1. How to distinguish between a will and a testamentary wish?

A will is the expression of an individual's intention to transfer their assets to others upon theirdeath according to Article 624 of Civil Code 2015. Article 627 of Civil Code 2015 stipulates that a will must be made in writing, if it cannot be made in writing, it can be made orally.

A testamentary wish is not formally defined in legal documents; however, it can be understood as the desires, wishes, or instructions conveyed by the deceased to their relatives and family before passing away, such as the responsibility to worship ancestors, care for siblings, etc. However, a testamentary wish is not expressed in writing and does not meet the conditions required to be considered a will.

Therefore, the concept and legal nature between a will and a testamentary wish are completely different. While a will may reflect the “testamentary wishes” of the deceased, but a testamentary wish is not a will. A legal valid will  must meet the conditions stipulated by law. A testamentary wish is not legally recognized; the act of relatives and family fulfilling the deceased's testamentary wishes is a way of respecting the deceased, showing love and reverence towards them.

2. Who is entitled to make a will?

Article 609 of  Civil Code 2015 stipulates that individuals have the right to make a will to dispose of their property. Accordingly, individuals have the right to allocate all or part of their assets to one or several heirs according to their own wishes. However, not every individual has the right to make a will. Article 625 of Civil Code 2015 stipulates that individuals authorized by law to exercise this right include:

• Adults (individuals 18 years of age and older) who are mentally sound and clear-headed while making the will, not deceived, threatened, or coerced during the process have the right to make a will to dispose of their assets;
• Minors (individuals from 15 to under 18 years of age) may make a will, provided they have the consent of their parents or guardians.

3. What constitutes a legal will?

According to Article 630 of Civil Code 2015, a legal will must meet the following conditions:

• The testator is mentally sound and clear-headed while making the will, not deceived, threatened, or coerced;
• The content of the will does not violate the law or social ethics, and its form complies with legal regulations;
• The will of individuals aged 15 to under 18 must be made in writing and approved by their parents or guardians;
• The will of individuals with physical limitations or illiteracy must be made in writing, witnessed, and notarized or authenticated.

In addition to the above conditions, the law also stipulates certain content and formal conditions for each type of will to be legally valid and effective in practice, as follows:

• Conditions for a legal written will
  • Written will without witnesses: According to Article 633 of Civil Code 2015, for a written will without witnesses, the testator must write and sign the will themselves. The written will without witnesses must comply with the content requirements outlined in Article 631 of Civil Code 2015 (discussed below).
  • Written will with witnesses: According to Article 634 of Civil Code 2015, for a written will with witnesses, the testator may write the will themselves or, if unable, they may type it themselves or have another person type it on their behalf. This will must have at least two witnesses (who must not be: heirs of the will, those with rights or obligations related to the will, minors, individuals with limited civil capacity, or those with cognitive or behavioral difficulties). The testator must sign or mark the will in the presence of the witnesses, who must then attest the testator's signature or mark and sign the will themselves. Additionally, the written will with witnesses must also comply with the content requirements specified in Article 631 of Civil Code 2015, similar to the written will without witnesses.
  • Notarized written will: According to Article 635 of Civil Code 2015, for a notarized written will, the testator must go directly to a notary office or notary service organization to make the will. The procedures for notarizing the will shall be guided by the notary office or notary service organization.
  • Authenticated written will: According to Article 635 of Civil Code 2015, for an authenticated written will, the testator must go directly to the commune-level People's Committee where they reside to make the will. The procedures for authenticating the will shall be guided by the commune-level People's Committee.
• Conditions for a legal oral will:
  • According to Article 629 of Civil Code 2015, if a person's life is threatened by death and they cannot make a written will, they may make an oral will. An oral will is only considered legal if the testator expresses their final intentions in the presence of at least two witnesses, and who must then immediately record, sign, or mark the testament. The document recording the oral will must be notarized or authenticated within 05 days from the date the testator expresses their final intentions to confirm the witnesses' signatures or marks. If the testator remains alive, mentally sound, and clear-headed after 03 months from the time they made the oral will, the content of the oral will becomes invalid and automatically ceases to be effective.

