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

MINISTRY OF EDUCATION & TRAINING MINISTRY OF JUSTICE 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 Adviors/Supervisors: Assoc.Prof: Pham Van Tuyet PhD: Hoang Thi Thuy Hang Critique 1: Assoc.Prof Nguyen Thi Que Anh Critique 2: Assoc.Prof Phan Huu Thu Critique 3: PhD Dinh Trung Tung 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: National Library Hanoi Law University Library PREFACE 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 di chúc theo quy định pháp luật dân Việt Nam” 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) 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 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 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 chapters: Chapter Theoretical issues on validity conditions of wills Chapter The context of current law regulations on validity conditions of wills Chapter 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 not ensure the depth regarding commenting, researching law regulations and solutions, in detail: • Theoritical aspect: - On the nature of validity conditions of wills Về chất điều kiện có hiệu lực di chúc: No research works have mentioned yet - On the concept and features of validity conditions of wills: Về khái niệm đặc điểm điều kiện có hiệu lực di chúc: Some works present concept but not indicate separate features of validity conditions of wills such as: Master thesis of Trịnh Hữu Toản, or master thesis of Lương Thị Hợp… - 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 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 Phùng Trung Tâ ̣p 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 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 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 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 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 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 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 11 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 2.1.4.1 Oral wills Oral wills are understood as the presentation of personal will through verbal sound According to Article 629 Civil Code 2015, an individual making oral wills must meet following conditions: First, being on the verge of death and cannot make written wills; Second, after months, since making oral wills, the testator remains sound of mind, oral wills shall be terminated Third, oral testator must be of above 18 years old Besides, lawful oral wills must meet below requirements: (i) oral testator must show last will in front of at least witnesses; (ii) witnesses must write, sign together right after the last will; (iii) within working days, since the last will, wills must be certified with 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 witnesses The testator must sign on the will in front of 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 12 • Notarized/certified written wills Notarization or certification belongs to the free will of the testator This is the type of will made by notarizer or certifier In addition, Civil Code 2015 also regulates the type of will having the same value as notarized/certified wills in Article 638: Wills of military members certified by the leader if the member cannot as for notarization or certification Wills made by persons on planes, ships certified by the leader of those means of transport Besides mentioned strong points, regulation on formality of wills remain a number of drawbacks: • For oral wills: First, after months, since the establishment of oral wills that the testator remains alive, sound of mind then the will shall terminate automatically Secondly, conditions for oral wills to be lawful are unconvincing In detail: Conditions on witnesses, writing, signing and notarization/certification of signatures are unapporopriate to the reality • For written wills: First, we lack of the type of wills in the list In detail: We lack of the type of wills having the same value as being notarized/certified and wills made by Bailiff office Second, unwitnessed written wills which must comply with Article 631 are too stiff Third, regulation on witnessed written wills are unclear, confusing in application, enforcement Fourth, there are remaining improper issues on the procedure of wills made by notarizer or certifier Fifth, we lack the basis for recognition of wills having the same value as wills being notarized or certified Sixth, the stiffness when it comes to regulation of abbreviation or symbols in wills 2.2 Conditions for wills to come to legal validity 2.2.1 Law regulation on dead testator This is the time of establishing the inheritance relation in general and validity of wills in particular 2.2.1.1 For wills made by an individual This is the type of transaction completely made based on the unilateral will of an individual in order to distribute their property to others after death According to Article 611 and Article 71.2 Civil Code 2015, the time that a will comes to legal validity is determined under circumstances: First, the time that the owner of property dies – the natural death; Second, the time the Court declares that a person is dead 2.2.1.2 For joint wills Joint wills are understood as wills made by at least persons to present the joint will, together distribute their properties to others after death Civil Code 2015 has removed the content of joint wills of husbands and wives However, it does not mean the forbidding of the joint wills If joint wills exist in reality, the validity of this type of will shall be determined under circumstances: (i) Within persons making joint wills, 13 if a person dies before the others, the content of wills distributing property of dead