1.

The Concept of Inheritance Relations in Private International Law

a. Definition of Inheritance Relations in Private International Law:
Inheritance relations in Private International Law (PIL) are civil in nature, as outlined
in Article 1 of the Civil Code 2015:
Article 1. Scope
The Civil Code provides the legal status, legal standards for the conduct of natural
and juridical persons; the rights and obligations of natural and juridical person
(hereinafter referred to as persons) regarding personal and property rights and
obligations in relations established on the basis of equality, freedom of will,
independence of property and self-responsibility (hereinafter referred to as civil
relations).
Inheritance in Private International Law refers to inheritance relations with foreign
elements. According to Clause 2 of Article 663 of the Civil Code 2015, foreign
elements in inheritance relations in PIL are identified through certain indicators:
2. Civil relation involving a foreign element means any of the following civil
relations:
a) There is at least one of the participating parties is a foreign natural person or
juridical person;
b) The participating parties are Vietnamese natural persons or juridical persons but
the basis for the establishment, modification or termination of such relation arose in a
foreign country;
c) The participating parties are Vietnamese natural persons or juridical persons but
the subject matter of such civil relation is located in a foreign country.
Article 609. Rights of inheritance
A natural person may make a will to dispose of his or her estate, may leave his or her
property to an heir in accordance with law, or may inherit an estate left to him or her
under a will or in accordance with law.
An heir not being natural person has the right to inherit estate under a will.
Firstly, the parties involved in the inheritance relations include foreign individuals
who either leave behind an estate or have the right to inherit, or foreign legal entities
that are entitled to inherit according to a will (Article 609 of the Civil Code 2015).
Article 609. Rights of inheritance
A natural person may make a will to dispose of his or her estate, may leave his or her
property to an heir in accordance with law, or may inherit an estate left to him or her
under a will or in accordance with law.
An heir not being natural person has the right to inherit estate under a will.”
A legal entity cannot be the one leaving behind an estate, because when a legal entity
ceases to exist, the law provides specific regulations to settle its financial obligations,
rather than granting it the right to leave an inheritance (Article 96 of the Civil Code
2015).
Article 96. Termination of juridical persons
1. A juridical person shall terminate in any of the following cases:
a) Consolidation, acquisition, total division, conversion of legal, or dissolution
prescribed in Articles 88, 89, 90, 92 and 93 of this Code;
b) Declaration of bankruptcy in accordance with law on bankruptcy.
2. A legal person shall terminate from the time its name is removed from the juridical
person registry or as from the time stated in a decision of competent authority.
3. When a juridical person terminates, its property shall be resolved in accordance
with this Code and relevant laws.
Example: A, a Vietnamese national working in Japan, makes a will leaving all of their
assets in Japan to B, a Japanese company. This is an inheritance relationship with
foreign elements because the Japanese company, a foreign legal entity, is entitled to
inherit the estate under the will of a Vietnamese citizen.
Secondly, when all parties in the inheritance relations are Vietnamese citizens or legal
entities, but the subject of the inheritance is property located abroad.
Example: Cúc, a Vietnamese citizen, has an asset of 3 billion VND in a bank in
Switzerland. Cúc makes a will leaving this amount to her children, who are also
Vietnamese citizens.
Thirdly, when both the person leaving the inheritance and the beneficiary are
Vietnamese citizens, but the legal event that establishes, modifies, enforces, or
terminates the inheritance relationship occurs abroad (such as death, making,
modifying, or revoking a will abroad).
Example: Nhân, a Vietnamese citizen, is traveling in Thailand and suffers an accident.
Before dying, Nhân makes a will in Thailand to dispose of his assets in Vietnam. The
beneficiaries of the inheritance are Nhân's wife and children, who are all Vietnamese
citizens.
2. Scope of Private International Law on Inheritance:
Unlike the regulation of inheritance in civil law, which covers inheritance by will and
inheritance by law, the scope of study on inheritance in Private International Law
includes three main issues:
i) The jurisdiction of national courts over inheritance cases with foreign elements.
ii) The applicable law to govern inheritance relations involving foreign elements.
iii) The recognition and enforcement of foreign court judgments and decisions
regarding inheritance cases.
3. Sources of Law:
Unlike Private International Law in general, the sources of law governing inheritance
relations in Private International Law consist of only two types: international treaties
and national laws.
2. Conflict of Laws (CoL) and resolution of CoL in the field of inheritance
4. Concept and resolution of conflict of laws in inheritance
a. Concept:
Conflict of laws in inheritance within Private International Law refers to the situation
where two or more legal systems, each with different substantive content, could
potentially be applied to regulate the same inheritance relationship, leading to
different outcomes depending on which system is used.
