GUIDE TO MAKING A TESTAMENT ACCORDING TO THE LAW 2024 (LATEST)

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1. What is a testament?
2. Why should a testament be made?
3. Who has the right to make a testament?
4. When should a testament be made?
5. How is a testament considered legal?
6. Guide to making a handwritten testament according to the law
7. Guide to making and notarizing a testament
8. Guide to making and certifying a testament
9. Guide to making a testament with 2 witnesses
10. Questions related to making a testament

Life is unpredictable, we cannot foresee what happen. Therefore, to transfer assets to others according to one’s own testament, making a testament is extremely important. However, in some cases, testaments can become invalid because the testator does not understand the law. So, how to make a legal testament, not to be invalid? How many types of testaments are considered legal? Please refer to the article below.

1. What is a testament?

Article 624 of 2015 Civil Code stipulates: “A testament is an expression of an individual’s testament to transfer his/her assets to others after death.”

2. Why should a testament be made?

2.1. A testament helps express one’s own intentions about assets when passing away
In the case a person passes away without a testament, his/her assets will be divided according to the law. This may not be in line with the deceased’s wishes to transfer his/het assets to others. Therefore, making a testament is necessary to express one’s own testament about assets after death.

2.2. A testament helps identify and clearly divide the estate.
A legal and detailed testament will play an important role in the process of dividing the estate more smoothly.
The law always respects and protects the rights of the testator and his/her wishes regarding the division of the estate. Therefore, making a testament is a necessary action, to ensure that the inherited estate will be divided accurately and in accordance with the wishes of the testator.

2.3. A testament helps limit disputes
Reality proves that if the person leaving the assets without a testament, disputes over the assets of the heirs are likely to occur. And in some cases, even if there is a testament, but the content of the testament is not complete, clear, reasonable and appropriate, disputes may arise.
Therefore, a legal and quality testament ensures to limit disputes in the future.

3. Who has the right to make a testament?

Adults
According to Article 20 of 2015 Civil Code, an adult is defined as a person who is at least 18 years old and has full civil act capacity, except for the provisions in Articles 22, 23 and 24 of the 2015 Civil Code.
Adults have the right to make a testament because a testament is one of the civil rights of an individual. However, to make a testament, an individual must meet the conditions of subject capacity as prescribed by law. A testament made by an adult is legally effective when it meets the following two conditions:

The testator must be alert and clear-minded during the making of the testament and not be deceived, threatened or forced. The testament expresses the independent will of the testator and only the owner has the right to decide on the assets. Any act of obstruction, coercion or violation of the testament of the testator is not recognized by law.
The content of the testament does not violate the prohibitions of the law and does not violate social morality. Legal regulations and social morality are general principles regulating the acts of subjects in civil relations. This is used to determine whether an act is recognized and protected by law or not. The form of the testament can be written or oral.

For Minors
According to clause 4 of Article 21 of 2015 Civil Code, a person from full 15 years old to under 18 years old can independently make and perform civil transactions, except for transactions related to real estate, movable property that must be registered and other civil transactions according to regulations of the law must be agreed by the legal representative.
This means that those from 15 to under 18 years old are considered minors for making a testament. Although minors can perform the act of making a testament, but for transferring property rights involved, it requires the consent of parents or guardians those with full civil act capacity. The testator’s parents or guardians have no right to interfere with the content of the testament, unless that content violates the law. The testament still reflects the independent will of the testator and is considered legally effective, as long as it complies with the law on testaments.

4. When should a testament be made?

Making a testament is a personal decision, and there is no specific regulation on when is the appropriate time to make a testament.

So, here are some situations when you should consider making a testament:
When you have assets and want to freely decide on the division and transfer of assets after death.
When you want to ensure that your testament about the division of assets is executed accurately.
When you have relatives, family, or important close people that you want to protect their rights after death.
When you want to avoid family disputes and legal issues related to assets after death.
When you intend to help charitable organizations or similar principles, purposes after death.
In addition, you should also consider making a testament in special situations such as getting married, arranging business, having children…

5. How is a testament considered legal?

“Article 630. Legal testament
1. A legal testament must have the following conditions:
a) The testator is alert, clear-minded while making the testament; not deceived, threatened, coerced;
b) The content of the testament does not violate the prohibitions of the law, is not against social morality; the form of the testament does not violate the law.
2. The testament of a person who is at least fifteen years old but under eighteen years old must be made in writing and must be agreed by the father, mother or legal guardian about making the testament.
3. The testament of a person who is physically restricted or illiterate must be made in writing by the witness and must be notarized or certified.
4. A written testament without notarization, certification is only considered legal, if it has all the conditions prescribed in clause 1 of this Article.
5. An oral testament is considered legal if the testator orally expresses his/her last testament in front of at least two witnesses and immediately after the testator orally expresses his/her last testament, the witness records it, signs or points out. Within 05 working days, from the date the testator orally expresses his/her last testament, the testament must be confirmed by a notary or competent authority to confirm the signature or pointer of the witness."

