Điều kiện có hiệu lực của di chúc theo quy định của pháp luật dân sự việt nam tt tiếng anh

MINISTRY OF EDUCATION & TRAINING

MINISTRY OF JUSTICE

HANOI LAW UNIVERSITY

HOANG THI LOAN

VALIDITY CONDITIONS OF WILLS IN ACCORDANCE
WITH VIETNAM CIVIL LAW

Specialized field: Civil law and civil procedure law
Code: 9.38.01.03

SUMMARY OF DOCTORAL DISSERTATION IN LAW

Hà Nội - 2019


The PhD Thesis was accomplished at:
Hanoi Law University

Adviors/Supervisors:

1.

Assoc.Prof: Pham Van Tuyet

2.

PhD: Hoang Thi Thuy Hang

Critique 1:

Assoc.Prof Nguyen Thi Que Anh

Critique 2:

Assoc.Prof Phan Huu Thu

Critique 3:

PhD. Dinh Trung Tung

The PhD Thesis is defended at tthe Thesis Examining Boarrd Meeting
help at Hanoi Law University at … on…/…./

The PhD Thesis can be studied at:
1. National Library


2. Hanoi Law University Library


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PREFACE
1. The necessity of the topic
Human beings are social and biological entities which their living and death are
always influenced by laws of nature. Death ends the existence of humans in terms of
biology and also terminates their subject capacity in every legal relation. Nevertheless,

from inheritance relation point of view, the death occurring to humans does not
terminate all social relations that they participated, especially property relations
including their legal rights and obligations toward other subjects. The existence of these
relations also depends on the activities of economic – social rules.
When alive, humans take part in labor activities to search for or create assets or
materials to meet the demands of themselves, community and society. For redundant
assets, people tend to make savings and accumulate. When it comes to death, those
assets or properties shall continue to be transferred to alive people. The law ensures this
transference process through inheritance under wills or at law. The procedure to divide
the inheritance estates under wills comes to emerge after estates divided under law
regulations but becomes more popular. Due to a development in the awareness of right
of individual disposal, the trend to make wills to dispose estates before death is also
increasing. However, the disposal and enjoying inheritance estates under wills also came
to difficulties right from the beginning periods of time. Everything must comply with
law regulations on wills. Conditions by law for wills to be legally valid started to be
recognized. This allows me to state that law regulations on will validity conditions are
also one of ways to express the will of ruling class in order to govern the inheritance
relation.
In Vietnam, prior to the Civil Code 2015, regulations on wills and validity conditions
of wills were recognized and created through conditions for wills to be lawful, conditions
for wills to come to legal validity and conditions for wills to be implemented. Through
periods of history, there were changes made compatible to the extensive development of
the society to legal regulations of validity conditions of wills. However, (i) Most of law
regulations on validity conditions of wills being recognized in the Civil Code 2015 are
inherited from previous legal documents. Hence, problems and the insufficiency of these
regulations remain existed and cause many “trouble” to the activity of research and
judgment; (ii) The overall development of the economy, society has a strong influence on
the awareness and acts of humans, leading to the change in inheritance relation, especially
inheritance under wills and resulting in stipulations incompatible to reality.
Procedure implementation agencies state that inheritance conflicts in our country are

popular and complex cases, even some last for more than ten years. The important cause
leading to that complexity is that these are typical conflicts, usually happen amongst


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people having marital, blood or adoption relations; the lack of unification in applying
legal regulations to make judgments; the influence of traditional values on culture,
ethics in family or on inheritance conflict resolution… The amount of conflicts
regarding wills are also increasing. This results from: (i) the unclearance and
inadequacy of regulations related to conditions for wills to be lawful; (ii) law
regulations on conditions for wills to come to legal validity cannot cover cases arising
more diversely in the society; (iii) the awareness of people on wills, making wills and
rights, obligations of subjects in inheritance relation is developed but still lacks of
comprehensiveness.
The research on the Civil Code of some countries in the world and related scientific
works indicate that the deep theoretical issues about wills validity conditions are not
extensively studied. Especially the theoretical foundation for governing wills validity
conditions in accordance with Vietnam law is not mentioned in any other previous
researches. The reality of law application to solve conflicts is still under great
difficulties. The biggest cause is due to the lack of unification in the understanding and
law application to announce wills unlawful or invalid.
To the increasing demand of the society, the research to clarify the theory and
evaluate the situation of law application on wills validity conditions is truly essential.
Therefore, the selection and studying the topic“Validity conditions of wills in
accordance with Vietnam civil law” shall have a profound meaning theoretically and
practically. Điều kiện có hiệu lực của di chúc theo quy định pháp luật dân sự Việt
Nam”
2. The research scope of the topic
The research scope is divided into: Firstly, on research space: the disseartation

focuses on Vietnam law regulations and makes comparison to laws in some countries
such as France, Japan, Thailand, Germany…; Secondly, on research time: the
dissertation concentrates on regulations of the Civil Code 2015 on wills validity
conditions with some connections to previous documents as well as refers to judgment
situation by analyzing valid cases (applying current law and previos documents).
3. The research purpose of the topic
The research shall clarify some theoretical issues on wills, validity conditons of wills
and especially construct a concept on wills validity conditions, determine theoretical
and practical foundation for recognition of wills validity conditions.
In additioin to theoretical issues, the dissertation also makes clear of current law
regulations with analysis, comment, evaluation to previous legal documents on wills
validity conditions. The research of law stipulations of some countries in the world is also
made for comparison and completion of Vietnam laws.
The dissertation implementes the application reality through legally valid cases for the


