The Relationship Between Inheritance by Will and Testament

2. Property used for inheritance

The property used for inheritance is part of the deceased's estate. The law does not specifically stipulate what kind of property is allowed to be inherited. That allows us to deduce that: all types of property are allowed to be inherited. Compared with Article 163 on property, the subject of inheritance is determined in a very broad scope, including: money, objects, valuable papers (stocks, promissory notes, bonds, deposit certificates, etc.) and property rights (rights to capital contributions in enterprises, property rights arising from copyrights, industrial property rights, etc.).

The regulation of assets that can be bequeathed is only quantitative and not qualitative as above, aiming to create favorable conditions for the person leaving the inheritance to have the freedom to dispose of his/her assets for the inheritance. However, besides that, the law's regulation invisibly leads to inequality among the beneficiaries of the inheritance. Because the beneficiary does not have to fulfill the obligations of the deceased, if it is stipulated that all types of assets can be bequeathed, it will be unfair to other heirs. In reality, there will be cases where the beneficiary is given a larger amount of assets than the heir, but they do not have to bear the same financial obligations as the heir.

Furthermore, similar to the inheritance used for worship, the law does not specifically stipulate the proportion of the bequest compared to the total inheritance, but only stipulates in general: the testator is allowed to leave "a part" of the inheritance to give to another person. So, how should we understand "a part" of the inheritance? This issue requires specific guidance to avoid arbitrary application.

Referring to the Civil Code of the French Republic, we see that in Section 3, Chapter V - Provisions on wills - of the Code there are provisions on the issue of bequests. According to the provisions of this Code, the testator can bequeath all of his property.

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property, partial property bequest and separate property bequest. A complete property bequest is when a testator decides to give one or more people all of his or her property after death (Article 1003); a partial property bequest is when a testator leaves a part of the property that the law allows to be disposed of, such as half, one-third, all of his or her real estate or personal property or a certain part of his or her real estate or personal property (Article 1010); and a separate property bequest is when a testator gives another person a specific object (Article 1014).

Unlike the Vietnamese Civil Code, the French Civil Code clearly defines the amount of property that can be bequeathed. Specifically: the testator is only allowed to dispose of all of his or her property to be bequeath if he or she has no natural heir. If there is a natural heir, the disposition of property for bequeathing is determined according to the following ratio: he or she is only allowed to bequeath no more than 1/2 of the property if he or she leaves behind one child at the time of death, no more than 1/3 if there are two children, no more than 1/4 if there are three or more children.

3. The legatee

Article 671 does not specifically stipulate who is the legatee, but only stipulates that "The testator may reserve a portion of his property to bequeath to another person". So how is "another person" understood here? Is "another person" only an individual or can it include an agency or organization? In our opinion, the legatee can be an individual or an agency or organization. Because, although it does not specifically stipulate who "another person" includes, the law also does not stipulate: the legatee can only be an individual.

If they are individuals, the legatee can be those who are eligible to inherit, or they can be any individual. So, what conditions must they satisfy to receive the inheritance as a legatee? On this issue, the law has no clear regulations. The law only stipulates the conditions for the heir to receive the inheritance, but does not stipulate the conditions for being

inherit the legacy of the donee. The question is whether the donee must satisfy the same conditions as the heir? Specifically:

- If it is an individual, does the legatee need to be "conceived before the death of the testator"? If it is an organization, does that organization need to "exist at the time of inheritance opening"? The reason for raising this issue is because in reality, there are many cases where the testator has made a will to dispose of part of his/her assets for the purpose of donating to funds (eg: scholarship funds, charity funds, etc.). The funds will use this money to give to subjects such as: poor children, people in difficult circumstances, people infected with Agent Orange, etc.

