Khi nào di chúc bị vô hiệu? (Luật sư Lê Bình Phương phân tích)When Is a Will Invalid? (Analysis by Lawyer Lê Bình Phương)

Reference translation for convenience. The Vietnamese version is the authoritative text.

Overview

In many of the inheritance disputes I have advised on, one situation recurs: a relative leaves a will, yet none of the siblings accepts that piece of paper — and in the end they still have to go to court. The question is: does that will have legal force, or will the court declare it invalid?

The irony is that many families think all it takes is the signature of the person leaving the property. In fact, the law imposes quite a few conditions for a valid will — and if any one of them is missing, the will can lose all effect, however proper it looks on its face.

So what are those conditions, and when will a court declare a will invalid?

---

Relevant Legal Provisions

The Civil Code 2015 (Law No. 91/2015/QH13), in force from 1 January 2017, is the central legal instrument governing all matters of wills and inheritance. This analysis is based on that instrument and does not apply to wills made under the old law before 1996.

On the conditions for a lawful will (Article 630): This is the most important provision. Under clause 1, Article 630 of the Civil Code 2015, a lawful will must simultaneously satisfy three requirements: the testator must be lucid and clear-minded while making it and not be deceived, threatened, or coerced; the content of the will must not violate the prohibitions of the law and must not be contrary to social morality; and the form of the will must not be contrary to the provisions of the law.

Alongside those general conditions, Article 630 also lays down specific rules for certain groups. A person from a full 15 to under 18 years of age may make a written will, but it must have the consent of a parent or guardian (clause 2). A person who is physically impaired or illiterate must have someone else write it, with at least two witnesses, and it must be notarised or certified (clause 3). In particular, an oral will — the kind made when the testator can no longer make a written will — is valid only if there are at least two witnesses present at the time it is made, and within 5 working days afterwards a notary public or a competent authority certifies the testator’s words (clause 5).

On the content of a will (Article 631): A will must clearly state the date it is made; the full name and place of residence of the testator; the full name of the person or the name of the agency or organisation entitled to the estate; the estate left behind and where it is located. If a will lacks these basic contents to the point that the testator’s intent cannot be determined, the risk of being declared invalid is very high.

On who may not be a witness (Article 632): Not everyone may stand as a witness to a will. The law excludes: heirs of the testator under the will or under the law; persons whose property rights or obligations are related to the content of the will; minors, persons who have lost civil act capacity, and persons with difficulties in cognition and behaviour control.

On the effect of a will (Article 643): A will takes effect from the time the inheritance is opened, that is, from when the testator dies. However, a will does not take effect — in whole or in part — in the following cases: the designated heir died before or at the same time as the testator; the agency or organisation designated to receive the estate no longer exists at the time the inheritance is opened; the portion of the estate disposed of in the will no longer exists at the time the inheritance is opened. Article 643 also affirms: where the testator has made several wills concerning the same property, only the last will takes effect.

On heirs independent of the content of the will (Article 644): This is a particularly important provision that is often overlooked. Whatever the will says, the law still protects a mandatory inheritance right for four groups: minor children, parents, spouse, and adult children who are unable to work. These persons are entitled to at least two-thirds of a statutory inheritance share — regardless of whether the will gives them less or nothing at all.

The first group — a breach of the conditions concerning the testator. A person may sign a will that on its face appears entirely in order, yet whose volition is not freely given; and at trial, if the objecting party proves this, the will is declared invalid. As for a person from a full 15 to under 18 years of age: they have the right to make a will, but it must have the consent of a parent or guardian — without this condition, the will is invalid.

The second group — a breach of form. This is the most common group in practice. A written will by a physically impaired or illiterate person without witnesses, or without notarisation/certification, is invalid. An oral will that is not recorded and notarised/certified within 5 working days is also invalid — this is a type of will that very easily loses its value if not dealt with promptly after it is made. Another serious formal defect is choosing the wrong witness: if the witness falls within the prohibited category under Article 632 — for example, someone who will receive the estate under that very will, or a child of a beneficiary — the entire will is at risk of being declared invalid when challenged.

The third group — failure to take effect under Article 643. This is not invalidity due to a defect in making the will, but a situation where a will is made entirely validly yet later cannot be carried out. A typical example: the person designated to receive the house and land in the will dies before the testator — that portion of the will ceases to have effect. Or the property disposed of has been sold or transferred before the testator dies — the will has no effect over the property that no longer exists. It must be stressed: where a will is partly invalid, the remaining part still has effect, unless the two parts cannot be separated.