person shall come to validity at their death; (ii) When all person die together, all the wills shall come to validity 2.2.2 Law regulation on heirs by wills remain alive, existing at the time of opening inheritance This is one of conditions affecting the recognition of validity of wills Heirs are understood as subjects of legal relations on inheritance, they are determined to enjoy inheritance in wills or by law Wills are the presentation of free will in order to transfer property to others after death Therefore, the scope of heirs in wills could be either individual or non-individual Detailed conditions are: For individuals enjoying estate in wills: Must be alive since the opening time of inheritance; not refuse the estate; are not removed the right of receiving estate; for organizations, agencies receiving estate in wills: Must exist at the opening time of inheritance Besides achieved points, this regulation remains some issues: First, no clear regulation on the condition that an individual must be born and alive after time of inheritance opening Second, we lack the unification in recognition of subjects enjoying estate not as individual (law regulation as organizations, agencies or non-individual) Third, we have no clear regulation to solve the legal consequences for circumstances of re-organization, dissolution, bankruptcy of legal persons Fourth, we lack of regulation on the right to refuse and remove the inheritance right to non-individuals 2.2.3 Law regulations on inheritance estate distributed in wills still remain at the time of inheritance opening For estate distributed in wills, Article 643.5 the Civil Code 2015 clearly regulates on the validity of wills as below: “Where a person leaves behind more than one will with respect to certain property, only the most recent of such wills shall be legally effective” According to this regulation, conditions set for estate distributed in wills must exist at the time of inheritance opening which shall create the legal validity of wills The term “non-existent” is understood as non-appearance It means that the property could fall into context as: Completion of consuming, destroying, being transferred to others or being another form of property… If the property at the time of making wills exists but falls into above context at the time of testator dead, the validity of wills or related part of will shall lose the validity Hence, to ensure wills to come to legal validity, one of conditions being considered is that estate must exist at the time of inheritance opening The foundation to determine inheritance estate: (i) must be property; (ii) must be of that individual’s ownership till their death For requirements on the existence of law to inheritance estate distributed in wills, the author sees that there is no law regulation on the change of status of estates distributed in wills This might lead to issues when applying in reality activities 2.3 Conditions for wills to be implemented 14 2.3.1 Law regulations on conditions regarding heirs in wills Article 650.2.c of Civil Code 2015 regulates: “Parts of an estate related to heirs under the will not having the right to inherit, having disclaimed the right to inherit, or having died prior to or at the same time as the testator dying; and parts of an estate related to bodies or organizations entitled to inherit under the will but no longer existing at the time of commencement of the inheritance” According to this regulation, in order for wills to be implemented, heirs by wills must: 2.3.1.1 Heirs by wills must be alive, existent at the opening of inheritance Condition on heirs belongs to group of conditions for wills to come to legal validity and group of conditions for wills to be implemented As analyzed, for wills to come to legal validity, heirs by wills must be alive, existent at the time of inheritance opening This is also the condition for wills to be implemented as Article 650.1.c Civil Code 2015 lists cases of inheritance division by law as: “All heirs under the will died prior to or at the same time as the testator dying, or the bodies or organizations which are entitled to inherit under the will no longer exist at the time of commencement of the inheritance” 2.3.1.2 Heirs who cannot refuse the right of estate inheritance Article 650.1.d Civil Code 2015 regulates one of circumstance to divide inheritance by law to be applied when: “The persons appointed as heirs under the will not have the right to inherit or disclaimed the right to inherit” Heirs by wills but later refuse inheritance estate, this part shall be divided by law Receiving or refusing depends on the heirs Therefore, this part being refused shall not come to legal validity 2.3.1.3 Heirs whose inheritance estate right is not removed These are cases that heirs by law falling into circumstances in Article 621.1 Civil Code 2015 being removed the inheritance estate right by law Therefore, according to Article 650.1.d Civil Code 2015, the will part regarding shall not come to legal validity 2.3.2 Law regulations on conditions regarding estates distributed in wills Law regulations have indicated that in order for wills to come to legal validity, estate distributed in wills must exist at the the opening time of inheritance Article 643.3 Civil Code 2015 regulates: “A will shall not be legally effective if 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 that part of the will which relates to such part of the estate shall be legally effective” Article 650.2.b Civil Code 2015 regulates: “Parts of an estate related to an ineffective part of the will” which shall be distributed by law Therefore, lawful wills, dead testator does not ensure the value of validity implementation if estate distributed in wills does not not