similar to Article 346 of the Civil Code of Tonkin; Article 359 of the Civil Code of Central Vietnam is similar to Article 360 of the Civil Code of Tonkin; Article 111 of the Civil Code of Central Vietnam is similar to Article 113 of the Civil Code of Tonkin; Article 313 of the Civil Code of Central Vietnam is similar to Article 321 of the Civil Code of Tonkin...
1.3.4. Forms of wills from 1945 to present
After the August Revolution, the Democratic Republic of Vietnam was born. A young state had to face many complicated political, cultural, social problems... the task at this time was to protect and consolidate the achievements of the revolution, including those related to the civil field. To ensure the normal development of civil legal relations, the state needed a legal system. However, from 1945 to 1959, the state had not yet promulgated any civil laws, so the inheritance regulations in the Northern Civil Code were applied, if such regulations did not contradict the interests of the state and the common interests of society.
The period from 1959 to 1986 was a subsidy regime, so civil relations were administrativeized, so the civil law system did not have a single legal document regulating civil relations and civil issues were generally regulated in administrative documents. Therefore, although inheritance regulations accounted for more than other civil regulations, inheritance regulations were still only general regulations, so the issue of the form of the will was not mentioned much.
To clarify the changes and developments in the form of wills during this period, we will compare the following four typical documents regulating inheritance: Circular No. 81 guiding the settlement of inheritance disputes issued on July 24, 1981; Inheritance Ordinance dated August 30, 1990; Civil Code 1995 and Civil Code 2005.
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1.3.4.1. The form of will is prescribed in Circular No. 81 guiding the settlement of inheritance disputes issued on July 24, 1981.
To ensure consistency in the adjudication process, based on the summary of adjudication work and at the same time supplementing a number of issues to comply with the provisions of the 1980 Constitution, the Supreme People's Court issued Circular No. 81-TANDTC dated July 24, 1981 guiding the settlement of inheritance disputes. Right from the General Principles (Part I), the Circular stipulates the right of citizens to make a will to dispose of their property after death. If there is no will, then the inheritance is divided according to the law, respecting the right to decide by will of the person with the inheritance, at the same time properly protecting the rights of some heirs according to the law (compulsory heirs do not depend on the content of the will), women and men are equal in the right to make a will, the heir has the right to receive or not receive the inheritance, the heir is entitled to the assets and property rights left by the deceased, and is also responsible for performing the property obligations left by the deceased within the value of the assets received. Circular No. 81 has provided guidance on determining the inheritance, the area and order of inheritance, the division of inheritance... In particular, the Circular has devoted chapter IV to provide guidance on inheritance by will, in which it clearly stipulates the form of the will. According to the provisions of Part A, Section IV of Circular 81, we see that the form of the will is also divided into two types: written will and oral will, in which:
A will must be voluntarily made by a person with civil capacity and certified by the local authority. In special cases, the will may be certified by the agency or unit where the person works. If the person with assets is traveling on a means of transport or is in a medical facility and is in an urgent situation requiring the making of a will, certification by the person in charge of the means of transport or the medical facility is also considered valid. Will
A will made by a person without civil capacity or under threat or coercion or an oral will without witnesses is invalid.
The law requires witnesses to ensure the oral will.
1.3.4.2. The form of will is prescribed in the Inheritance Ordinance dated August 30, 1990.
The form of will as prescribed in the ordinance is expressed in two forms: written will and oral will. However, it is regulated more specifically and clearly regarding the legality, content and type of written will as well as the requirements for oral wills.
A written will must satisfy the content requirements under Article 13 of the 1990 Inheritance Ordinance, which is that the will must clearly state the date, month, and year of making the will; the full name and permanent residence of the testator; the full name of the beneficiary; the name of the agency or organization that receives the inheritance; the property, the right to leave the property to the beneficiary, agency or organization; the location of the property; if the will assigns obligations, it must clearly state to whom and what obligations. The will must have the signature or fingerprint of the testator.
