Drafting a will has become an important legal tool allowing individuals to manage and distribute their assets transparently and fairly after passing away. In Vietnam, drafting and recognizing a will is closely regulated in the Civil Code of 2015 to ensure the legal rights of both the testator and the heirs.
Drafting a will not only helps avoid unnecessary disputes within families but also demonstrates the responsibility and care of the testator towards their loved ones. However, to ensure the validity of the will and its compliance with the testator’s intentions, it is necessary to adhere to legal regulations and follow the required procedures.
1. Definition of a Will
The definition of a will is outlined in Article 624 of the Civil Code of 2015 as follows: “A will is an expression of an individual’s intention to transfer their property to others after death.”
2. Characteristics of a Will
2.1. Conditions of the Testator
According to Article 681 of the Civil Code of 2015:
– For foreigners, the conditions for drafting, amending, or revoking a will are determined by the law of the country of which the testator is a citizen at the time of drafting, amending, or revoking the will.
– For Vietnamese citizens, the testator must ensure mental competence and clarity when drafting the will, and not be deceived, threatened, or coerced. Testators between fifteen and eighteen require consent from their parents or legal guardians to draft a will.
2.2. Form of the Will
– In Vietnam, the will must be written; if it cannot be written, it can be oral. However, an oral will is automatically revoked after three months if the testator is still alive, mentally competent, and lucid.
– The form of the will drafted abroad is determined by the law of the country where the will is drafted. It will be recognized in Vietnam if it complies with the laws of one of the following:
– The country where the testator resides or resided at the time of drafting or at the time of death.
– The country of which the testator is a citizen at the time of drafting or at the time of death.
– The country where the real estate is located if the inherited property is real estate.
2.3. Content of the Will
– The content of the will drafted in Vietnam must not violate any prohibitions of the law or social ethics. It must include all relevant information, such as the names of the heirs, the property they will receive, their obligations, and other related issues.
– The content of the will drafted abroad must comply with the laws of the respective jurisdiction and, to be recognized in Vietnam, must also comply with Vietnamese law.
2.4. Conditions for Legally Drafting a Will by Foreigners in Vietnam
According to Article 630 of the 2015 Civil Code, a will is considered legal when it meets the following conditions:
The testator must be of sound mind and clear judgment when drafting the will;
At the time of drafting, the testator has full autonomy to decide the content according to their wishes. Their will must be expressed independently, without being influenced or coerced by anyone else.
The testator is not deceived, threatened, or coerced;
Deception refers to actions that lead the testator to misunderstand the situation, resulting in a will that benefits the deceiver or the beneficiary designated in the will.
Coercion involves forcing someone to act against their will according to the directions of the coercer. Failure to comply may result in the testator or their loved ones facing adverse consequences. Coercive behavior may include threats to mental, physical, or financial well-being. Due to this coercion, the testator may write the will according to someone else’s wishes.
The content of the will does not violate prohibited provisions of the law or social ethics;
The form of the will complies with legal regulations.
A will is a legally significant transaction in terms of formality. When the testator passes away, they no longer can express their will or confirm the authenticity of the will. Therefore, wills are susceptible to forgery or being made under coercion, deception, or improper influence. To prevent these possibilities, the law places special emphasis on the formalities of drafting a will to ensure transparency, fairness, and protection of the legitimate rights of the parties involved.
A will made by a person aged fifteen to less than eighteen must be in writing and must be consented to by the father, mother, or legal guardian.
A will made by a person with physical limitations or illiteracy must be in writing and must be notarized or authenticated by witnesses.
An oral will is considered legal if the testator expresses their final intentions in front of at least two witnesses, and immediately after, the witnesses record it, co-sign, or mark it. Within 5 working days from the date the oral will is expressed, the signatures or marks of the witnesses must be notarized or authenticated by the competent authority.
3. Procedure for Drafting a Will
3.1. Procedures for Making a Will in Vietnam
Currently, a will in Vietnam can be expressed through two main forms: written or oral.
According to Article 628 of the 2015 Civil Code, a written will includes:
- Written will with witnesses
- Written will without witnesses
- Notarized or authenticated written will
Therefore, the drafting of a will can be done in various forms, and the procedures will vary depending on each form. Below are the corresponding procedures for common forms of will drafting:
– Written will with witnesses:
The testator may type or have someone else type the will if they are unable to write it themselves. In this case, at least 2 witnesses are required under the following conditions:
- The testator must sign or mark the will in front of the witnesses.
- The witnesses must confirm the signature and mark of the testator and then sign the will.
Note: Witnesses for the will cannot be:
Beneficiaries according to the will or legal inheritance regulations.
