Making a will is one of the issues attracting the interest of many people intending to bequeath their estate after death, especially regarding the form, legitimacy, and documents required to draft a will. The following article provides readers with noteworthy content for making a will as well as documents needed for this purpose according to applicable laws.
What is a will?
Will means an expression of the wishes of a natural person, made to bequeath his or her property to others after his or her death.
Who can make a will?
Article 625 of the 2015 Civil Code prescribes the testator as follows:
- A person who is 18 years old or above: must be of intelligent and sound mind while making a will; under no deception, threat or coercion.
- 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.
What are the formalities of a will?
In principle, a will must be made in writing; If it is not able to be made in writing, it may be made orally.
Written wills:
Under the 2015 Civil Code, written wills can be expressed in one of the following forms:
- Unwitnessed written wills; or
- Witnessed written wills; or
- Written wills that are notarized; or
- Written wills that are certified.
Oral wills:
According to Article 629 and Clause 5, Article 630 of the 2015 Civil Code, an oral will shall only be considered legitimate if it fully meets the following conditions:
- Where a person is likely to die and he or she can’t make a written will, such person may make an oral will;
- The testator orally expressed his or her last wishes in front of at least two witnesses;
- Immediately after the oral testator expressed his or her last wishes, the witnesses jointly recorded, signed, or fingerprinted a document; and
- Within 05 working days from the day on which the oral testator expressed his or her final wishes, the will must be certified by a notary public or a competent authority to certify the signature or fingerprints of the witnesses.
It should be noted that an oral will shall be automatically invalid if the testator is alive and is of sound mind three months after he or she has made an oral will.
Are written wills required to be notarized or certified?
Currently, written wills can be expressed in various forms, as well as according to Article 635 of the 2015 Civil Code stating that “A testator may request his/her will to be notarized or certified’’, so notarization or certification of the will is optional and will be selected by the testator.
Because a testator always wants that his or her wish in the will is legally valid and that the heirs are entitled to his/her estate based on that will, the testator often requests the will to be notarized or certified. In addition, one more reason for a testator to make a certified and notarized written will is that in the event of any dispute about inheritance or the will, a notarized or certified will shall be valid as a piece of evidence with no verification required.
It should also be noted that, for a non-certified or notarized written will to be considered legal, in addition to complying with regulations on the order of making a will by the law for each type of written will, a testator shall satisfy two conditions, which are:
- The testator is lucid and discerning while making a will; he or she is not deceived, threatened, or coerced; and
- The content of a will shall not violate the prohibition of the law, nor shall it violate social ethics; nor is the form of a will contrary to the law’s regulations.
What are the contents of a will?
Under Article 631 of the 2015 Civil Code, the main contents of a will shall include the following information:
- Day, month, year of a will;
- Full name and place of residence of the testator;
- Full name of the person, agency, or organization entitled to the inheritance;
- Inheritance and place of inheritance.
A will can include other contents in addition to the above-mentioned. However, the contents of a will written in a will shall not violate the law and social ethics.
In addition, a will must not be abbreviated or written in symbols, each page must be numbered and signed or fingerprinted by the testator if the will has many pages.
In case a will has been erased or corrected, the testator or witnesses shall sign right at each erasure or correction.
What is a lawful will?
Under Article 630 of the 2015 Civil Code, a lawful will shall include the following information:
- The testator is of intelligent and sound mind at the time of making a will; not deceived, threatened, or coerced;
- The content of a will shall not violate a prohibition by law or is not contrary to social ethics; the will shall comply with legal formalities.
A will made by a person between fifteen and eighteen (18) years of age must be made in writing and with the consent of the parents or guardian of such person thereto.
A will made by a person who is incapacitated or illiterate must be made in writing by a witness and must be notarized or certified
A non-certified or notarized written will shall only be considered legitimate when (i) the testator is of intelligent and sound mind at the time of making the will; not deceived, threatened, or coerced; and (ii) contents of the will shall not violate the prohibitions of the law and is not contrary to social ethics; the will shall comply with legal formalities.
An oral will shall be considered legitimate if the oral testator expresses his or her final wish in front of at least two witnesses, who record those wishes in writing and sign or fingerprint the document. Within 05 working days from the day on which the oral testator expressed his or her final wishes, the will must be certified by a notary public or a competent authority to certify the signature or fingerprints of the witnesses.
When is a will amended or supplemented?
The testator may amend, supplement or revoke his/her will at any time. The original will and the codicil shall have the same validity should the will be supplemented.
However, if a part of the original will and the codicil conflict with each other, the codicil shall prevail. When the testator replaces a will with another will, the latter shall become valid and the former shall be revoked.
When is a will effective?
A will shall become effective from the time of commencement of the inheritance.
The time of commencement of an inheritance shall be the time when the testator dies. If both spouses jointly make a will, the will shall be effective from the time of death of the last person or at the time of death of both spouses.
All or part of a will shall be ineffective in any of the following cases:
- An heir under the will dies before or at the same time as the testator.
