The will determines the legal validity of the will. For example, in the case where a person makes multiple wills disposing of a type of property, the last will of that person shall have legal effect according to the provisions of Clause 5, Article 670 of the 1995 Civil Code (Clause 5, Article 667 of the 2005 Civil Code).
Recording the date, month and year of making a will is a mandatory provision for written wills (Point a, Clause 1, Article 656 of the 1995 Civil Code and Point a, Clause 1, Article 653 of the 2005 Civil Code). Such a provision demonstrates the importance of recording the date, month and year of making a will because it shows the time when the testator made the will, which is the basis for competent state agencies to consider the conditions for the legal validity of the will, and it is also the basis for resolution if a dispute arises.
Recording the date, month, and year of making a will is a mandatory condition for a will according to the provisions of Vietnamese civil law. In the French Republic and Japan, recording the date, month, and year of making a will is also regulated similarly. According to the provisions of the Civil Code of the French Republic, this issue is regulated in Article 970; in Japan, recording the date, month, and year of making a will is regulated in Article 968 of the Japanese Civil Code [5], [8].
For an oral will, the witness must clearly state the date, month, and year that the testator declares his or her will. Because the date, month, and year of the witness is an important legal detail. This legal detail not only determines the effective date of the will but also determines the value of the inheritance, the heirs according to the will, and the time of opening the inheritance. In reality, there is no sample document for recording the contents of an oral will, so the date, month, and year in the copy of the oral will will be recorded by the witness.
2.3.2. Full name and place of residence of the testator
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In any civil transaction, it is necessary to clearly state the full name and place of residence of the
Identifying the subjects participating in civil legal relations is an indispensable task, because: Only by clearly stating the characteristics of the name, surname, and place of residence can the subject of the civil legal relationship be identified. Every individual living in the social community has the right to have a surname and a given name. A person's surname and given name are determined by the surname and given name of that person at birth. Everyone has the right to be registered at birth, regardless of whether they were born in or out of wedlock. The surname of a newborn is the surname of the father or the surname of the mother according to custom or according to the agreement of the father and mother. In case the father cannot be identified, the surname of the newborn is the surname of the mother.
Thus, when a person is born, his or her birth certificate clearly states his or her full name. A person's full name can be either the father's or the mother's. A person's name is given by the father or mother, including the first name and middle name.
An individual's place of residence is the place where he or she usually lives and has a permanent residence registration. In the case where an individual does not have a permanent residence registration and does not have a place of regular residence, his or her place of residence is the place of temporary residence and has a temporary residence registration. When an individual's place of residence cannot be determined, the place of residence is the place where he or she is currently living, working or where he or she has assets or where most of his or her assets are located, if his or her assets are in many places. A minor who is fifteen years of age or older may have a place of residence other than the place of residence of his or her parents, if the parents agree. A person under guardianship who is fifteen years of age or older may have a place of residence other than the place of residence of his or her guardian, if the guardian agrees.
For an oral will, the witness must clearly know the deceased's personal status and must record it in a document written by the witness because in the case of an oral will, the person leaving the oral will is often in critical health, so they can only "make last wishes" about the division of the inheritance and cannot fully present their personal status.
To determine the subject in making a will, at Point b, Clause 1, Article 656 of the 1995 Civil Code (Point b, Clause 1, Article 653 of the 2005 Civil Code) stipulates that the content of the will must clearly state the full name and place of residence of the testator. Such clear statement will be the premise to determine whether the testator is the person leaving the inheritance or not. Only when the testator is also the person leaving the inheritance will the will take effect.
2.3.3. Full name of the person, agency or organization receiving the inheritance
The provision that the will must clearly state the full name of the person, agency, or organization that receives the inheritance is important, thereby determining the heir according to the will and the full name of the person, agency, or organization that receives the inheritance so that the inheritance can be transferred to the correct address according to the wishes of the testator.
