Is it possible to make a will leaving a house and land but prohibiting its sale?

Người Đưa Tin•19/05/2023

A will is understood as an expression of an individual's intention to transfer their property to others after death.

According to Article 609 of the 2015 Civil Code on Inheritance Rights: Individuals have the right to make a will to dispose of their property; to leave their property to legal heirs; and to inherit property according to the will or the law. Therefore, making a will to dispose of property after death is entirely in accordance with the law.

A legally valid will is one that is executed in accordance with the provisions of Article 630 of the 2015 Civil Code.

Article 630. Valid Will

1. A legally valid will must meet the following conditions:

a) The testator was mentally sound and lucid when making the will; not deceived, threatened, or coerced;

b) The content of the will does not violate any legal prohibitions or social morality; the form of the will does not contravene legal regulations.

2. The will of a person aged fifteen to under eighteen years old must be in writing and must have the consent of their parents or guardian.

3. The will of a person with physical limitations or of a person who is illiterate must be drawn up in writing by a witness and notarized or certified.

4. A written will that is not notarized or authenticated shall only be considered legal if it meets all the conditions stipulated in Clause 1 of this Article.

5. An oral will is considered legal if the testator expresses their final wishes in the presence of at least two witnesses, and immediately after the testator expresses their final wishes, the witnesses record it, sign it, or affix their fingerprints. Within 05 working days from the date the testator expresses their final wishes, the will must be notarized by a notary public or competent authority, certifying the signatures or fingerprints of the witnesses.

Article 631. Contents of the will

1. The will includes the following main contents:

a) Date, month, and year the will was made;

b) Full name and place of residence of the testator;

c) Full name of the person, agency, or organization entitled to the inheritance;

d) The legacy left behind and the location of that legacy.

2. In addition to the contents stipulated in Clause 1 of this Article, a will may contain other contents.

3. A will must not be written in abbreviations or symbols. If the will consists of multiple pages, each page must be numbered sequentially and bear the signature or fingerprint of the testator.
In cases where a will contains erasures or corrections, the testator or a witness to the will must sign next to the erasure or correction.

Based on the above regulations, a legally valid will is one that was made at a time when the testator was mentally sound and lucid, and the making and distribution of the will were in accordance with their wishes, without deception or coercion. The content of the will must not violate the law and social ethics, and it must comply with the formal requirements of a will.

Is it possible to make a will leaving land to someone but prohibiting its sale?

Regarding this matter, Clause 1, Article 645 of the 2015 Civil Code stipulates:

If the testator leaves a portion of the estate for ancestral worship, that portion is not to be divided among the heirs and is entrusted to the person designated in the will to manage and carry out the worship; if the designated person fails to fulfill the will or the agreement of the heirs, they have the right to entrust the portion of the estate intended for ancestral worship to another person to manage and perform the worship.

If the deceased does not designate a person to manage the ancestral worship property, the heirs shall appoint a person to manage the ancestral worship property.

If all the beneficiaries named in the will have died, the portion of the estate intended for ancestral worship belongs to the person who is legally managing that estate among those entitled to inherit under the law.

However, if the deceased's entire estate is insufficient to pay off their financial obligations, no portion of the estate may be set aside for ancestral worship (according to Clause 2, Article 645 of the 2015 Civil Code). That is, if the deceased's entire estate is insufficient to "pay off debts," the house and land must be used to pay off debts, even if the will explicitly states that it is for ancestral worship.

In short:

- If the will stipulates that the property cannot be sold and can only be used for worship, then the heir has no right to sell it, except in cases where the entire estate of the deceased is insufficient to fulfill their obligations (insufficient to pay off debts, in which case the property must be sold or transferred to the creditor).

- If the will does not specify "use for worship," the heir still retains all the rights of a land user, including the right to transfer ownership.

Minh Hoa (compiled)

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