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foundation of evaluation of dispute resolution on inheritance under wills, law application
on wills validity conditions.
4. New contributions of the topic
The research of the topic: “Validity conditions of wills in accordance with vietnam
civil law” might make following contributions:
Firstly, determining the nature of wills and validity conditions of wills.
Secondly, determining the theoretical and practical foundation for regulations on
validity conditions of wills.
Thirdly, constructing the concept and systemizing groups of conditions constituting
validity conditions of wills
Fourthly, analyzing, commenting regulations of the Civil Code 2015 and previous
legal documents on validity conditions of wills. Hence, the author shall evaluate the

strong points and drawbacks of each condition in terms of legal research science and
practical application.
Fifthly, for each validity condition of wills, the author shall make comnparison with
stipulations of other countries in the world to indicate the pros and cons for future
orientation for Vietnam law.
Sixthly, presenting several cases to analyze the positive and negative sides in the
judgement activity when applying validity conditions of wills to resolve disputes
regarding inheritance.
Seventhly, on the basis of commenting, evaluating regulations on validity conditions
of wills, the author shall indicate remaining issues and drawbacks as well as submit
petitions for completion of law regulations on validity conditions of wills.
5. Structure of the dissertation
Besides the preface, conclusion, overall context of the research topic, reference and
the annex, the content of the dissertation shall comprise of 3 chapters:
Chapter 1. Theoretical issues on validity conditions of wills
Chapter 2. The context of current law regulations on validity conditions of wills
Chapter 3. Practical application and petitions for completion of law regulations on
validity conditions of wills


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OVERALL CONTEXT OF THE TOPIC RESEARCH
Inheritance is the legal issue attracting lots of attention, theoretically to
practically. Different aspects of this issue have been researched. However, for
regulations of validity conditions of wills, those are approached only in small scope. In
detail: Research works include: Doctoral dissertation of Phạm Văn Tuyết, Trần Thị Huệ,
master thesis of Trịnh Hữu Toản…, scientific research work of Lê Đình Nghị or
magazine articles of Vương Tất Đức, Nguyễn Tiến Lực, Trần Văn Tuân, Trà My,
Nguyễn Phương Hoa, Thái Công Khanh… or books of Nguyễn Minh Tuấn, Phùng

Trung Tập, Tưởng Duy Lượng… Some foreign books, works include: Nakagawa jun
and Ogawa tomiyuki, Bernard BEIGNIER, Sarah TORRICELLI-CHRIFI, Christian
Jubault. Most of research works only study one validity condition of wills. Doctoral
dissertation of Phạm Văn Tuyết mentions most of validity conditions of wills but does not
focus on this content but the whole inheritance by wills. Master thesis of Trịnh Hữu Toản
also analyses in detail these conditions but not in depth due to limited research time and pages.
Moreover, the commenting on validity conditions of wills from when an individual makes a
will to death is not clear.
Overall, research issues of public mentioned works do not ensure the depth regarding
commenting, researching law regulations and solutions, in detail:
• Theoritical aspect:
- On the nature of validity conditions of wills Về bản chất điều kiện có hiệu lực của di
chúc: No research works have mentioned yet.
- On the concept and features of validity conditions of wills: Về khái niệm và đặc điểm
điều kiện có hiệu lực của di chúc: Some works present concept but do not indicate separate
features of validity conditions of wills such as: Master thesis of Trịnh Hữu Toản, or master
thesis of Lương Thị Hợp…
- On doctrine, foundation for regulating validity conditions of wills: In terms of
doctrine, no works mentioned yet. On theoretical and practical foundation, Trịnh Hữu
Toản mentioned in his master thesis. However, these are not detailed and do not show
the nature of regulation of validity conditions of wills in law.
- Concept, features of validity conditions of wills: Some works mentioned seperate
condition such as the book of Phạm Văn Tuyết on the testator, content of wills, free of
will, appearance of wills and events causing loss of validity in wills. The book of Trịnh


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Khánh Phong writes about the general for wills to be lawful. The book of Phùng Trung
Tâ ̣p mentions factors such as who, how, exceptions to the testator. Or master thesis of

Lương Thị Hợp writes about the content of wills. Dissertation of Trần Thị Huệ mentions in
detail issues about estates, how to determine inheritance estates… But most of the work do
not focus on the theoretical foundation toward the regulation of each validity condition of
wills. .
• Practical aspect: Many works analyze law regulations in diferent periods of time
on validity conditions of wills but not yet generalize and comment, evaluate 3 groups of
validity conditions of wills
• Application aspect: No works mention fully validity conditions of wills through
cases in national scope.
Hence, the author shall research systemtically from theory to practice law
regulations on validity conditions of wills and suggest petitions for completion of law on
validity conditions of wills. This research context helps the author to confirm that this
dissertation presents new points compared to previous works.
Chapter 1
THEORETICAL ISSUES OF VALIDITY CONDITIONS OF WILLS
1.1. Some theoretical issues on wills
1.1.1. Concept of wills
Wills are the indication of individual’s will through a written or oral document to
transfer the ownership in partial or whole property; other rights to property to the
beneficiary (including the heirs, the grantee of testamentary gift, the person entitiled to
adjoining immovable property, usufruct right, surface right) and implementation other
rights before death.
1.1.2. Typical features of wills
Firstly, wills are made through unilateral legal acts.
Secondly, wills show the individual’s will on transferring their properties to other
people after death
Thirdly, the validity of wills could only come when the person making it dies.
Fourthly, wills are an type of transaction focusing on form.
Fifthly, lawful wills might not be valid for implementation..
1.2. Concept and features of validity conditions of wills

1.2.1. Concept of validity conditions of wills
The author supposes that the legal validity of wills must mention two values
including: the legal value is the lawful presentation of a will; the implementation value
is the indication of implementation ability of wills in reality. Hence, we can conclude
that: Legal validity of wills is the legal value regconizing rights, obligations of heirs by
will and other related subjects who shall enjoy rights and implement obligations in