Discussing this issue, we believe that, similar to the analysis above about the full name and place of residence of the testator, it is necessary to specify more specifically the address of the person, agency or organization receiving the inheritance. For individuals receiving the inheritance, it is necessary to specify the full name, place of residence, identity card number, etc. For agencies and organizations, it is necessary to require the testator to clearly state information about that agency or organization such as: Address, which agency or organization it belongs to, etc.
For oral wills, the witness must research and record in writing information about the individuals and organizations that are entitled to inherit the estate.
2.3.4. Legacy left behind and where the legacy is located
The inheritance left behind and the place where the inheritance is located are contents that the will must clearly state, as stipulated by civil law in Point d, Clause 1, Article 656 of the 1995 Civil Code (Point d, Clause 1, Article 653 of the 2005 Civil Code).
The 1995 Civil Code stipulates relatively clearly about inheritance in Article 637.
1- Inheritance includes the deceased's personal property and the deceased's share of the common property with others.
2- Land use rights are also part of the inheritance and are left to be inherited according to the provisions of Part Five of this Code [6].
According to this provision, the inheritance includes the property and property rights left by the deceased, without specifying whether it includes the property obligations of the deceased or not. The content of Clause 1, Article 637 of the 1995 Civil Code is basically regulated as in Article 4 of the Inheritance Ordinance, but Clause 2, Article 637 of the 1995 Civil Code has a new provision on inheritance compared to the previous system of regulations, that is, the right to use land is an inheritance.
According to the 2005 Civil Code, the concept of inheritance is defined in Article 634: "Inheritance includes the deceased's personal property and the deceased's share of the property jointly owned with others." Thus, this provision seems narrower than that of the 1995 Civil Code, but in fact there is no change, because property includes real objects, money, valuable papers and property rights. Land use rights are a type of property right, so they are property. Therefore, the 2005 Civil Code's definition of inheritance is concise and sufficient.
As analyzed above, the inheritance includes the deceased's separate property. The separate property of the husband and wife is determined to include the property that each person had before marriage, property given separately, inherited separately during the marriage, property divided separately between the husband and wife when dividing common property during the marriage, profits and income arising from the divided property that belongs to each person, personal belongings and belongings.
Thus, inheritance only includes assets, property rights (including land use rights) of a person after death transferred to that person's legal heirs according to the will or by law, after paying all property obligations of the deceased within the scope of the inheritance.
According to the 2005 Civil Code, this issue is clearly regulated.
more clearly stipulates that the heirs are responsible for performing the property obligations within the scope of the inheritance. This is a great progress, avoiding different understanding and application of the law.
Along with the development of the country, the inheritance is now very diverse in quantity, type... because according to the provisions of the law on individual ownership, it is increasingly abundant. From the provisions of the law, it is possible to list the assets owned by citizens including: Legal income, housing, machinery, equipment, raw materials, fuel, consumer goods, precious metals, precious stones, foreign currency in cash, bonds, stocks, promissory notes, deposit certificates, savings books, commercial papers, savings books, property rights arising from copyright, industrial property rights, debt collection rights, insurance money rights, rights to capital contributions in enterprises...
Thus, with the increasingly rich heritage as above, the State creates all conditions for citizens to enrich themselves legitimately and ensures their right to legally transfer their assets when they die. Citizens have the right to make a will to dispose of their assets and property rights to their heirs. Therefore, the content of the will cannot lack the clear indication of the legacy left behind and the location of the legacy. The legacy left behind by the will must clearly state what it is, the characteristics of that property, and the distinction of that property from other properties. Where is that legacy currently located, who is managing and using it. The address of the place where the legacy is located must be detailed and clear to avoid confusion. For example: A person has many plots of land, when he makes a will, he must clearly state which heir, how much area, where the plots are, what plot numbers, what map numbers, what year they were made by which administrative unit (commune, district, province), what date, month, year the land use right certificate was issued, where the certificate was issued, etc.