According to Article 630 of 2015 Civil Code mentioned above, a testament must have the following conditions to be legally valid:

Firstly, the testator must be alert, clear-minded, not threatened, deceived or forced to make a testament;
Secondly, in terms of content, the testament must have all the contents prescribed in Article 631, the content of the testament must not violate, violate social prohibitions or violate social morality;
In addition, clauses 2, 3, 4, 5 of Article 630 of 2015 Civil Code also have different regulations depending on the subject of the testament and the form of expressing the testament. If the subject and content of the testament meet the conditions prescribed in Article 630 of the 2015 Civil Code, it is considered a legal testament and has legal binding value.

6. Guide to making a handwritten testament according to the law

A legally handwriting correct testament that fully reflects the wishes of the testator and limits unnecessary disputes needs to ensure:
a. Basic content of the testament:

The date, month, year, and place of making the testament;
Information of the testator: full name, place of residence, permanent address;
The full name of the individual, organization inheriting the estate or clearly stating the conditions that the individual, organization inherits the estate;
Assets left and the location of the assets (Clearly state the asset information. For example, if it is land, clearly state the plot information such as: location, area, legal information…);
The appointment of the person performing the obligation and the content of the obligation.

b. Basic form of the testament:

Do not abbreviate or use symbols;
Number, sign and point to each page;
Ask 2 witnesses (not required by law).

Handwritten testament template with witnesses: Download here

7. Guide to making and notarizing a testament

Step 1: Prepare and submit the application
To notarize a testament, you need to prepare a set of documents as prescribed, including:

Notarization request form filled with all the information of the person requesting notarization and the content to be notarized;
A copy of the personal papers of the person requesting notarization such as ID card/Citizen ID card/Passport;
Draft testament (if any);
Documents proving ownership of assets: Certificate of land use right, house and land purchase contract, vehicle papers,…

These documents only need to be a photocopy, printout or typewritten copy with full and accurate content as the original and do not need to be notarized. When submitting a copy, you must present the original for comparison.
After preparing the documents, you need to find a reputable, professional Notary Office. You submit the above set of documents directly to the Notary Office.
Step 2: Receive and check the application
The notary checks the documents in the notarization request dossier.
If the documents requesting notarization are complete, in accordance with the law, the testament be processed and recorded in the notary register.
The notary must explain to you clearly the rights, obligations and legal benefits, meaning and legal consequences of the testament.
The notary requests the person requesting notarization to clarify or at the request of the person requesting notarization, the notary proceeds to verify or request expertise in the following cases:

There is a basis to believe that there is an unclear issue in the notarization request dossier;
The making of a testament shows signs of being threatened, coerced;
There is doubt about the civil act capacity of the person requesting notarization;
The subject of the testament is not specifically described.

In case it cannot be clarified, the notary has the right to refuse notarization.
Step 3: Check the draft testament
If you draft the testament yourself, the notary will have to check the draft testament again.
If there are provisions in the draft testament that violate the law orsocial morality, the subject of the testament is not in accordance with the law, the notary must point out to the person requesting notarization to correct.
If the person requesting notarization does not correct, the notary has the right to refuse notarization.
Step 4: Sign the certificate
You must read the draft testament again or if you request, the notary must read the draft testament to you.
If you agree with the content of the draft testament, you must sign each page of the testament.
The notary asks you to present the original of the documents for comparison before recording the witness’s words, signing each page of the testament.
Step 5: Return the notarization result
The notarization period is not more than 02 working days.
For cases with complex content, the notarization period can be extended but not more than 10 working days.
Notarization guide and template: Download here

8. Guide to making and certifying a testament

Step 1: The person requesting certification of the testament
The testator can request notarization or certification of the testament according to their will.
Step 2: Prepare the testament certification dossier
The person requesting certification submits 01 set of certification request dossier, including the following documents:

Draft testament;
A copy of the ID card/Citizen ID card or valid Passport of the person requesting certification (presented with the original for comparison);
A copy of the certificate of ownership, right to use or a copy of the substitute document prescribed by law for the asset that the law requires to register the ownership, right to use in case the testament relates to that asset; except for the case the testator is threatened with life-threatening death (presented with the original for comparison).