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accordance with the will of the testator in wills.
For this concept, validity conditions of wills are the combination of 3 groups: First,
conditions for wills to be lawful. Second, conditions for wills to come to legal validity.
Third, conditions for wills to be implemented. Because:
- In order to ensure and implement in accordance with the will of the testator, wills must
be recognized by law first. The recognition of wills to be lawful is the first condition to be
valid. Wiils must be made based on the combination of factors including: The Testator must
have the legal capacity, act capacity; the content of wills do not violate forbidden
regulations of law; the testator must have free of will and the form complies with the law.
Therefore, the author determines the first condition to be the condition for being lawful and
these are conditions by law to considere the compability to recognize the legal value of
wills.
- In order to have the foundation for recognition of rights, obligations of subjects in
the relation of inheritance by wills, besides the death of the testator, the heirs and estates
by wills also must be determined for validity esblishment of wills. Hence, we need to
state the conditions for wills to come to legal validity and this is an objective requirement
made by law for foundation of recognition of rights, obligations of subjects in
inheritance by wills.
- In addition, the law also needs to recognize the conditions to ensure subjects taking
rights and obligations complying with the will of the testator in wills. This is regarded

as requirement made for wills to be implemented in reality.
By indicating the nature of the term “legal validity of wills” and three groups of
conditions as mentioned above, the author supposes that: The recognition of validity
conditions of wills must be considered based on the process from the time of making
wills to estates distribution. This process attaches to 3 times with essential events in
those times including: First, the time of making wills. Recognition of making wills of
individuals must meet conditions for wills to be lawful. Second, the time of wills to
come to legal validity. Recognition of conditions for wills to be valid. Third, wills are
implemented. Recognition of conditions for wills to be implemented complying with
will of the testator. Hence, validity conditions of wills must be understood as regulations
set by law to consider the compatibility to recognize the lawfulness, validity and
implementation of wills.
1.2.2. Features of validity conditions of wills
General features similar to validity conditions of transactions include: (i) The
effect of law to will of the testator when they make wills (ii) Ensuring wills to always
show the free will of the testator (iii) Guaranteeing the rights and interests of other
subjects (iv) Ensuring the stability of civil relations.
Particular features: (i) The time of establishing validity of wills is at the death of


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the testator; (ii) The testator must be of sound mind while making wills; (iii) Form is the
condition for wills to be lawful.
1.3. Scientific foundation for recognition of validity conditions of wills
Each regulation made by law is built based on theoretical and practical scientific
foundation as doctrines, the same applies for validity conditions of wills.
• Practical foundation:
First, demand and awareness capacity of individuals.
Second, the properties transference in inheritance.

Third, the governance of the State by law toward certain behavior of human.
Overall, from the reality of the process of labor, production of materials of humans that
leads to the surplus of properties and the demand, awareness of disposition right of
individuals to properties toward the law of living and death has created the act of making
wills to satisfy the interest of transferring properties after death. Therefore, the law is forced
to govern this act by setting up requirements for wills to have validity conditions. These are
practical foundation for recognition of validity conditions of wills.
• Theoretical foundation:
(i)
Doctrine on Hunan’s natural rights: Determining and wishing to dispose
properties of individuals after death are mental interest value that attaches naturally to
that individual. The legislation opinion of Vietnam through periods of time recognizes
the right for individuals to make wills as a natural right that needs to be respected and
guaranteed for implementation.
(ii)
Doctrine on individuals’ free will: This doctrine is built bassed on the
recognition off the ability of a person in acting in accordance with plans he or she made
without being intervened by any other factors. This point shows that the law is built and
completed based on certain doctrines. Human’s free will consists of unlimited inner desire
and is attached with purpose of realization as being presented outward. It will not make
sense if the law is not built to protect those desires of human. This doctrine affects the
recognition of validity conditions of wills which must ensure to be a process regarding time
from wills making, coming to validity and realization of the last desire of the testator.
(iii)
Doctrine on state and law: The Doctrine on state and law shows that the role
of State in governing and managing the society and through the law, the State recognizes
and ensures rights, interests of each individual on the foundation of balancing between
individuals’ interests and general interests, order of the community and related subjects.
The intervention of the State on making wills of individuals ensures that: realization of
mental interest, desire to transfer individuals’ property after death; hamorny between

personal interests and public interests. This is indicated through the recognition of the State
on the right to make wills, free of will when making wills and conditions made by law to
guarantee social order during the process of making wills and estate distribution.


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CONCLUSION OF CHAPTER 1
First, based on practical experience of researching social relations, scientific
opinions in the theoretical systems of theorists, the author has shown theoretical issues
on wills and typical features of wills. Second, the author indicates the theoretical issue
on validity conditions through: (i) Discovering validity conditions of wills, cause of
recognition of groups of validity conditions of wills; (ii) determining the popularity and
particularity toward validity conditions of wills. Third, through researching different
doctrines when building every law regulation, the author has determined the scientific
basis for recognition of validity conditions of wills.

Chapter 2
THE CONTEXT OF CURRENT LAW REGULATIONS ON VALIDITY
CONDITIONS OF WILLS
2.1. Conditions for wills to be lawful
2.1.1. Law regulations on the testator
According to Article 630.1 Civil Code 2015, two types of individuals allowed by law
to implement the right to make wills including: (i) Adults being sound of mind while
making wills, not being threatened, deceived, coerced”; (ii) A person between 15 and
18 years old with the consent of parents or guardian for making wills. According to this
recognition, the testator and the person confirming transaction in general have been
determined in different scopes. This realization of regulation on the testator in the
current law is considered on some below aspects:
2.1.1.1. Age

- Adults are determined as above 18 years old: Vietnam law from the feudal time
regulated that “parents should make wills when being old…” or the law under French
colony also regulated: “A person being adult or wise enough can make wills to distribute
their property”. Until independence time, regulation on the age of testator is well
indicated in legal documents and the same thing they share is the age for making wills
is 18 years old. The author also sees the similarity between Vietnam law and law of
some countries in the world in allowing individuals to make wills when reaching certain
age. Article 903 of French Civil Code stipulated: “The minor under 16 years old cannot
make disposition”. Or article of Japanese Civil Code regulated: “Any person from exactly
15 years old can make wills. Or article 467 Swiss Civil Code regulated: “Any persons
having awareness capacity and from 18 years old can make wills to dispose of their


