Practice of Resolving Inheritance Disputes According to Wills

and the legacy will be the remaining inheritance after deducting the inheritance for the heirs regardless of the content of the will.

Chapter 3

PRACTICE OF DISPUTE RESOLUTION

AND PROPOSAL FOR IMPROVING THE PROVISIONS OF THE LAW ON INHERITANCE BY WILL

3.1. PRACTICE OF RESOLVING DISPUTES REGARDING INHERITANCE ACCORDING TO WILLS

Inheritance by will is the subject of direct dispute between the parties in inheritance cases by will. According to the Supreme People's Court's Summary Report of recent years, inheritance disputes in general and inheritance by will in particular are increasing in both quantity and complexity of the case. To further study and clarify this issue, we have collected statistical documents from the adjudication agency to specifically understand the situation of inheritance disputes by will. However, in the statistical documents of this agency, there are no separate statistics on inheritance disputes by will, but only statistics on inheritance disputes in general.

According to the annual statistics of the Supreme People's Court (from 2000-2004), the number of inheritance disputes has been increasing steadily over the years. This is shown through the following figures:

Table 3.1: Statistics of first instance trial activities of the Court on inheritance (from 2000-2004)

Year

Civil and family		Inherit
Number of cases accepted	Number of cases resolved	Number of cases accepted	Number of cases resolved	Rate (%)
2000	107,534	89,729	1862	1269	68.15
2001	115,632	95,228	1984	1584	79.84
2002	124,580	99,629	2594	1833	70.66
2003	134,501	115,989	3529	2090	59.22
2004	127,763	110,510	3268	2632	80.54

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Source: Supreme People's Court.

Since the fourth quarter of 2004, the Supreme People's Court has conducted separate statistics on inheritance disputes in general. According to statistics from the Supreme People's Court, from the fourth quarter of 2004 to the first 9 months of 2006, the number of inheritance disputes (including inheritance disputes of land use rights) accepted and resolved at first instance by both district and provincial courts is as follows:

Table 3.2: Statistics of the Court's first-instance trial activities on inheritance (including inheritance of land use rights) from the fourth quarter of 2004

to the first 9 months of 2006

Year

Inherit		Heritage
Number of cases accepted	Number of cases resolved	Number of cases accepted	Number of cases resolved
2004	1965	477	1955	469
2005	3917	1609	939	404
2006	2080	604	798	210

Source: Supreme People's Court.

The above figures show that inheritance disputes are increasing every year. This situation is due to many reasons, but the most basic reasons are as follows:

First: About socio-economic conditions

Previously, during the centralized subsidy period, because our country's economy was not yet developed, along with the narrow scope of assets owned by citizens, the inheritance during this period was mainly consumer goods of insignificant value. Therefore, the parties rarely filed lawsuits requesting the Court to resolve them and inheritance disputes were also less complicated.

In recent years, our country has implemented an open-door policy, developed a socialist-oriented market economy, and economic development has led to the scope of property owned by citizens not being limited.

has been increasing in both quantity and value. In addition to consumer goods, inherited assets also include valuable means of production. Especially since the 1992 Constitution and the 1993 Land Law stipulated that land use rights are a type of property that can be inherited, along with population growth, urbanization, construction of new urban areas, industrial parks... using a large area of land, land prices have been constantly increasing, creating "fevers" in the real estate market. The land use rights left by the deceased - in most cases - have become a type of property of great value. When a piece of land, from being worth only a few tens of millions of dong, has now increased to hundreds or even tens of billions of dong, disputes are inevitable. Disputes over inheritance of land use rights have been and are the most complicated and heated issue in inheritance lawsuits in general.

Second: On legal basis

In recent years, in response to the requirements of international integration and the market economy, our State has initially built a system of legal documents regulating relations in the civil field. The State has promulgated and amended many important laws such as: the 2005 Civil Code, the 2005 Intellectual Property Law, the 2003 Land Law, the 2000 Marriage and Family Law, etc. These documents form an important legal basis for determining and dividing inheritance in general. However, we must also admit that: this system of legal documents is still not really complete, there are still conflicting and overlapping regulations; although it has been amended and supplemented, there are still regulations that are only "framework laws" in nature, not close to reality. This is clearly shown in the provisions of the law on land. Land use rights are currently one of the most valuable types of inheritance, but the provisions of the law on land are not really complete and consistent. This causes considerable difficulties for competent state agencies in applying the law. In fact, there have been many disputes about

Inheritance cases have to be tried over and over again without much persuasion, making inheritance disputes, which are already complicated, even more intense and fierce.

To determine and divide the inheritance correctly, correctly valuing the disputed assets is a prerequisite to ensure a fair and reasonable settlement of the case. However, we currently do not have a suitable mechanism for valuation, which has led to a situation where the asset value does not meet the market value at the time of the dispute, causing the parties to be dissatisfied with the court's decision and continue to file lawsuits.

Third: On citizens' legal awareness

Ignorance of legal regulations along with a limited legal system has led to an increase in inheritance disputes. The manifestations of this situation are very diverse: for example, a testator makes a will to dispose of part or all of his property but does not fully comply with the provisions of the law on the order, procedures, and forms of expression of the will... or the content of the will is illegal or exceeds the limits allowed by the law. Typically, the testator disposes of another person's portion to the heir in the following forms: making a will to dispose of the entire joint property of the couple, making a will to dispose of the entire joint property between them and another person, or making a will to dispose of the property that he is renting or borrowing from another person; making a will to dispose of public land, encroached land... The lawsuits analyzed in the sections below will be evidence of this.