exist at the opening time of inheritance 2.3.3 Law regulations on wills As mentioned, conditions for wills to come to legal validity are requirement that a will must meet if being lawful, and practical requirements that when meeting shall leat to the 15 implementation of wills Hence, when mentioning conditions for wills to be implemented, we not only discuss conditions for wills to be lawful but also requirements for wills to be implemented realistically In practice, there have been cases that a will exists, wills meeting conditions to be lawful, come to legal validity but cannot determine rights, obligations in that inheritance relation That reason might derive from different causes, in detail: 2.3.3.1 Unlost, undamaged wills Being lost means that not being found, determined to be anywhere in a certain time Being damaged means that being destroyed, values cannot be remained as previously Artile 642.1 Civil Code 2015 regulates: “If, from the commencement of the inheritance, the will is lost or damaged to the extent that it is incapable of indicating clearly the wishes of the testator and there is no evidence of the true wishes of the testator, it shall be deemed that no will exists and inheritance at law shall apply” According to this regulation, a will might be made lawfully, meeting all conditions to come to legal validity but cannot be found at the opening time of inheritance, being damaged, destroyed that cannot determine the content, free will of the testator, then it is considered no will It means the content of will cannot be implemented As implementation validity of wills are affected when wills are lost, damaged so when researching law regulations on this issue, the author realizes that the problem of management, keeping wills is essential The reality shows that will manager, keeper really plays an important role, in many cases, their mentality, attitude directly has an impact on rights and interests of heirs However, Vietnam law almost does not recognize the legal consequences of keeping wills This is a problem that requires amendment and supplementation 2.3.3.2 Wills with clear content Regarding this issue, the Civil Code throughout periods of Vietnam all recognize the rule on explanantion of content of transactions in general and wills in particular This is considered when: The case that wills content are unclear leading to different understanding, heirs by wills must together make explanation of will content based on previous true will of dead people, considering relations of the death and heirs by wills When these people not reach an agreement on wills content understanding, they reserve the right to require the Court for resolution With this regulation, wills shall no not be implemented when the content is unexplainable To summarize, validity conditions of wills are always seen as law requirement throughout the time since an individual makes a will, dies and wills are implemented practically The law sets a lawful request for wills at the time of establishment, coming to legal validity at the time of death and coming to implementation at the time of estate distribution in wills In each stage, there are groups of compatible and suitable conditions to guarantee validity conditions of wills 16 CONCLUSION OF CHAPTER In this chapter, the dissertation focuses on the context of current law regulations on validity conditions of wills The author divides them into basic condition groups: First, conditions for wills to be lawful; Second, conditions for wills to come to legal validity; Third, conditions for wills to be implemented For each condition, the author indicates: (i) Current law regulations; (ii) The difference of current law regulations to previos stages; (iii) The similarities or differences to law regulations of some countries in the world; (iv) Evaluation of remaining strong points and drawbacks to law regulations on each condition Chapter PRACTICAL APPLICATION AND PETITIONS FOR COMPLETION OF LAW REGULATIONS ON VALIDITY CONDITIONS OF WILLS 3.1 Practical application of law regulations on validity conditions of wills 3.1.1 Practical application of law regulations on conditions for wills to be lawful 3.1.1.1 Practical application of law regulations on the testator The author analyzes, comments on 05 cases, including: 02 typical cases on the testator being unsound of mind and unconvincing proof; 03 cases violation of legal capacity of testator Througt 04 cases, the author concludes: First, the opinion of judges 17 vary when applying the same decision This comes from a reason: law regulations on age, awereness capacity and behavior control in general and the condition to be sound of mind in particular of the testator are too general from: (i) the time of confirmation of the awareness capacity, behavior control, being sound of mind is unclear; (ii) agencies confirming the status of being sound of mind of the testator are unconvincing; (iii) foundation for declaration of termination of wills made by person being unsound of mind is not persuasive… Second, law regulations remain problematic in lack of legal capacity of the testator and legal consequences if violating this condition 3.1.1.2 Practical application of law regulations on the content of wills First, the content of wills violate the prohibited provisions of law, social ethics: No practical cases on this issue as the regulation of the Civil Code 2015 on wills content must not violate prohibited provisions of law, social ethics is new to previous documents Besides, other laws when regulating the prohibited acts have recognized the respective consequences Second, regarding articles of wills: The author presents 02 cases of description of one unclear article of wills But through levels of judgement, different