Persons with rights and obligations regarding the property related to the will.
Minors or incapacitated persons.
Persons facing difficulties in perception and control of behavior.
– Written will without witnesses:
In this case, the testator must write and sign the will themselves. Additionally, the testator without witnesses must adhere to conditions related to the content, and not violate legal prohibitions, social ethics, or legal regulations regarding the form of the will.
– Notarized or authenticated written will:
The procedure for drafting a notarized or authenticated written will is a process that ensures the legality and authenticity of the will. When the testator decides to make a will in this form, it requires the intervention of an authorized party to authenticate the document and sign the authentication.
The procedure for drafting a notarized or authenticated written will consists of 5 steps as follows:
Step 1: Prepare the necessary documents
- Fill out the notarization request form at the notary public office or the request form for notarization outside the office (if applicable), according to the request template.
- Draft of the Will.
- Personal documents: Identity card/citizen identification card, passport of the testator and the beneficiaries, household registration book, marriage status confirmation, marriage registration confirmation, etc.
- Documents related to assets, such as land use right certificates (red books), vehicle registration papers, etc.
Step 2: Submit the application
- The testator must personally request the notarization of the will, submitting it directly to the notary public office, specifically:
- Notary public office: Notary Public Office or Notary Public Office;
- Authentication authority: Commune People’s Committee.
Note: According to the provisions of Article 42 of the Notary Law 2014, for cases of will notarization related to real estate, the testator can perform notarization at a notary public office outside the province or city where the notary public office is located, without the need to go to the Notary Public Office/Branch Office at the location of the real estate to carry out the notarization process.
Step 3: Perform notarization or authentication of the will
The notary public or judicial officer at the commune will receive and verify the testator’s documents, record the will’s content according to the testator’s wishes, explain the rights and obligations to the testator, and confirm that the will has been recorded accurately and reflects the testator’s intentions.
In cases where the testator cannot read or hear the will, or cannot sign or mark the will, the witness must be invited to participate and sign the confirmation in front of the notary public or the authorized person for authentication at the Commune People’s Committee and return the original document to the testator.
If the testator requests a professional notary office or the Commune People’s Committee to keep the will, then after the testator’s death, these units will hand over the will to the heir or the authorized person to declare the will.
The handover of the will must be documented and signed by the giver, the recipient, and must be conducted in the presence of at least 02 witnesses.
Step 4: Pay fees, notarization fees, and notarization fees
According to Decision 1024/QD-BTP and Circular 257/2016/TT-BTC, the fee for notarization at the Commune People’s Committee and the fee for notarizing a will at a notary public office are both 50,000 VND per will.
In addition, according to Article 4 of Circular 256, the fee for accepting will custody is 100,000 VND per case.
The fee for notarizing a will shall be negotiated between professional notary public offices and the requestor, but shall not exceed the limit of notary public fees set by the provincial People’s Committee.
Step 5: Return the result
The time to return the result is about 2 – 3 working days.
Not more than 10 working days for cases with complex content.
– Oral Will Procedure:
The testator must declare their final intentions in front of at least 2 witnesses.
Both witnesses must record, sign, and mark the new will.
Within 5 days from the date the testator expresses their final intentions, the will must be notarized or authenticated as per regulations.
After 3 months from the oral will’s creation, and if the testator is still alive, lucid, and capable, the will is automatically revoked.
Procedures for Making a Will at the Commune People’s Committee:
Based on Article 636 of the 2015 Civil Code regarding procedures for making a will at a notary public office or the commune people’s committee, the process involves:
Step 1: The testator declares the will’s content in front of a judicial officer at the commune’s residence.
Step 2: The judicial officer records the declared content.
Step 3: The testator signs or marks the will after confirming its accurate recording and alignment with their intentions.
Step 4: The judicial officer signs the will.
3.2. Procedure for Foreigners and Recognition of Foreign Wills in Vietnam
Step 1: Foreign nationals should draft wills according to the laws of their country of citizenship, ensuring compliance with their national laws and forms.
Step 2: To recognize a foreign will in Vietnam, individuals must follow specific procedures:
(i) Obtain consular certification of the will from the Vietnamese diplomatic mission in the country of residence.
(ii) Legalize the consular certification at the Vietnamese diplomatic mission.
Conclusion:
This article has provided a guide to the procedures for drafting and recognizing wills in Vietnam, including definitions, conditions for testators, types of wills, and specific processes for each case. Additionally, it addresses regulations related to foreign wills, helping readers understand and comply with legal procedures. However, thorough preparation and adherence to legal procedures will protect the testator’s intentions and ensure the legal recognition of the will in Vietnam.
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
