Is inheritance by substitution applicable in cases where the children of the decedent are not entitled to inherit?

Inheritance refers to the transfer of property from the decedent to the survivors according to the will or applicable legal provisions. Inheritance by substitution is a specific form of inheritance that arises under statutory inheritance laws. In practice, issues related to inheritance can be complex and often lead to disputes among parties. A current debate in the realm of inheritance by substitution concerns whether this determination applies in cases where the children of the deceased are not entitled to inherit.

1. Inheritance by substitution under Civil Code 2015

Article 652 of Civil Code 2015 regulates inheritance by substitution as follows:

“In case the children of the decedent passes away before or at the same time as the decedent, the grandchildren will enjoy the portion of the inheritance that the their father or mother would enjoy if still alive; If the grandchildren also passed away before or at the same time as the decedent, the great-grandchildren will enjoy the portion of the estate that their father or mother would enjoy if still alive”

According to this regulation, inheritance by substitution is understood as the fact that a child (grandchild or great-grandchild) takes the place of the parent (grandparent) to enjoy the inheritance left by the grandparent (or great-grandparent) if the parent died before or at the same time as the grandparent (or great-grandparent). Substitute heirs are entitled to the inheritance that their parents (grandparents) would have enjoyed if they were still alive. More generally, inheritance by substitution can be understood as a special case of inheritance, arising when the person in the next line of inheritance (substitute heirs) replaces the position of the person in the previous line of inheritance (the substituted person) and enjoys the portion of the inheritance that the substituted person would have enjoyed if still alive.(1)

Inheritance by substitution arises on the basis of legal inheritance and not on the basis of testamentary inheritance. As according to Point a, Clause 2, Article 643 of Civil Code 2015, a will is not effective in case the heir under the will dies before or at the same time as the testator. Therefore, Point c, Clause 1, Article 650 of Civil Code 2015 stipulates that legal inheritance applies in cases where the heirs under the will die before or at the same time as the testator.

Regarding the subjects of inheritance by substitution, according to Articles 653 and 654 of Civil Code 2015, inheritance by substitution also applies to cases between adopted children and adoptive fathers and adoptive mothers; stepchildren and stepfather, stepmother if they have a relationship of caring and nurturing each other like father, child, mother.

Regarding the conditions for inheritance by substitution, based on Article 652 and the inheritance regulations of Civil Code 2015, inheritance by substitution is applied if the following conditions are fully met:

• Firstly, the child of the decedent died before or at the same time as the decedent (in the case of a grandchild’s inheritance by substitution); or the grandchild also died before or at the same time as the decedent (in the case of a great-grandchild’s inheritance by substitution).

• Secondly, the father or mother of the substitute heir must have the right to enjoy the estate of the decedent if still alive.

• Next, the successor heir must be alive at the time of the death of the decedent or be born and alive after the time of opening the inheritance but conceived before the death of the decedent.

• Lastly, the successor heir must not be ineligible to inherit as prescribed in Article 621 of Civil Code 2015.

2. Is inheritance by substitution applicable in cases where the children of the decedent are not entitled to inherit?

In practice, there are cases where the child of the decedent violates the provisions of Clause 1, Article 621 of Civil Code 2015 (cases in which the child is not entitled to the inheritance), but this child died before or at the same time as the decedent. In such cases, the question arises whether the children of this child are entitled to inherit the estate left by their grandparents, assuming these children meet the conditions of inheritance by substitution?

The Supreme People’s Court has addressed this issue in Official Dispatch No. 64/TANDTC-PC dated April 3, 2019 (subsection 4, Section II). Accordingly, the Court has clarified that not every child who dies before the decedent will be entitled to inheritance by substitution. The right to inheritance by substitution is defined as “the portion of the estate that the child’s father or mother would enjoy if they were still alive”. In cases where a person is not entitled to inherit as prescribed in Clause 1, Article 621 of Civil Code 2015, such as being convicted of serious abuse of the father, that person will not be entitled to inherit from their father. Consequently, if they were alive when their father died, they would not be entitled to inheritance, and thus, there is no “the portion would be enjoyed if still alive” for another person to inherit by substitution.

However, many researchers believe that the above view is unreasonable because grandchildren and great-grandchildren (substitute heirs) are not at fault for their parents (substituted person) violating the obligations under Clause 1, Article 621 of Civil Code 2015.(2) Anyone who commits an illegal act must bear the responsibility prescribed by law for that act, so the grandchildren or great-grandchildren of the decedent should not bear the responsibility caused by the actions of their father or mother. The right of grandchildren or great-grandchildren to inherit cannot be taken away by law when the responsibilities between parents and children are entirely exclusive and unrelated to each other.(3) This viewpoint is considered consistent with the fine customs and traditions of Vietnam and with international practices observed in countries such as France, Thailand, and Japan, where grandchildren and great-grandchildren are allowed to inherit in place of their grandparents or great-grandparents, even if their parents are disqualified from inheriting.

In summary, inheritance by substitution is a special mechanism designed to protect the rights of the closest relatives of the decedent, namely grandchildren and great-grandchildren, in cases where their parents died before or at the same time as decedent. The question of whether to allow grandchildren or great-grandchildren to inherit when the child of the decedent would have been disqualified from inheriting, as prescribed in Clause 1, Article 621 of Civil Code 2015, may warrant reconsideration by lawmakers in the near future. However, under the current legal framework, it should be noted that the view that grandchildren or great-grandchildren are not entitled to inherit in such cases is being applied in practice.

(1) Nguyen Viet Giang, Discussing subjects of inheritance bysubstitution under Civil Code 2015, Supreme People’s Court,//www.toaan.gov.vn/webcenter/portal/anle/chitietnghiencuu?dDocName=TAND198946.

(2)Nguyen Viet Giang (2017), Inheritance bysubstitution under Civil Code 2015, Law Profession Journal, No. 5, 2017; Le Van Thanh (2023), Inheritance bysubstitution under Civil Code 2015, Vietnam Lawyers Electronic Journal,//lsvn.vn/thua-ke-the-vi-theo-quy-dinh-cua-bo-luat-dan-su-nam-2015-1674493623.html; Pham Nguyen Kim Long (2020), Inheritance by sustitution under Vietnamese civil law, Master’s thesis in law, University of Economics and Law, Ho Chi Minh City National University, 2020.

(3)Nguyen Viet Giang (2017), Inheritance bysubstitution under Civil Code 2015, Law Profession Journal, No. 5,2017.

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