There are two main causes of conflict of laws in inheritance: The inheritance relations
involves foreign elements and the related legal systems have differing regulations.
The issues that arise in conflict of laws regarding inheritance include:
i) For inheritance by will: capacity to make, modify, or revoke a will; form and
content of the will.
ii) For inheritance by law: order of heirs, eligible heirs, and distribution of the estate.
iii) Inheritance without heirs in Private International Law.
5. Methods for resolving conflict of laws in inheritance:
Similar to Private International Law in general, conflicts of laws in inheritance are
resolved through two methods:
First, conflict of laws rules method: This involves applying unified conflict rules
found in international treaties or national laws to determine which legal system is
applicable.
Second, substantive law method: This involves using substantive provisions in
international treaties or national laws that specifically govern the rights and
obligations of the parties in the inheritance relationship.
6. Legal systems commonly applied for resolution:
Some common legal systems used to regulate inheritance relationships with foreign
elements include:
First, the law of the location of the property, particularly for immovable property.
Since inheritance involves the transfer of property ownership to the heirs, Lex Rei
Sitae is often applied to resolve related issues.
Besides property matters, inheritance relations are also closely tied to personal status,
so in cases of conflict of laws, the legal system of the nationality or the place of
residence of the individual may also be applied.
Additionally, inheritance relations may involve the creation, modification, or
revocation of certain legally significant documents (e.g., wills), so when there is a
conflict regarding the legality of these documents, Lex loci actus will take precedence.
Practical experience from bilateral and multilateral international treaties on
inheritance has shown two principles for regulating inheritance relationships with
foreign elements:
 Dual inheritance regime principle: According to this principle, the estate is
divided into movable and immovable property. Inheritance of movable
property is governed by personal law, while inheritance of immovable
property is governed by the law of the location of the immovable property.
 Single inheritance regime principle: This principle does not distinguish
between types of assets and uniformly applies personal law.
7. Resolution of conflict of laws in inheritance in Vietnam
a. Resolving conflicts of laws in inheritance by will:
As of the present, Vietnam has signed mutual legal assistance agreements on civil,
criminal, and family matters with many countries worldwide, such as Germany,
Russia, the Czech Republic, Cuba, Hungary, Poland, and others.
The fundamental principle for resolving conflicts of laws in inheritance as recognized
in these agreements is the principle of equality between the citizens of the contracting
parties in inheritance relationships. Accordingly, the citizens of one signatory country
are equal to the citizens of the other in terms of making or revoking a will concerning
assets and rights that need to be executed in the other contracting country, as well as
the ability to inherit assets or rights under the same conditions that the state grants to
its own citizens.
First, regarding the capacity to make, modify, and revoke a will: Article 41, Clause 1
of the Vietnam-Russia Mutual Legal Assistance Agreement, “1. The capacity to make
or revoke a will, as well as the legal consequences of any defects in the expression of
the testator's intent, shall be determined according to the law of the Contracting Party
of which the decedent is a citizen at the time of making or revoking the will.” and
Clause 1 of Article 681 of the 2015 Civil Code, “1. The capacity to create a will, and
to alter or rescind a will, must comply with the law of the country of which the testator
is a citizen.” all determine the capacity to create, modify, or revoke a will according to
the law of the country of which the individual is a citizen at the time of making,
modifying, or revoking the will (Lex personalis).
Secondly, regarding the form of the will:
According to Clause 2, Article 41 of the Vietnam-Russia Mutual Legal Assistance
Agreement, “2. The form of making or revoking a will shall be determined according
to the law of the Contracting Party of which the decedent is a citizen at the time of
making or revoking the will. However, adherence to the law of the Contracting Party
where the will is made or revoked shall also be considered valid.” Thus, the form of a
will will be recognized as legal if it falls into one of two cases: it complies with the
law of the country where the testator is a citizen at the time of making the will (Lex
personalis) or the law of the Contracting Party where the will is made (Lex loci actus).