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property compatible to the limits and formalities in accordance with law”.
- In addition to recognizing individuals to make wills if from 18 years old, Civil Code
2015 also allows the persons between 15 and 18 years old to make wills with the consent
of parents or guardian. The basis for this: (i) The age being recognized of ability for
labor and having incomes; (ii) The physical, mental, capacity to control basic action
like adults development; (iii) The authorization for disposition in wills therefore are
meaningful
2.1.1.2. On the capacity for awareness and behavior control
With the above aspect on awareness, an individual wants to achieve his/her deep
thinking when connecting interests through certain activities. Or setting up interests and
obligations for other subjects through distribution of their own property must go through
certain periods. It shows that, regarding time to human, age is a proper term to describe
this. Hence, making wills must always ensure the age to determine that there has been
maturity in awareness. From that, the implementation of certain acts on the basis of
awareness shall ensure the compatibility, honesty and objectivity. It shows practically

that an adult is not guaranteed to have full awareness capacity and control behavior.
Moreover, wills are typical transaction that only come to validity after death. Therefore,
besides age, the testator must ensure the sound of mind, without being deceived, threatened
or coerced while making wills. According to this regulation, conditions set for each person
making wills are as: First, for adults can make wills but must be sound of mind, without
being deceived, threatened or coerced. Second, for a person between 15 and 18 years old.
The establishment of wills of this subject completely depends on the will of parents or
guardians. In this regulation, we can understand that the responsibility of parents, guardians
is also determined through the evaluation of the awareness capacity and behavior control of
their children. Third, the person who loses civil act capacity cannot make wills, the person
who is limited their civil act capacity, having difficulties in awareness and behavior control
can make wills.
Besides benefits for the state, testator, other heirs, the regulation on the testator also
remains some below issues: First, we haven’t stipulated in detail about the legal capacity
of the testator; Second, regulation on the consent for making wills of parents or
guardians to wills of persons between 15 and 18 years old is not clear; Third, no clear
regulation on the right to make wills of persons under 15 years old; Fourth, the way of
regulating the condition of being sound of mind is illogical; Fifth, the way of using terms
is incompatible leading to confusion or conflicts in implementation and application of
law.
2.1.2. Law regulation on the content of wills
The content of wills is understood as all articles indicating the free will of testator.
Hence, a lawful will must comply with law on content of wills. Conditions on content of


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wills are shown in two below issues:
2.1.2.1. Conditions for content of wills to be lawful
• Content does not violate prohibited provisions of law

Condition that content of wills does not violate prohibited provisions of law
needs to be understood in the direction that overall articles on will of the testator does
not fall in forbidden cases listed in specific legal documents.
• Content does not violate social morality
In nature, social morality is hard to determine, it does not exist as law regulations. In
the legal science field, there is no independence between the content of wills violate social
morality and violate law regulatiosn. This is explained as, law regulations of each country
also reflects its the economy, politics, culture, tradition… Therefore, regulations of Vietnam
mostly reflect the compatibility on social morality of Vietnamese. Therefore, when
declaring a will having content violating prohibited provisions of law, it also violates the
social morality.
2.1.2.2. Detailed content of wills
According to Article 631 Civil Code 2015, articles on content of wills could be listed
as:
• Primary articles of wills
Firstly, date, month, year of making wills; secondly, name of the testator; thirdly,
residence of the testator; fourthly, name of persons, organizations as heirs; fifthly, left estate
and place of estate; sixthly, distribution of estate in wills.
• Additional articles
Article 631.2 Civil Code 2015 stipulates: “Besides content regulated in the section 1 this
article, wills may have other contents”. This article shows clearly the free will of choosing
other contents of the testator.
•
•

Articles on using abbreviation words, signs, pages numbering in wills

Content of conditional wills
On content of conditional wills, we must set following requirements for conditions
of wills: (i) No violation of prohibited provisions of law, social morality; (ii) conditions

in wills must not be confusing; (iii) conditions must be balanced between interests and
obligations for heirs. More importantly, Civil Code 2015 must adjust conditional wills
to build clear legal consequences for this content.
2.1.3. Law regulations on the free will in wills
Article 117.1.b Civil Code 2015 stipulates: “subjects in civil transactions must be on free
will” and article 630.1.a stipulates: “the testator is sound of mind without being deceived,
threatened, and coerced”. According to this regulation, the free will is considered when
making wills under 2 aspects:
Firstly, wills are made in the situation of being sound of mind: In reality, an adult does


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not mean they have the awareness capacity or behavior control. Even when they reach
certain age and have the awareness capacity or behavior control, it does not guarantee that
individual is sound of mind in making wills. Therefore, the law stipulates that the testator
must be sound of mind.
Secondly, wills must be made in true will of the testator: The unification between will
and presenting will is the typical factor consituting free will in transactions. The same thing
applies for making wills, the will of testator is their own wills on distribution of their estate
for others after death. The law respects the right for disposition of testator and ensures the
implementation if truly presented.
With this theory, law regulates one of conditions for making wills lawful is: The testator
is not deceived – the awareness capacity and behavior control are not intruded by intentional
act of the other party or third party making the other misunderstand the subjects, context of
the object of content of civil transactions to make that transaction. Or not being threatened,
coerced - the awareness capacity and behavior control are not intruded by intentional act of
the other party or third party making the other implement a civil transaction in order to avoid
damages in life, health, dignity, reputation, property of their own or relatives.
2.1.4. Law regulations on formality of wills

2.1.4.1. Oral wills
Oral wills are understood as the presentation of personal will through verbal sound.
According to Article 629 Civil Code 2015, an individual making oral wills must meet
following conditions: First, being on the verge of death and cannot make written wills;
Second, after 3 months, since making oral wills, the testator remains sound of mind, oral
wills shall be terminated. Third, oral testator must be of above 18 years old. Besides,
lawful oral wills must meet below requirements: (i) oral testator must show last will in
front of at least 2 witnesses; (ii) witnesses must write, sign together right after the last
will; (iii) within 5 working days, since the last will, wills must be certified with
signatures of witnesses.
2.1.4.2. Written wills
• Unwitnessed written wills: Civil Code 2015 regulates that this is the type of will
that the testator must write, sign on the will and content remains fully as in Article 631.
• Witnessed written wills: The Civil Code 2015 recognizes the cases that an
individual who wants to use technique science software apps that does not want to write
but type or does not write, type by himself/herself but ask other people to write, type
then conditions are stricter. In detail: in case the testator does not write the will, he or
she can type or ask other people to write or type the will with at least 2 witnesses. The
testator must sign on the will in front of 2 witnesses; witnesses confirm signature of the
testator and sign on the will. The content of will must also ensure regulation in Article
631 Civil Code 2015.


