How to ensure the legal validity of a will with foreign elements

When a person dies, they often leave a will to allocate their assets to children, spouses, or other heirs in accordance with their wishes. With globalization and cross-border connections, many situations currently involve wills either drafted by foreigners or by Vietnamese citizens residing abroad. However, few people clearly understand how a will with foreign elements can be considered legally valid. To clarify, NP LAW provides an in-depth legal analysis on how Vietnamese law governs wills with foreign elements.

I. Definition of a will with foreign elements

According to Clause 2, Article 663 of the Civil Code 2015, a civil relation contains foreign elements if it falls into one of the following cases:

At least one party is a foreign individual or legal entity;
All parties are Vietnamese individuals or legal entities, but the establishment, modification, execution, or termination of the relation occurs abroad;
All parties are Vietnamese individuals or legal entities, but the object of the civil relation is located abroad.

Under Article 624 of the Civil Code 2015, a will represents the declaration of a person’s wishes regarding the division of their assets after their death.

Thus, a will with foreign elements may include one or more of the following characteristics:

The testator or heir(s) are foreign nationals or overseas Vietnamese;
The assets are located abroad;
The will is executed abroad.

II. Conditions for legal validity of a will with foreign elements

A will containing foreign elements is legally valid if it satisfies the following conditions:

1. Legal capacity of the testator

As per Clause 1, Article 681 of the Civil Code 2015, the legal capacity of making a will is determined by the law of the testator’s country at the time the will is made, amended, or revoked.

For a Vietnamese national, the following conditions under Clause 1, Article 630 must be met:

+ The testator must be of sound mind, fully conscious, and not subject to fraud, coercion, or threat;

+ The content of the will must not violate prohibitions or contravene social ethics;

+ The form of the will must comply with legal requirements.
For a foreigner, the determination is based on the law of their nationality.

2. Form of the will

The form of the will is determined by the law of the country where the will is executed. Under Clause 2, Article 681 of the Civil Code 2015, a will’s form is also recognized in Vietnam if it conforms to the law of:

The country where the testator resided at the time of establishment or death;
The country of which the testator was a national at the time of establishment or death;
The country where any real estate in the inherited assets is located.

Additionally, under Article 627 of the Civil Code, a will must generally be in writing; if impossible, it may be oral.

3. Additional notes

Wills by persons aged 15 to under 18 years require to be made in writing and obtain consent from a parent or guardian.
Wills by persons with physical disabilities or illiteracy must be witnessed in writing and notarized or authenticated.
Unnotarized written wills are valid only if they meet the substantive conditions as defined by Law.
Oral wills are valid if expressed in the presence of at least two witnesses, recorded in writing, signed or fingerprinted. Within 05 working days from the date the testator expresses the final will, the will must be certified by a notary or a competent authority to confirm the signature or fingerprint of the witness.
For wills executed abroad, authentication by a Vietnamese consular or diplomatic mission is required under Clause 5, Article 638.

If a foreigner executes a will in Vietnam or concerning real estate in Vietnam, the form of the will must comply with Vietnamese law, while the testator’s legal capacity is determined by the law of their nationality.

In case a foreigner makes a will and the inheritance right is determined by a judgment or decision of a foreign court, based on Clause 1, Article 425 of the Civil Procedure Code, the heir receiving the inheritance in Vietnam must request the Vietnamese court to recognize and enforce the judgment or decision of the foreign court in Vietnam.

III. Applicable law in case of conflicts

Under Article 664 of the Civil Code 2015, the applicable law for civil relations with foreign elements is determined in the following order:

International treaties to which Vietnam is a member; or Vietnamese law;
The law chosen by the parties in case of international treaties to which the Socialist Republic of Vietnam is a member or Vietnamese law has provisions;
The law of the country with the closest connection to the civil relation, if no other law can be determined.

Accordingly, Clause 1, Article 680 further clarifies:

For movable property: Inheritance is governed by the law of the testator’s country immediately before death.
For immovable property (real estate): The law of the country where the assets are located.

IV. Common questions on legal validity of a will with foreign elements

1. Which law applies to inheritance of immovable property?

As per Clause 2, Article 680 of the Civil Code, the law of the country where the immovable property is located governs the inheritance of such assets.

2. Can an heir refuse an inheritance?

Under Clause 1, Article 620 of the Civil Code, an heir may refuse an inheritance, except when refusal is intended to evade obligations to others. Such refusal must be in writing and delivered to the asset manager, other heirs, or the person responsible for asset distribution.

3. What happens if the designated heir dies before receiving the inheritance?

For movable property: Handled under the law of the testator’s nationality before death.
For immovable property: Governed by the law of the jurisdiction where the asset is situated.