In what case does oral will valid in Vietnam?

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. 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, an oral will must satisfy the conditions of the law to ensure the legal validity of an oral will. In this article, LSX legal firm will answer” “In what case does oral will valid in Vietnam?”

Legal ground

• Civil Code 2015

In what case is an oral will established?

According to Clause 5, Article 630 of the Civil Code 2015, an oral testament will have validity when satisfying the following conditions:

• An oral will shall be deemed lawful only if the testator orally expressed his or her last wishes before at least two witnesses.
• The witnesses must immediately thereafter record those wishes in writing and signed or fingerprinted the document.
• Within 5 working days from the date the testator orally expressed his or her last wishes, the will must be notarized or certified.

Thus, an oral will considered legal if it meets the three conditions above.

Besides, the oral will means the basis for establishing civil relations related to the rights and obligations in inheritance, so the testator and the witness to the oral will must also meet the conditions of the Civil Code 2015.

Article 629 of the Civil Code 2015 also stipulates that when a testator faces a life-threatening or critical situation, etc. he or she fully has the right to make an oral will and must have witnesses according to the provisions of law. However, after 03 months from the time of the oral will, if the testator still alive, clear-minded, and lucid, the oral will automatically annulled.

Conditions on witnesses of the oral will

Article 632 of the Civil Code 2015 stipulates that witnesses to oral wills must satisfy certain conditions. Accordingly, everyone can testify for the making of a will, except for the following people:

• Persons as 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.

According to Article 651 of the Civil Code 2015, persons as heirs of the testator under the will or at law 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.

When will testament without certification or notarization considered legal?

Clause 4, Article 630 of the Civil Code 2015 stipulates that a written will that is not notarized or certified shall be deemed lawful only if it satisfies the requirements provided in Clause 1 of this Article.
Accordingly, Clause 1 of Article 630, the Civil Code 2015:

1. A will must satisfy the following requirements:
   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.

Will with and without witnesses

Without witnesses

If a will has no witnesses, the testator must write and sign the will himself, and satisfy the conditions in Article 631 of the Civil Code 2015.

Article 631. Contents of written wills

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.
Apart from the contents prescribed in Clause 1 of this Article, the will may have 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.
Where a will has erasure or correction, the testator or the testament witness must sign beside erasing and corrected place.

With witnesses

If the will has a witness, the witness must satisfy the following conditions:

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 that relate to the will;

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

Besides, there are other special cases when a will is also considered legal, such as:

• Firstly, wills of in-service army men certified by unit heads from company level or higher, if soldiers cannot request notarization or authentication.
• Secondly, the will of the person traveling on a ship or aircraft, certified by the commander of that vehicle.
• Thirdly, the will of the person being treated at a hospital; other medical treatment, or nursing facility; certified by the person in charge of that hospital or facility.
• Fourthly, the will of the person doing surveying, exploration, and research work in mountains and islands, certified by the person in charge of the unit.
• Fifthly, the wills of Vietnamese citizens living abroad certified by Vietnamese consular offices or diplomatic representatives in that country.
• Also, the will of the person held in temporary detention, custody, serving a prison sentence, or serving an administrative handling measure at an educational institution or medical treatment establishment, certified by the person in charge of such facility.

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