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• Notarized/certified written wills
Notarization or certification belongs to the free will of the testator. This is the type of
will made by notarizer or certifier.
In addition, Civil Code 2015 also regulates the type of will having the same value as
notarized/certified wills in Article 638: Wills of military members certified by the leader

if the member cannot as for notarization or certification. Wills made by persons on
planes, ships certified by the leader of those means of transport.
Besides mentioned strong points, regulation on formality of wills remain a number
of drawbacks:
• For oral wills: First, after 3 months, since the establishment of oral wills that the
testator remains alive, sound of mind then the will shall terminate automatically.
Secondly, conditions for oral wills to be lawful are unconvincing. In detail: Conditions
on witnesses, writing, signing and notarization/certification of signatures are
unapporopriate to the reality.
• For written wills: First, we lack of the type of wills in the list. In detail: We lack
of the type of wills having the same value as being notarized/certified and wills made
by Bailiff office. Second, unwitnessed written wills which must comply with Article
631 are too stiff. Third, regulation on witnessed written wills are unclear, confusing in
application, enforcement. Fourth, there are remaining improper issues on the procedure
of wills made by notarizer or certifier. Fifth, we lack the basis for recognition of wills
having the same value as wills being notarized or certified. Sixth, the stiffness when it
comes to regulation of abbreviation or symbols in wills.
2.2. Conditions for wills to come to legal validity
2.2.1. Law regulation on dead testator
This is the time of establishing the inheritance relation in general and validity of wills in
particular.
2.2.1.1. For wills made by an individual
This is the type of transaction completely made based on the unilateral will of an
individual in order to distribute their property to others after death. According to Article
611 and Article 71.2 Civil Code 2015, the time that a will comes to legal validity is
determined under 2 circumstances: First, the time that the owner of property dies – the
natural death; Second, the time the Court declares that a person is dead.
2.2.1.2. For joint wills
Joint wills are understood as wills made by at least 2 persons to present the joint
will, together distribute their properties to others after death. Civil Code 2015 has

removed the content of joint wills of husbands and wives. However, it does not mean
the forbidding of the joint wills. If joint wills do exist in reality, the validity of this type
of will shall be determined under 2 circumstances: (i) Within persons making joint wills,


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if a person dies before the others, the content of wills distributing property of dead person
shall come to validity at their death; (ii) When all person die together, all the wills shall
come to validity.
2.2.2. Law regulation on heirs by wills remain alive, existing at the time of opening
inheritance
This is one of conditions affecting the recognition of validity of wills. Heirs are
understood as subjects of legal relations on inheritance, they are determined to enjoy
inheritance in wills or by law. Wills are the presentation of free will in order to transfer
property to others after death. Therefore, the scope of heirs in wills could be either
individual or non-individual. Detailed conditions are: For individuals enjoying estate in
wills: Must be alive since the opening time of inheritance; do not refuse the estate; are not
removed the right of receiving estate; for organizations, agencies receiving estate in wills:
Must exist at the opening time of inheritance.
Besides achieved points, this regulation remains some issues: First, no clear regulation
on the condition that an individual must be born and alive after time of inheritance opening.
Second, we lack the unification in recognition of subjects enjoying estate not as individual
(law regulation as organizations, agencies or non-individual). Third, we have no clear
regulation to solve the legal consequences for circumstances of re-organization, dissolution,
bankruptcy of legal persons. Fourth, we lack of regulation on the right to refuse and remove
the inheritance right to non-individuals.
2.2.3. Law regulations on inheritance estate distributed in wills still remain at the
time of inheritance opening
For estate distributed in wills, Article 643.5 the Civil Code 2015 clearly regulates on the

validity of wills as below: “Where a person leaves behind more than one will with respect
to certain property, only the most recent of such wills shall be legally effective”. According
to this regulation, conditions set for estate distributed in wills must exist at the time of
inheritance opening which shall create the legal validity of wills. The term “non-existent”
is understood as non-appearance. It means that the property could fall into context as:
Completion of consuming, destroying, being transferred to others or being another form of
property… If the property at the time of making wills exists but falls into above context at
the time of testator dead, the validity of wills or related part of will shall lose the validity.
Hence, to ensure wills to come to legal validity, one of conditions being considered is that
estate must exist at the time of inheritance opening. The foundation to determine inheritance
estate: (i) must be property; (ii) must be of that individual’s ownership till their death.
For requirements on the existence of law to inheritance estate distributed in wills, the
author sees that there is no law regulation on the change of status of estates distributed in
wills. This might lead to issues when applying in reality activities.
2.3. Conditions for wills to be implemented


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2.3.1. Law regulations on conditions regarding heirs in wills
Article 650.2.c of Civil Code 2015 regulates: “Parts of an estate related to heirs under
the will not having the right to inherit, having disclaimed the right to inherit, or having
died prior to or at the same time as the testator dying; and parts of an estate related to
bodies or organizations entitled to inherit under the will but no longer existing at the
time of commencement of the inheritance”. According to this regulation, in order for
wills to be implemented, heirs by wills must:
2.3.1.1. Heirs by wills must be alive, existent at the opening of inheritance
Condition on heirs belongs to group of conditions for wills to come to legal validity
and group of conditions for wills to be implemented. As analyzed, for wills to come to
legal validity, heirs by wills must be alive, existent at the time of inheritance opening.