In case the testator makes a written will, he/she must clearly state the property status as above. When opening the inheritance, the inheritance portion will be determined based on that content.
division according to the will. However, for making an oral will, it is impossible to meet that requirement, because according to Clause 1, Article 651, an oral will can only be made when life is seriously threatened or in special cases where a written will cannot be made. Therefore, an oral will only needs to specify which assets and the amount of assets, or in other words, the testator only needs to indicate which assets. Other factors will be determined when dividing the inheritance.
2.3.5. Designation of the person performing the obligation and the content of the obligation
People living in society must establish civil transactions every day to serve their daily life and work. Therefore, in addition to the legacies they leave behind, they also leave behind property obligations.
According to the provisions of law, the testator has the right to appoint heirs to perform obligations that they would have had to perform if they were still alive, such as paying debts, compensating for damages, etc. The obligations that the testator appoints for the heirs to perform are property obligations, within the scope of the inheritance.
2.3.6. Decision to leave inheritance to multiple heirs according to the will
The important content of a will is the testator's decision on how to leave the inheritance to individuals or organizations. This right of the testator is expressed as follows:
- Clearly designate which heirs according to the will will receive specific inheritance.
- Assign specific proportions to the heirs
- If the inheritance is not specifically designated, the beneficiaries according to the will will receive it equally.
For oral wills, when dying, the testator also expresses them in the three forms above, for example, Mr. A leaves a house to B, and 500 million VND to C in front of two witnesses. So this is considered an important content of the testator, however, the 2005 Civil Code
There are no regulations on how the testator decides to leave an inheritance. On what basis will the inheritance be determined? The law has no specific regulations.
2.4. ON THE FORM OF THE WILL
According to the provisions of the 1995 Civil Code and the 2005 Civil Code, a will is expressed in one of two forms:
- Written will.
- Oral will.
2.4.1 Written will
Article 653 of the 1995 Civil Code (Article 650 of the 2005 Civil Code) provides for written wills, including four types:
1- Written will without witnesses; 2- Written will with witnesses;
3- Notarized written will; 4- Certified written will.
Each type of written will has its own distinct characteristics, but they also have some things in common:
Firstly , all written wills must not be abbreviated or written in symbols. This is a requirement for written wills. The will must be clearly written, without abbreviating or writing in symbols for all words to avoid different interpretations, leading to disputes among the heirs.
Second , if the will consists of many pages, each page must be numbered and have the signature or fingerprint of the testator. This is not a unique feature of the will but has become a mandatory requirement for all types of documents with many pages. Numbering the pages (if the will consists of many pages) will not cause confusion between the pages, avoiding
unnecessary disputes between heirs. In addition, the provision that the testator must sign or fingerprint each page of the will prevents others from forging or replacing each page of the will.
Third , all wills must meet the requirements regarding the testator, the content of the will, etc. as analyzed in the above section.
2.4.2. Oral will
The 1995 Civil Code stipulates oral wills in Article 654:
1- In case a person is threatened with death due to illness or other causes and is unable to make a written will, he/she may make an oral will. An oral will is considered legal if the person expresses his/her last will in front of at least two witnesses and immediately afterwards the witnesses record it, sign or fingerprint it.
2- After 3 months from the time of the oral will, if the testator is still alive, lucid and clear-minded, the oral will is revoked [6].
In general, according to the 1995 Civil Code, an oral will is valid when the following conditions are met:
- Made in a situation where a person is threatened with death due to illness or other causes and is unable to make a written will.
- The testator must express his or her last will in front of at least two witnesses.
- Immediately after hearing the testator express his last will, the witnesses must take notes.
- Witnesses must sign or fingerprint.
- Less than 3 months after making an oral will, the testator dies or 3 months after making an oral will, the testator is still alive but is not lucid or clear-minded.
The 2005 Civil Code stipulates oral wills in Article 651 and Clause 5.