Regarding this issue, the Thai Civil and Commercial Code has quite specific provisions: According to the provisions of the Thai Civil and Commercial Code, a fund is an organization established for "charitable, religious, scientific, literary or other purposes for the public benefit, not for the purpose of profit sharing " (Article 81). The person leaving the inheritance has the right to make a will assigning responsibility to a person to establish a fund, or directly donate assets to establish funds for the above purposes (Article 1676). When the fund established according to the will has been established as a legal entity, the assets donated by the testator for the purpose of establishing that fund are considered to belong to that legal entity, from the time the will takes effect, unless otherwise provided in the will (Article 1678). When the fund is not organized according to its intended purpose, the assets must be left as may be prescribed in the will. In the absence of such provision, the Court must, upon the request of the heir, administrator, public prosecutor or any interested person, make a donation of the assets to another legal entity whose purpose is most similar to that of the testator. If such donation cannot be made, or if the fund cannot exist because its existence is contrary to the provisions of law, or is contrary to public order or morals, the testamentary disposition shall be void. (Article 1679). The establishment of the fund must not prejudice the interests of the testator's creditors. (Article 1680).

In Vietnam today, the law does not have specific regulations on this issue. However, in our opinion, although the legatee is not an heir, in essence they are the beneficiary of the inheritance according to the will of the testator. Therefore, to receive the inheritance, the legatee must also satisfy the conditions of an heir as prescribed in Article 635 of the 2005 Civil Code, specifically: the legatee is an individual who must be alive at the time of inheritance opening or born and alive after the time of inheritance opening but conceived before the death of the testator. In the case where the legatee is an agency or organization, it must be an agency or organization that exists at the time of inheritance opening.

- Are people who commit acts specified in Clause 1, Article 643 entitled to inherit or not? In our opinion, these people will not be entitled to inherit property. Because, normally, a person only leaves property to give to another person when there is a certain close relationship between them and the beneficiary. The person who owns the property wants to preserve that good feeling, so he gives a part of the property as a souvenir to the beneficiary. Therefore, if the beneficiary commits acts that infringe upon the life, health, honor, and dignity of the person leaving the inheritance; or deceives, coerces, or prevents the person leaving the inheritance from making a will; forges the will, amends the will, or destroys the will in order to receive part or all of the inheritance against the wishes of the person leaving the inheritance, then it is clear that that person is completely unworthy of inheriting the inheritance.

Furthermore, the name of Article 643, "People not entitled to inherit", also reflects this point of view. Because "people entitled to inherit" includes not only heirs but also those who are donees. Therefore, of course, those who are donees if they commit the acts specified in Clause 1, Article 643 will not be entitled to inherit.

- So in case the legatee does not have the right to inherit (according to Clause 1, Article 643), or refuses to receive the inheritance, dies before or dies

At the same time as the testator, how is the legacy resolved?

According to the French Civil Code, in the case of a bequest to several beneficiaries, if one or more of them decline to receive the benefit, the portion of this person will be transferred to the remaining beneficiaries (Article 1044). It is considered a bequest to several beneficiaries when, in the same will, the testator does not specify a separate portion for each person in the bequest. It is also considered a bequest to several beneficiaries when an object that would be damaged if divided is given to several people in the same deed, even though it is clearly stated for each person (Article 1045).

The Vietnamese Civil Code does not specifically regulate this issue. However, we see that in the case where the legatee is not entitled to inherit (according to Clause 1, Article 643), refuses to accept the inheritance, dies before or dies at the same time as the testator, then the part of the will related to this person is essentially the part of the will that has lost legal effect. The part of the inheritance related to the part of the will that has lost legal effect will be divided according to the provisions of law to the legal heirs of the testator.

However, these are just subjective speculations, in fact our current legal documents still do not have clear regulations. Therefore, in the coming time, lawmakers should research and study to supplement regulations on this issue, in order to create favorable conditions for the application of the law in practice.

Thus, unlike the provisions of the Civil Code of the French Republic, the refusal to accept the inheritance of the donee under Vietnamese law not only increases the inheritance portion according to the law but also increases the portion of each inheritance portion according to the law. The refusal to accept the inheritance under the Civil Code of the French Republic does not change the inheritance portion.

a succession that only increases the inheritance received by the remaining beneficiaries.

2.3.4.2. The relationship between inheritance by will and bequest

1. Clause 1, Article 671 stipulates: "The bequest must be clearly stated in the will" . Thus, the bequest is a content of the will. Therefore, the validity of the bequest will also be determined according to the validity of the will. Similar to inheritance according to the will, the bequest is a part of the inheritance left by the deceased and the bequest is only determined after the property obligations left by the deceased from the inheritance have been paid.