This is also the condition for wills to be implemented as Article 650.1.c Civil Code 2015
lists cases of inheritance division by law as: “All heirs under the will died prior to or at
the same time as the testator dying, or the bodies or organizations which are entitled to
inherit under the will no longer exist at the time of commencement of the inheritance”.
2.3.1.2. Heirs who cannot refuse the right of estate inheritance
Article 650.1.d Civil Code 2015 regulates one of circumstance to divide inheritance
by law to be applied when: “The persons appointed as heirs under the will do not have the
right to inherit or disclaimed the right to inherit”. Heirs by wills but later refuse inheritance
estate, this part shall be divided by law. Receiving or refusing depends on the heirs.
Therefore, this part being refused shall not come to legal validity.
2.3.1.3. Heirs whose inheritance estate right is not removed
These are cases that heirs by law falling into circumstances in Article 621.1 Civil
Code 2015 being removed the inheritance estate right by law. Therefore, according to
Article 650.1.d Civil Code 2015, the will part regarding shall not come to legal validity.
2.3.2. Law regulations on conditions regarding estates distributed in wills
Law regulations have indicated that in order for wills to come to legal validity, estate
distributed in wills must exist at the the opening time of inheritance. Article 643.3 Civil Code
2015 regulates: “A will shall not be legally effective if the estate left to the heirs no longer
exists 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 which relates to such part of the estate shall be legally
effective”. Article 650.2.b Civil Code 2015 regulates: “Parts of an estate related to an
ineffective part of the will” which shall be distributed by law. Therefore, lawful wills,
dead testator does not ensure the value of validity implementation if estate distributed
in wills does not not exist at the opening time of inheritance.
2.3.3. Law regulations on wills
As mentioned, conditions for wills to come to legal validity are requirement that a will
must meet if being lawful, and practical requirements that when meeting shall leat to the


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implementation of wills. Hence, when mentioning conditions for wills to be implemented,
we not only discuss conditions for wills to be lawful but also requirements for wills to be
implemented realistically. In practice, there have been cases that a will exists, wills meeting
conditions to be lawful, come to legal validity but cannot determine rights, obligations in
that inheritance relation. That reason might derive from different causes, in detail:
2.3.3.1. Unlost, undamaged wills
Being lost means that not being found, determined to be anywhere in a certain time.
Being damaged means that being destroyed, values cannot be remained as previously.
Artile 642.1 Civil Code 2015 regulates: “If, from the commencement of the inheritance,
the will is lost or damaged to the extent that it is incapable of indicating clearly the
wishes of the testator and there is no evidence of the true wishes of the testator, it shall
be deemed that no will exists and inheritance at law shall apply”. According to this
regulation, a will might be made lawfully, meeting all conditions to come to legal
validity but cannot be found at the opening time of inheritance, being damaged,
destroyed that cannot determine the content, free will of the testator, then it is considered
no will. It means the content of will cannot be implemented.
As implementation validity of wills are affected when wills are lost, damaged so
when researching law regulations on this issue, the author realizes that the problem of
management, keeping wills is essential. The reality shows that will manager, keeper
really plays an important role, in many cases, their mentality, attitude directly has an
impact on rights and interests of heirs. However, Vietnam law almost does not recognize
the legal consequences of keeping wills. This is a problem that requires amendment and
supplementation.
2.3.3.2. Wills with clear content
Regarding this issue, the Civil Code throughout periods of Vietnam all recognize the
rule on explanantion of content of transactions in general and wills in particular. This is
considered when: The case that wills content are unclear leading to different
understanding, heirs by wills must together make explanation of will content based on
previous true will of dead people, considering relations of the death and heirs by wills.

When these people do not reach an agreement on wills content understanding, they
reserve the right to require the Court for resolution. With this regulation, wills shall no
not be implemented when the content is unexplainable.
To summarize, validity conditions of wills are always seen as law requirement
throughout the time since an individual makes a will, dies and wills are implemented
practically. The law sets a lawful request for wills at the time of establishment, coming to
legal validity at the time of death and coming to implementation at the time of estate
distribution in wills. In each stage, there are groups of compatible and suitable conditions
to guarantee validity conditions of wills.


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CONCLUSION OF CHAPTER 2
In this chapter, the dissertation focuses on the context of current law regulations on
validity conditions of wills. The author divides them into 3 basic condition groups: First,
conditions for wills to be lawful; Second, conditions for wills to come to legal validity; Third,
conditions for wills to be implemented. For each condition, the author indicates: (i) Current
law regulations; (ii) The difference of current law regulations to previos stages; (iii) The
similarities or differences to law regulations of some countries in the world; (iv)
Evaluation of remaining strong points and drawbacks to law regulations on each
condition.

Chapter 3
PRACTICAL APPLICATION AND PETITIONS FOR COMPLETION OF
LAW REGULATIONS ON VALIDITY CONDITIONS OF WILLS
3.1. Practical application of law regulations on validity conditions of wills
3.1.1. Practical application of law regulations on conditions for wills to be lawful
3.1.1.1. Practical application of law regulations on the testator
The author analyzes, comments on 05 cases, including: 02 typical cases on the

testator being unsound of mind and unconvincing proof; 03 cases violation of legal
capacity of testator. Througt 04 cases, the author concludes: First, the opinion of judges