Courts have different outcomes For this issue, the author supposes that the Civil Code 2015 has transferred the regulation on articles of wills from being compulsory to being optional Courts reserve the right to flexibly make judgement when there are disputes on this article in the direction of wills’ content if being unclear 3.1.1.3 Practical application of law regulations on the free will in wills The author presents 01 case of description of wills made under threaten and 01 case of counterfeit will, leading to conclusion: (i) Regulation on persons with physical limitation is unclear resulting in confusion in application for dispute resolution if any; (ii) The declaration of a will to be counterfeit is not too difficult for the Court when applying expert assessment for doubtful issues 3.1.1.4 Practical application of law regulations on formality of wills The author presents some cases as below: First, on some typical forms of wills The author presents 01 case of description of the content of wills lacking signatures in every page, typed wills, unwitnessed wills and 01 case of description of asking another person to make wills Through theses cases, the author realizes: (i) the awareness of persons applying law regulations on this issue remains limited; (ii) case record remain simple leading to controversial verdict; (iii) people working in competent authorities remain irresponsibile in application of law regulations… Second, on precedures to makes wills in competent agencies The author presents 01 case of description of content of wills written and certified in two different times, 01 case of relatives of testator contacting People’s Committee ward 18 level for asking of certification of wills Through these cases, the author realizes: The process of making wills and asking for certification remain problematic The cause of this issue is: (i) Insufficient law regulations; (ii) The lack of responsibility in the relation of ward level authorities and people; (iii) The awareness in law of persons applying law remains limited 3.1.2 The reality of application of law regulations on conditions for wills to come to legal validity The author presents 01 case of description of determination of death time of an individual, 01 case of description of death declared by the Court without the precision in the determination, 01 case of description of determination of validity time of joint wills made by husbands and wives Through those cases, the author sees that: (i) The determination of death time of an individual is flexible but improper in application of the Court This might lead to serious issues to rights and interests of subjects in inheritance relations when determining the time of validity of wills; (ii) the law application for dispute resolution on inheritance must comply with the Law on issuance of legal documents, therefore disputes related to former regulation such as joint wills of husbands and wives might exist The awareness on application of documents and respective content regulation remains important and essential 3.1.3 The reality of application of law regulations on conditions for wills to be implemented 3.1.3.1 On inheritance estate determined in wills The author presents 01 case of description of dispute on inheritance estate determined as non-existent at the opening of inheritance and 01 case of description of dispute on inheritance estate being replaced by other properties Thus, the author has some ideas: (i) law has no regulation for explanation of the term “non-existent” leading to improper application of determination of estate for every circumstance; (ii) the lack of regulation of resolution of the consequence that an esate transfers to another form, resulting in the problematic application of dispute resolution of the Court 3.1.3.2 On heirs in wills The author presents 01 case of description of heirs in wills but dying before the testator and 01 case of description of refusal of inheritance refusal The author sees that the application of determination of heirs enjoying estate but dying before the testator remains problematic But there are issues on refusal of receiving estate: First, we need to pay attention to the application of respective legal documents because the regulation to determine the validity of refusal of estate has some differences; Second, we need to avoid confusion in the understanding of refusing inheritance estate and transference of the right of enjoying esate 3.1.3.3 On wills 19 The author presents 01 case of description of lost, damaged will, 01 case of description of content explanation of wills and 01 case of description of subject explaning wills Through those 03 cases, we can see that wills being lost, damaged or having unclear content leading to losing the validity However, law regulations on lost, damaged wills or wills explanation are unclear This results in mistakes in law application in reality This requires amendment for further completion Overall, the reality of application of law on validity conditions of wills remain following issues: First, there still lacks unification in visions and problem-solving skill of judges to cases with similar details; Second, professional activities coming from procedures regarding process of making wills, dispute resolution is not complete; Third, the flexibility in law application for dispute resolution is not convincing However, they all come from the main reason is that our law regulations reamin lacks, incompatible, unclear, conflicting… Therefore, the supplementation and amendment of law on validity conditions of wills shall fix the above situation 3.2 Some petitions for completion of law on validity conditions of wills 3.2.1 Some petitions for completion of law on conditions for