4. How to correctly determine property left in a will according to the law?

Article 612 of Civil Code 2015 stipulates that “Inheritance includes the separate property of the deceased and the portion of the deceased’s property in joint property with others.” Property includes objects, money, valuable papers, and property rights, includingboth real estate and personal property, whether existing or future property. The determination of property as inheritance is based on the provisions of Civil Code 2015, the Law on Marriage and Family, the Land Law, the Housing Law, and other relevant legal documents. When making a will, the testator must also identify the property to be left in the will according to the law, specifically as follows:

Separate property of the testator:

• According to Articles 205 and 206 of Civil Code 2015, property owned individually includes legally owned property without restrictions on quantity and value. The owner of separate property has the right to dispose of their property in a will, provided that this disposal does not violate the law or harm the legitimate rights and interests of others. Separate property of an individual may be formed from sources such as income from labor, business activities, individual gifts, individual inheritances, intellectual property rights, and other incomes.
• According to Article 43 of Law on Marriage and Family 2014 and Article 11 of Decree 126/2014/ND-CP dated December 31, 2014, detailing certain provisions and measures to implement the Law on Marriage and Family 2014, spouses have the right to own separate property. Separate property of spouses includes:
  • Property owned by each individual before marriage;
  • Property inherited or received separately during the marriage;
  • Joint property divided into separate property of each spouse during the marriage as prescribed by the Law on Marriage and Family;
  • Income and profits from separate property, which remain the separate property of each spouse unless otherwise agreed;
  • Property serving essential needs of the spouse; property formed from separate property and other property legally recognized as separate property of the spouse;
  • Property rights over intellectual property objects as prescribed by intellectual property law;
  • Property that the spouse establishes individual ownership rights over based on a court judgment or decision from competent authorities;
  • Allowances and benefits received by the spouse as prescribed by law for those with meritorious services to the revolution; personal rights attached to the individual spouse.
• Additionally, in cases where spouses choose to apply the contractual regime, the separate property of spouses is determined according to the written agreement established before marriage.

Property of the testator within jointly held property​:

• According to Article 207 of Civil Code 2015, co-ownership is the ownership of property by multiple subjects. Co-ownership includes shareed ownership and joint tenancy. Co-ownership rights are established by agreement, legal provisions, and customs. Property of the testator in the joint property with others includes:

Property of the testator in the joint property of spouses:

• Law on Marriage and Family 2014 stipulates that spouses have the right to choose to apply either the statutory property regime or the contractual regime. The joint property of spouses is divisible co-ownership. Spouses together create and develop joint property and have equal rights in possessing, using, and disposing of joint property. In case spouses apply the agreed property regime, the joint property of spouses is determined according to the written agreement established before marriage. The statutory property regime of spouses applies if they do not apply the agreed property regime or if the agreement is declared invalid by the court. Joint property of spouses is generally divided equally, with half belonging to the testator spouse. The testator has the right to dispose of their half in the will.
• According to Article 33 of the Law on Marriage and Family 2014 and Article 9 of Decree 126/2014/ND-CP dated December 31, 2014, which details implementation of the Law on Marriage and Family 2014, the joint property of spouses includes:
  • ​Property created by spouses, income from labor, production, business activities;
  • Income and profits from separate property and other legal income during the marriage, except for income and profits from separate property and other legal income during the marriage when spouses have divided joint property during the marriage as prescribed;
  • Property inherited jointly or given jointly during the marriage and other property agreed by spouses as joint property;
  • Land use rights acquired by spouses post-marriage, whichconstitute joint property, except for cases where land is inherited separately, given separately, or acquired through transactions with separate property;
  • Other legal income of spouses during the marriage, including salaries, lottery winnings, allowances, except for allowances and benefits received by the spouse as prescribed by law for those with meritorious services to the revolution; property for which a spouse establishes ownership rights over according to legal provisions for ownerless property, unidentified owner property, hidden, buried, sunk property found, property dropped, forgotten by others, lost livestock, poultry, aquatic animals; other legal income according to legal provisions.
• Additionally, joint property of spouses also includes property formed when spouses voluntarily contribute separate property into joint property.

Property of the testator in joint property with other subjects:

• According to Article 209 of Civil Code 2015, shared ownership refers to co-ownership in which each owner’s share of ownership is determined over the joint property. Each co-owner by shares has rights and obligations over the joint property corresponding to their share of ownership, unless otherwise agreed. If the property originates joint property from shared ownership with other parties, it is generally divided according to shares. The testator has the right to dispose of their share in the joint property with others in the will. Shared ownership often involves capital contributions in various forms to purchase property, joint business activities, or other cases leading to the formation of joint property…

Property of the testator in the joint property with family members:

• According to Article 212 of Civil Code 2015, the property of family members living together includes property contributed and jointly created by family members and other property established according to legal provisions. The possession, use, and disposal of joint family property members are carried out by agreement. In case of disposing of real estate, registered movable property, or main family income sources, the consent of all adult family members with full civil capacity is required, unless otherwise prescribed by law. In the absence of an agreement, the provisions on shared ownership specified in Article 209 of Civil Code 2015 and other related legal documents apply, except for the co-ownership of spouses as prescribed in Article 213 of Civil Code 2015.

