Article 652. The provisions of the 1995 Civil Code on oral wills remain unchanged. On the other hand, the 2005 Civil Code is more progressive in stipulating that within 5 days from the date the oral testator expresses his or her final will, the will must be notarized or authenticated.
2.4.2.1. 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
Thus, only in special cases as prescribed by law, citizens have the right to make an oral will. Such special cases are: Being threatened with death due to illness or other causes that make it impossible to make a written will. Therefore, if a person is in a situation where he or she is threatened with death and can make a written will, but that person does not make a written will, but makes an oral will, then that will is not recognized by law. Therefore, it limits the right of the testator to choose the form of the will. In addition to the provisions on illness, the 1995 Civil Code and the 2005 Civil Code also stipulate "other causes". So what are the other causes? Since the promulgation of the 1995 Civil Code and since the implementation of the 2005 Civil Code (from January 1, 2006), the two Codes above have provided for cases of death threatened by other causes, but these other causes have not been guided by competent state agencies. Therefore, in the process of resolving disputes over inheritance according to oral wills, there are still many difficulties in determining the legality of wills.
In addition, we need to compare the provisions of the Vietnamese Civil Code with some provisions of the laws of some countries in the world to see the advantages and disadvantages of Vietnamese law.
According to the provisions of the Japanese Civil Code, leaving an oral will in some special cases is as follows. Article 976 clearly states: a person who is sick
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If you are seriously ill or in a life-threatening situation and want to leave a will, you can leave an oral will.
According to the provisions of the Thai Civil and Commercial Code, leaving an oral will in special cases such as being in imminent danger of death, or during war or epidemics
According to US law, leaving an oral will is usually only applied when the testator cannot perform other forms, or is only recognized for certain individuals. Article 29-1-5-2 of the Indiana State Code states: "Every will, except a will, must be in writing", meaning that Indiana recognizes a will as a legal form of will; Texas law provides quite detailed information on this case: "No will shall be valid unless it is made during the time of illness, at the house of the person, or at the place where the person was previously residing within 10 days... in the presence of 3 witnesses, one of whom is the person who copies the contents of the will", while Montana law clearly states: the will must be in writing (Article 72-2-522 of the Montana State Code, point a.
Thus, we can compare the provisions of the Vietnamese Civil Code with those of some countries in the world on the first condition for leaving an oral will, showing that. Depending on different political regimes and economic forms, there are different provisions on the conditions for leaving an oral will. Each of the three countries mentioned above has its own separate conditions for applying that provision in its country. The Japanese Civil Code stipulates that anyone who is seriously ill or in a life-threatening situation and wants to leave a will can leave an oral will. According to the provisions of Japanese civil law, it is not mandatory to only be in a life-threatening situation, but also allows serious illness to leave an oral will. For the provisions
According to Vietnamese Civil Law, the first condition is: If you are threatened with death due to illness or other causes and cannot make a written will, you can leave an oral will. The above provision somewhat limits the testator's right to choose the form of the will. From the provisions of the Vietnamese Civil Code, we can compare it with the provisions of the Thai Civil and Commercial Code, which stipulates the leaving of an oral will in special cases, such as when there is imminent danger of death, or during wartime, or an epidemic. The Thai Civil and Commercial Code is enumerative and has more specific provisions on cases of leaving an oral will that the Vietnamese Civil Code has not yet specified, but only provides general provisions, making understanding and implementation difficult.
2.4.2.2 The testator must express his or her last will in front of at least two witnesses.
An oral will is only considered legal if the last will of the testator is expressed in front of at least two witnesses and immediately afterwards the witnesses record it, sign or fingerprint it. Thus, for an oral will, the role of the witness is extremely important, determining the validity of the will. The number of witnesses must be at least two. The witnesses must record the content of the oral will and sign or fingerprint it. The witnesses must satisfy the provisions of Article 657 of the 1995 Civil Code and Article 654 of the 2005 Civil Code. Such a provision clarifies the legality of the will, in addition, the Code does not limit the number of witnesses for the making of an oral will. This shows that the provisions of Vietnamese law are different from the laws of some countries in the world on the provisions on the conditions for the validity of an oral will. The above provisions of Vietnamese civil law can be compared with the provisions of some countries in the world on the provisions on conditions of existence.
The validity of an oral will. According to the provisions of the Japanese Civil Code, there must be two witnesses. The Thai Civil and Commercial Code stipulates at least two witnesses. As for US law, the number of witnesses depends on the laws of each state.
However, according to the current Vietnamese civil law, there are still no regulations on witnesses for oral wills, but only regulations on witnesses for the making of wills as prescribed in Article 654 of the 2005 Civil Code. Therefore, in practice, in some cases where a person leaves an oral will, while dying at home, leaving an oral will, most of the witnesses will fall into the case of not having the right to witness according to Article 654 of the 2005 Civil Code.
On the other hand, according to the provisions of the 2005 Civil Code on witnesses to the making of a will, all have the right to be witnesses, except in the following cases:
- The heir according to the will or by law of the testator;
- People with property rights and obligations related to the content of the will;
- Persons under eighteen years of age, persons without civil act capacity;
In the case of persons under eighteen years of age or persons without civil act capacity, the law does not provide for this clause accurately. Such a provision overlaps because persons under eighteen years of age include persons without civil act capacity. On the other hand, the law ignores subjects without civil act capacity.
As we know, the law stipulates the witnesses for the making of a will in general as analyzed above. So for the person who witnesses an oral will, usually when dying before a relative (who is also the heir according to the will or according to the law), it is not guaranteed by law. In cases where there are two witnesses (one not subject to Article 654, one subject to Article 654), will they be recognized? For example: Mr. A
In a life-threatening situation, Mr. A was rushed to the hospital for emergency treatment and left an oral will in front of two witnesses, a nurse B and Mr. C, Mr. A's son. With the content of the will giving M all of his inheritance, (Mr. C admitted it was correct), although Mr. C violated Article 654, Mr. C did not seek personal gain. So is the above will considered legal?