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vary when applying the same decision. This comes from a reason: law regulations on
age, awereness capacity and behavior control in general and the condition to be sound
of mind in particular of the testator are too general from: (i) the time of confirmation of
the awareness capacity, behavior control, being sound of mind is unclear; (ii) agencies
confirming the status of being sound of mind of the testator are unconvincing; (iii)
foundation for declaration of termination of wills made by person being unsound of
mind is not persuasive… Second, law regulations remain problematic in lack of legal
capacity of the testator and legal consequences if violating this condition.
3.1.1.2. Practical application of law regulations on the content of wills
First, the content of wills violate the prohibited provisions of law, social ethics: No
practical cases on this issue as the regulation of the Civil Code 2015 on wills content must
not violate prohibited provisions of law, social ethics is new to previous documents.
Besides, other laws when regulating the prohibited acts have recognized the respective
consequences.
Second, regarding articles of wills: The author presents 02 cases of description of
one unclear article of wills. But through levels of judgement, different Courts have
different outcomes. For this issue, the author supposes that the Civil Code 2015 has
transferred the regulation on articles of wills from being compulsory to being optional.
Courts reserve the right to flexibly make judgement when there are disputes on this
article in the direction of wills’ content if being unclear.
3.1.1.3. Practical application of law regulations on the free will in wills
The author presents 01 case of description of wills made under threaten and 01 case
of counterfeit will, leading to conclusion: (i) Regulation on persons with physical
limitation is unclear resulting in confusion in application for dispute resolution if any;

(ii) The declaration of a will to be counterfeit is not too difficult for the Court when
applying expert assessment for doubtful issues.
3.1.1.4. Practical application of law regulations on formality of wills
The author presents some cases as below:
First, on some typical forms of wills
The author presents 01 case of description of the content of wills lacking signatures
in every page, typed wills, unwitnessed wills and 01 case of description of asking
another person to make wills. Through theses cases, the author realizes: (i) the
awareness of persons applying law regulations on this issue remains limited; (ii) case
record remain simple leading to controversial verdict; (iii) people working in competent
authorities remain irresponsibile in application of law regulations…
Second, on precedures to makes wills in competent agencies
The author presents 01 case of description of content of wills written and certified in
two different times, 01 case of relatives of testator contacting People’s Committee ward


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level for asking of certification of wills. Through these cases, the author realizes: The
process of making wills and asking for certification remain problematic. The cause of
this issue is: (i) Insufficient law regulations; (ii) The lack of responsibility in the relation
of ward level authorities and people; (iii) The awareness in law of persons applying law
remains limited.
3.1.2. The reality of application of law regulations on conditions for wills to come to legal
validity
The author presents 01 case of description of determination of death time of an
individual, 01 case of description of death declared by the Court without the precision in
the determination, 01 case of description of determination of validity time of joint wills
made by husbands and wives. Through those cases, the author sees that: (i) The
determination of death time of an individual is flexible but improper in application of the

Court. This might lead to serious issues to rights and interests of subjects in inheritance
relations when determining the time of validity of wills; (ii) the law application for dispute
resolution on inheritance must comply with the Law on issuance of legal documents,
therefore disputes related to former regulation such as joint wills of husbands and wives might
exist. The awareness on application of documents and respective content regulation remains
important and essential.
3.1.3. The reality of application of law regulations on conditions for wills to be
implemented
3.1.3.1. On inheritance estate determined in wills
The author presents 01 case of description of dispute on inheritance estate
determined as non-existent at the opening of inheritance and 01 case of description of
dispute on inheritance estate being replaced by other properties. Thus, the author has
some ideas: (i) law has no regulation for explanation of the term “non-existent” leading
to improper application of determination of estate for every circumstance; (ii) the lack
of regulation of resolution of the consequence that an esate transfers to another form,
resulting in the problematic application of dispute resolution of the Court.
3.1.3.2. On heirs in wills
The author presents 01 case of description of heirs in wills but dying before the
testator and 01 case of description of refusal of inheritance refusal. The author sees that
the application of determination of heirs enjoying estate but dying before the testator
remains problematic. But there are issues on refusal of receiving estate: First, we need
to pay attention to the application of respective legal documents because the regulation to
determine the validity of refusal of estate has some differences; Second, we need to avoid
confusion in the understanding of refusing inheritance estate and transference of the right
of enjoying esate.
3.1.3.3. On wills


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The author presents 01 case of description of lost, damaged will, 01 case of
description of content explanation of wills and 01 case of description of subject
explaning wills. Through those 03 cases, we can see that wills being lost, damaged or
having unclear content leading to losing the validity. However, law regulations on lost,
damaged wills or wills explanation are unclear. This results in mistakes in law
application in reality. This requires amendment for further completion.
Overall, the reality of application of law on validity conditions of wills remain
following issues: First, there still lacks unification in visions and problem-solving skill
of judges to cases with similar details; Second, professional activities coming from
procedures regarding process of making wills, dispute resolution is not complete; Third,
the flexibility in law application for dispute resolution is not convincing. However, they
all come from the main reason is that our law regulations reamin lacks, incompatible,
unclear, conflicting… Therefore, the supplementation and amendment of law on validity
conditions of wills shall fix the above situation.
3.2. Some petitions for completion of law on validity conditions of wills

3.2.1. Some petitions for completion of law on conditions for wills to be lawful
3.2.1.1. Some petitions for completion of law on testator
First, for minor evaluation and petitions, the author suggests:
(i) Regulation on testator.
Điều .... The testator
1. A person from above 18 years old without losing civil act capacity has the right
to make wills to distribute their property.
2. A person between 15 and 18 years old can make wills, with the consent of parents
or guardians.
3. A person under 15 years old cannot make wills.
(ii) Regulation on lawfulness of testator
- “The testator is sound of mind while making wills; implements the right of making
wills within law limitations; not being deceived, threatened”.
- A will made by a person between fifteen and eighteen years of age must be made in

writing and with the writing consent of the parents or guardian of such person. In the
case that the testator only has mother or father at the time of making wills, only writing
consent from father or mother is required but the other person is not supposed to know
that making wills is not their faults.
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”.
Second, re-regulation of setting the condition of being sound of mmind to the testator
to ensure this condition must be applicable for all subjects making wills.
3.2.1.2. Some petitions for completion of law on content of wills


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First, on the content of wills. The author suggests to fix this article as below:
Article … Content of wills
1. Content of wills are completely made by testator.
2. The date on which the will is made; the full name and place of residence of the
testator; the full names of the persons and the bodies or organizations entitled to inherit
the estate. Apart from the contents prescribed, the will may have other contents.
3. A will may not be written using abbreviations or other symbols. If a will consists of
several pages, each page must be numbered and bear the signature or fingerprint of the
testator. Where a will has erasure or correction, the testator or the testament witness must
sign beside erasing and corrected place.
Second, on conditional content wills. Civil Code 2015 should regulate as below:
“The testator has the right to make conditions in wills when they do not violate
prohibited provisions of law, social morality.
When heirs by will have received the state but violate obligations according to
conditions in wills, this person must reimburse the estate to other heirs after deduction of
expenses to increase the value of estate, reasonable expenses to implement obligations in
wills.

