Validity of Joint Will of Spouses in Case of Preceding Death of One Party

2.6 VALIDITY OF JOINT WILL OF HUSBAND AND WIFE

A will is only legally valid when it meets certain conditions regarding the capacity of the subject - the testator, the content of the will, the form of the will and, importantly, the will and voluntariness of the testator.

The validity of a joint will of a married couple is understood as the will being executed in reality in accordance with the will and wishes of the married couple in the disposition of the common property and in accordance with the provisions of the law. The time of validity of a joint will of a married couple is regulated by law differently between periods:

Article 671 of the 1995 Vietnamese Civil Code stipulates: “ In case a husband and wife make a joint will and one of them dies first, only the part of the will related to the deceased's inheritance in the common property shall have legal effect; if the husband and wife have agreed in the will that the time of the will's effectiveness is the time of the death of the last person, then the inheritance of the husband and wife according to the joint will shall only be divided from that time .”

Article 668 of the 2005 Vietnamese Civil Code stipulates: “ The joint will of a husband and wife takes effect from the time the last person dies or at the time both husband and wife die .”

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Thus, according to the provisions of Article 671 of the 1995 Vietnam Civil Code, the effective time of a joint will of a husband and wife is also determined in two cases similar to that in the 2005 Vietnam Civil Code. However, the method of determining the effective time of a joint will of a husband and wife is different, which is:

- Firstly , how to determine the effective time of the joint will of the spouses. The 1995 Vietnamese Civil Code gives priority to the agreement of the spouses on the effective time of the joint will, which is the time when the last person dies. In case the spouses do not have an agreement on the effective time of the joint will, then the provisions of the law will be followed, which is only the part of the will related to the property.

Only the will of the deceased person will be effective and the time of effectiveness of that part of the will is determined according to the method of determining the time of the person leaving the inheritance. In addition, the 2005 Vietnamese Civil Code does not recognize the agreement on the effectiveness of a joint will between spouses but must comply with the provisions of the law.

- Second, the time of validity of the joint will of the spouses between the two codes is also different. For the 1995 Vietnamese Civil Code, the part of the will related to the property of the person who died first will take effect first. But the 2005 Vietnamese Civil Code only takes effect when the last person dies.

Thus, it can be seen that the provisions of the 1995 Vietnamese Civil Code are divided like the wills of two independent individuals and are not bound by the joint rights and obligations between the spouses.

The current regulation on the time of legal effect of a will is "the will takes effect at the time of inheritance opening" and the time of inheritance opening is the time when the person leaving the inheritance dies. As for a joint will of a husband and wife, the time of its effectiveness is not the same as the time of inheritance opening, it can be the time when the last person dies or the time when both husband and wife die together. This is one of the unreasonable points in the regulation on joint wills of husband and wife in the 2005 Civil Code of Vietnam, clearly shown in:

2.6.1 Validity of joint will of spouses in case one party dies first

According to Article 668 of the 2005 Vietnamese Civil Code, when one spouse dies first, the will is not yet effective, the heirs are not yet allowed to request to divide the inheritance to receive the inheritance left by the deceased, they only have the right to request to divide the inheritance when the other spouse dies.

Although this solution has simplified the implementation of the joint will of the spouses, that is, the will only has to be divided once, compared to the 1995 Vietnamese Civil Code, it has overcome the shortcoming that " In the case where the husband and wife make a joint will and one of them dies first, only the part of the will related to the deceased's inheritance in the joint property is legally effective ". From a theoretical perspective, the provisions of the 2005 Vietnamese Civil Code stipulate that this is to protect the rights of the living, it avoids the situation where the property is divided many times for a will and especially it shows the joint efforts and dedication in creating a unified joint property of the couple, without breaking the principle of consensus and unity of the couple. However, this provision also has many shortcomings and limitations.