- In the provisions of the 1990 Ordinance, there is a classification of types of written wills and the procedural order for each type is shown as follows:
A written will is certified by a notary office or a People's Committee. The testator may request a notary office or a People's Committee of a commune, ward or town to certify the will. The testator may write the will or ask someone else to write it, but the testator must sign or fingerprint in front of the person responsible for certification of the notary office or the People's Committee of the commune, ward or town. In case the testator cannot read the will, cannot sign or fingerprint, a witness must be asked. The witness must read the will to the testator and sign the will in front of the person responsible for certification of the notary office or the People's Committee of the commune, ward or town.
Witness or People's Committee of commune, ward, town, person responsible for certifying or authenticating in front of the testator and witnesses.
Wills are certified by Vietnamese diplomatic or consular agencies abroad.
Written wills that have the same value as certified wills include: Wills of military personnel certified by the head of a unit from the company level or equivalent or higher in cases where it is not possible to request a notary office or the People's Committee to certify; Wills of people traveling on ships or airplanes certified by the commander of that vehicle; Wills of people being treated at a medical facility or nursing home certified by the person in charge of that facility; Wills of people doing survey, exploration, or research work in mountainous or island areas certified by the person in charge of that unit; Wills of people being detained, serving a prison sentence, or being reformed in a reform camp certified by the person in charge of that detention or reform facility.
A will written without certification: will be considered legal if it is made by the testator while he/she was of sound mind, not deceived and not contrary to the provisions of law.
- An oral will is made with the following requirements:
First : In cases where life is seriously threatened and a written will cannot be made.
Second: the testator made the will in a state of lucidity, was not deceived, and did not violate the provisions of the law.
Third: after three months from the date of making the oral will, if the testator is still alive and of sound mind, the oral will is revoked.
Thus, according to the regulations on the form of oral wills in the 1990 inheritance ordinance, we see that there are more specific, clear and strict regulations.
However, compared to Circular 81, the regulation that oral wills require witnesses has been abolished in the inheritance ordinance.
1.3.4.3. The form of will is prescribed in the 1995 Civil Code.
According to the 1992 Constitution, the right to do business and the right to own property of individuals were expanded. After the promulgation of the 1992 Constitution, many laws were amended, supplemented and newly established, including the Civil Code promulgated in 1995. Part Four - Inheritance of the Civil Code has fully codified the 1990 Inheritance Ordinance and has made certain advances.
The 1995 Civil Code has specifically regulated the form of a will in an Article (according to Article 652 of the 1995 Civil Code), the form of a will includes: a written will and an oral will. It also stipulates that ethnic minorities have the right to make a will in their own language and writing. Thus, the above regulation demonstrates the concern of the Party and State for ethnic minorities and ensures that civil rights are exercised without discrimination.
- For written wills: based on the provisions of the 1990 Ordinance, the 1995 Civil Code has inherited, amended and supplemented as follows:
+ Written will without witnesses: requires the testator to personally write and sign the will with full content as prescribed by law.
+ Written will with witnesses: the testator who cannot write the will can ask someone to write it for him, but there must be at least two witnesses. The testator signs or points to the will in front of the witnesses, and the witnesses must also sign or point to the will to confirm the signature and points of the testator.
+ Written will certified by the People's Committee of the commune, ward or town.
+ Written will certified by a state notary
Regarding the procedure for making a will at the State notary or the People's Committee of the commune, ward or town in the 1995 Civil Code, it is basically the same as the 1990 Inheritance Ordinance.
+ A written will has the same value as a certified or authenticated will.
Cases where a written will has the same value as a certified or authenticated will in the 1995 Civil Code remain the same as the provisions of the 1990 Inheritance Ordinance, but there are also changes as follows:
The will of a Vietnamese citizen living abroad must be certified by a Vietnamese consular agency or diplomatic representative in that country. As we can see, the will made in this case was previously regulated by the 1990 Inheritance Ordinance and was a type of written will, but now, according to the provisions of the 1995 Civil Code, it has been listed as a type of written will with the same value as a certified or authenticated will.