The fourth group — a breach of the mandatory inheritance right (Article 644). This is not the total invalidity of the will, but the invalidation of the portion of the will that infringes the mandatory inheritance right. If a will skips over, or gives too little to, minor children, a spouse unable to work, or parents — those persons still have the right to demand at least two-thirds of a statutory inheritance share. This right cannot be stripped away by a will.

---

Practical Examples

Precedent No. 72/2024/AL, adopted by the Council of Justices of the Supreme People’s Court on 20–23 February 2024, is an example showing that the courts protect a valid will even where its content is not technically perfect. In this case, the testator disposed of land use rights with content that clearly identified the boundaries on all four sides but did not state a specific area. One disputing party argued that the will could not identify the subject property and had no effect. The Council of Justices rejected that argument: the court held the will to be lawful, and the devised land was determined by the area actually measured on the basis of the four boundaries stated in the will. The principle from this precedent is well worth remembering: where a will is lawful and the testator’s intent is sufficiently clear, the court should make an effort to determine the scope of the property rather than declare the will invalid for the lack of one technical detail.

Precedent No. 34/2020/AL, also of the Council of Justices of the Supreme People’s Court, dealt with a more unusual situation: the testator disposed of the value of land compensation in a case where the State had issued a land-recovery decision while the person was still alive. One party argued that once the land had been recovered it was no longer an estate to be willed. The court rejected this argument: the right to compensation is a property right arising in connection with the recovered land, and is therefore still part of the estate, which the testator has the right to dispose of. The practical lesson: the scope of an estate can be broader than the parties usually think — and a testator has the right to dispose even of property rights that have not yet been paid.

---

Important Notes

The limitation period for requesting a declaration that a will is invalid. A will is a unilateral civil transaction, so the limitation rules in Article 132 of the Civil Code 2015 apply. Two types must be distinguished: for cases of relative invalidity — such as a will made while the testator was deceived, threatened, or coerced, or made by a person without sufficient capacity under the special conditions — the limitation period to request a declaration of invalidity is 2 years from the day the deceived or threatened person knew or should have known of that act. For cases of absolute invalidity — violation of the prohibitions of the law, contrary to social morality — there is no limitation period, and a declaration of invalidity may be requested at any time. In addition, the limitation period for an action to divide an inheritance estate under Article 623 is 30 years for immovable property and 10 years for movable property, counted from the time the inheritance is opened.

A partly invalid will does not entail total invalidity. Where only part of a will breaches a condition of lawfulness or infringes the mandatory inheritance right, that part is invalid while the rest still has effect — provided they are independent of one another in content. This is an important principle for avoiding the invalidation of the entire intent of the person leaving the estate merely because of one localised defect.

Several wills — only the last one takes effect. Where the testator makes several wills concerning the same property, only the last-made will takes effect over that property (clause 5, Article 643). This does not mean the earlier will is automatically and wholly invalid — if the earlier will disposes of a portion of property that the later will does not mention, that portion of the earlier will still has effect.

The wrong witness is a serious defect that is easily overlooked. In practice, many families ask the beneficiary under the will, or one of their relatives, to act as witness — without realising that this breaches Article 632. This is no minor defect: it puts the entire will at risk of being declared invalid when challenged in court, even if all the other conditions are valid.

---

Related Articles

• The 5 most common mistakes when dividing an inheritance that keep families in conflict for decades
• Parents leave a will giving one child all the property — do the other children get anything?
• Without a will, how is a deceased person’s property divided as an inheritance?
• Inheritance disputes: rules on wills, classes of heirs, and the limitation period for suing

Conclusion

A will is a legal document of great significance — but it has value only if it is made correctly. In summary, a will is at risk of being declared invalid when it falls into one of four groups: a breach of the conditions concerning the testator (not lucid, coerced, under the required age); a breach of form (lacking a valid witness, not notarised/certified where required); inability to take effect because the person or property disposed of no longer exists (Article 643); and infringement of the mandatory inheritance right of those protected by Article 644.

If you are preparing to make a will, check these four groups of conditions carefully before signing. If you are facing a will that your family is disputing, determining whether that will breaches any of the four groups is the first question to answer before considering any legal step.

---

Analysis by Lawyer Lê Bình Phương.

See also: Who is Lawyer Lê Bình Phương?