- An agency or organization named as an heir no longer exists at the time of commencement of the inheritance.
Where there are several heirs under a will and one of them dies before or at the same time as the testator, or one of the agencies or organizations named as an heir under the will no longer exist at the time of commencement of the inheritance, only that part of the will which relates to the individual, agency or organization no longer existing shall be ineffective.
When a will contains an unlawful provision that does not affect the effectiveness of the remainder of the will, only that provision is ineffective. A will shall not be effective if the estate left to the heirs no longer exist at the time of commencement of the inheritance. If only part of the estate left to the heirs remains, only that part of the will relating to such part of the estate shall be legally effective.
In case of multiple wills, which will is effective?
Where a person leaves behind more than one will concerning certain property, only the most recent of such wills shall be effective.
Who are the heirs?
According to Article 613 of the 2015 Civil Code, if an heir is an individual, such person must be alive at the time of commencement of the inheritance or, if such person is born and alive after the commencement of inheritance, he/she must have been conceived before the time of death of the testator.
In case an heir dies before or at the same time as the testator, the estate that the heir should have been entitled to shall be divided according to the law. Then, the heir’s children shall be entitled to part of the estate that should have been given to the heir if he or she were still alive.
In addition, when a will is lawfully made and effective, the estate of the deceased testator shall be distributed according to the will at the time of commencement of the inheritance, except for some cases where it is compulsory to divide the estate according to the law, for example, heirs are notwithstanding contents of the will or it is compulsory to divide the inheritance according to the law.
Heirs notwithstanding contents of wills
Article 644 of the 2015 Civil Code prescribes that the following persons shall be still entitled to a share of the estate in case they are not granted entitlement for inheritance:
- Minor children, father, mother, wife, and husband of the testator; and
- Adult children incapacitated from working.
Where a testator does not grant an inheritance to the above persons or grants any such persons an inheritance which is less than two-thirds of the share that person would have received if the estate had been distributed according to law, those persons shall be entitled to a share of the estate equivalent to two-thirds of the share that they would have received if the estate had been distributed by law.
It should be noted that the above provision shall not apply to any persons disclaiming inheritance by the law or heirs notwithstanding contents of the will who are not entitled to inherit according to Clause 1, Article 621 of the 2015 Civil Code, including:
- Persons convicted of having intentionally caused the death of or harmed the health of the testator, of having seriously mistreated or tortured the testator, or of having harmed the honor or dignity of the testator;
- Persons having seriously breached their duty to support the testator;
- Persons convicted of having intentionally caused the death of another heir to obtain all or part of the entitlement of such other heir to the estate;
- Persons deceiving, coercing, or obstructing the testator concerning the making of the will, or forging, altering, destroying, or concealing the will to obtain all or part of the estate contrary to the wishes of the testator.
What documents should be prepared to make a will?
Depending on the contents of a will and requests of each case, the documents required for making a will shall be different. However, most documents in connection with making a will to be prepared by the testator include:
- A draft copy of a will (if any);
- Copies of identity papers of the testator and heirs (Citizen ID card/ID card /Passport/Birth Certificate, etc.);
- Copy of Certificate of Land Use Right, Ownership of House, and other Property attached to land under possession of the testator;
- Ownership Certificates for property subject to ownership registration of the testator;
- Information on cash, savings deposits at banks, stocks, valuable papers, or property not subject to ownership registration of the testator;
- Marriage Certificate for the joint will of both spouses;
- Information on the estate administrator, guardian, and property executor appointed by the testator (if any).
Is it possible to make a notarized will at home?
Article 639 of the 2015 Civil Code prescribes that: “The testator may request a notary public to visit his or her place of residence to prepare his/her will. It is quite common for a notary public to visit the testator’s place of residence to notarize his or her will.
However, as a specialized law, the 2014 Law on Notarization provides quite limited provisions on cases where a notary public may conduct notarization outside the head office of a notarial practice organization, as follows:
Article 44. Location of notarization
- Notarization must be carried out at the head office of a notarial practice organization, except for cases prescribed by Clause 2 of this Article.
- Notarization may be conducted outside the head office of a notarial practice organization if the notarization requester is old and weak and cannot move, is held in custody or prison, is serving an imprisonment sentence, or has another plausible reason for being unable to visit the head office of the notarial practice organization”
Therefore, notarization can be conducted outside the head office of a notarial practice organization only if it falls into the cases prescribed by Clause 2, Article 44 of the 2014 Law on Notarization. This is a regulation that is somewhat inconsistent between the 2015 Civil Code and the 2014 Law on Notarization.
Therefore, the testator should consider preparing his or her will at the head office of a notarial practice if the testator does not fall into cases listed in Clause 2, Article 44 of the 2014 Law on Notarization.
Hope the above article provides readers with useful information. Please note that the above information may change or the cited laws will expire subject to changes in legal regulations from time to time. For any questions or legal assistance in your making a will, please contact us at letran@familylawyers.vn.
