A Will is a legal document expressing an individual's intent regarding the disposition of their assets to others after their demise. Therefore, prior to drafting a Will, the testator must pay particular attention to the conditions ensuring its legal validity. This ensures that the contents are executed in accordance with the testator’s wishes while mitigating potential disputes and legal risks in the future.
Key considerations before drafting a Will include:
The testator has the right to designate specific beneficiaries and disinherit any heir at law. This means the testator has the autonomy to decide who shall receive their assets upon their death and may exclude one or more individuals from inheriting the estate.
The testator is entitled to allocate specific portions of the estate to each heir. This includes determining the specific assets, types of property, or the percentage of the total estate that each beneficiary will receive.
This provision allows individuals to proactively dispose of a portion of their estate to be given to desired recipients (devises). Notably, if the testator specifies in the Will that certain real estate (house or land) is to be used for worship purposes, such property shall not be divided as part of the inheritance. Furthermore, the person appointed to manage such property is prohibited from transferring, assigning, or gifting it.
Heirs have the right to receive their share of the estate; however, they must also perform the financial obligations left by the deceased. These obligations are limited to the extent of the value of the estate they receive. Personal obligations tied specifically to the identity of the deceased are not mandatory for the heirs to perform.
When drafting a Will, the testator may appoint key roles to ensure the estate is managed according to their wishes, including the custodian of the Will, the estate administrator, and the estate distributor.
A Will drafted in writing must primarily include the following contents:
In addition to the aforementioned items, the Will may contain other provisions as deemed necessary by the testator.
The Will must not contain abbreviations or shorthand symbols. If the Will comprises multiple pages, each page must be sequentially numbered and bear the signature or the fingertip print of the testator. If a Will contains erasures or alterations, the person who self-wrote the Will or the witnesses must sign their names adjacent to such erasures or alterations to validate the changes.
In summary, a legally valid Will must provide comprehensive and precise information to ensure the testator's intent is accurately executed and the inheritance is distributed exactly as desired. Clearly specifying details such as the beneficiaries, types of assets, the specific portion allocated to everyone, and the date of execution serves to mitigate inheritance disputes, protect the legitimate rights and interests of all parties, and uphold the legal effectiveness of the document. A detailed Will not only clarifies the entitlement to assets but also facilitates a transparent and seamless process for the administration and distribution of the estate, thereby preventing any confusion or contention among the heirs.
A Will must be established in writing; if a written Will cannot be established, an oral Will may be made.
3.1.1. Written Will without Witnesses.
This is a Will handwritten and signed by the testator themselves without the requirement of witnesses, notarization, or authentication. However, to be legally valid, it must still satisfy general conditions, including clear and lawful content. The testator must be composed, lucid, and entirely voluntary at the time of establishment, and the content must not violate any legal prohibitions or social ethics.
3.1.2. Written Will with Witnesses.
In cases where the testator does not write the Will by hand, they may type it themselves or request another person to write or type it, provided there are at least two witnesses. The testator must sign or append their fingertip print to the Will in the presence of the witnesses. The witnesses shall then certify the signature or fingertip print of the testator and sign the Will.
3.1.3. Noratized Written Will.
A notarized written Will is one where a notary public at a notary practice organization (notary office) certifies the authenticity and legality of the Will upon the testator's request.
3.1.4 Authenticated Written Will.
authenticated written Will involves the commune-level People's Committee or other competent authorities authenticating the signature or fingertip print of the testator.
An oral Will may be made when a person’s life is threatened by death and it is impossible for them to establish a written Will.
After 03 months from the time of making an oral Will, if the testator is still alive and remains composed and lucid, the oral Will shall be automatically invalidated.
An oral Will is considered legally valid only if the testator expresses their final will before at least two witnesses. Immediately after the testator expresses such intent, the witnesses must record it in writing, sign, or append their fingertip prints. Within 05 working days from the date the testator expresses their final will, such Will must be certified by a notary or an authorized agency to confirm the signatures or fingertip prints of the witnesses.
A Will takes effect from the opening of the inheritance - which is the moment the property owner passes away. However, a Will shall be legally ineffective, in whole or in part, in the following circumstances:
4.1. The designated heir under the Will dies before or at the same time as the testator;
4.2. An agency or organization designated as an heir no longer exists at the time of the opening of the inheritance.
4.3. In cases where there are multiple heirs and only one individual dies or one organization ceases to exist, only the portion of the Will related to that specific individual or organization shall be legally ineffective.
4.4. The assets bequeathed to the heirs no longer exist at the time of the opening of the inheritance. If only a portion of the estate remains, the Will remains effective regarding that remaining portion.
4.5. When a portion of a Will is unlawful but does not affect the validity of the remaining parts, only that specific portion shall be legally ineffective.
4.6. When a person leaves multiple Wills for a single asset, only the latest Will (the most recent one) shall be legally effective. However, if a person leaves multiple Wills, each covering different assets, all such Wills shall remain effective.
4.7. Any portion of the estate related to an ineffective part of the Will, or the entire estate if the Will is completely ineffective, shall be distributed according to the law on succession (intestate succession).
Under the law, the following persons are entitled to a share of the estate equivalent to two-thirds of the share that an heir at law would receive if the estate were divided according to the law, even if they were not designated as heirs or were given a share less than two-thirds by the testator:
Minor children, fathers, mothers, wives, or husbands of the testator;
Adult children who are incapable of working.
The aforementioned points are fundamental considerations that a testator must thoroughly understand before drafting a Will. Clear comprehension ensures that after one's passing, their assets are distributed exactly as intended, avoiding any deviations from their final wishes.
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