Ms. Hương, an Australian citizen, asked DEDICA:
"I am of Vietnamese origin and have lived in Australia for many years. I still own a house and a savings account in Ho Chi Minh City. I have three children; for many years only one of them has cared for me, while the other two are almost entirely out of touch. I would like to make a will leaving all of my assets in Vietnam to the child who has looked after me. Does Vietnamese law allow me to leave everything to one person, or must the estate be divided equally? Could the other two children later sue to have it redivided?"
DEDICA ADVISES Vietnamese law respects a testator's freedom of disposition: you may leave all of your assets to a single child, with no requirement to divide them equally. The law does, however, retain one important limit: certain close relatives (minor children; a father or mother; a spouse; and adult children who lack the capacity to work) remain entitled to a minimum portion, even if the will gives them nothing. Adult children who are able to work do not fall within this group. The answer therefore depends on whether you have any relatives in the protected group, and on whether the will is made in accordance with the legal conditions.
The right to leave all of your assets to one person, and the limit set by law
Where there is a lawful will, Vietnamese law gives priority to the testator's wishes and does not impose equal division. Equal division among heirs at law occurs only when the deceased leaves no will. A testator may decide who inherits and how much:
What does this mean for you? You have the right to make a will leaving both the house and the savings account to the child who has cared for you, and no rule obliges you to set aside a share for the other two children.
That freedom of disposition has, however, a single but very important limit, namely the right of certain heirs that is independent of the contents of the will:
In other words, even if the will gives everything to one person, those within the groups above still retain a minimum portion equal to two-thirds of the share they would have received had the estate been divided according to law. The statutory share is calculated by dividing the estate equally among the first rank of heirs, namely the spouse, the father, the mother, and the children (Article 651, Civil Code 2015).
Applied to your situation: if the two children not named in the will are both adults with the capacity to work, they do not belong to the protected group and therefore cannot demand a redivision of the estate merely because they were "left out" of the will. Conversely, if you still have a living father or mother, a spouse, or a child who is a minor or lacks the capacity to work, those persons remain entitled to the minimum portion described above, regardless of what the will says.
Conditions for a will leaving everything to one person to be effective
For your wishes to take effect and to be difficult to challenge later, the will must satisfy the legal conditions:
Based on these conditions, and given your circumstances (living abroad while leaving an estate in Vietnam), there are a few steps worth taking:
- Identify in advance who falls under Article 644. Check whether you still have a father or mother, a spouse, or a child who is a minor or lacks the capacity to work, so that their compulsory portion can be accounted for when the will is made, avoiding adjustments at the estate-declaration stage.
- Have the will notarized or authenticated. A will that is not notarized remains valid if it meets the conditions above, but a notarized version helps prove that you were of sound mind and acting voluntarily, reducing the risk of challenges alleging that you were "not of sound mind" or "under coercion".
- Describe each asset clearly. Specify the house (address, certificate of title) and the savings account (bank, account number) so that there is no dispute over the scope of the estate.
- Plan ahead for the foreign element. You may make the will in Australia, but to use it for an estate in Vietnam, foreign documents must usually be consularly legalized (or apostilled) and accompanied by a notarized translation. This is a separate topic you may wish to explore further.
Conclusion
In short, you are fully entitled to make a will leaving all of your assets in Vietnam to the child who has cared for you; the law does not require equal division once a lawful will exists. The other two children, if they are adults with the capacity to work, do not fall within the group protected by Article 644 and therefore cannot demand a redivision merely because they are not named in the will. The steps to take are: (1) determine whether you still have anyone within the Article 644 group (a parent, a spouse, a minor child, or a child lacking the capacity to work) in order to account for the compulsory portion in advance; (2) make a will that meets the legal conditions, preferably notarized or authenticated to prove sound mind and voluntary intent; (3) describe each asset clearly; and, because you are abroad, prepare for the documents to be usable in Vietnam when the will takes effect.
If you want your will both to reflect your wishes and to be difficult to challenge later, DEDICA can review your family circumstances to determine precisely who is entitled to a compulsory portion, draft a will that meets the legal conditions, and guide you in standardizing documents from abroad so that the will can be used in Vietnam. Contact DEDICA for legal advice tailored to your specific case.
This article is for reference only, based on the law in force at the time of writing. Each case has its own particular facts; please consult a DEDICA lawyer for accurate advice on your situation.
