Will is an expression of the wishes of an individual, made in order to bequeath their property to others after their death. Therefore, prior to drafting a will, a testator should pay attention to the will’s validity to make sure after they pass away, the will’s contents will be carried out in accordance with the wish they have left behind.
The things to keep in mind before drafting a will include:
1. Rights of the testator
- Appointing heirs; depriving an heir of the right to inherit the estate.
- Determining those parts of the estate to which each heir is entitled.
- Reserving part of the estate as a gift or for worship purposes.
- Designating heirs to perform obligations.
- Appointing a custodian of the will, an administrator of the estate, a distributor of the estate.
2. Contents of the will
Wills made in written forms shall include the following main contents:
a) The date on which the will is made;
b) The full name and place of residence of the testator;
c) The full names of the persons and the agencies or organizations entitled to inherit the estate;
d) The estate to be bequeathed and its location.
Apart from the contents above, a will may include other contents.
A will shall not be written using abbreviations or other symbols, if a will consists of several pages, each page must be numbered and bear the signature or fingerprint of the testator.
Where a will is erased or altered, the person writing the will by his or her own hand or the witness to the will must sign his or her name beside the erased or altered item.
Drafting a will may seem easy but executing it may be challeging if the will does not clearly state the aforementioned contents. For example, if a will does not specify the estate to be bequeathed, the persons whose names are stated in that will may have a hard time applying it, which may lead to future conflicts and disputes.
That is why the testator should clearly specify the information of each type of estate and the persons entitled to inherit the estate. This is particularly important for people who possess a huge amount of property including registered real estate, unregistered real estate and movable property.
3. Form of the will
A will must be made in writing; if it is impossible to be made in writing, it may be made orally.
a. Written wills comprise:
- Unwitnessed written wills.
- Witnessed written wills.
- Written wills that are notarized.
- Written wills that are certified.
b. Oral wills:
- Where a person is likely to die and it is not possible for them to make a written will, such person may make an oral will.
- If the testator is alive and is of sound mind 03 months after he or she has made an oral will, such will shall automatically become invalid.
- An oral will shall be deemed lawful only if the testator orally expresses his or her last wishes before at least two witnesses who recorded those wishes in writing and signed or fingerprinted the document immediately after the testator orally expressed his or her last wishes. Such will must be certified by a notary public officer or an authorized agency, verifying signatures or fingerprints of the witnesses within 05 working days after the date on which the testator orally expressed his or her last wishes.
4. Validity of the will
A will shall become effective from the time of commencement of the inheritance – meaning the time the testator passes away. However, all or part of the will shall be ineffective in any of the following cases:
a. An heir under the will dies prior to or at the same time as the testator;
b. An agency or organization named as an heir no longer exists at the time of commencement of the inheritance.
c. The estate left to the heirs no longer exists at the time of commencement of the inheritance; if only part of the estate left to the heirs remains, only the part of the will relating to such part of the estate shall be effective.
Where one person leaves behind more than one will with respect to certain property, only the most recent of such wills shall be effective. However, if a person leaves behind several wills with respect to several properties, all those wills shall be effective.
Parts of the estate belonging to an ineffective part of a will or a wholly ineffective will shall be subject to inheritance at law.
Moreover, the following persons would still inherit two-thirds of the share of an heir at law if the estate is distributed according to the law in case the testator does not grant them an inheritance or grants them an inheritance less than two-thirds of such a share:
a) Children who are minors, father, mother, wife or husband of the testator;
b) Children who are adults but are incapable of working.
Hereinbefore are some fundamental points a testator should take into consideration and firmly grasp to avoid scenarios where the estate is not distributed in accordance with the testator’s wishes after the testator passes away.
Disclaimer: This article is for general information only and is not a substitute for legal advice. Apolat Legal is a Vietnamese law firm with experience and capacity to advise on matters related to Legal Retainer. Please click here to learn more about our services and contact our lawyers in Vietnam for advice via email info@apolatlegal.com.