5. What contents should a will include?

According to Article 631 of Civil Code 2015, a will should include the following main contents:

• The date, month, and year the will is made;
• The full name and place of residence of the testator;
• The full name of individuals, agencies, or organizations entitled to inherit the estate, or clearly define the conditions for individuals, agencies, or organizations to inherit the estate;
• The estate and the location of the estate;
• The designation of the person to perform obligations and the content of such obligations.

Additionally, the will may include other contents.

In the contents of the will, abbreviations or symbols should not be used. If the will consists of multiple pages, each page must be numbered and signed or fingerprinted by the testator. In cases where the will has erasures or corrections, the person making the will or the witness must sign beside the erasure or correction.

6. Who is entitled to inheritance regardless of the will’s content?

Article 644 of the Civil Code 2015 stipulates that the following individuals are entitled to inherit regardless of the content of the will: minor children; parents; spouse; and adult children with incapacity for work. This legal provision aims to protect the legitimate rights and interests of those who have a close blood or marital relationship with the deceased, in cases where the testator disinherits them or provides them with a share that is less than two-thirds of their statutory inheritance share.

The deceased's estate shall only be distributed to those entitled to inherit regardless of the will when the following conditions are met:

• The heir, if an individual, must be alive at the time of the inheritance opening, or must have been conceived and born alive after the inheritance opening but before the deceased's death as specified in Article 613 of Civil Code 2015;
• The heir must not have refused the inheritance as specified in Article 620 of Civil Code 2015.

The heir must not fall within the categories specified in Article 621 of Civil Code 2015, which include:

• Individuals convicted of intentionally infringing harm upon the life, health, or seriously abusing or mistreating the deceased, or seriously violating their honor and dignity;
• Individuals who seriously violate their obligation to support the deceased;
• Individuals convicted of intentionally infringing harm upon the life of another heir to gain part or all of the inheritance that they are entitled to;
• Individuals who deceive, coerce, or prevent the deceased from making a will, or who forge, alter, destroy, or conceal the will to gain part or all of the inheritance contrary to the deceased's wishes.

7. What is the legal validity of joint and separate wills of spouses?

Previously, Articles 663, 664, and 668 of Civil Code 2005 stipulated the following about joint wills of spouses:

• Spouses can make a joint will to dispose of their joint property;
• Spouses can amend, supplement, replace, or revoke the joint will at any time. If one spouse wants to amend, supplement, replace, or revoke the joint will, they must obtain the other's consent; if one spouse has died, the surviving spouse can only amend or supplement the portion of the will related to their own property;
• A joint will of spouses became effective from the time the last spouse dies or at the time both spouses die simultaneously.

However, Civil Code 2015 repealed these provisions. Although the regulations no longer exist, the law does not prohibit making a joint will. Spouses are automony to agree on making a joint will that reflects their common intentions regarding their joint property. Joint wills of spouses must comply with the conditions for a legal will stipulated in Article 630 of Civil Code 2015 and the conditions for each type of will mentioned in section 3. When a joint will of spouses meets both content and form conditions according to regulations, it has legal validity.

In practice, joint wills of spouses involve complex procedures and conditions, with stringent conditions for heirs. If disputes arise, it can be challenging to resolve them clearly according to the law. Therefore, when deciding to make a joint will, both spouses need to carefully consider and agree on the content to avoid future disputes.

Legal status of separate wills of spouses:

• According to Article 29 of Law on Marriage and Family 2014, spouses are equal in creating, possessing, owning, and disposing of joint property. Therefore, with joint property, neither spouse may unilaterally devise a will for the entirety of their joint property. However, according to Articles 609 and 612 of Civil Code 2015, each spouse has the right to make a will for their separate property or their share in the joint property. When a separate will of a spouse meets both content and form conditions according to regulations, it has legal validity.
• A spouse can make a separate will in the following ways: making a will for their property or their share in the joint property; or to clearly and specifically separate property in the joint property, spouses can execute a  property agreementor divide the joint property and then make a will for their separate property.

8. Can a will be changed after it has been made?

According to Article 640 of Civil Code 2015, the testator can amend, supplement, replace, or revoke a will at any time. In instances where a testator supplements their will, both the original will and the additions have equal legal validity. If there is a conflict between parts of the original will and the additions, only the additions have legal effect. If the testator replaces the original will with a new one, the previous will is revoked.

Additionally, according to Clause 3, Article 56 of Law on Notarization 2014, if a will has been notarized but the testator wishes to amend, supplement, replace, or revoke part or all of the will, they can request any notary to notarize these changes. If the previous will is being kept by a notary service organization, the testator must notify the organization of the changes.