In case heirs by wills do not receive the estate yet but violate obligations according to
conditions in wills, this person is entitled to require other heirs to pay for reasonable
expenses to conduct obligations from wills.
In case heirs by wills die before completing conditions, the content related to that part
shall not come to legal validity, the expenses shall be reimbursed from inheritance estate
(if any) and become estate of this person”.
3.2.1.3. Some petitions for completion of law on free will in wills
First, we need to regulate clearly on unlawful wills made through deception, threatening.
Second, we need to change regulation on the type of wills made through deception,
threatening in a less stiff way, in detail: “Wills made through deception is unlawful, but if
we have basis to determine that the testator knows about the deception and still keeps the
content of the wills, they shall be lawful”. And “wills made through threatening is unlawful,
but if we have basis to determine that the testator is no longer under the threatening still
keeps the content of the wills, they shall be lawful”.
3.2.1.4. Some petitions for completion of law on formality of wills
• For oral wills
First, on the period of time for termination of oral wills after making. In detail:
Solution 1: “After making oral wills, the testator remains alive, sound of mind and has
the capacity and time for making written wills, then the oral one is terminated”.
Solution 2: Removing Article 629.2 Civil Code 2015.
Second, conditions for oral wills to be lawful. In detail: “Oral wills are only lawful if


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testator presents their last will in front of at least 2 witnesses and right after the last will,
witnesses shall write and confirm personal information and sign. Within 5 working days,
since the last will, witnesses must have wills certified for personal information and
signatures”.
• For written wills

First, supplementing written wills having the same validity as notarized, certified.
Second, unwitnessed written wills. Fixed as: “Making unwitnessed written wills is only
lawful if meeting all conditions in Article 630.1 this Code”.
Third, witnessed written wills. Fixed as “In case the testator does not write the will
on his/her own, he/she can type or ask another person to write or type the will with at
least two witnesses at that moment. The testator must sign on the will in front of
witnesses; witnesses confirm the signatures of the testator and sign together in the will
at the time of finishing of witnessing”.
Fourth, wills made by notarizer, competent certifier. Article 636.2 Civil Code 2015 needs
to supplement: “In case the testator is unable to read or hear the will, sign, there must
be a witness and this person must sign, confirm the situation of the testator in front of
notarizer or competent certifier of ward’s people’s committee. Notarizer or competent
certifier of ward’s people’s committee certifies the will in front of the testator and
witness”.
Fifth, abbreviation, signs, making page numbers in wills.
- Solution 1. Content of wills could be abbreviated or made by signs but must be
explained, except for popular abbreviation or signs. If wills have a number of pages,
each page must have an order number with signature of testator or the last page must
be confirmed by testator that how many pages, copies wills have and where they are
stored.
- Solution 2. No regulation in abbreviation and signs in wills. If they appear in wills
that cause confusion, they should be turned to the section of wills explanation. If
unexplainable, we declare content regarding abbreviation and signs void.
Sixth, for written wills having the same value as notarized or certified. The author suggests
that this article should only remain the fifthe section.
2.2.2. Some petitions for completion of law regulations on conditions for wills to
come to legal validity
First, the issue of law application to determine the validity of wills at the time of
transference of the Civil Code 2005 and 2015. To ensure the compatibility, the author
suggests the supplement and completion of the stipulation on validity of wills in general,

joint wills in particular as below: “In case the date written in wills before 01/01/2017
but the testator remains living after this time despite knowing or being supposed to know
that the content of wills have been governed differently by law does not change, those


22

wills shall comply with the Civil Code 2015”.
Second, the issue of law application in judgment activity. We need to reach an
agreement in determining the time of death of individuals.
3.2.3. Some petitions for completion of law on conditions for wills to be
implemented
First, on method of recognition of conditions for wills to be imnplemented. To ensure
the comnpatibility and cover all cases causing loss of validity of wills, we should list them
all in one article.
Second, we need to agree on mentioning the subject as heirs in wills.
Third, we need to supplement some related terms to avoid misunderstanding. With
above analysis, due to the unclear regulations of law, many people are confused with
two types of rights of heirs: (i) refusal the right to enjoy inheritance estate and (ii)
transference of right to enjoy inheritance estate.
Fourth, the recognition of change of status of estate in wills. The author has constructed a new
article as below:
“In case the estate written in wills do not exist as repleaced by other estates made by
the testator, that estate shall not come to legal validity.
In case the estate written in wills do not exist as destructed, lost by other people but
yet to be compensated, the part of wills regarding the estate shall be replaced by the
compensation equivalent to the estate that the heirs enjoy”.
Fifth, we need to supplement the regulation on the heirs in wills but their inheritance
right are removed later.
Sixth, changing the regulation on management of wills.

Seventh, changing the regulation on wills explanantion.
CONCLUSION OF CHAPTER 3
In this chapter, the author stated 13 typical cases for application of law on lawful
conditions of wills and 10 cases on conditions for wills to come to legal validity and
come to implementation. Thus, there comes issues, limitations during the law
application and disputes resolution process of the Court and other competent agencies.
By researching the situation of law regulations, practical application, the Author
presents petitions for completion of law on validity conditions of wills.