A testament is an important tool for expressing final wishes about property after death. However, not every testament automatically has legal value. Validity depends strictly on compliance with conditions of form, content, and the testator’s capacity as prescribed by the Civil Code. One debated issue involves testaments made at law firms, where lawyers participate but the firm has no authority to notarize or authenticate. Judgment No. 03/2019/DSPT of the People’s Court of Ha Nam Province is a typical example—the Court recognized the validity of a testament made at a law firm, clarifying the boundary between mandatory legal formality and evidentiary value. Analyzing this type of testament helps us better understand current legal provisions and draw practical lessons to limit inheritance disputes.

1. Summary of the Case

The inheritance case in Judgment No. 03/2019/DSPT dated January 30, 2019 of the People’s Court of Ha Nam Province revolved around the estate of Mr. Trương Văn K (died in 2006, without leaving a testament) and Mrs. Trần Thị K (died in 2015, leaving a testament). The estate consisted mainly of a 1,426 m² plot of land in Tường Thụy 3 Hamlet, T Commune, D District, Ha Nam Province, together with houses, auxiliary works, and trees on the land.

Mrs. Trần Thị K’s testament was made at Ha Nam Law Firm Co., Ltd. on October 29, 2014. A lawyer drafted the testament with two witnesses—one was her child (NCQLVNVLQ 1) and the other a firm staff member. The testament bore her signature and fingerprint, and was confirmed and sealed by the law firm. The testament stated she left all of her share of the common property with her husband to her youngest son, Trương Văn C.

After her death, Mr. C filed a lawsuit requesting recognition of the testament and division of the estate. Some siblings agreed, but defendant Trương Văn T and NCQLVNVLQ 2 objected. The defendants argued that Mrs. K was no longer lucid due to illness when making the testament, and cited a previous handwritten land division document (the original was lost). However, the remaining NCQLVNVLQ affirmed that Mrs. K was still lucid and alert when making the testament.

The first-instance court recognized the testament as valid, granting most of the estate to Mr. C under the testament, while dividing Mr. Trương Văn K’s estate (who died without a testament) according to law among the heirs. The People’s Procuracy of Duy Tiên District appealed, arguing the first-instance judgment had not clearly determined the type of land (residential or agricultural), the value of each share, and had not required the person receiving higher value to pay the difference to other heirs.

At the appellate level, the People’s Court of Ha Nam Province upheld the testament’s validity while amending the first-instance judgment regarding estate division. The Trial Council affirmed: A testament made at a law firm is not a notarized or authenticated testament because law firms lack such authority. However, the testament is still valid because it meets the 2015 Civil Code conditions: the testator was lucid and voluntary, there were two qualified witnesses, and the content was not contrary to law. Therefore, the testament is considered a “written testament with witnesses” under Article 634 of the Civil Code, and has legal effect.

This judgment is an important practical precedent showing that a testament made at a law firm is not automatically invalid. If it meets the Civil Code conditions, it still has effect as a written testament with witnesses.

2. Legal Framework Governing the Validity of Testaments

Conditions for validity (Article 630 of the 2015 Civil Code):

• Lucid and voluntary: The testator must be fully aware, not deceived or coerced.
• Content and form: Must not violate prohibitions or morals and must comply with the legally prescribed form.

Forms of testaments (Articles 624–636 of the 2015 Civil Code):

• Testament with witnesses (Article 634): Must be in writing with at least two witnesses.
• Notarized or authenticated testament (Articles 635–636): Made at a notarial practice organization or the Commune People’s Committee.

Witnesses (Article 632 of the 2015 Civil Code):

• Standards: Must have full civil act capacity, not be an heir under the testament or by law, and have no rights or obligations related to the testament’s content.
• Purpose: To ensure objectivity and limit conflicts of interest.

3. Validity of a Testament Made at a Law Firm

A testament made at a law firm is not a notarized or authenticated testament because law firms have no authority to notarize or authenticate under the 2014 Law on Notarization. This type of testament can only be considered a “written testament with witnesses” under Article 634 of the 2015 Civil Code. The seal and confirmation of the law firm serve only as supporting evidence to identify the circumstances of making the testament. They do not create legal value equivalent to notarization or authentication.

To be recognized as valid, the testament must meet the conditions of lucidity and voluntariness of the testator. Assessment is usually based on witness testimony, the circumstances of making the testament, reading back the document before signing or fingerprinting, and consistency in content. If the testator was lucid and voluntary when making the testament, it remains valid regardless of whether it was made at a law firm or elsewhere.