wills to be lawful 3.2.1.1 Some petitions for completion of law on testator First, for minor evaluation and petitions, the author suggests: (i) Regulation on testator Điều The testator A person from above 18 years old without losing civil act capacity has the right to make wills to distribute their property A person between 15 and 18 years old can make wills, with the consent of parents or guardians A person under 15 years old cannot make wills (ii) Regulation on lawfulness of testator - “The testator is sound of mind while making wills; implements the right of making wills within law limitations; not being deceived, threatened” - A will made by a person between fifteen and eighteen years of age must be made in writing and with the writing consent of the parents or guardian of such person In the case that the testator only has mother or father at the time of making wills, only writing consent from father or mother is required but the other person is not supposed to know that making wills is not their faults A will made by a person who is incapacitated or illiterate must be made in writing by a witness and must be notarized or certified” Second, re-regulation of setting the condition of being sound of mmind to the testator to ensure this condition must be applicable for all subjects making wills 3.2.1.2 Some petitions for completion of law on content of wills 20 First, on the content of wills The author suggests to fix this article as below: Article … Content of wills Content of wills are completely made by testator The date on which the will is made; the full name and place of residence of the testator; the full names of the persons and the bodies or organizations entitled to inherit the estate Apart from the contents prescribed, the will may have other contents A will may 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 has erasure or correction, the testator or the testament witness must sign beside erasing and corrected place Second, on conditional content wills Civil Code 2015 should regulate as below: “The testator has the right to make conditions in wills when they not violate prohibited provisions of law, social morality When heirs by will have received the state but violate obligations according to conditions in wills, this person must reimburse the estate to other heirs after deduction of expenses to increase the value of estate, reasonable expenses to implement obligations in wills In case heirs by wills not receive the estate yet but violate obligations according to conditions in wills, this person is entitled to require other heirs to pay for reasonable expenses to conduct obligations from wills In case heirs by wills die before completing conditions, the content related to that part shall not come to legal validity, the expenses shall be reimbursed from inheritance estate (if any) and become estate of this person” 3.2.1.3 Some petitions for completion of law on free will in wills First, we need to regulate clearly on unlawful wills made through deception, threatening Second, we need to change regulation on the type of wills made through deception, threatening in a less stiff way, in detail: “Wills made through deception is unlawful, but if we have basis to determine that the testator knows about the deception and still keeps the content of the wills, they shall be lawful” And “wills made through threatening is unlawful, but if we have basis to determine that the testator is no longer under the threatening still keeps the content of the wills, they shall be lawful” 3.2.1.4 Some petitions for completion of law on formality of wills • For oral wills First, on the period of time for termination of oral wills after making In detail: Solution 1: “After making oral wills, the testator remains alive, sound of mind and has the capacity and time for making written wills, then the oral one is terminated” Solution 2: Removing Article 629.2 Civil Code 2015 Second, conditions for oral wills to be lawful In detail: “Oral wills are only lawful if 21 testator presents their last will in front of at least witnesses and right after the last will, witnesses shall write and confirm personal information and sign Within working days, since the last will, witnesses must have wills certified for personal information and signatures” • For written wills First, supplementing written wills having the same validity as notarized, certified Second, unwitnessed written wills Fixed as: “Making unwitnessed written wills is only lawful if meeting all conditions in Article 630.1 this Code” Third, witnessed written wills Fixed as “In case the testator does not write the will on his/her own, he/she can type or ask another person to write or type the will with at least two witnesses at that moment The testator must sign on the will in front of witnesses; witnesses confirm the signatures of the testator and sign together in the will at the time of finishing of witnessing” Fourth, wills made by notarizer, competent certifier Article 636.2 Civil Code 2015 needs to supplement: “In case the testator is unable to read or hear the will, sign, there must be a witness and this person must sign, confirm the situation of the testator in front of notarizer or competent certifier of ward’s people’s committee Notarizer or competent certifier of ward’s people’s committee certifies the will in front of the testator and witness” Fifth, abbreviation, signs, making page numbers in wills - Solution Content of wills could be abbreviated or made by signs but must be explained, except for popular abbreviation or signs If wills have a number of pages, each page must have an order number with signature of testator or the last page must be confirmed by testator that how many pages, copies wills have and where they are