I. Introduction
In the context of globalization, cross-border marriages and international investment activities have become increasingly common, leading to a significant rise in will and inheritance disputes involving foreign elements in Vietnam. For couples where one party is a UK citizen and the other is a Vietnamese (or dual) citizen, estate planning is not only essential for asset protection but also requires a deep understanding of two different legal systems: Vietnam’s civil law system and the UK’s common law system.
See also: Inheritance Tax for Foreigners in Vietnam
II. Legal Framework Governing Inheritance in Vietnam and the United Kingdom
1. Vietnamese Law on Inheritance
Inheritance in Vietnam is primarily governed by the 2015 Civil Code (Articles 609–662), with the following key principles:
- Testamentary and Intestate Succession: A person has the right to make a will to dispose of their assets. If there is no valid will, or the will is invalid, inheritance will follow the statutory rules (Article 650 of the Civil Code).
- Compulsory Heirs: Certain individuals such as minor or incapacitated children and parents are entitled to a portion of the estate even if not mentioned in the will (Article 644), known as “heirs irrespective of the content of the will.”
- Formality of Wills: Wills must strictly comply with regulations on form and capacity (Articles 627–630). Wills made in a foreign language or abroad must be notarized, authenticated, and legalized for use in Vietnam (Article 56 of the Law on Notarization 2014).
- Real Estate in Vietnam: Under the 2013 Land Law and the Civil Code, any transaction involving land use rights or residential property in Vietnam is governed by Vietnamese law, regardless of the testator’s nationality.
2. UK Law on Inheritance
Inheritance law in the UK (specifically in England & Wales) is characterized by the principle of testamentary freedom. A testator has complete discretion in distributing their estate, without being bound by “compulsory heir” provisions.
Key Legislation:
- Wills Act 1837: Foundational legislation governing the legal validity of wills.
- Inheritance (Provision for Family and Dependants) Act 1975: While UK law protects testamentary freedom, this act allows certain individuals (e.g. spouse, children, dependents) to claim reasonable provision from the estate even if excluded from the will.
Flexibility in Asset Distribution:
- No compulsory heirs: A testator may leave assets to a charity, outsiders, or anyone else without a specific justification.
- However, in case of disputes, courts can intervene to ensure a minimum provision for dependents based on fairness.
See also: Procedure for Will Inheritance by Foreigners in Vietnam
III. Common Types of Disputes
1. Property Ownership Conflicts
- Land Ownership Restrictions for Foreigners: Under Articles 4 and 44 of the 2024 Land Law, foreigners cannot obtain land use right certificates in Vietnam, except for owning apartments in commercial housing projects or other cases under Articles 19 and 20 of the 2023 Housing Law. If a foreigner inherits or is gifted a house without qualifying ownership rights or exceeds limits, they can only receive the asset’s value, not ownership.
- Complex Asset Transfer Regulations: Transferring real estate to foreign heirs must comply with strict ownership and use conditions and may require approval from competent authorities if outside permitted scope.
- Joint Ownership: Assets acquired during marriage are usually jointly owned unless there is a written or legally recognized agreement to separate property. Upon the death of one spouse, if ownership shares are not clearly defined, the entire asset may be treated as inheritance—including the surviving spouse’s portion.
This often causes disputes, particularly when the surviving spouse is a foreign national unfamiliar with Vietnamese law, or when the deceased’s relatives claim the entire asset. According to:
– Articles 33 and 59 of the 2014 Law on Marriage and Family, property acquired during marriage is jointly owned unless proven otherwise;
– Article 66 provides that upon the death of one spouse, the joint property must be divided in half before distribution of inheritance.
2. Beneficiary Rights Issues
- Conflicting Inheritance Priorities: Vietnamese law defines heirs by statutory order (Article 651 of the 2015 Civil Code), which may conflict with UK law. In the UK, testamentary freedom allows full discretion in asset distribution.
However, the Inheritance (Provision for Family and Dependants) Act 1975 allows certain individuals to contest a will for lack of reasonable provision. Still, this is not an automatic right and subject to court discretion. In contrast, Vietnam recognizes “heirs irrespective of the will” (Article 644), which can lead to disputes.
