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In the context of deep international integration, cross-border civil relations are increasingly common, leading to more frequent disputes and transactions involving foreign elements. Among these, testamentary inheritance involving foreign elements is particularly complex, as it relates to property rights, testamentary capacity, and the transfer of assets among individuals of different nationalities.
Under Article 663 of the 2015 Civil Code (CC 2015), inheritance involving foreign elements is defined as cases where at least one of the following exists:
One or more parties are foreign individuals or foreign legal entities;
The inherited property is located abroad;
The legal event giving rise to, modifying, or terminating inheritance relations occurs abroad.
Thus, determining the applicable law in inheritance cases involving foreign elements plays a crucial role in private international law. The 2015 Civil Code establishes detailed rules under Articles 680 and 681 to resolve conflicts of laws in testamentary inheritance with foreign elements.
Clause 1, Article 680 CC 2015 states:
“Inheritance shall be governed by the law of the country of which the deceased was a national immediately before his or her death.”
This means that matters such as the content of the will, time of opening the inheritance, and heirs’ rights must be determined under the law of the deceased’s nationality.
Example:
A foreign investor owning property in Vietnam prepares a will for his spouse and children, all of whom are foreigners. Even though the property is located in Vietnam, the inheritance rights are governed by the law of the deceased’s nationality. However, the implementation procedures in Vietnam must still comply with Vietnamese law.
Clause 2, Article 680 clarifies:
“The exercise of inheritance rights over immovable property shall be governed by the law of the country where the immovable property is located.”
Thus, lex rei sitae is mandatory when determining rights over land-related assets.
Example:
A foreigner inherits a house in Vietnam; however, Vietnamese law does not permit foreigners to own residential property. Therefore, the heir may only receive the value of the property instead of title ownership.
Clause 1, Article 681 provides:
“Testamentary capacity to make, change, or revoke a will shall be determined under the law of the country of which the testator is a national at the time of making, changing, or revoking the will.”
This applies the principle of lex nationalis, consistent with civil capacity rules and bilateral judicial assistance treaties.
Clause 2, Article 681 governs the form of wills:
The form of a will is valid if it complies with the law of:
a) The country where the will was made;
b) The country where the testator resided or was a national at the time of making or death;
c) The country where the immovable property is located (for immovable assets).
This reflects a more flexible approach compared to the 2005 Civil Code, aligning with the Hague Convention of 1961 on conflicts of laws relating to testamentary dispositions.
Example:
A Vietnamese citizen makes a will in France. If the will complies with French law—the place where it was made—it will be recognized in Vietnam, provided it does not violate Vietnam’s fundamental legal principles (Article 670 CC 2015).
Article 680 CC 2015 removes Clause 3 and 4 of Article 767 CC 2005 regarding inheritance with no heirs. The 2015 Code resolves this more flexibly through the application of the deceased’s national law.
Article 681 CC 2015 expands the recognition of will forms, allowing multiple connecting factors rather than only the place of making the will. This ensures compatibility with international practices in cross-border inheritance.
The 2015 Civil Code is therefore considered more progressive and internationally aligned, ensuring consistency between domestic law and global legal standards while protecting inheritance rights in cross-border situations.
Inheritance involving foreign elements is a vital component of private international law, reflecting the intersection of different national legal systems. Articles 680 and 681 of the 2015 Civil Code form a clear and flexible legal mechanism that effectively resolves conflicts of laws in testamentary inheritance cases involving foreign elements.
If you are facing issues related to inheritance involving foreign elements—such as wills made overseas, assets located abroad, or determining the applicable law—our specialized legal team is ready to provide comprehensive support.
GIVLAW COMPANY LIMITED
Head Office: 25A1 Nguyễn Ư Dĩ Street, An Khánh Ward, Thu Duc City, Ho Chi Minh City, Vietnam
Email: givlawvietnam@gmail.com
Hotline: 0964 996 908 – 0836 858 888
