Điều kiện có hiệu lực của di chúc theo quy định của pháp luật dân sự việt nam tt tiếng anh

In Vietnam, prior to the Civil Code 2015, regulations on wills and validity conditions of wills were recognized and created through conditions for wills to be lawful, conditions for will

HANOI LAW UNIVERSITY

HOANG THI LOAN

VALIDITY CONDITIONS OF WILLS IN ACCORDANCE

WITH VIETNAM CIVIL LAW

Specialized field: Civil law and civil procedure law

Code: 9.38.01.03

SUMMARY OF DOCTORAL DISSERTATION IN LAW

Hà Nội - 2019

The PhD Thesis was accomplished at:

Hanoi Law University

2 PhD: Hoang Thi Thuy Hang

The PhD Thesis is defended at tthe Thesis Examining Boarrd Meeting help at Hanoi Law University at … on…/…./

The PhD Thesis can be studied at:

1 National Library

PREFACE

1 The necessity of the topic

Human beings are social and biological entities which their living and death are always influenced by laws of nature Death ends the existence of humans in terms of biology and also terminates their subject capacity in every legal relation Nevertheless, from inheritance relation point of view, the death occurring to humans does not terminate all social relations that they participated, especially property relations including their legal rights and obligations toward other subjects The existence of these relations also depends on the activities of economic – social rules

When alive, humans take part in labor activities to search for or create assets or materials to meet the demands of themselves, community and society For redundant assets, people tend to make savings and accumulate When it comes to death, those assets or properties shall continue to be transferred to alive people The law ensures this transference process through inheritance under wills or at law The procedure to divide the inheritance estates under wills comes to emerge after estates divided under law regulations but becomes more popular Due to a development in the awareness of right

of individual disposal, the trend to make wills to dispose estates before death is also increasing However, the disposal and enjoying inheritance estates under wills also came

to difficulties right from the beginning periods of time Everything must comply with law regulations on wills Conditions by law for wills to be legally valid started to be recognized This allows me to state that law regulations on will validity conditions are also one of ways to express the will of ruling class in order to govern the inheritance relation

In Vietnam, prior to the Civil Code 2015, regulations on wills and validity conditions

of wills were recognized and created through conditions for wills to be lawful, conditions for wills to come to legal validity and conditions for wills to be implemented Through periods of history, there were changes made compatible to the extensive development of

the society to legal regulations of validity conditions of wills However, (i) Most of law

regulations on validity conditions of wills being recognized in the Civil Code 2015 are inherited from previous legal documents Hence, problems and the insufficiency of these regulations remain existed and cause many “trouble” to the activity of research and

judgment; (ii) The overall development of the economy, society has a strong influence on

the awareness and acts of humans, leading to the change in inheritance relation, especially inheritance under wills and resulting in stipulations incompatible to reality

Procedure implementation agencies state that inheritance conflicts in our country are popular and complex cases, even some last for more than ten years The important cause leading to that complexity is that these are typical conflicts, usually happen amongst

people having marital, blood or adoption relations; the lack of unification in applying legal regulations to make judgments; the influence of traditional values on culture, ethics in family or on inheritance conflict resolution… The amount of conflicts

regarding wills are also increasing This results from: (i) the unclearance and inadequacy of regulations related to conditions for wills to be lawful; (ii) law

regulations on conditions for wills to come to legal validity cannot cover cases arising

more diversely in the society; (iii) the awareness of people on wills, making wills and

rights, obligations of subjects in inheritance relation is developed but still lacks of comprehensiveness

The research on the Civil Code of some countries in the world and related scientific works indicate that the deep theoretical issues about wills validity conditions are not extensively studied Especially the theoretical foundation for governing wills validity conditions in accordance with Vietnam law is not mentioned in any other previous researches The reality of law application to solve conflicts is still under great difficulties The biggest cause is due to the lack of unification in the understanding and law application to announce wills unlawful or invalid

To the increasing demand of the society, the research to clarify the theory and evaluate the situation of law application on wills validity conditions is truly essential

Therefore, the selection and studying the topic“Validity conditions of wills in accordance with Vietnam civil law” shall have a profound meaning theoretically and practically Điều kiện có hiệu lực của di chúc theo quy định pháp luật dân sự Việt Nam”

2 The research scope of the topic

The research scope is divided into: Firstly, on research space: the disseartation

focuses on Vietnam law regulations and makes comparison to laws in some countries

such as France, Japan, Thailand, Germany…; Secondly, on research time: the dissertation concentrates on regulations of the Civil Code 2015 on wills validity conditions with some connections to previous documents as well as refers to judgment situation by analyzing valid cases (applying current law and previos documents)

