Heirs notwithstanding the contents of will

Vietnamese law allows individuals to make a will to dispose of their property with the aim of transferring the property to another person after death. Through a will, the testator can appoint heirs, disqualify heirs from inheritance and determine those parts of the estate to which each heir is entitled. Making a will is a basic right of property owners protected by the law. The law always respects the testator’s will if it is in accordance with the laws. However, in not all cases, the entire content of the will is also fully complied with. One of the exceptions is the distribution of an estate among the heirs notwithstanding the contents of will. 

1. Legal frameworks of heirs notwithstanding the contents of will 

Heirs notwithstanding the contents of will are understood as those who are always entitled to inherit a part of the deceased’s estate, regardless of whether the deceased appoints them to inherit under the will. Heirs notwithstanding the contents of will were first officially prescribed in Circular No. 81/TANDTC dated July 24th, 1981, of the Supreme People’s Court on guiding the resolution of inheritance disputes. Accordingly, regarding the term “mandatory heirs”, the Circular stipulated that the testator must leave a part of the property to the mandatory heirs (if any), including his/her widow or widower, children who are minors, children who are adults but being incapable of working, weak and needy parents. The part of the estate that must be left to each heir is required to be at least two-thirds of the share that person would have received if the estate had been distributed according to law. If the will deprives the mandatory heirs’ right of inheritance or the remaining part for each mandatory heir is less than two-thirds of the share, such person shall be entitled to a share of the estate equivalent to two-thirds of the share. After making distributions to the mandatory heirs, the Court still follows the will to distribute the remaining inheritance to the heirs appointed in the will according to their distribution ratio.¹ When the Ordinance on Inheritance was issued in 1990, the term “mandatory heirs” was replaced by “heirs notwithstanding the contents of will”. 

Until the first Civil Code of Vietnam appeared in 1995, the term “heirs notwithstanding the contents of will” was first regulated and remained unchanged through Civil Code 2005 and Civil Code 2015.² According to Article 644 of Civil Code 2015, heirs notwithstanding the contents of will include children who are minors, children who are adult incapable of working, father, mother, wife or husband of the testator in case a testator does not grant any of the following persons an inheritance, or grants any such person an inheritance which is less than two-thirds of the inheritor’s share, except they disclaim an inheritance as prescribed in Article 620 of Civil Code 2015 or they are not entitled to inherit the estate as specified in Clause 1, Article 621 of Civil Code 2015. Heirs notwithstanding the contents of will shall be entitled to a share of the estate equivalent to two-thirds of the share that they would have received if the estate had been distributed in accordance with the law. 

The law regulates heirs notwithstanding the contents of will to protect the interests of the subjects who are the father, mother of the testator, the wife or husband of the testator, the children of the testator that are minors or adults who are incapable of working. The reason is that these have the closest relationship to the deceased. The deceased is inherently obliged to care for and nurture these people, but they cannot continue to perform their obligations after death. As a result, according to the law’s requirements, individuals who are this person’s close relatives will always be entitled to receive a part of the deceased’s estate.³ 

2. Determination of heirs notwithstanding the contents of will 

When conducting a declaration of inheritance or division of inheritance, it is necessary to simultaneously ensure the interests of the heirs under wills and the heirs notwithstanding the contents of will. Therefore, determining the exact heirs notwithstanding the contents of will is extremely important. The determination of heirs notwithstanding the contents of will be as follows: 

• For the father and mother of the deceased, Civil Code 2015 does not distinguish between the biological and adoptive parents of the deceased. Therefore, both the deceased’s biological parents and adoptive parents are entitled to inherit regardless of the will’s contents. Similarly, both biological and adopted children have this right. 
• Minor child is understood as a person under eighteen under Article 21 of Civil Code 2015. An adult has full legal capacity, except for those with legally incapacitated or limited cognition and behavior control, as prescribed in Articles 22, 23 and 24 of Civil Code 2015. 
• For an adult child who is unable to work: The determination of “unable to work” inherently depends on the viewpoint of the competent agencies or organizations to declare or divide the inheritance as the current Vietnamese law does not give specific regulations about “unable to work”. However, to assess the working ability of minor children, the evaluators can refer to Resolution No. 03/2006/NQ-HDTP dated July 8th, 2006, of the Judges’ Council of the Supreme People’s Court guiding the application of some provisions of Civil Code 2005 on extra-contractual damage compensation. 

Accordingly, when stipulating damage compensation in the case of “losing working capacity”, the Resolution has determined that a person losing working capacity is the victim losing their working capacity and having regular caretakers (due to myeloplegia, total blindness, paraplegia, severe mental illness, and other cases of permanent working capacity reduction of 81% or more as provided for by competent state bodies). Therefore, adults, who often need to be cared for by someone and belong to the cases listed in Resolution No. 03/2006 above, can be determined that they are “unable to work”.⁴ However, Resolution No. 03/2006 has expired since January 1st, 2023 and Resolution No. 02/2022/NQ-HDTP dated September 6th, 2022, of the Judges’ Council of the Supreme People’s Court replacing Resolution No. Decision 03/2006 does not stipulate this issue. Therefore, the determination of an adult child who is “unable to work” once again depends on the careful, comprehensive, and objective opinion and assessment of the agencies or organizations with authority to declare or divide the inheritance. 

• Finally, to be determined as an heir notwithstanding the contents of will, a spouse must be a legal spouse in accordance with the law on marriage and family.⁵

From the above knowledge of the heirs notwithstanding the contents of will, the subjects must carefully consider the existence of heirs notwithstanding the contents of will when conducting declarations or division of the inheritance to perform correctly, ensure the legal rights for all heirs and avoid potential risks. 

¹ Section IV.B of Circular guiding the settlement of inheritance disputes No. 81/TANDTC dated July 24th, 1981 of the Supreme People’s Court.

² Article 672 of Civil Code 1995; Article 669 of Civil Code 2005; Article 644 of Civil Code 2015

³ Vu Thi Lan Huong, The relationship between inheritance notwithstanding the contents of the will and the inheritance under the will, Journal of Legislative Research No. 10 (171), May 2010.

⁴ Nguyen Nam Hung, Understanding what is “an adult child without working capacity”?, Electronic Journal of Procuracy, 2018

⁵ Phan Thi Hong, The right to inherit the estate of the heir does not depend on the content of the will through trial practice at the Court, the Journal of Democracy and Law.

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