WHEN ARE ORAL WILLS LEGAL?

Before his death, my father instructed me to distribute the inheritance to his children under the witness of my siblings in my family and the two commune officials.  We recorded my father's words and took notes.  Is this will legal?  I hope that FDVN can give me an advice soon. Sincerely thank you!

FDVN’s opinion:

Sincerely thank you for concerning our legal consulting service. We are glad to give you our advice on your question.

Usually, written will show the will of the individual.  However, in cases of critical health, death..., individuals who cannot make a written will must choose the form of oral will to express their final desire for distributing their inheritance after their death.

Article 629 of the 2015 Civil Code provides for oral wills as follows:

      “Article 629. Oral wills

        1. Where a person is likely to die due to illness or any other reason and it is not possible for him or her to make a written will, such person may make an oral will.

      2. 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.”

         According to the provisions of Clause 1 and Clause 5, Article 630 of Civil Code 2015 on Lawful wills:

       “Article 630. Lawful wills

        1. A will must satisfy the following requirements in order to be lawful:

       a) 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;

        b) The contents of the will are not contrary to law or social morals and the will complies with legal formalities.

…..

        5. 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.”

        According to the provisions of  Article 632 of Civil Code 2015 on the witnesses to the making of will:

         “Article 632. Witnesses to the making of will

         Any person may act as a witness to the making of a will, except the following persons:

        1. Persons who are heirs of the testator under the will or at law;

        2. Persons with property rights or obligations which relate to the will;

        3. Minors, legally incapacitated persons, persons with limited cognition and behavior control.”

        Therefore, in order for your father's will to be legally recognized, this will must first be made by your father when he is ineligible to make a written will due to life-threatening death, and this will must be made no later than 03 months before the death of the father. In addition, the testator of the oral will must be in a state of clarity and wisdom, and must show his last will in front of at least two witnesses and immediately record witnesses, sign or Points only. Within a period of five days from the day the will testifies express their last will, the will must be notarized or certified.

If the above conditions are met, the oral will made by your father will be considered lawful and you may use this will as the basis for distributing your father's inheritance.

Above is FDVN Law Firm's opinion for your request of a consultant based on studying the relevant legal provisions. Hopefully, FDVN's advice would be helpful to you.

Legal expert: Hoang Tran Ngoc Anh

FDVN Law Firm