HOW IS A VALID WILL?

Posted date: 17/10/2022

Situation: Dear Lawyer, my wife and I are nearly 70 years old this year, permanent residence in Hai Phong city, we have 02 children: 01 boy, and 01 girls (both over 18 years old). Our daughter is old and has a family of her own, with good economic conditions, and our son is still unmarried. The couple's assets have a savings book of VND 200 million and a residential plot of 95.6 m2 in the name of my husband and me. Now, my wife and I are healthy and agree to make a will, in case we get sick so we can have evidence to avoid offending the two daughters. Our wish is to leave the entire residential land to our son, and the savings book to our daughter. Ask a lawyer to advise on the Will so that we can make it legal and ensure compliance with the law.

Answer:

Thank you for sending your question to FDVN Law Firm (FDVN). For your consulting requirements, after studying the relevant legal regulations. FDVN has some exchanges as follows:

1. Legal provisions on the Will

According to Article 624 of the 2015 Civil Code: "A will is an expression of an individual's will to transfer his/her property to another person after death".

Article 609 of the Civil Code 2015 on testators is as follows: "Individuals have the right to make a will to dispose of their property; to leave their property to his or her heirs according to law; to enjoy an estate according to a will or under the law".

and Article 626 on the rights of the testator, the testator has the following rights: “Appoint heirs or to deprive an heir of the right to inherit the estate; Determine those parts of the estate which each heir is entitled to; Reserve part of the estate as a gift or for worship purposes; Designate heirs to perform obligations; Appoint a custodian of the will, an administrator of the estate, and a distributor of the estate."

According to the above provisions, the making of a will to dispose of your property is recognized and protected by the law, so then you have the complete right and freedom to make wills according to your will without having to ask for an opinion, or must obtain the consent of anyone.

2. How Is a Valid Will?

According to Articles 627, 628, 629, 630, 631, 632, 633, 634 and 635 of the Civil Code 2015, a will must satisfy the following requirements in order to be lawful

First, the conditions of the testator:

- The testator was of sound mind when he or she made the will; and he or she was not deceived, threatened or coerced into making the will;

- A will made by a person between fifteen and eighteen years of age must be made in writing and with the consent of the parents or guardian of such person.;

- 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, conditions on the content of the will:

- The content of the will does not violate the prohibition of the law (which is the provisions of the law that do not allow the subject to perform certain acts) and is not contrary to social ethics (which are the common standards of behavior in the social life, recognized and respected by the community).

- A will includes the following main contents: Date, month, and year of making the will; 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; The estate to be bequeathed and its location. In addition to the above contents, a will may contain other contents.

- 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.

In case a will has been erased or corrected, the person who wrote the will or testified to the will must sign it next to the place where the will is erased or corrected.

Third, the conditions on the form of the will:

The will can be made in the following forms:

- The Oral will (only made in case the testator is threatened by death and cannot make a written will. An oral will shall be deemed lawful only if the testator orally expressed his or her last wishes before at least two witnesses who immediately thereafter recorded those wishes in writing and signed or fingerprinted the document. Such will must be notarized or certified within five working days of the date on which the testator orally expressed his or her last wishes

If the testator is alive and is of sound mind three months after he or she has made an oral will, such will shall automatically become invalid.

A will is made in writing, including the following forms:

+ A written will with witnesses:

Where a testator is not able to write a will by his or her own hand, the testator may request another person to write the will, but there must be at least two witnesses. The testator must sign or fingerprint the will in the presence of the witnesses; the witnesses shall acknowledge the signature or fingerprint of the testator and sign the will.

The will must be made in compliance with the conditions on the subject of the will; the contents of the will have been stated above and the following persons may not testify: The testator's heirs according to the will or at law; persons with property rights and obligations related to the content of the will; minors, people who have lost their civil act capacity, people with difficulties in cognition and behavior control.

- Written will without witnesses: A testator must write a will by his or her own hand and must sign it. The drawing up of a written will without witnesses must comply with the conditions on the subject of the will; The content of the will has been outlined above.

- Notarized and authenticated written will: A testator may request that the will is notarized or certified. The following persons may not notarize or authenticate a will: Heirs according to the will or at law of the testator; a person whose father, mother, spouse or child is an heir according to a will or at law; persons with property rights and obligations related to the content of the will.

- In case a written will is not notarized or authenticated, the will is only considered legal when the will fully satisfies the conditions on the subject; conditions on the content of the will mentioned above and there must be at least two witnesses and the testator must sign or print her/his finger to the will in front of the witnesses; the witnesses certify the signature and fingerprints of the testator and sign the will.

The above is FDVN's consulting opinion related to your consulting request based on the research of legal regulations. Hope the advice of FDVN will be useful to you.

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