One issue related to legal awareness that cannot be ignored is the element of "greed": the parties do not know how to limit their rights before other heirs but only care about their own interests. There are many cases where parents have divided land and houses among their children by will, all members have received their share and have no opinion, but later due to fluctuations in property value, one of the heirs requests a division.

redistribution and disputes arise. Also due to greed and limited legal awareness, many cases have resulted in parties not declaring fully or deliberately declaring falsely for personal gain, causing difficulties for the Court in adjudication, directly affecting the rights and interests of other subjects. In many other cases, although the effective judgment has been declared, because they are not satisfied with their part, the parties continue to compete with each other to appeal according to the procedure of final appeal, making the case more complicated, unnecessarily prolonged, causing waste and at the same time leading to other negative impacts on society.

Fourth: Court proceedings

In order to improve the quality of adjudication, over the years, the Court has continuously strengthened the professional training for judges, which has helped the team of judges become increasingly steadfast in their professional work and professional ethics. However, inheritance disputes are one of the most complicated types of disputes. In order to ensure the correct determination of inheritance in general, in addition to the evidence provided and proven by the parties, the Courts at all levels must still conduct investigations and collect details related to the case. Meanwhile, the number of inheritance disputes has been constantly increasing, causing the number of cases that judges must try in a month to increase. The time spent on research, preparing records, and verifying each case is very little, which has had a certain impact on the quality of adjudication. In addition, the reality shows that the team of judges is not entirely uniform in terms of professional expertise. This significantly affects the quality of trials. Many cases have to be tried multiple times without ensuring the rights and legitimate interests of the litigants.

Through consulting cases resolving inheritance disputes according to wills, we see that inheritance disputes according to wills are due to the reasons we mentioned above. In this section, we present some of the most recent cases, typical of each type of cause.

dispute to analyze and evaluate in order to understand the Court's approach to resolving this type of case.

3.1.1. Inheritance disputes according to wills where the testator has decided on the entire joint property of the spouses

This is a fairly common type of dispute. According to the law, when a husband or wife dies, their combined joint property is divided in half, half of which is the inheritance of the deceased, the other half is the property owned by the living person. Due to lack of legal knowledge and feudal ideology, in many cases, when making a will, the husband often decides to dispose of the entire combined joint property of both husband and wife to the heir according to the will. This has led to disputes between the parties in inheritance cases.

Here is a typical case:

Mr. Nguyen Van Phuoc has 4 children: Nguyen Tuan Phong, Nguyen Thi Quyen, Nguyen Thi Mai Huong and Nguyen Manh Hung. In 1991, Mr. Phuoc married Mrs. Bui Thi Quy. After getting married, Mr. Phuoc and Mrs. Quy reclaimed an area of 270.9 m2 of land, which was confirmed by the People's Committee of Gieng Day Ward in the "Minutes confirming the boundary and boundary markers of the land plot".

On September 20, 2005, Mr. Phuoc made a will to divide 270 m2 equally among Ms. Quy and her 4 children, each receiving 54 m2 . On October 8, 2005, Mr. Phuoc died.

Because she did not agree with Mr. Phuoc's division in the will, Ms. Quy filed a lawsuit asking the Court to confirm that half of the inheritance as determined in Mr. Phuoc's will belonged to her.

In the Civil Judgment at First Instance No. 01/2007/DSST dated March 14, 2007 of the People's Court of Quang Ninh province, it was ruled that:

Confirming that the entire plot of land with an area of 270.9 m2 is the joint property of Mr. Phuoc and Ms. Quy. Mr. Phuoc's will determined the portion of Ms. Quy as well.

Quy is illegal. Therefore, the first instance judgment accepted Ms. Quy's request for inheritance division and decided:

Determine that 1/2 of the area of 270.9 m2 is Mr. Phuoc's inheritance. The remaining 1/2 of the land area belongs to Ms. Quy. Mr. Phuoc's inheritance is divided equally among 5 co-heirs: Ms. Quy and Mr. Phuoc's 4 children.

Through the above case, we see that Mr. Phuoc's unilateral decision to dispose of all of Ms. Quy's assets is illegal. Therefore, the Court of First Instance determined that Mr. Phuoc's will was partially illegal; Separating Mr. Phuoc's inheritance from the joint assets between him and Ms. Quy and dividing Mr. Phuoc's inheritance according to the law is completely correct.

3.1.2. Disputes due to incorrect determination of inheritance according to will

First instance civil judgment No. 15/DSST dated March 23, 2000 of Tuy Phuoc District People's Court between the plaintiff, Ms. Huynh Thi Thu Suong, born in 1966, residing at Group 13, KV3, Dong Da Ward, Quy Nhon and the defendant, Mr. Huynh Van Khuong, born in 1960, residing at Xuan Phuong, Phuoc Son, Tuy Phuoc, Binh Dinh.

According to the first instance judgment, the contents of the case are as follows:

Mr. Huynh Long Phuc and Mrs. Vo Thi Bon had 8 daughters: Huynh Thi Kien, Huynh Thi Ba (died in 1994), Huynh Thi Thu Tam (mentally ill), Huynh Thi Bon (died at a young age), Huynh Thi Sau, Huynh Thi Ngoc Anh, Huynh Thi Cuc Hoa, Huynh Thi Thu Suong and raised an adopted son named Huynh Van Khuong.

According to the plaintiff - Ms. Suong, during their time living together, her parents built a level 4 tiled house located on a garden of about 700m2 in Xuan Phuong village, Phuoc Son. There were no other assets.

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