Land inheritance disputes in Vietnam

Land inheritance disputes in Vietnam

Currently, most of the inheritance disputes are related to the inheritance of land use rights. So what is the way to resolve these disputes?

What is land inheritance in Vietnam?

Land inheritance is the transfer of land use rights from a deceased person to an heir according to a will or law.

Disputes over land inheritance include: Disputes asking for division of inheritance as land use rights, disputes asking for confirmation of heirs’ inheritance rights, and disputes over rejecting other people’s inheritance rights. When settling disputes over inheritance of land use rights, in addition to applying the provisions on inheritance in the Civil Code, the Court also applies the corresponding provisions of the Land Law from time to time.

How to define heritage as land use right in Vietnam?

Land use rights that are inherited by the deceased include:

– The right to use land and/or property attached to the land owned exclusively by the deceased.

– The right to use land and/or properties attached to the land of the deceased in the marital property.

– The right to use the land and/or property attached to the land of the deceased in the common property in part with other people.

To prove that the land use right is the estate of the deceased, the involved parties must provide the Court with documents and evidences including:

– Certificates of land use rights;

– Valuable papers proving the land use rights in accordance with the Land Law;

– Judgment or decision on division of marital property, division of inheritance, document on donation of property, transfer of property;

– Agreement on division of common property of husband and wife or import of separate property into the common property of husband and wife, agreement on establishment of property regime of husband and wife;

– A written commitment or agreement on separate property during the marriage;

– Marriage registration certificate, documents confirming that the property was formed outside the marriage period;

– A written agreement to jointly contribute capital to receive the transfer of land use rights with another person.

In fact, there are cases where dead people have been granted land use right certificates and disputes arise only after their death. The results of dispute settlement by the competent authority determined that the deceased was not a land use right holder and canceled the issued land use right certificate.

Settlement of land inheritance disputes in Vietnam according to will

If the deceased leaves a will and the will is legal, the estate is the land use right divided according to the will of the deceased as recorded in the will.

A will must satisfy the following requirements in order to be lawful:

– The testator was of sound mind when he or she made the will; and he or she was not deceived, threatened or coerced into making the will;

– The contents of the will are not contrary to law or social morals and the will complies with legal formalities.

A will made by a person between fifteen and eighteen years of age must be made in writing and with the consent of the parents or guardian of such person. A will made by a person who is incapacitated or illiterate must be made in writing by a witness and must be notarized or certified.

An oral will shall be deemed lawful only if the testator orally expressed his or her last wishes before at least two witnesses who immediately thereafter recorded those wishes in writing and signed or fingerprinted the document. Such will must be notarized or certified within five working days of the date on which the testator orally expressed his or her last wishes.

A will shall become legally effective from the time of commencement of the inheritance. All or part of a will shall be legally ineffective in any of the following cases:

– An heir under the will dies prior to or at the same time as the testator dying;

– A body or organization named as an heir no longer exists at the time of commencement of the inheritance.

– Where there are several heirs under a will and one of them dies prior to or at the same time as the death of the testator or one of the bodies or organizations named as an heir under the will no longer exists at the time of commencement of the inheritance, only that part of the will which relates to the individual, body or organization no longer existing shall be legally ineffective.

– A will shall not be legally effective if the estate left to the heirs no longer exists at the time of commencement of the inheritance. If only part of the estate left to the heirs remains, only that part of the will which relates to such part of the estate shall be legally effective.

– Where a will contains provisions which are unlawful but such provisions do not affect the effectiveness of the remainder of the will, only such provisions shall be legally ineffective.

Where a person leaves behind more than one will with respect to certain property, only the most recent of such wills shall be legally effective.

Where a testator does not grant any of the following persons an inheritance, or grants any such person an inheritance which is less than two-thirds of the share that person would have received if the estate had been distributed according to law, such person shall be entitled to a share of the estate equivalent to two-thirds of the share that he or she would have received if the estate had been distributed in accordance with law:

– Children who are minors, father, mother, wife or husband of the testator;

– Children who are adults but who are incapable of working.

However, this provision shall not apply to persons who have disclaimed their inheritance or person who are not entitled to inherit.

Settlement of land inheritance disputes in Vietnam according to Vietnamese law

Principle of division of land inheritance according to Vietnamese law

In case the deceased person does not have a will or he/she has a will but does not divide the land use rights in the will or he/she decides to divide the land use rights in the will but that part of the will is invalid, the estate being the land use right will be divided according to the law.

When dividing inheritance according to the law, the estate will be divided equally among the heirs of the same level of heirs. In case there is no one left in the first level of heirs, the people in the next level of heirs will receive the inheritance.

Inheritance of land use rights as common property of husband and wife when the prescriptive period with respect to a claim of an heir for distribution of an estate has expired

Husband and wife have the right to inherit each other’s property. When a spouse dies, the surviving party is the legal heir in the first level of heir and manages the common property. When an inheritance dispute arises and the prescriptive period with respect to a claim of an heir for distribution of the estate of the first deceased spouse has expired, distinguish the following cases:

– If the land use right is the common property of husband and wife, the prescriptive period with respect to a claim of an heir for distribution of the estate of the first deceased spouse has expired, and the prescriptive period with respect to a claim of an heir for distribution of the estate of latter deceased spouse remains, the Court only divides the estate of the latter and recognizes the estate of the first deceased under the ownership of the heir who is managing the estate.

– If the land use right is the common property of husband and wife, the prescriptive period with respect to a claim of an heir for distribution of the estate of the first deceased spouse has expired, the other party is still alive and is managing the entire land use right, the Court recognize the estate owned by the surviving spouse.