- Recognition of Foreign Heirs: Vietnamese law allows foreigners to inherit under both testate and intestate succession. Yet, UK citizens often face challenges in proving civil capacity, inheritance status, and ownership rights in Vietnam. Notarization or court authorities may require legalized documents proving family relationships, nationality, personal status, and legal capacity issued by foreign competent authorities.
- Moreover, if the asset is real estate, the foreign heir may only own housing under strict conditions and cannot obtain land use right certificates (except in rare cases). Additionally, if the heir lacks a tax ID in Vietnam, they may need to register for tax purposes to fulfill their financial obligations upon receiving the inheritance.
IV. Solutions to Minimize Dispute Risks
1. Dual-Jurisdiction Wills
For individuals with assets in both Vietnam and the UK, careful will preparation is crucial to ensure enforceability in each country. International legal practice recommends drafting separate wills for each jurisdiction to avoid incompatibility or partial/total invalidation.
- Separate Wills for Each Country: Individuals with assets in both the UK and Vietnam should prepare distinct wills in accordance with each legal system.
- Specify Applicable Law: Each will should clearly state the governing law for asset distribution. Under Article 680 of the 2015 Civil Code, the testator may choose the law of their nationality if they hold multiple nationalities. This should be expressly declared in each will to prevent future disputes.
- Cross-Jurisdiction Legal Review: Before execution, both wills should be reviewed by legal professionals in each country to ensure they do not conflict or invalidate each other (revocation by implication) and that each retains independent legal validity. This is particularly critical if the wills are made at different times or not notarized concurrently.
2. Asset Documentation Requirements
- Comprehensive Asset Inventory: Including real estate, bank deposits, shares, intellectual property, and investments. Clearly indicate the location, ownership name, and whether assets are jointly or individually owned.
- Translation and Legalization: Foreign documents must be legalized or apostilled (if applicable under the Hague Convention) and translated into Vietnamese with notarization for use in Vietnam.
- Regular Updates: Any change in address, nationality, marital status, asset list, or beneficiaries should trigger revisions to the will and related asset records to prevent future disputes.
V. Legal Risk Prevention in International Estate Distribution
For couples with mixed nationalities between Vietnam and the United Kingdom, cross-border estate distribution may give rise to various legal risks due to differences in inheritance systems, regulations on joint vs. separate property, and principles for the recognition and enforcement of wills. To minimize the risk of disputes or invalidation of wills, the following preventive measures should be proactively implemented:
- Consult legal experts in both countries: It is critically important to seek advice from lawyers experienced in international inheritance law and familiar with both Vietnamese and UK legal systems. This ensures that wills and asset distribution plans do not conflict with, or become unenforceable under, either jurisdiction.
- Example: Rehman v Hamid [2019] EWHC 3692: A British woman of Pakistani descent left two wills—one executed in the UK (1993) and another in Pakistan (2017), each designating different beneficiaries. The UK court declined jurisdiction, ruling that Pakistan was the more appropriate forum since the later will related to assets and beneficiaries located there.
- Maintain complete and clear asset records: A detailed inventory of assets in each country (including real estate, bank accounts, company shares, intellectual property, etc.), along with ownership documents, should be prepared to facilitate the identification of estate components and lawful owners during the distribution process.
- Regularly review and update the will: Changes in marital status, residency, nationality, or asset portfolio should prompt a review and update of the will to ensure alignment with the new legal context.
Consider establishing a trust for complex assets: For large estates, assets located in multiple jurisdictions, or the need to manage long-term distribution (e.g. for underage children), setting up a trust in the United Kingdom may offer an effective legal and tax solution.
See also: Making a Will for Dual Nationals in Vietnam
VI. Conclusion
Successful estate planning for mixed-nationality couples between Vietnam and the United Kingdom requires a holistic perspective, balancing two different legal systems while applying early preventive strategies to minimize future disputes. The right approach combines:
- Strict compliance with the applicable laws of each country,
- Proactive classification and structuring of assets,
- And most importantly, in-depth legal advice from lawyers with expertise in international inheritance matters.
If you are considering estate planning or handling an inheritance dispute involving foreign elements, please contact the legal experts at Harley Miller Law Firm for tailored advice specific to your situation.
Harley Miller Law Firm
Email: info@luatminhnguyen.com / miller@hmlf.vn
Website: luatminhnguyen.com or hmlf.vn
Hotline: +84 9372 15585