Following the Hague Convention of 1961 on inheritance, Clause 2, Article 681 of the
2015 Civil Code has expanded the forms of wills recognized, including the following
cases:
“2. The form of a will must comply with the law of the country in the place where the
will is created. The form of a will shall be also recognized in Vietnam if it complies
with the laws of any of the following countries:
a) The country in which the testator resides at the time when the will is created or the
testator dies;
b) The country of which the testator holds nationality at the time when the will is
created or the testator dies;
c) The country where the inheritance being immovable property is located.”
b. Resolving conflicts of law regarding inheritance according to the law:
Article 39 of the Vietnam-Russia Mutual Legal Assistance Agreement states:
“Article 39
Applicable Law
1.Legal relationships concerning the inheritance of movable property are governed
by the law of the Contracting Party of which the decedent was a citizen at the time of
death.
2.Legal relationships concerning the inheritance of immovable property are governed
by the law of the Contracting Party where the property is located.
3.The distinction between movable and immovable property is determined according
to the law of the Contracting Party where the property is located.”
For example, a Vietnamese citizen living in Russia leaves behind an inheritance
without a will, which includes: an apartment in Vietnam, an apartment in Russia, and
money in a bank account in Russia. According to the regulations above, the
inheritance of the immovable property (the apartment in Russia) will be resolved
according to Russian law, the apartment in Vietnam will be resolved according to
Vietnamese law, and the money (which is movable property) in Russia will apply
Vietnamese law (the law of the nationality of the deceased).
The legal relationship regarding inheritance in international private law is stipulated in
Article 680 of the 2015 Civil Code:
“Article 680. Inheritance
1. Inheritance must comply with the law of the country of which the person who
bequeathed the assets held nationality prior to his or her death.
2. The right to inherit immoveable property must comply with the law of the country
where such immoveable property is located.”
8. Inheritance with no heirs in International Law
Definition: The case in which no one inherits the estate, or the potential heirs refuse to
inherit the estate, is referred to as the case of inheritance without heirs.
According to the laws of various countries, in principle, the estate is governed by the
law of the country where the property is located in order to determine the status of the
state as the heir:
If the law of the country where the estate is located stipulates that the state is the civil
heir, then the estate will belong to the country of which the deceased was a citizen.
If the law of the country where the estate is located stipulates that the state is the heir
with the nature of acquiring ownerless property, then the estate will belong to the
country where the estate is located.
Therefore, in order to resolve the issue of inheritance without heirs, it is necessary to
determine the status of the state as the heir.
According to the judicial assistance agreements and legal provisions between Vietnam
and other countries, this is stipulated in several agreements, such as:
Article 40 of the Vietnam-Russia Mutual Legal Assistance Agreement on the transfer
of inheritance to the state: “If, according to the law of the Contracting Party as
stipulated in Article 39 of this Agreement, the heir is the state, then the movable
property will belong to the Contracting Party of which the deceased was a citizen at
the time of death, while the immovable property will belong to the Contracting Party
where that immovable property is located.”
Article 37 of the Vietnam-Laos Mutual Legal Assistance Agreement on the transfer of
inheritance to the state: “In the case where there are no heirs according to the will or
by law, or where potential heirs are not entitled to inherit, refuse their right to inherit,
and according to the law of the Contracting Party, the above-mentioned estate
becomes the property of the Contracting Party, then the movable property will belong
to the Contracting Party of which the deceased was a citizen at the time of death,
while the immovable property will become the property of the Contracting Party
where that immovable property is located.”
Article 35 of the Vietnam-Mongolia Mutual Legal Assistance Agreement on the
transfer of inheritance to the state: “If according to the law of the Contracting Party,
the estate is inherited by the state, then the movable property will be transferred to the
Contracting Party of which the deceased was a citizen at the time of death, while the
immovable property will be transferred to the Contracting Party where that
immovable property is located.”
Article 44 of the Vietnam-Hungary Mutual Legal Assistance Agreement on property
without heirs: “If the deceased has no heirs or all potential heirs refuse to accept the
estate or all such heirs are incapacitated, then the immovable property will belong to
the Contracting Party where that immovable property is located, while the movable
property will belong to the Contracting Party of which the deceased was a citizen at
the time of death.”
Article 35 of the Vietnam-Cuba Mutual Legal Assistance Agreement on the transfer of
inheritance to the state: “If according to the law of both Contracting Parties, the
estate is transferred to the state, then all movable property will be transferred to the
Contracting Party of which the deceased was a citizen at the time of death, while the
immovable property will belong to the Contracting Party where that immovable
property is located.”
9. Jurisdiction of Vietnamese Courts in inheritance cases with foreign elements
a. Determining the jurisdiction of Vietnamese courts under the Mutual Legal
Assistance Agreement and Vietnamese law signed with other countries.