If the property obligations are greater than or equal to the total value of the estate left by the testator, then there will be no inheritance according to the will or bequest.

If the property obligations are less than the total value of the inheritance, which part of the inheritance should we use to pay the property obligations first? Inheritance by will or gift?

Clause 2, Article 671 stipulates: " The donee does not have to fulfill the property obligations for the bequeathed portion, except in the case where the entire inheritance is not enough to pay the property obligations of the testator, the bequeathed portion shall also be used to fulfill the remaining obligations of this person."

With this provision, it seems that the lawmakers have identified the inheritance division with the inheritance. Because as we know: Inheritance = the inheritance portion for the heir regardless of the content of the will + the inheritance portion for the bequest + the inheritance portion used for worship + the inheritance portion for inheritance division. Thus, the inheritance division is only a component of the inheritance. Only in the case where there is no inheritance portion for the heir regardless of the content of the will, bequest and the inheritance used for worship, will the inheritance division be equal to the inheritance portion. However, with the above provision, it seems that the inheritance and the inheritance division have been merged into one. The lawmakers stipulate that: The legatee does not have to fulfill the property obligations for the bequest portion, except in the case where the entire inheritance is not enough.

to pay off property obligations. So how should we understand the "entire" inheritance? If understood according to the above formula, then the "entire" inheritance must clearly include the bequest. But if the "entire" inheritance already includes the bequest, that is, the bequest has also been used to pay off obligations, then there cannot be a provision: if " the entire inheritance is not enough to pay off the property obligations of the testator , the bequest part can also be used to fulfill the remaining obligations of this person".

Thus, it is clear that the "entire inheritance" mentioned in this article is not the "entire inheritance" but rather the "entire inheritance". This means that: if there is a property obligation, the inheritance must be used to fulfill the obligation first. If the inheritance is still not enough to fulfill the obligation, then the bequest part must be used. In this case, the bequest is the remaining inheritance after all property obligations and other expenses related to the inheritance have been paid according to Article 683.

Although they are both beneficiaries of the deceased's estate, from the time of inheritance opening, the heir must perform the testator's obligations within the scope of the inheritance. On the contrary, the donee does not have to perform that obligation. Only in the case where the entire inheritance is not enough to pay the deceased's property obligations, the legacy property will be used to perform the remaining property obligations.

For example: Mr. A has an inheritance worth 150 million VND and owes the bank 120 million VND. Before he died, Mr. A made a will giving his two children 100 million VND, and the remaining 50 million VND he gave to M - his girlfriend.

To pay off the debt, we must first use 100 million VND, which is the inheritance according to the will. There is still a shortfall of 20 million VND, which will be taken from the inheritance. In this situation, the inheritance according to the will is zero; and the inheritance is: 50 - 20 = 30 million VND.

2. After paying all property obligations and expenses related to inheritance, if the inheritance is only a part equal to or smaller than

The bequest part will belong to the donee. However, we must note here that Article 671 only stipulates that the testator has the right to reserve a part of the inheritance for bequest without specifying which assets are used for bequest. That means the testator can bequest a sum of money or an object.

If the bequest is an object, after all property obligations and inheritance-related expenses have been paid, and the object still exists at the time of inheritance opening, it will belong to the donee. But if the bequest no longer exists, there is no bequest.

If the bequest is a sum of money that the testator has clearly identified in the will, after paying off the property obligations and expenses related to the inheritance, that sum of money will belong to the donee.

3. Similar to inheritance by will, the amount and value of the inheritance depends on the will of the testator; these inheritance parts may be reduced in case there is an heir who does not depend on the content of the will. In case there is an heir who does not depend on the content of the will, the reduction of the inheritance is similar to the reduction of the inheritance used for worship. Specifically:

- If the testator decides to give away the entire inheritance, the inheritance according to the will is zero (nothing); and the gift is the remaining inheritance after deducting the portion reserved for the heir, regardless of the content of the will (if any).

- If the testator decides to give away a part of the inheritance, the remaining part is divided among the heirs. In this case, it must be determined whether the heir, regardless of the content of the will, has received enough inheritance, whether it is enough 2/3 of the portion of a legal heir or not. If it is not enough, the inheritance according to the will and the inheritance will be reduced to meet the portion of these people. Therefore, the inheritance according to the will

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