A sensitive issue in practice is the status of witnesses. According to Article 632 of the 2015 Civil Code, witnesses must not be heirs under the testament or by law. However, in some cases, one of the two witnesses is indeed an heir. In principle, this does not comply with the law. But in practice, the Court may still recognize the testament as valid if there is at least one independent, objective witness, and other factors such as lucidity, voluntariness, and form are ensured. This reflects the Court’s flexible approach—prioritizing protection of the testator’s true will rather than invalidating the entire testament due to a formal defect. Nevertheless, this remains a legal risk, as using relatives as witnesses can be exploited to request invalidation.

Regarding form and procedure, a testament made at a law firm can still meet valid criteria: clear text, date, testator’s signature or fingerprint, reading back before signing, and direct witnessing. However, since it is not notarized or authenticated, the evidentiary value depends heavily on the ability to prove the procedure and witness independence. Having a lawyer draft the testament and the law firm’s seal increases reliability but cannot replace the standard of notarization.

4. Practical Notes When Making a Testament

• Authority to notarize

Law firms have no authority to notarize or authenticate testaments. According to the 2014 Law on Notarization, only notarial practice organizations (notary offices, notary bureaus) and Commune People’s Committees have this authority. However, making a testament at a law firm with experienced lawyers still brings important benefits: ensuring legally sound content, minimizing formal errors, and anticipating potential disputes.

• Qualified witnesses

Witnesses play an important role in ensuring the testament’s objectivity. The Civil Code stipulates that witnesses must not be heirs under the testament or by law, and must not have interests related to the testament’s content. The testator should choose at least two independent witnesses—not relatives and with no interest in the estate. Choosing proper witnesses helps avoid the risk of invalidation due to violation of formal conditions.

• Evidence of lucidity and voluntariness

A common reason for disputing a testament is the claim that the testator was no longer lucid or was coerced. To strengthen validity, the testator may prepare medical records proving health status, a doctor’s certificate of legal capacity at the time of making the testament, or a record of reading back the testament before signing or fingerprinting. The presence of a lawyer or legal professional is also an important factor to prove voluntariness and lucidity.

• Clear content about property

The testament must clearly specify the property belonging to the testator, especially in the case of common property of spouses. Describing specifically the plot of land, houses, attached assets, or other property helps avoid confusion and disputes later. The testator should anticipate possible situations, such as who will perform worship, obligations to pay debts, or handling works built by others on the land.

Conclusion

A testament made at a law firm can still be recognized as valid if it fully meets the Civil Code conditions regarding the testator’s capacity, lucidity, and voluntariness, as well as the form and witnesses. This is a written testament with witnesses, not a notarized or authenticated testament, but it still has legal effect and is protected by the Court when it proves the testator’s true will. The involvement of lawyers in drafting and confirming the testament helps ensure clarity, legal compliance, and persuasiveness when examined in court.

The judgment’s significance is that the law does not make formality absolute but focuses on protecting the testator’s genuine intent. This guarantees the individual’s right to freely dispose of their property and helps stabilize inheritance relations within the family. Therefore, making a testament at a law firm can be an appropriate option in many cases, especially when the testator wishes to have professional legal support to ensure legality and anticipate potential disputes.

Professional Testament Drafting and Inheritance Dispute Resolution Services

Harley Miller Law Firm provides professional services in drafting, reviewing testaments and resolving inheritance disputes, ensuring that the testator’s wishes are clearly expressed while effectively preventing and handling potential conflicts. With a team of highly experienced lawyers in civil and inheritance law, we deliver comprehensive legal solutions in compliance with Vietnamese law and international practices.

Our services include:

• Testament drafting and review: Advising on the appropriate form of testament (notarized, certified, or with witnesses), drafting clear and legally sound content, and minimizing risks of invalidity.
• Consultation and dispute prevention: Anticipating potential conflicts (heirs refusing inheritance, debt obligations, division of joint and separate property) and providing preventive solutions.
• Inheritance dispute resolution: Representing clients in negotiations, mediation, or litigation before the Court to protect their legitimate rights and interests.
• Estate management and distribution: Assisting with procedures for estate declaration, division, and determination of heirs’ rights and obligations.
• Testament storage and preservation: Advising on safe storage of the original testament, preparing certified copies, or depositing it with a notarial practice organization to ensure legal security.

Contact us for consultation and to receive free testament templates, guidance on notarization and certification procedures, and effective solutions for preventing and resolving inheritance disputes.

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