2.6.2 Validity of joint will of spouses in case of both deaths

When both husband and wife die, the time of validity of the will is the time of death of both. This determination is similar to the determination of the time of validity of a will made by an individual. That is the time of opening the inheritance.

- the time of death of the testator. Therefore, in this case, the effective time of the joint will of the spouses has the same characteristics as the effective time of a will made by an individual. Therefore, resolving issues related to the effectiveness of a joint will is similar to that of an ordinary will:

- The will will be completely invalid if the heir under the will dies before or at the same time as the joint testator of the couple.

- In case there are many heirs according to the will and only one of them dies before or at the same time as the testator of the couple, only the part of the will related to the property that that person would have received if he or she were still alive is not legally valid.

The remaining part of the joint will remains legally effective. The portion of the property related to the testamentary heir who died before or at the same time as the testator shall be divided among the testator's legal heirs. This also applies to agencies and organizations designated by the testator to inherit under the will but no longer exist at the time of inheritance opening; the portion of the estate designated for that agency or organization shall also be divided among the testator's legal heirs.

- The will is also invalid if the inheritance left to the heir no longer exists at the time of inheritance opening. This is the case where the property can be completely destroyed during an accident between the husband and wife such as flood, fire, explosion, etc.

- One point to note is that: The common property of husband and wife in Vietnam is a very common institution and the legal issues arising from this are also extremely rich. One of them is the issue of the joint will of husband and wife. With the nature of a unified common property, the real estate of husband and wife should often become the subject of a joint will to demonstrate the traditional "husband and wife harmony" of the Vietnamese people. Currently, the 2015 Vietnamese Civil Code has abolished the provisions on joint wills of husband and wife, so whether a joint will of husband and wife made after the 2015 Civil Code takes effect is recognized by law or not is a matter of concern to many people.

2.7 LIMITATIONS ON THE RIGHT OF SELF-DECIDEMENT IN THE JOINT WILL OF THE HUSBAND AND WIFE

Cultural traditions in the family have influenced and deeply ingrained in the lifestyle of Vietnamese people. Typically, civil law has many provisions reflecting the family bond in terms of rights and obligations between husband and wife, most clearly the right of husband and wife to make a joint will to maintain the joint property for their children and grandchildren. However, in some cases

In certain cases, this culture of affection reduces or even eliminates the rationality that the law, by pointing out the limitations on the autonomy of spouses in making a joint will, will clarify this irrationality:

Firstly , it is not possible to amend, supplement, replace or cancel a joint will by oneself if the husband and wife do not agree. The 2005 Civil Law allows both husband and wife to agree to make a joint will to determine the common property (Article 663 of the 2005 Civil Code) and also gives the husband and wife the right to amend, supplement, replace or cancel the joint will at any time (Clause 1, Article 664 of the 2005 Civil Code). In general, the spirit of this provision seems very progressive, very humane, and full of family affection. However, in order for one spouse to amend, supplement, replace or cancel the will, the consent of the other is required (Clause 2, Article 664 of the 2005 Civil Code). This provision limits the ownership rights of one party because when wanting to change, the consent of the other party is required. This means that if one party does not agree to amend, supplement, replace or cancel the joint will, the other party has no way to change his or her intention in the content of the joint will. Thus, the provision on amending, supplementing, replacing or canceling the joint will is very difficult to implement in practice, because in reality it is very difficult for spouses to agree at all times and in all places, and this provision takes away the right to self-determination of the property of each spouse if the efforts of one party to obtain the consent of the other party are unsuccessful.

Second , the time of legal effect of the will has eliminated the right to claim inheritance and the right to dispute inheritance when one party to the joint will is still alive.

