreign individual can make their will in any of the countries listed previously. However, individuals must ensure that they recognize the formalities of the will created outside of Vietnam under Vietnamese law.
Furthermore, an authorized Vietnamese entity must translate the will into Vietnamese if made in a foreign language.
Conclusion
In summary, while creating a will as a foreigner in Vietnam may seem like a daunting task, it is definitely achievable with a bit of preparation and understanding of the legal procedures involved. Foreigners can ensure the protection of their loved ones and the distribution of their assets according to their wishes by seeking the guidance of a competent lawyer and carefully navigating the process step-by-step. Ultimately, creating a will is one of the most important steps both for ensuring peace of mind during one’s lifetime and for easing the burden on heirs following one’s passing.
HMLF is always available to offer assistance in understanding the procedures with authorities.
Harley Miller Law Firm “HMLF”
Head office: 14th floor, HM Town building, 412 Nguyen Thi Minh Khai, Ward 05, District 3, Ho Chi Minh City.
Phone number: +84 937215585
Website: hmlf.vn Email: miller@hmlf.vn