3 The research purpose of the topic

The research shall clarify some theoretical issues on wills, validity conditons of wills and especially construct a concept on wills validity conditions, determine theoretical and practical foundation for recognition of wills validity conditions

In additioin to theoretical issues, the dissertation also makes clear of current law regulations with analysis, comment, evaluation to previous legal documents on wills validity conditions The research of law stipulations of some countries in the world is also made for comparison and completion of Vietnam laws

The dissertation implementes the application reality through legally valid cases for the

foundation of evaluation of dispute resolution on inheritance under wills, law application

on wills validity conditions

4 New contributions of the topic

The research of the topic: “Validity conditions of wills in accordance with vietnam

civil law” might make following contributions:

Firstly, determining the nature of wills and validity conditions of wills

Secondly, determining the theoretical and practical foundation for regulations on

validity conditions of wills

Thirdly, constructing the concept and systemizing groups of conditions constituting

validity conditions of wills

Fourthly, analyzing, commenting regulations of the Civil Code 2015 and previous

legal documents on validity conditions of wills Hence, the author shall evaluate the strong points and drawbacks of each condition in terms of legal research science and practical application

Fifthly, for each validity condition of wills, the author shall make comnparison with

stipulations of other countries in the world to indicate the pros and cons for future orientation for Vietnam law

Sixthly, presenting several cases to analyze the positive and negative sides in the

judgement activity when applying validity conditions of wills to resolve disputes regarding inheritance

Seventhly, on the basis of commenting, evaluating regulations on validity conditions

of wills, the author shall indicate remaining issues and drawbacks as well as submit petitions for completion of law regulations on validity conditions of wills

5 Structure of the dissertation

Besides the preface, conclusion, overall context of the research topic, reference and the annex, the content of the dissertation shall comprise of 3 chapters:

Chapter 1 Theoretical issues on validity conditions of wills

Chapter 2 The context of current law regulations on validity conditions of wills Chapter 3 Practical application and petitions for completion of law regulations on validity conditions of wills

OVERALL CONTEXT OF THE TOPIC RESEARCH

Inheritance is the legal issue attracting lots of attention, theoretically to practically Different aspects of this issue have been researched However, for regulations of validity conditions of wills, those are approached only in small scope In detail: Research works include: Doctoral dissertation of Phạm Văn Tuyết, Trần Thị Huệ, master thesis of Trịnh Hữu Toản…, scientific research work of Lê Đình Nghị or magazine articles of Vương Tất Đức, Nguyễn Tiến Lực, Trần Văn Tuân, Trà My, Nguyễn Phương Hoa, Thái Công Khanh… or books of Nguyễn Minh Tuấn, Phùng Trung Tập, Tưởng Duy Lượng… Some foreign books, works include: Nakagawa jun and Ogawa tomiyuki, Bernard BEIGNIER, Sarah TORRICELLI-CHRIFI, Christian Jubault Most of research works only study one validity condition of wills Doctoral dissertation of Phạm Văn Tuyết mentions most of validity conditions of wills but does not focus on this content but the whole inheritance by wills Master thesis of Trịnh Hữu Toản also analyses in detail these conditions but not in depth due to limited research time and pages Moreover, the commenting on validity conditions of wills from when an individual makes a will to death is not clear

Overall, research issues of public mentioned works do not ensure the depth regarding commenting, researching law regulations and solutions, in detail:

- On doctrine, foundation for regulating validity conditions of wills: In terms of

doctrine, no works mentioned yet On theoretical and practical foundation, Trịnh Hữu Toản mentioned in his master thesis However, these are not detailed and do not show

the nature of regulation of validity conditions of wills in law

- Concept, features of validity conditions of wills: Some works mentioned seperate

condition such as the book of Phạm Văn Tuyết on the testator, content of wills, free of will, appearance of wills and events causing loss of validity in wills The book of Trịnh

Khánh Phong writes about the general for wills to be lawful The book of Phù ng Trung

Tập mentions factors such as who, how, exceptions to the testator Or master thesis of Lương Thị Hợp writes about the content of wills Dissertation of Trần Thị Huệ mentions in detail issues about estates, how to determine inheritance estates… But most of the work do not focus on the theoretical foundation toward the regulation of each validity condition of

wills

• Practical aspect: Many works analyze law regulations in diferent periods of time

on validity conditions of wills but not yet generalize and comment, evaluate 3 groups of validity conditions of wills