Specifically, under Clauses 1 and 2 of Article 42 of the Vietnam-Russia Mutual Legal
Assistance Agreement:
“Article 42
Jurisdiction to resolve inheritance issues
1.The resolution of issues regarding the inheritance of movable property falls under
the jurisdiction of the Contracting Party of which the decedent was a citizen at the
time of death.
2.The resolution of issues regarding the inheritance of immovable property falls
under the jurisdiction of the Contracting Party where the property is located.”
The determination of the jurisdiction of national courts will depend on the nature of
the estate left behind. Vietnamese courts will have the authority to accept and resolve
inheritance cases in two scenarios: if the inherited property is movable and the
deceased was a Vietnamese citizen, or if the inherited property is immovable and
located within the territory of Vietnam.
However, it is important to note the exception mentioned in Clause 3, Article 42 of the
Vietnam-Russia Mutual Legal Assistance Agreement, which states:
“3. If all movable property is the estate of citizens of this Contracting Party located
on the territory of the other Contracting Party, then, upon the request of one heir and
with the consent of all other known heirs, the authorities of that Contracting Party
shall carry out the procedures for resolving the inheritance.”
b. Determining the jurisdiction of Vietnamese courts under Vietnamese law
In principle, the determination of the jurisdiction of Vietnamese courts in inheritance
cases with foreign elements, in the absence of international agreements, will be based
on Chapter 38 of the 2015 Civil Procedure Code. According to Clause 1 of Article 464
of the 2015 Civil Procedure Code, inheritance cases will fall under the general
jurisdiction of Vietnamese courts if the following conditions are met:
The case falls within the jurisdiction of the courts as listed in Chapter 3 of the Civil
Procedure Code.
The case has at least one of the characteristics specified in Clause 1 of Article 469
regarding the general jurisdiction of Vietnamese courts.
“Article 469. Common jurisdiction of Vietnamese Courts to resolve civil cases
involving foreign elements
1. Vietnamese Courts shall have the jurisdiction to resolve civil cases involving
foreign elements in the following cases:
a) The defendant is an individual who resides, works or lives for a long term in
Vietnam;
b) The defendant is an agency or organization which is headquartered in Vietnam or
the defendant is an agency or organization has a branch or a representative office in
Vietnam, applicable to cases related to the operation of the branch or representative
office in Vietnam of such agency/organization;
c) The defendant has properties in Vietnam;
d) The divorce cases with the plaintiffs or the defendants being Vietnamese citizens or
involved parties being foreigners who reside, work or live for a long term in Vietnam;
dd) Civil cases related to civil relations which are established, changed or terminated
in Vietnam, objects of which are properties in Vietnam or acts performed in Vietnam;
e) Civil cases related to civil relations which are established, changed or terminated
outside of Vietnam’s territory but involve rights and obligations of Vietnamese
agencies, organizations and individuals or agencies, organizations and individuals
that are headquartered or reside in Vietnam.”
Or clause 2:
“2. The following civil cases involving foreign elements shall fall under the exclusive
jurisdiction of Vietnamese courts:
a) Claims without dispute arising from civil legal relationships specified in clause 1
of this Article;
b) Claims for determination of a legal events occurring in Vietnam;
c) Declaration of a Vietnamese citizen or a foreigner residing in Vietnam missing or
death if such declaration is related to the establishment of their rights and obligations
in Vietnam, except for cases where International treaties to which the Socialist
Republic of Vietnam is a signatory otherwise prescribe;
d) Declaration of foreigner residing in Vietnam having limited civil act capacity or
lacking legal capacity if such declaration is related to the establishment of their rights
and obligations in Vietnam;
dd) Recognition of a property in Vietnam to be derelict, recognition of the right to
ownership of the current manager over derelict immovables in Vietnam.”
From that, it can be understood that the Vietnamese courts will not accept and resolve
all inheritance cases with foreign elements. Such regulations aim to ensure the
efficiency of resolving cases as well as the enforceability of judgments and decisions
of the court in civil cases concerning inheritance with foreign elements. The
determination of the court level that has jurisdiction over this type of case will be
defined according to Chapter 3.
Question: Why are the sources of law limited to international treaties and
national law, and what about international customs?
Answer: Inheritance relations are complex and not only involve property elements
(such as the right to inherit) but also include personal factors such as heirs, legal
capacity for establishing, amending, or revoking wills—issues that are deeply
influenced by customs, traditions, and the socio-economic conditions of each country.
Therefore, it is very difficult for a country to adopt rules or practices that are foreign
to its own to subsequently form international customs. As a result, in practice,
international customs are not considered a source of law governing inheritance
relations with foreign elements.