1. Introduction
In the context of globalization and the increasing number of civil relationships involving foreign elements, it has become increasingly common for foreign individuals to own property in Vietnam. Such property may include bank deposits, shares, capital contributions in enterprises, property rights, or, in certain circumstances, residential housing lawfully owned in accordance with Vietnamese law.
When a foreign individual passes away, determining their right to dispose of their property through a will raises various legal issues relating to testamentary capacity, the form of the will, the law applicable to succession, and restrictions on foreign ownership of property in Vietnam. Therefore, an important legal question arises: Do foreign nationals have the right to make a will in respect of property located in Vietnam?
This article analyzes the provisions of the 2015 Civil Code and relevant legal instruments in order to clarify the right of foreign nationals to make wills concerning property in Vietnam, as well as the legal issues that may arise in practice.
2. Legal Basis for the Right of Foreign Nationals to Make a Will
2.1. Principle of Equality in Civil Legal Capacity
Clause 1 Article 673 of the 2015 Civil Code provides:
“The civil legal capacity of an individual shall be determined in accordance with the law of the country of which that individual is a national.”
At the same time, Article 5 of the 2015 Civil Code recognizes the principle of equality among parties in civil relations.
Accordingly, when participating in civil relations in Vietnam, foreign individuals are generally recognized and protected by Vietnamese law with respect to their civil rights, except in cases where restrictions are imposed by law for reasons of national defense, security, or public interest.
Therefore, foreign nationals are not deprived of the right to dispose of their property merely because they do not possess Vietnamese nationality.
2.2. The Right to Make a Will under the 2015 Civil Code
Article 609 of the 2015 Civil Code provides:
“An individual has the right to make a will to dispose of his or her property; to leave property to heirs at law; and to inherit property under a will or by law.”
This provision uses the term “individual” without limiting its application to Vietnamese citizens.
Therefore, from the perspective of civil law, foreign nationals are fully entitled to make a will disposing of property that they lawfully own in Vietnam.
In other words, the right to make a will is a personal right closely associated with property ownership and does not depend upon the nationality of the testator.
3. Conditions for a Foreign National to Make a Valid Will
Although foreign nationals have the right to make a will, they must still satisfy the general validity requirements prescribed by Vietnamese law.
3.1. Conditions Relating to the Capacity of the Testator
Clause 1 Article 630 of the 2015 Civil Code provides:
“A lawful will must satisfy all of the following conditions:
(a) The testator is of sound mind and capable of cognition and control of his or her acts at the time of making the will, and is not deceived, threatened, or coerced.”
Accordingly, a foreign national wishing to make a valid will must possess full mental capacity and the ability to control his or her conduct at the time the will is executed.
If, at the time of making the will, the testator lacks legal capacity or is subject to coercion, threats, or undue influence, the will may be declared invalid.
3.2. Conditions Relating to the Content of the Will
Clause 2 Article 630 of the 2015 Civil Code provides:
“The contents of the will must not violate prohibitions of law or contravene social ethics.”
Therefore, a foreign national may not use a will to dispose of property that Vietnamese law does not permit to be transferred or owned.
For example:
- A will may not be used to transfer property derived from unlawful sources;
- A will may not be used to facilitate transactions contrary to Vietnamese public order.
3.3. Conditions Relating to the Form of the Will
Article 627 of the 2015 Civil Code provides:
“A will must be made in writing; if a written will cannot be made, an oral will may be made.”
For foreign nationals, the execution of a written will with notarization or certification is generally recommended in order to minimize future disputes.
Where a will is made abroad, the recognition of its legal validity will also depend upon Vietnamese legal provisions governing civil relationships involving foreign elements.
4. Which Law Applies to the Will of a Foreign National?
This is one of the most significant issues in succession relationships involving foreign elements.
4.1. Law Applicable to Testamentary Capacity
Clause 1 Article 681 of the 2015 Civil Code provides:
“The capacity to make, amend, or revoke a will shall be determined in accordance with the law of the country of which the testator is a national at the time of making, amending, or revoking the will.”
For example:
A Japanese citizen owns an apartment in Vietnam and executes a will in Hanoi.
When determining whether that individual possesses the legal capacity to make a will, the competent authority will apply Japanese law.
4.2. Law Applicable to the Form of the Will
Clause 2 Article 681 of the 2015 Civil Code provides that:
The form of a will shall be deemed valid if it complies with the law of any of the countries having a relevant connection as prescribed by Vietnamese law.
This provision facilitates the recognition of wills executed abroad and helps ensure the testator’s right to dispose of his or her property.
5. Limitations on the Right of Foreign Nationals to Dispose of Property
The fact that foreign nationals have the right to make a will does not mean that every provision contained in the will can necessarily be implemented in practice.
5.1. Limitations Arising from the Property Ownership Regime in Vietnam
Certain categories of property in Vietnam are subject to specific legal regulations.
For example:
Under the provisions of the 2023 Housing Law, foreign individuals may own residential housing only in specified circumstances and within prescribed limits.
Therefore, where a foreign heir inherits residential property in Vietnam, the registration of ownership rights must still comply with the conditions stipulated by Vietnamese law.
5.2. Limitations Arising from the Rules on Forced Heirs
Article 644 of the 2015 Civil Code provides for heirs who are entitled to inherit regardless of the contents of the will, including:
- Minor children;
- Parents;
- The spouse of the deceased;
- Adult children who are incapable of working.
These individuals are entitled to receive a certain portion of the estate even where the testator intended to disinherit them.
Accordingly, the testamentary freedom of foreign nationals is subject to the same limitations as that of Vietnamese citizens.
6. Practical Issues
In practice, disputes involving succession with foreign elements often give rise to difficulties relating to:
- Verification of the nationality of the testator;
- Determination of the applicable foreign law;
- Consular legalization of documents executed abroad;
- Recognition and enforcement of succession documents issued in another country;
- Determination of ownership rights over assets located in multiple jurisdictions.
These challenges require competent authorities to apply not only the provisions of the Civil Code but also specialized legislation and international treaties to which Vietnam is a party.
7. Conclusion
Based on the foregoing analysis, it can be concluded that foreign nationals are fully entitled to make a will in respect of property that they lawfully own in Vietnam. This right is guaranteed by the principle of equality in civil relations and by the right to dispose of property recognized under Article 609 of the 2015 Civil Code.
However, the exercise of the right to make a will is not absolute. The validity of a will remains subject to legal requirements concerning testamentary capacity, the form of the will, the law applicable to succession relationships involving foreign elements, and restrictions arising from Vietnam’s property ownership regime.
In the context of increasingly extensive international civil interactions, further improvement of the legal framework governing succession involving foreign elements will contribute to better protection of the property rights of foreign individuals while enhancing the transparency and predictability of the Vietnamese legal system.
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Khuong Ngoc Lan