• Application aspect: No works mention fully validity conditions of wills through

cases in national scope

Hence, the author shall research systemtically from theory to practice law regulations on validity conditions of wills and suggest petitions for completion of law on validity conditions of wills This research context helps the author to confirm that this dissertation presents new points compared to previous works

Chapter 1 THEORETICAL ISSUES OF VALIDITY CONDITIONS OF WILLS 1.1 Some theoretical issues on wills

1.1.1 Concept of wills

Wills are the indication of individual’s will through a written or oral document to transfer the ownership in partial or whole property; other rights to property to the beneficiary (including the heirs, the grantee of testamentary gift, the person entitiled to adjoining immovable property, usufruct right, surface right) and implementation other rights before death

1.1.2 Typical features of wills

Firstly, wills are made through unilateral legal acts

Secondly, wills show the individual’s will on transferring their properties to other people after death

Thirdly, the validity of wills could only come when the person making it dies

Fourthly, wills are an type of transaction focusing on form

Fifthly, lawful wills might not be valid for implementation

1.2 Concept and features of validity conditions of wills

1.2.1 Concept of validity conditions of wills

The author supposes that the legal validity of wills must mention two values including: the legal value is the lawful presentation of a will; the implementation value

is the indication of implementation ability of wills in reality Hence, we can conclude

that: Legal validity of wills is the legal value regconizing rights, obligations of heirs by will and other related subjects who shall enjoy rights and implement obligations in

accordance with the will of the testator in wills

For this concept, validity conditions of wills are the combination of 3 groups: First, conditions for wills to be lawful Second, conditions for wills to come to legal validity Third, conditions for wills to be implemented Because:

- In order to ensure and implement in accordance with the will of the testator, wills must

be recognized by law first The recognition of wills to be lawful is the first condition to be valid Wiils must be made based on the combination of factors including: The Testator must have the legal capacity, act capacity; the content of wills do not violate forbidden regulations of law; the testator must have free of will and the form complies with the law

Therefore, the author determines the first condition to be the condition for being lawful and these are conditions by law to considere the compability to recognize the legal value of

wills

- In order to have the foundation for recognition of rights, obligations of subjects in the relation of inheritance by wills, besides the death of the testator, the heirs and estates

by wills also must be determined for validity esblishment of wills Hence, we need to

state the conditions for wills to come to legal validity and this is an objective requirement made by law for foundation of recognition of rights, obligations of subjects in

inheritance by wills

- In addition, the law also needs to recognize the conditions to ensure subjects taking rights and obligations complying with the will of the testator in wills This is regarded

as requirement made for wills to be implemented in reality

By indicating the nature of the term “legal validity of wills” and three groups of

conditions as mentioned above, the author supposes that: The recognition of validity conditions of wills must be considered based on the process from the time of making wills to estates distribution This process attaches to 3 times with essential events in

those times including: First, the time of making wills Recognition of making wills of individuals must meet conditions for wills to be lawful Second, the time of wills to come to legal validity Recognition of conditions for wills to be valid Third, wills are

implemented Recognition of conditions for wills to be implemented complying with

will of the testator Hence, validity conditions of wills must be understood as regulations set by law to consider the compatibility to recognize the lawfulness, validity and implementation of wills

1.2.2 Features of validity conditions of wills

General features similar to validity conditions of transactions include: (i) The effect of law to will of the testator when they make wills (ii) Ensuring wills to always show the free will of the testator (iii) Guaranteeing the rights and interests of other subjects (iv) Ensuring the stability of civil relations

Particular features: (i) The time of establishing validity of wills is at the death of

the testator; (ii) The testator must be of sound mind while making wills; (iii) Form is the

condition for wills to be lawful

1.3 Scientific foundation for recognition of validity conditions of wills

Each regulation made by law is built based on theoretical and practical scientific foundation as doctrines, the same applies for validity conditions of wills

• Practical foundation:

First, demand and awareness capacity of individuals

Second, the properties transference in inheritance

Third, the governance of the State by law toward certain behavior of human

Overall, from the reality of the process of labor, production of materials of humans that leads to the surplus of properties and the demand, awareness of disposition right of individuals to properties toward the law of living and death has created the act of making wills to satisfy the interest of transferring properties after death Therefore, the law is forced

to govern this act by setting up requirements for wills to have validity conditions These are practical foundation for recognition of validity conditions of wills

• Theoretical foundation:

(i) Doctrine on Hunan’s natural rights: Determining and wishing to dispose

properties of individuals after death are mental interest value that attaches naturally to that individual The legislation opinion of Vietnam through periods of time recognizes the right for individuals to make wills as a natural right that needs to be respected and

guaranteed for implementation

(ii) Doctrine on individuals’ free will: This doctrine is built bassed on the

recognition off the ability of a person in acting in accordance with plans he or she made without being intervened by any other factors This point shows that the law is built and completed based on certain doctrines Human’s free will consists of unlimited inner desire and is attached with purpose of realization as being presented outward It will not make sense if the law is not built to protect those desires of human This doctrine affects the recognition of validity conditions of wills which must ensure to be a process regarding time

from wills making, coming to validity and realization of the last desire of the testator (iii) Doctrine on state and law: The Doctrine on state and law shows that the role

of State in governing and managing the society and through the law, the State recognizes and ensures rights, interests of each individual on the foundation of balancing between individuals’ interests and general interests, order of the community and related subjects The intervention of the State on making wills of individuals ensures that: realization of mental interest, desire to transfer individuals’ property after death; hamorny between personal interests and public interests This is indicated through the recognition of the State

on the right to make wills, free of will when making wills and conditions made by law to

guarantee social order during the process of making wills and estate distribution

CONCLUSION OF CHAPTER 1

First, based on practical experience of researching social relations, scientific

opinions in the theoretical systems of theorists, the author has shown theoretical issues

on wills and typical features of wills Second, the author indicates the theoretical issue

on validity conditions through: (i) Discovering validity conditions of wills, cause of recognition of groups of validity conditions of wills; (ii) determining the popularity and

particularity toward validity conditions of wills Third, through researching different

doctrines when building every law regulation, the author has determined the scientific basis for recognition of validity conditions of wills

Chapter 2 THE CONTEXT OF CURRENT LAW REGULATIONS ON VALIDITY

CONDITIONS OF WILLS 2.1 Conditions for wills to be lawful

2.1.1 Law regulations on the testator

According to Article 630.1 Civil Code 2015, two types of individuals allowed by law

to implement the right to make wills including: (i) Adults being sound of mind while making wills, not being threatened, deceived, coerced”; (ii) A person between 15 and

18 years old with the consent of parents or guardian for making wills According to this recognition, the testator and the person confirming transaction in general have been determined in different scopes This realization of regulation on the testator in the current law is considered on some below aspects:

2.1.1.1 Age

- Adults are determined as above 18 years old: Vietnam law from the feudal time regulated that “parents should make wills when being old…” or the law under French colony also regulated: “A person being adult or wise enough can make wills to distribute their property” Until independence time, regulation on the age of testator is well

indicated in legal documents and the same thing they share is the age for making wills

is 18 years old The author also sees the similarity between Vietnam law and law of some countries in the world in allowing individuals to make wills when reaching certain

age Article 903 of French Civil Code stipulated: “The minor under 16 years old cannot make disposition” Or article of Japanese Civil Code regulated: “Any person from exactly

15 years old can make wills Or article 467 Swiss Civil Code regulated: “Any persons having awareness capacity and from 18 years old can make wills to dispose of their

property compatible to the limits and formalities in accordance with law”

- In addition to recognizing individuals to make wills if from 18 years old, Civil Code

2015 also allows the persons between 15 and 18 years old to make wills with the consent

of parents or guardian The basis for this: (i) The age being recognized of ability for labor and having incomes; (ii) The physical, mental, capacity to control basic action like adults development; (iii) The authorization for disposition in wills therefore are meaningful

2.1.1.2 On the capacity for awareness and behavior control

With the above aspect on awareness, an individual wants to achieve his/her deep thinking when connecting interests through certain activities Or setting up interests and obligations for other subjects through distribution of their own property must go through certain periods It shows that, regarding time to human, age is a proper term to describe this Hence, making wills must always ensure the age to determine that there has been maturity in awareness From that, the implementation of certain acts on the basis of awareness shall ensure the compatibility, honesty and objectivity It shows practically that an adult is not guaranteed to have full awareness capacity and control behavior Moreover, wills are typical transaction that only come to validity after death Therefore, besides age, the testator must ensure the sound of mind, without being deceived, threatened

or coerced while making wills According to this regulation, conditions set for each person

making wills are as: First, for adults can make wills but must be sound of mind, without being deceived, threatened or coerced Second, for a person between 15 and 18 years old