9. Can the testator decide the time of inheritance commencement and the time of distributing the inheritance?

Time of opening the inheritance:

Article 611 of Civil Code 2015 stipulates that the time of the inheritance commencement is at the moment of the testator’s demise. If the court declares a person dead, the time of opening the inheritance is the date the court determines the person to be dead. According to this regulation, the testator can only decide that the time of opening the inheritance is the time of their death or the date the court determines the death of the declared person in the will, but cannot decide on another time. This provision ensures the testator's rights (to amend, supplement, replace, or revoke the will at any time) before death and the rights of co-heirs or other third parties with rights.

Time of distributing the inheritance:

The law does not specifically stipulate the time of distributing the inheritance. According to Article 614 of Civil Code 2015, upon the commencement of inheritance, heirs have the property rights and obligations left by the deceased. However, Article 661 of Civil Code 2015 stipulates that if the testator's intention is to delay distribution until a designated period, the inheritance can only be distributed after that period has expired. The testator is free to set the time limit for distributing the inheritance, but this is subject to the statute of limitations for inheritance (not more than 30 years for real estate and not more than 10 years for personal property from the time of opening the inheritance).

However, the testator's decision on the time of distributing the inheritance (restricting the distribution) may affect the rights of co-heirs or other third parties with rights. Therefore, parties with rights may request the court to consider the distribution of the testator's inheritance, and the court may consider distributing the inheritance at an appropriate time depending on cases such as the serious impact of distribution restrictions on the lives of co-heirs, priority heirs (those entitled to inherit regardless of the will's content), and the interests of third parties…

10. Can the testator impose conditions for the heirs?

• Based on the testator's rights and the content of the will according to Articles 626 and 631 of Civil Code 2015, there is no specific regulation on the testator's right to impose conditions for the heirs. The law does not stipulate or prohibit setting conditions for the heirs, so the testator can set conditions as long as they do not violate the law, contravene social ethics, and meet the validity conditions stipulated in Article 630 of Civil Code 2015. Conditions that satisfy these criteria may be deemed legally valid, they may be enforced. If the conditions are not legally valid, the heirs will still inherit the estate even if they do not fulfill those conditions, unless their inheritance contradicts legal regulations or ethical rules.
• Conditional wills only become effective after the testator's death. However, once the conditional will is in effect and the testator has passed away, no authority or individual can confirm whether the conditions have been fulfilled by the heir. Therefore, it is challenging to ensure the heir’s compliance with the testator's wishes. Since there are no specific legal provisions to address this, disputes related to fulfilling the conditions in the will may arise, and the court may not have a clear mechanism to resolve such disputes to protect the legitimate rights and interests of the parties involved.
• On the other hand, according to Article 626 and Clause 3 of Article 615 of Civil Code 2015, the testator has the right to assign obligations to heirs. If the estate has been divided, each heir must fulfill the obligations corresponding to the portion of the estate they have received, but not exceeding their share unless otherwise agreed. However, the testator can only assign obligations within the limits allowed by law. If the testator imposes unreasonable obligations that violate the law and social ethics or unrelated obligations, such obligations are not legally valid.

11. What is the cost for making a will?

The cost of making a will varies depending on the complexity of the case and the fee schedule of government agencies, legal organizations, and notary offices. Each entity sets its fees to provide appropriate consultation and will-drafting services. The cost of making a will is generally determined based on the following scopes of work:

• Consultation and drafting fees;
• Notarization fees at government agencies, legal organizations, notary offices, or on-site;
• Collection and duplication fees for related legal documents (if any);
• Other related costs such as fees for certified copies and authentication of related documents (if any);
• Will storage fees (if any);
• Will announcement fees (if any)…

12. Why is it necessary to hire a lawyer when making a will?

The main purpose of making a will is to ensure that it aligns with the testator's wishes and has legal validity. Testators need legal advice on arising issues to fully realize their wishes according to the law, while also minimizing disputes among heirs regarding the distribution of the inheritance. So, without clear and detailed consultation, will the process of making a will and distributing the inheritance after their death be truly guaranteed. Here are some reasons why it is necessary to consult and draft a will with a lawyer:

• Advising on solutions to overcome the testator's difficulties according to their specific circumstances;
• Listing and summarize necessary documents to ensure the will's legal validity;
• Guiding the distribution plan for each heir, the portion of the inheritance for gifts, and worshiping;
• Helping draft the will to ensure it closely reflects the testator's intentions and complies with legal provisions;
• Providing legal advice to minimize the risk of will amendments, invalidation, and disputes arising after the testator's death;
• Assisting in complete a will with full content and form according to the law, ensuring the testator's wishes in the will expressed legally, clearly, and practicably, thereby  minimizing disputes that may arise after the testator's death;
• Consulting on various other legal issues such as the will's effectiveness, will storage, etc.