In usual, people will make a testament in writing. However, there are also many cases where a testament will be made orally by the testator, also known as an oral will. So, what does an oral testament means? Does the law recognize an oral testament validity? In this article, LSX legal firm will answer the question: “Does the law recognize oral testament in Vietnam?”
Legal ground
- Civil Code 2015
What does an oral testament means?
An oral testament (also known as a will) means a verbal expression of the will of the testator to transfer his or her property to the heirs after the testator dies.
Normally, an oral will is only established in cases where it is not possible to make a written testament i.e. in case a person’s life is threatened by death and it is not possible to make a will in writing, an oral will can be made. For example, a person in a dying condition, or having a stroke due to a sudden event; in such a situation the person thinks he cannot survive, then the last words about handing over the property to the heir establish an oral will.
However, in order to avoid the case that the person who wants to receive the inheritance of the deceased deceives in order to not properly express the will of the testator in order to appropriate property, then an oral will must satisfy the conditions specified in the Civil Code in order for it to have legal effect – the conditions that ensure the legal validity of an oral will.
What are the conditions for an oral will to be valid?
An oral will made in the condition that the testator can not make a written will
Where a person likely to die due to illness or any other reason and not possible for him or her to make a written will, such person may make an oral will.
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.
In cases that not considered life-threatening, but with conditions that can make a written will, the law will not recognize an oral will. In case the testator does not know words, he or she may ask someone else to write or type and have at least 2 witnesses, then sign or point to the will by himself, but not make an oral will by himself.
Conditions for a wills to become lawful
A will must satisfy the following requirements in order to become lawful:
- The testator has a sound mind when he or she made the will; and not deceived, threatened, or coerced into making the will;
- The contents of the will conform with the law or social morals and the will complies with legal formalities.
Besides, 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 incapacitated or illiterate must made in writing by a witness with notarization or certification.
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 have notarization or certification within five working days of the date on which the testator orally expressed his or her last wishes.
Witnesses to making of will
Any person may act as a witness to the making of a will, except the following persons:
- The heirs of the testator under the will or at law;
- Persons with property rights or obligations that relate to the will;
- Minors, legally incapacitated persons, and persons with limited cognition and behavior control.
The at-law heirs of the testator as prescribed in Article 651 of the Civil Code 2015 include:
- Firstly, the first level of heirs comprises spouses, biological parents, adoptive parents, offspring, and adopted children of the deceased;
- Secondly, the second level of heirs comprises grandparents and siblings of the deceased; and biological grandchildren of the deceased;
- Thirdly, the third level of heirs comprises biological great-grandparents of the deceased, biological uncles and aunts of the deceased, and biological nephews and nieces of the deceased.
Under what circumstances can an oral will annulled?
Article 629 of the 2015 Civil Code stipulates that, after 03 months from the time of the oral will, if the testator still alive, sane and wise, the oral testament will become invalid.
Thus, when the testator in a life-threatening or critical situation, etc., he or she has the right to make an oral will and must have witnesses according to the provisions of law. However, after 03 months from the date that person makes a will, if that person is still alive, and is of sound mind three months after he or she has made an oral will, such will shall automatically become invalid.
Besides, in cases where the testator eligible to make a will, but the testator’s witness does not meet the conditions prescribed by the Civil Code 2015 or the testator who makes an oral will and the content of the will does not meet the conditions as prescribed by the Civil Code 2015, the law may annul the oral will.
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Related questions
According to Point b, Clause 1 of Article 650 of the Civil Code 2015, when the oral will is not legal, the Court will divide the inheritance according to the law.
The video testament belong to the forms of oral testament. The law will recognize its validity if the case satisfies the conditions above.
A will must specify clearly the following:
a) The date on which the will is made;
b) The full name and place of residence of the testator;
c) The full names of the persons and the bodies or organizations entitled to inherit the estate;
d) The estate to be bequeathed and its location.
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