The establishment of wills of this subject completely depends on the will of parents or guardians In this regulation, we can understand that the responsibility of parents, guardians

is also determined through the evaluation of the awareness capacity and behavior control of

their children Third, the person who loses civil act capacity cannot make wills, the person who is limited their civil act capacity, having difficulties in awareness and behavior control can make wills

Besides benefits for the state, testator, other heirs, the regulation on the testator also

remains some below issues: First, we haven’t stipulated in detail about the legal capacity

of the testator; Second, regulation on the consent for making wills of parents or guardians to wills of persons between 15 and 18 years old is not clear; Third, no clear regulation on the right to make wills of persons under 15 years old; Fourth, the way of

regulating the condition of being sound of mind is illogical; Fifth, the way of using terms

is incompatible leading to confusion or conflicts in implementation and application of law

2.1.2 Law regulation on the content of wills

The content of wills is understood as all articles indicating the free will of testator Hence, a lawful will must comply with law on content of wills Conditions on content of

wills are shown in two below issues:

2.1.2.1 Conditions for content of wills to be lawful

• Content does not violate prohibited provisions of law

Condition that content of wills does not violate prohibited provisions of law needs to be understood in the direction that overall articles on will of the testator does

not fall in forbidden cases listed in specific legal documents

• Content does not violate social morality

In nature, social morality is hard to determine, it does not exist as law regulations In the legal science field, there is no independence between the content of wills violate social morality and violate law regulatiosn This is explained as, law regulations of each country also reflects its the economy, politics, culture, tradition… Therefore, regulations of Vietnam mostly reflect the compatibility on social morality of Vietnamese Therefore, when declaring a will having content violating prohibited provisions of law, it also violates the social morality

2.1.2.2 Detailed content of wills

According to Article 631 Civil Code 2015, articles on content of wills could be listed as:

• Primary articles of wills

Firstly, date, month, year of making wills; secondly, name of the testator; thirdly, residence of the testator; fourthly, name of persons, organizations as heirs; fifthly, left estate and place of estate; sixthly, distribution of estate in wills

• Additional articles

Article 631.2 Civil Code 2015 stipulates: “Besides content regulated in the section 1 this article, wills may have other contents” This article shows clearly the free will of choosing

other contents of the testator

• Articles on using abbreviation words, signs, pages numbering in wills

• Content of conditional wills

On content of conditional wills, we must set following requirements for conditions

of wills: (i) No violation of prohibited provisions of law, social morality; (ii) conditions

in wills must not be confusing; (iii) conditions must be balanced between interests and

obligations for heirs More importantly, Civil Code 2015 must adjust conditional wills

to build clear legal consequences for this content

2.1.3 Law regulations on the free will in wills

Article 117.1.b Civil Code 2015 stipulates: “subjects in civil transactions must be on free will” and article 630.1.a stipulates: “the testator is sound of mind without being deceived, threatened, and coerced” According to this regulation, the free will is considered when

making wills under 2 aspects:

Firstly, wills are made in the situation of being sound of mind: In reality, an adult does

not mean they have the awareness capacity or behavior control Even when they reach certain age and have the awareness capacity or behavior control, it does not guarantee that individual is sound of mind in making wills Therefore, the law stipulates that the testator must be sound of mind

Secondly, wills must be made in true will of the testator: The unification between will

and presenting will is the typical factor consituting free will in transactions The same thing applies for making wills, the will of testator is their own wills on distribution of their estate for others after death The law respects the right for disposition of testator and ensures the implementation if truly presented

With this theory, law regulates one of conditions for making wills lawful is: The testator

is not deceived – the awareness capacity and behavior control are not intruded by intentional act of the other party or third party making the other misunderstand the subjects, context of the object of content of civil transactions to make that transaction Or not being threatened, coerced - the awareness capacity and behavior control are not intruded by intentional act of the other party or third party making the other implement a civil transaction in order to avoid damages in life, health, dignity, reputation, property of their own or relatives

2.1.4 Law regulations on formality of wills

signatures of witnesses

2.1.4.2 Written wills

• Unwitnessed written wills: Civil Code 2015 regulates that this is the type of will that the testator must write, sign on the will and content remains fully as in Article 631

• Witnessed written wills: The Civil Code 2015 recognizes the cases that an

individual who wants to use technique science software apps that does not want to write but type or does not write, type by himself/herself but ask other people to write, type then conditions are stricter In detail: in case the testator does not write the will, he or she can type or ask other people to write or type the will with at least 2 witnesses The testator must sign on the will in front of 2 witnesses; witnesses confirm signature of the testator and sign on the will The content of will must also ensure regulation in Article

631 Civil Code 2015