2.4.2.3 Immediately after hearing the testator express his final will, the witnesses must record it within 5 days from the date the testator orally expressed his final will, then the will must be notarized or authenticated.
Regarding the recording of the contents of an oral will: The 2005 Civil Code only stipulates that the witness must record the oral will immediately after hearing the last expression of the testator's will. This recording must of course be honest, clear, and accurately reflect the testator's will. However, in addition to recording the correct words of the oral will, there are currently no instructions on what regulations the recording must comply with. The lack of this instruction will be the cause and seed for disputes over the division of inheritance related to oral wills and cause difficulties for competent authorities to resolve.
The 2005 Civil Code has a very important addition: “Within five days from the date the testator orally expresses his or her last will, the will must be notarized or authenticated.” Thus, the 2005 Civil Code clearly defines the time and formal conditions for an oral will to be recognized as a legal will.
The 1990 Inheritance Ordinance recognizes the value of oral wills but does not prescribe the procedure for recording oral wills. When litigating in court, most oral wills are rejected by the Court because there is no basis for trust if based solely on the unilateral testimony of one witness or when
witnesses have conflicting testimonies. To overcome this shortcoming, the 1995 Civil Code stipulates the procedure for making an oral will: witnesses “must record it in writing afterwards”. So how is the “immediately afterwards” stipulated in this Article to be understood? This issue has not been guided by competent State agencies. “immediately afterwards” is a very recent period of time. However, there is no exact answer to how close that period of time is. This has caused difficulties for the Court in assessing the value of an oral will and wanting to reject it also lacks a clear legal basis.
The 2005 Civil Code specifies the exact time period in which the witness must rewrite the content of the oral will as “5 days after the testator makes his or her final will”. The clear regulation of this procedure is intended to ensure greater accuracy and reliability, prevent the subjective expression of the will of the witness, and increase the responsibility of the will witness. This regulation is intended to prevent the possibility that the witness can arbitrarily edit, rewrite many times, or swap the document recording the content of the oral will. However, the 2005 Civil Code does not specifically stipulate who can bring an oral will to a notary or certification office. Is it possible that when the law does not stipulate, anyone can bring an oral will to be notarized or certified? In addition, the 2005 Civil Code only stipulates the form of an oral will, but does not stipulate how the content of an oral will must be expressed.
On the other hand, in addition to the 5-day time limit, the law also requires notarization and authentication, so that oral wills are considered legal. However, according to the provisions of the Notarization Law passed by the National Assembly on November 29, 2006, effective from July 1, 2007, it stipulates very specific procedures for notarization. Article 48 of the Notarization Law stipulates very specific provisions on notarization of wills. The testator must personally request notarization of the will and cannot authorize another person to notarize the will. Therefore, it contradicts the provisions of
law on conditions for legal oral wills. Thus, it can be seen that with the above provision, the Notary Law has completely denied the legality of oral wills, or in other words, the Notary Law has not yet regulated the notarization of documents recording the content of oral wills, so according to that provision, there is only one type of will, which is a written will.
Thus, for documents recording the content of oral wills when notarized or certified, the notary office or the People's Committee shall confirm the form of the document recording the content of the will and cannot notarize or certify the content of the will and the signature of the witness, because the witness must sign immediately after copying the content of the oral will. The issue of notarization and certification of this type of document requires guidance from the State.
Because it is a special form of will, the law stipulates oral wills with relatively strict procedures. 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. Thus, the issue of time, the issue of awareness of the testator after making the will is an important issue, determining the validity of the will. The period of time here that the law stipulates is 3 months from the time the testator is alive, lucid, and clear-minded, then the oral will is of course invalid. Biologically, the testator must still be alive 3 months after making the will. Cognitively, although after 3 months and still alive, the testator must be lucid, clear-minded for the will to be revoked. However, according to current legal regulations, there are no specific regulations on the revocation of oral wills. Who has the authority to revoke? Which agency has the authority to revoke? The law has not yet provided.
On the other hand, when an oral will has been made in accordance with the provisions of the 2005 Civil Code, is that oral will considered a notarized or authenticated written will? Discussing this issue, in legal science there are two different views:
- The first viewpoint holds that: Although it is an oral will, this will has been notarized and authenticated, so it has the same value as a notarized and authenticated written will. Those who follow this viewpoint give the following argument:
+ Regarding content: Oral wills and notarized and certified written wills both express the property owner's right to decide to transfer property to another person after death, and both express the voluntary will of the testator.
+ Regarding form: Among written wills, only written wills without witnesses require the testator to write the will himself, while other types of written wills are not required by law. A notarized or authenticated written will differs from an oral will only in that the testator must sign the will in a notarized or authenticated written will, while the testator cannot sign the will in an oral will, but the testator's inability to sign the will is due to objective reasons (being threatened by death and unable to make a written will). Furthermore, an oral will has been notarized or authenticated by a public agency, so its reliability is equivalent to that of a notarized or authenticated written will.
- The second point of view is that: An oral will is a special type of will, which can only be made in certain cases as prescribed by law. The fact that the law stipulates that an oral will must be notarized or authenticated does not mean that an oral will and a notarized or authenticated written will have the same form (both are notarized or authenticated), but the fact that the law stipulates that an oral will must be notarized or authenticated is only for the purpose of confirming the legal fact: There is an oral will. For a written will, the testator must read the will or hear the will read (if