Question: I am living abroad. Recently, I learned that my father in Vietnam made a will leaving all real estate to my youngest sibling. However, at the time of making the will, my father suffered from severe dementia (Alzheimer’s), often failed to recognize his children, and was undergoing hospital treatment. Is this will legal? If my father has not been declared by a Court to have lost his civil act capacity, can I still request to annul that will?
Answer: To determine the legal validity of this will, SB Law would like to analyze the following key aspects:
- According to Article 630 of the Civil Code 2015, a will shall only be considered legal when the testator is of sound mind and clear-headed while making the will, and is not deceived, threatened, or coerced. The law does not prohibit a person with health issues from making a will, but requires them to be aware of their acts at the exact time of signing, rather than their general health condition before or thereafter.
- There is a common misunderstanding that if the Court has not issued a decision declaring a person to have lost civil act capacity, all wills made by them are automatically valid. In fact, according to Article 128 of the Civil Code 2015, if a person enters into a transaction at the exact time of being unable to perceive and control their acts, the person with related rights and interests may request the Court to declare such transaction void. Therefore, even though your father was not declared by the Court to have lost civil act capacity during his lifetime, you still have the opportunity to request the annulment of the will if it can be proven that he was not clear-headed at the time of signing.
- Many families believe that a notarized will cannot be challenged. However, the notary public may only refuse notarization if detecting abnormal signs during the direct working session. With conditions such as dementia, the patient may be lucid for short periods during notarization, but their overall perception has impaired. The Court may still review the content and civil act capacity if you have valid evidence from medical records or forensic appraisal.
- If you are the person requesting the annulment of the will, you shall have the obligation to prove that your father’s perceptual state was closely tied to the time of signing. You have only 02 years to request the Court to declare the will void from the date you knew or ought to have known about the grounds for invalidity.
Conclusion:
A will established by a person who is no longer clear-headed bears a very high risk of being declared void. To protect your rights and interests, if your father is still alive, you should proactively request the Court to determine his capacity status and preserve detailed medical records. If he has passed away, you need to promptly initiate a lawsuit and collect medical records corresponding to the exact period of establishing the will to serve as the basis for litigation at Court.