- Oral will: the conditions for making a will and having a will revoked are basically the same as in the 1990 inheritance law. However, the 1995 Civil Code also stipulates more clearly the life-threatening reasons that prevent an individual from making a written will, such as illness or other reasons.
In addition, according to the 1995 Civil Code, the procedure for making an oral will requires the testator's will to be expressed in front of witnesses. This is a provision similar to Circular 81 and different from the 1990 Inheritance Ordinance, but there has been a change. Compared to Circular 81, it only requires witnesses for the oral will without requiring the number of witnesses, while according to the provisions of the 1995 Civil Code, the number of witnesses must be at least two witnesses.
From the three legal documents above, we see that the 1995 Civil Code has more complete regulations on the conditions for making an oral will. Thereby, we can see our legislative progress. On the other hand, the provisions of the 1995 Civil Code have partly met the practical needs of society.
1.3.4.4. Form of will according to the provisions of the 2005 Civil Code
In general, after ten years of implementation, the 1995 Civil Code has regulated civil relations in the market economy, contributing to the development and stability of the country's socio-economy. However, due to the development of the market economy, civil exchanges, including inheritance relations, are also very diverse and increasingly complex. On June 14, 2005, at the 7th session, the 11th National Assembly amended and supplemented the 1995 Civil Code with the promulgation of the 2005 Civil Code, which also amended and supplemented the provisions on the form of wills as follows:
The form remains the same as the 1995 Civil Code, including written wills and oral wills.
- Written wills still retain the same types as the 1995 Civil Code, however, there is an amendment to show that written wills are notarized and not by a state notary agency as in the 1995 Civil Code. Because when the 2005 Civil Code was promulgated, the Notary Law stipulated the Notary Office and Notary Chamber, so the 2005 Civil Code was amended to comply with the Notary Law.
- Oral will: the procedure for making an oral will is also regulated as in the 1995 Civil Code, however, the 2005 Civil Code has added to enhance the authenticity of the will, requiring that within five days from the date the testator expresses his or her final will, the will must be notarized or authenticated.
The birth of the 2005 Civil Code is inevitable in the face of social development. The 1995 Civil Code is basically complete. However, it is not absolute, especially in relation to the conditions for the validity of oral wills, there is still a
Some issues are not suitable to reality, leading to inadequacies in the application of the law to resolve. Since then, the 2005 Civil Code has had practical supplements to perfect the conditions for the validity of oral wills. That supplement is the regulation of the time frame for witnesses to notarize and authenticate wills. The above regulation contributes to perfecting the 2005 Civil Code, resolving difficulties and inadequacies in the regulation of the conditions for the validity of oral wills.
1.4. REGULATIONS ON THE FORM OF WILLS ACCORDING TO THE LAWS OF SOME COUNTRIES IN THE WORLD
1.4.1. Regulations on the form of wills according to the Civil Code of the French Republic
The French Civil Code (also known as the Napoleonic Code) provides very detailed regulations on the form of wills, from Article 967 to Article 1001. The form of wills includes 3 forms: handwritten wills, notarized letters and secret wills (Article 969).
- A handwritten will is only valid if the testator writes the entire content himself, dates it, and signs it. This will does not require a specific form of presentation (Article 970).
- The notarized document must be acknowledged by 2 notaries or 1 notary and 2 witnesses. The testator dictates the document to the notary by hand, or assigns another person to write it by hand, or type it. After writing, it must be read back to the testator (Article 972). Then the testator signs it in front of the notary and the witnesses (Article 973). Finally, the notary and the witnesses must sign the document (Article 974). Only when the above conditions and procedures are complied with will a will in the form of a notarized document be valid.
- A secret will is a will in which the paper containing the will's contents or the paper used as an envelope (if any) must be sealed, stamped and sealed. The person making it