stored - Solution No regulation in abbreviation and signs in wills If they appear in wills that cause confusion, they should be turned to the section of wills explanation If unexplainable, we declare content regarding abbreviation and signs void Sixth, for written wills having the same value as notarized or certified The author suggests that this article should only remain the fifthe section 2.2.2 Some petitions for completion of law regulations on conditions for wills to come to legal validity First, the issue of law application to determine the validity of wills at the time of transference of the Civil Code 2005 and 2015 To ensure the compatibility, the author suggests the supplement and completion of the stipulation on validity of wills in general, joint wills in particular as below: “In case the date written in wills before 01/01/2017 but the testator remains living after this time despite knowing or being supposed to know that the content of wills have been governed differently by law does not change, those 22 wills shall comply with the Civil Code 2015” Second, the issue of law application in judgment activity We need to reach an agreement in determining the time of death of individuals 3.2.3 Some petitions for completion of law on conditions for wills to be implemented First, on method of recognition of conditions for wills to be imnplemented To ensure the comnpatibility and cover all cases causing loss of validity of wills, we should list them all in one article Second, we need to agree on mentioning the subject as heirs in wills Third, we need to supplement some related terms to avoid misunderstanding With above analysis, due to the unclear regulations of law, many people are confused with two types of rights of heirs: (i) refusal the right to enjoy inheritance estate and (ii) transference of right to enjoy inheritance estate Fourth, the recognition of change of status of estate in wills The author has constructed a new article as below: “In case the estate written in wills not exist as repleaced by other estates made by the testator, that estate shall not come to legal validity In case the estate written in wills not exist as destructed, lost by other people but yet to be compensated, the part of wills regarding the estate shall be replaced by the compensation equivalent to the estate that the heirs enjoy” Fifth, we need to supplement the regulation on the heirs in wills but their inheritance right are removed later Sixth, changing the regulation on management of wills Seventh, changing the regulation on wills explanantion CONCLUSION OF CHAPTER In this chapter, the author stated 13 typical cases for application of law on lawful conditions of wills and 10 cases on conditions for wills to come to legal validity and come to implementation Thus, there comes issues, limitations during the law application and disputes resolution process of the Court and other competent agencies By researching the situation of law regulations, practical application, the Author presents petitions for completion of law on validity conditions of wills 23 GENERAL CONCLUSION By researching systems of legal opinions from scientists and analyzing different aspects, law of different periods of time, the author has indicated theoretical issues on validity conditions of wills including: Wills, validity conditions of wills, groups of conditions constituting the validity conditions of wills, scientific foundation for validity conditions of wills By researching the situation of law regulations on validity conditions of wills, the dissertation has mentioned each condition in the context of analyzing, commenting, evaluating, comparing to the law of previous periods, foreign regulations about each condition in groups: Conditions for wills to be lawful; conditions for wills to come to legal validity and conditions for wills to be implemented For each condition, the dissertation indicates what the regulations are, the pros and cons By researching the practice of law application through the judgement of the Court when resolving inheritance disputes, the dissertation shows the situation of application of regulations on validity conditions of wills Combining with previous context of regulations, the dissertation presents solutions for completion of legal regulations on each validity conditions of wills 24 PUBLIC SCIENTIFIC WORKS OF THE AUTHOR RELATED TO THE DISSERTATION “Completion of Law on Land and the Civil Code on inheritance of land use right”, Resource and Environment Magazine, No 14 (172) dated 7/2013 “Completion of regulations in the draft of the Civil Code (amendment) on inheritance by wills”, Law Magazine, special edition dated 6/2015 “Some issues and completion direction on regulations on form of wills in the Civil Code”, Law Magazine, No 11/2016 “Some theoretical issues on wills and validity conditions of wills”, Law Magazine No 3/2018 25 LIST OF ABBREVIATIONS BLDS BLDS năm 1995 BLDS năm 2005 BLDS năm 2015 NCS Nxb PLDS TAND TANDTC Tr UBND : : : : : : : : : : : The Civil Code The Civil Code of Socialist Republic of Vietnam 1995 The Civil Code of Socialist Republic of Vietnam 2005 The Civil Code of Socialist Republic of Vietnam 2015 Doctoral candidate Publishing house Civil law People’s Court Supreme People’s Court Page People’s Committee ... author has indicated theoretical issues on validity conditions of wills including: Wills, validity conditions of wills, groups of conditions constituting the validity conditions of wills, scientific... validity conditions of wills The author divides them into basic condition groups: First, conditions for wills to be lawful; Second, conditions for wills to come to legal validity; Third, conditions... 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