How to make a will with foreign elements legal as prescribed in Vietnam

When an individual writes a will before passing away, they often leave property to their children, grandchildren, spouse, or husband according to their wishes. Nowadays, with the expansion of the market and exchange with friendly countries on all continents, there are many cases where people who leave a will are foreigners or Vietnamese living abroad. So in that case, how is inheriting a will with foreign elements legal? Very few people may know that. Therefore, we would like to send you information on related issues about the content of wills with foreign elements as regulated by Vietnamese law.

What is a will with foreign elements?

According to the provisions of Article 2, Article 663 of the 2015 Civil Code, a civil relationship has foreign elements if it falls into one of the following cases:

a) At least one of the parties involved is a foreign individual or entity;

b) All parties involved are Vietnamese citizens, Vietnamese entities but the establishment, modification, performance, or termination of that relationship occurs abroad;

c) All parties involved are Vietnamese citizens, Vietnamese entities but the subject of that civil relationship is abroad.

A will is the expression of an individual's intent to transfer their property to others after death (Article 624 of the 2015 Civil Code).

Therefore, a will with foreign elements is a will with one or some characteristics related to foreign countries, specifically such as:

• The person making the will and the person inheriting according to the will are foreign individuals or Vietnamese living abroad;
• Inherited property is in a foreign country;
• The location of making the will is in a foreign country.

Conditions for a will with foreign elements to be legally effective

A will with foreign elements is legally effective if it meets the following conditions:

1. Capacity to make a will

According to Article 681 of the Civil Code, the capacity to make a will is determined by the law of the country whose nationality the will-maker holds at the time of making, changing, or revoking the will.

• In the case of a person writing a will with Vietnamese nationality, the conditions regarding the capacity of the subject must be ensured as follows: according to Article 630 of the Civil Code.

- The person making the will must be of sound mind and clear-headed when making the will; not be deceived, threatened, or coerced;

- The content of the will must not violate the prohibitions of the law, go against social ethics; the form of the will must not violate the law.

• For foreigners, they must comply with the legal provisions of their nationality.

2. Form of a will with foreign elements

The form of a will is determined by the law of the country where the will is made. The form of the will is also recognized in Vietnam if it complies with the laws of one of the following countries:

a) The country where the will-maker resides at the time of making the will or at the time of death;

b) The country whose nationality the will-maker holds at the time of making the will or at the time of death;

c) The country where there is real estate if the inherited property is real estate.

Legal basis: Article 681, paragraph 2 of the 2015 Civil Code.

According to Article 627 of the 2015 Civil Code, a will must be made in writing; if it cannot be made in writing, it can be made orally.

Wills of individuals from at least fifteen years of age to less than eighteen years of age must be made in writing and must be agreed upon by the father, mother, or legal guardian.

• Wills of persons restricted in physical condition or of persons who cannot write must be made in writing by the witness and must be notarized or authenticated.
• A written will without notarization or authentication is considered legal if it meets the conditions specified in this Article.
• An oral will is considered legal if the testator expresses their final intent in front of at least two witnesses and immediately after that, the witnesses record it, sign or make marks. Within 05 working days from the date the testator expresses their final intent orally, the will must be notarized by a notary public or authenticated by a competent authority confirming the signature or mark of the witnesses.
• Making a will abroad must be certified by the consular agency, diplomatic representative of Vietnam in that country according to Article 638, paragraph 5 of the 2015 Civil Code. Therefore, Vietnamese living abroad can go to the consular agency, diplomatic representative of Vietnam in that country to make a will. The will is effective if it meets the above-mentioned conditions.
• In the case of a foreigner making a will in Vietnam or making a will with real estate in Vietnam while abroad, for the will to be valid in Vietnam, the form of the will must comply with Vietnamese law and the legal capacity of the will-maker must comply with the law of the country of their nationality as presented above.
• If a foreigner makes a will or the right to inherit the property is determined by a judgment, decision of a foreign court, based on Article 1 of Article 425 of the Civil Procedure Code, the heir receiving the property in Vietnam must request the Vietnamese court to recognize and enforce the judgment, decision of the foreign court in Vietnam.