Step 3: Submit the testament certification dossier to the competent authority
You can submit the dossier directly to the People’s Committee at the commune level.
Step 4: The official receives the dossier
The person performing the certification (or the person receiving the dossier in case of receiving the dossier at the one-door, one-door inter-agency department) checks the documents in the certification request dossier, if full, at the time of certification the testator voluntarily, alert and conscious, controls his/her actions then performs certification.
The testator must sign in front of the person performing the certification, if the testament has more than two pages, he/she must sign each page.
In case the person requesting certification submits the dossier at the one-door, one-door inter-agency department, he/she must sign in front of the person receiving the dossier.
In case the person requesting certification cannot sign, he/she must press fingerprints.
If the person cannot read, cannot hear, cannot sign, cannot press fingerprints, he/she must have 02 (two) witnesses.
Witnesses must have full civil act capacity and have no rights, interests or obligations related to the transaction.
Witnesses are arranged by the person requesting certification.
In case the person requesting certification cannot arrange, the certification implementation agency is requested to appoint witnesses.
Step 5: The person performing the certification checks the documents in the certification request dossier
The person performing the certification (or the person receiving the dossier) records the witness’s words according to the prescribed form.
In case of receiving the dossier at the one-door, one-door inter-agency department, the person receiving the dossier signs each page of the testament and signs under the witness’s words according to the prescribed form.
The person performing the certification signs each page of the testament (if the dossier is not received through the one-door, one-door inter-agency department), signs, clearly writes his/her full name, stamps the certification implementation agency and records in the certification register.
For testaments with 02 (two) pages or more:

Each page must be numbered in order, with the signature of the person requesting authentication and the person performing the authentication.
The number of pages and the testimony are recorded on the last page of the testament.
In case the testament has from 02 (two) pages or more, it must be sealed.

In case the person requesting authentication is not proficient in Vietnamese, there must be an interpreter. The interpreter must be a person with full civil act capacity as prescribed by law, proficient in Vietnamese and the language that the person requesting authentication uses. The interpreter is invited by the person requesting authentication or appointed by the authentication agency. The interpretation fee is paid by the person requesting authentication. The interpreter is responsible for translating the full, accurate content of the testament, the content of the testimony for the person requesting authentication, and signing each page of the testament as an interpreter.
Step 6: The person requesting authentication of the testament receives the result at the place of application submission
No more than 02 working days, from the date of receiving sufficient application for authentication or can be extended according to the written agreement with the person requesting authentication.
In case of extending the settlement period, the person receiving the application must have an appointment slip clearly stating the time to return the result to the person requesting authentication.
Guidance and authentication of the testament:

9. Guide to making a testament with 2 witnesses

When the person making the testament cannot write it themselves, they can type it themselves or ask someone else to write, type, but must ensure there are at least 02 witnesses and:

The person making the testament must sign or press fingerprints to the testament in front of the witnesses;
The witness must confirm the signature, fingerprint of the person making the testament and sign the testament.

The person witnessing the making of the testament must not belong to one of the following subjects:

Heirs according to the testament or according to the law of the person making the testament;
People with rights, obligations related to the content of the testament;
Minors;
People who lose their civil act capacity;
People who have difficulty in perception, control behavior.

Guidance on making a testament with two witnesses: Download here

10.1 Why do you need a lawyer consulting on making a testament?
First, Lawyer consulting on making a testament has professional knowledge;
Second, Lawyer consulting on making a testament gives you personalized advice;
Third, Lawyer consulting on making a testament ensures legality according to current regulations:

Advised about the conditions for making a testament;
Advised about issues related to witnesses in the testament;
Advised about the validity of the testament;
Advised about the effective time of the testament.

10.2 Can a law firm make a testament?
Law firms can make testaments for their clients. Lawyers have been trained and have deep knowledge about legal regulations related to making a testament and implementing a testament. Lawyers also have experience in advising and making testaments for clients according to their wishes and personal needs. Lawyers consult and understand the financial situation, family and desires of clients to propose appropriate terms and conditions in the testament. However, choosing a lawyer to make a testament should be based on their reputation, experience, and expertise in this field.

10.3 Can a lawyer witness in a testament?
According to Article 632 of Civil Code 2015, a lawyer can be asked to witness the legality of the testament, ensuring that it is made according to regulations and the true intention of the person creating the testament.
If you need to understand more specifically about this content, you can send an email, call or directly go to the office to be consulted by the professional team of lawyers of Phong & Partners.

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