Wills and Estates

When the Testament Comes Into Force?

Author
Stephen Le
Author
Vania Van

The inheritance division and inheritance obligations are based on the Testament and the law. Inheritance at law is regulated specifically by law, so disputes have rarely arisen. In regards to testamentary inheritance, disputes which stem from determining the validity of the Testament are common. In this article, we will give you a better view of the Testament and its validity.

What are the requirements for the Testament to be legally valid?

A Testament is the expression of a person’s will to transfer his/her own property to another person(s) after his/her death.  According to 2015 Civil Code, the person making the Testament should note the following conditions for the Testament to be legally valid.

Testator

The following persons have the right to make the Testament:

  • A person is in sound mind when making the Testament; and is not deceived, threatened or forced.
  • A person aged between full fifteen years and under eighteen years may make the Testament, if it is so agreed by his/her father, mother or guardian.
  • A person who is physically handicapped or illiterate shall be written down by a witness and notarized or certified.

Contents of the written Testament

The contents of written Testament neither violates prohibitory provisions of law nor contravenes social morality:

  • Prohibitory provisions of law means the provisions of law that do not permit subjects to perform certain acts.
  • Social morality means common standards of conduct in social life, which are recognized and respected by the community.

The Testament must contain the following principal details:

  • Date, month and year on which the Testament is made.
  • Full name and place of residence of the testator.
  • Full name(s) of the person(s), agency(ies) and/or organization(s) entitled to the estate.
  • The bequeathed estate and its location.
  • Others.

The Testament must not contain abbreviations or symbols, a multiple-page Testament must have each page numbered, and signed or fingerprinted by the testator.

In case the Testament has an erased or a modified content, the testator or witnesses shall sign beside such erased or modified content.

Forms of the Testament

Oral Testament:  In case the life of a person is threatened by death and it is impossible for him/her to make a written Testament.

Unwitnessed written Testament: The testator shall himself/herself write and sign the Testament.

Witnessed written Testament: The testator who is unable to write a Testament by himself/herself may typewrite it or ask another person to write or typewrite it, but in the presence of at least two witnesses. The testator shall sign or fingerprint the Testament in the presence of the witnesses, who shall then certify the signature or fingerprint of the testator and sign the Testament.

Notarized or certified Testament: The testator may request notarization or certification of his/her Testament at a notary office or commune-level People’s Committee.

How long does the Testament last?

According to the law, a Testament shall take effect from the time of opening inheritance; the time of opening inheritance is the time the testator dies.  This means that, at the time the testator dies, the Testament will enter into force; be announced and be executed.

The statute of limitations for an heir to request distribution of an estate is 30 years for immovable property and 10 years for movable property from the time of opening inheritance.  Past this time limit, the estate shall belong to its current manager.

What circumstances the Testament considered invalid wholly or partially?

The Testament is invalid wholly

The Testament does not fully meet the conditions on subject, content and form.

For example, Mr. A makes a Testament when he is not in sound mind.  Mr. A is deceived, threatened or forced to make the Testament.

The Testamentary heir(s) dies/die before or at the same time with the testator.

Example: Mr. A makes a Testament that leaves all of his assets to his step-child.  However, Mr. A and this step-child die together after the motobike crash. This case is that heir dies before or at the same time with the testator.

The agency(ies) and/or organization(s) designated as heir(s) no longer exists/exist at the time of opening inheritance.

For example, Mr. A make a Testament that leaves all of his assets to the local Orphans organization, however, at the time of Mr. A’s death, the organization is dissolved.

The estate left to the heir(s) no longer exists at the time of opening inheritance.

Example: Mr. A makes a Testament that leaves a house for his son.  Before Mr. A’s death, the house is sold by Mr. A to someone else.  Thus, at the time of the opening inheritance, this estate does not belongs to Mr. A anymore. 

The Testament is invalid partially

In case there is more than one testamentary heir and one of them dies before or at the same time with the testator, or one of the agencies or organizations designated as heirs no longer exists at the time of opening inheritance, only the part of the Testament that is related to such person, agency or organization is legally ineffective.

Example: Mr. A make a Testament that leaves his assets to B and C. However, B dies a few days before Mr. A’s death. In this case, the part of the Testament related to B has no legal effect.

The part of the estate exists at the time of opening inheritance.

Example: Mr. A makes a Testament that leaves two houses to his son.  Before Mr. A’s death, a house is sold by Mr. A to someone else.  In this case, the part of the Testament related to the sold house has no legal effect.

Legal consequences of an unlawful Testament

The unlawful Testament has no legal effect from the time the Testament is made.

The estates, assets related to the unlawfull part will be distributed under law.

Can the Testament be changed?

The testator may modify, add, replace or revoke his/her Testament at any time.

In case the testator make additions to his/her Testament, the Testament and its codicil are of equal legal effect. If a part of the Testament is contrary to its codicil, only the codicil shall be legally effective.

The testator who wishes to modify, supplement, replace, or cancel part or the whole of, his/her notarized Testament may request any notary to notarize such modification, supplementation, replacement or cancellation. In case the Testament is previously kept at a notary office, the testator shall notify this notary office of the modification, supplementation, replacement or cancellation of the Testament.

Does old Testament is revoked by the new one?

As described above, the testator may modify, add, replace or revoke his/her Testament at any time.  In case the testator replaces his/her Testament with a new one, the previous Testament shall be invalidated.

What are the requirements of a valid oral Testament?

The Testament is the expression of a person’s will to transfer his/her own property to another person(s) after his/her death, and the testator has the right to designate his/her heir(s), to distribute his/her estate to each of his/her heir.  Currently, oral Testament is common. Many people think that oral Testament is still lawfull without making in writing.  How the issue is regulated by law? When is the oral Testament considered lawful?

The law allows the person to make a oral Testament in case the life of him/her is threatened by death and it is impossible for him/her to make a written Testament (terminal illness, at the risk of dying from an accidental injury…).

An oral Testament may be considered lawful if the testator expresses his/her last will before at least two witnesses who immediately after that write down such will and jointly sign or press their fingerprints. Within 05 working days after the testator expresses his/her last will, the signatures or fingerprints of the witnesses on the Testament shall be certified by a notary or a competent agency.

If the testator is still alive and in sound mind 03 months after making the oral Testament, such oral Testament shall be automatically invalidated.  In this case, for expressing his/her will to transfer the own property to another person(s) after the death, the testator must make the written Testament.

Resolving disputes arising from the Testament

When a dispute arising from the Testament, the parties shall attempt in good faith to negotiate a settlement to the dispute.  In the event that the parties are unable to reach their agreement, they shall have the right to request the jurisdiction to protect their legitimate rights and interests.  The competent of resolving the dispute belongs to the Court.

Please contact us for more detailed instructions: letran@familylawyers.vn

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