Article 668 of the 2005 Civil Code stipulates that a joint will of a husband and wife is only valid when both spouses die or when the last spouse dies. The troublesome consequences associated with this provision are the situation where one spouse is still alive.

or the heir cannot declare the inheritance when the wife or husband dies first. In fact, many people involved have had to laugh and cry that when they have assets, assets under their legal ownership, they cannot decide, buy, sell, or transfer anything to serve their living needs when they have already put that asset into a joint will. And if the spirit of this provision is applied correctly, it will eliminate the right to dispute inheritance, the right to request division of inheritance of co-heirs when one of the two testators is still alive, because if one of the two testators is still alive, the will is not yet legally effective. Therefore, if any Court flexibly accepts the inheritance dispute case regarding the joint will of a husband and wife when one of the husband and wife is still alive as in the case mentioned above, it is completely illegal.

Some typical examples reflecting the difficulties when a couple makes a joint will but one spouse dies first, the other spouse and other legal heirs cannot decide on the inheritance are as follows:

Example 1 : The case of Ms. Le Hai H in Hai Ba Trung district, Hanoi. In 2012, she and her husband made a joint will (notarized) to leave the house in Minh Khai, Hai Ba Trung to their only son, Nguyen Van D. At the end of 2012, her husband passed away, but then in 2015 she discovered that she had a serious illness that required a large sum of money for treatment. The family's economic conditions were difficult, so she and her son wanted to sell the house to cover the expenses.

But when I brought the red book to the Notary Office to do the inheritance declaration procedure, it was refused. I went to the Ward People's Committee for consultation and wanted to do the procedure to change or cancel the will, but it was also refused. I also went to the Hai Ba Trung District People's Court, but all refused to accept the case because there was no basis for settlement.

So Ms. H has her legal assets that she can sell to pay for medical treatment but cannot do anything about it.

Example 2 : In the case of Mr. NVT in Hung Yen, who used to have a billion-dollar house because he was a businessman, when he was still healthy, he and his wife made a joint will leaving all the value of their assets including house, garden and savings to their two sons.

However, after his wife passed away in 2014, his children complained that he was old, difficult, and irritable, and that no one could stand him, so none of his children wanted to stay and take care of him in his old age. He could no longer earn money in his old age, so he wanted to use his savings to cover his old age, not depending on his children, but he was unable to do so. He filed a lawsuit at the People's Court to request the cancellation of the joint will that he and his wife had previously made. The Court replied that he only had the right to amend and supplement the part of the will related to his property, meaning that he could amend his part from giving it to two children to giving it to one child or to another person, but could not cancel it, so the Court refused to accept the case.

Finally, in his old age, he had money, a house, and property but had to live in poverty.

The above consequence stems from Article 668 of the 2005 Vietnamese Civil Code, which stipulates that a joint will of a husband and wife is only valid when both spouses die or the last spouse dies. Accordingly, there is a situation where one spouse is still alive or the heir cannot declare the inheritance when the spouse who made the joint will dies first.

Correct application of this provision will eliminate the right to dispute inheritance and request division of inheritance of co-heirs when one of the two testators is still alive because if one of the two

If a husband or wife makes a joint will while they are still alive, the will is not yet legally effective.

CONCLUSION OF CHAPTER 2

This chapter focuses on studying the provisions of the 2005 and 1995 civil laws on joint wills of spouses. Through the study, students can draw the following points to note:

- Unlike a normal individual will, the subject of a joint will of a married couple is two independent individuals - the husband and wife agree to make a joint will. However, they must still meet the requirements for the subject making the will: being an adult, having full civil capacity.

- A joint will of a husband and wife must satisfy the conditions of the will of the testator: cognitive capacity and voluntariness. Therefore, it will not be considered legal if it falls into one of the following cases:

+ A husband and wife make a joint will when one of them is no longer mentally alert.

+ A joint will of a husband and wife is made under the influence of another person: A husband and wife make a will when deceived by another person; The subject making the joint will is threatened; A husband and wife make a joint will when forced.

- Like an individual's will, a joint will of a couple is only valid when its content does not violate the provisions of law or social ethics.

- In addition to the content requirements, for a will to be valid, it must meet the formal requirements. The formal requirements are the same as for a normal will. A will can be made in the form of a written document.

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