INHERITANCE REGARDLESS OF THE CONTENT OF THE WILL: A COMPARATIVE PERSPECTIVE FROM ENGLISH AND FRENCH LAW AND IMPLICATIONS FOR VIETNAM

ABSTRACT

This article analyzes the legal provisions on inheritance regardless of the content of a will under Vietnamese law and compares them with the inheritance systems of France and the United Kingdom. The study aims to identify similarities and differences between these legal frameworks, assess the extent to which they protect forced heirs, and propose recommendations for improving Vietnam’s inheritance law.

The research employs legal analysis, literature review, and comparative law methods to examine different legal approaches. French law follows the réserve héréditaire principle, which mandates that a portion of the estate must be allocated to forced heirs, primarily children and spouses, regardless of the testator’s wishes. This approach ensures family protection but significantly restricts testamentary freedom. In contrast, English law adopts a more flexible approach under the Inheritance (Provision for Family and Dependants) Act 1975, which allows courts to intervene and modify a will to ensure financial provision for dependents. Vietnamese law, specifically Article 644 of the 2015 Civil Code, also grants certain individuals the right to inherit regardless of the testator’s intent. However, its scope remains limited, and enforcement mechanisms are not yet sufficiently effective. The findings reveal that each legal system has distinct advantages and limitations. French law rigidly ensures the protection of forced heirs but limits individual autonomy in estate distribution. English law prioritizes flexibility but relies heavily on judicial intervention. Vietnamese law provides partial protection but struggles to balance testamentary freedom with the rights of legitimate heirs. Therefore, the study suggests that Vietnam should adopt a hybrid model, maintaining compulsory inheritance shares to protect vulnerable heirs while granting courts greater authority to adjudicate inheritance disputes fairly. Expanding the scope of protected heirs and improving enforcement mechanisms will enhance Vietnam’s legal framework, ensuring the protection of heirs while respecting individual testamentary rights.

АННОТАЦИЯ

В данной статье анализируются правовые положения о наследовании независимо от содержания завещания в соответствии с законодательством Вьетнама и проводится сравнение с наследственными системами Франции и Великобритании. Цель исследования — выявить сходства и различия между этими правовыми системами, оценить степень защиты обязательных наследников и предложить рекомендации по совершенствованию законодательства Вьетнама о наследовании. В исследовании используются методы правового анализа, обзор научной литературы и сравнительное правоведение для изучения различных правовых подходов. Французское право основывается на принципе réserve héréditaire, согласно которому часть наследства обязательно выделяется обязательным наследникам — в первую очередь детям и супругам — вне зависимости от воли завещателя. Такой подход обеспечивает защиту семьи, но существенно ограничивает свободу завещания. Напротив, английское право применяет более гибкий подход в соответствии с Законом о наследовании (обеспечение для семьи и иждивенцев) 1975 года, позволяющим судам вмешиваться и изменять содержание завещания с целью обеспечения материального положения иждивенцев. Вьетнамское право, в частности статья 644 Гражданского кодекса 2015 года, также предоставляет определённым лицам право на наследство независимо от воли завещателя. Однако его применение ограничено, а механизмы исполнения пока недостаточно эффективны. Результаты показывают, что каждая правовая система имеет свои преимущества и ограничения. Французское право жёстко обеспечивает защиту обязательных наследников, но ограничивает индивидуальную автономию в распоряжении наследством. Английское право ориентировано на гибкость, но в значительной степени зависит от судебного вмешательства. Вьетнамское право предоставляет частичную защиту, однако испытывает трудности в достижении баланса между свободой завещания и правами законных наследников. Таким образом, в исследовании предлагается, чтобы Вьетнам принял гибридную модель, сохранив обязательные доли наследства для защиты уязвимых наследников, при этом предоставив судам больше полномочий для справедливого разрешения наследственных споров. Расширение круга защищаемых наследников и совершенствование механизмов исполнения будет способствовать улучшению правовой базы Вьетнама, обеспечивая защиту наследников при уважении прав завещателя.

Keywords: inheritancelaw, forcedheirship, testamentaryfreedom, vietnameselaw, englishlaw, frenchlaw, comparativelegalstudy.

Ключевые слова: наследственное право, обязательная доля в наследстве, свобода завещания, вьетнамское право, английское право, французское право, сравнительное правовое исследование.

Introduction

The rule of inheritance regardless of the content of the will was first introduced into Vietnamese law by Circular No. 81/TANDTC dated July 24, 1981, issued by the Supreme People’s Court. It was later codified in Article 20 of the 1990 Inheritance Ordinance and successively reaffirmed in the Civil Codes of 1995, 2005, and 2015. This rule aims to restrict the testator’s freedom of disposition, protect the rights of close family members, and preserve social and moral values. While the Constitution and Civil Code recognize the individual’s right to make a will, this right may be limited to protect public order, morality, and the legitimate interests of certain heirs.

Many jurisdictions adopt similar mechanisms. In civil law countries such as France, Germany, Spain, Bulgaria, and China, the “mandatory portion” (réserve héréditaire) protects close kin, typically children and spouses. In contrast, common law countries like England and the United States emphasize testamentary freedom, but courts may intervene to ensure reasonable provision for dependants through statutory mechanisms.

Article 644 of Vietnam’s 2015 Civil Code recognizes forced heirship by granting inheritance rights to certain individuals even if excluded from the will. However, its scope remains narrow, and application in practice reveals legal uncertainties, especially in defining eligible heirs and determining the estate portion.

This study examines the regulation of inheritance regardless of will content in Vietnam, compares it with French and English law, and evaluates each system’s capacity to protect vulnerable heirs. It aims to identify legal gaps, highlight practical challenges, and propose reforms to harmonize individual testamentary autonomy with social and familial obligations.

Materials and methods

This study employs a combination of doctrinal, comparative, and normative legal research methods to examine the regulation of inheritance regardless of will content in Vietnam, France, and England.

1. Doctrinal Legal Research

The primary method is doctrinal (black-letter) legal analysis, focusing on statutory provisions, case law, and academic commentary. Core legal texts examined include: Article 644 of Vietnam’s 2015 Civil Code (on forced heirship); Articles 912–913 of the French Civil Code (on réserve héréditaire); and the Inheritance (Provision for Family and Dependants) Act 1975 of the UK. The study also analyzes Vietnamese judicial precedents and legal writings from domestic and international scholars to reconstruct the legal rationale and structure governing forced heirship.

2. Comparative Legal Method

To contextualize Vietnam’s legal provisions, the paper uses comparative legal analysis, highlighting similarities and differences with France and England. France represents the civil law model with rigid protection of forced heirs, particularly children, while England reflects the common law tradition that prioritizes testamentary freedom but permits judicial intervention for dependants. Vietnam is analyzed as a hybrid model, offering partial protection under Article 644. The comparison reveals how each system balances individual autonomy and family solidarity.

3. Normative Legal Analysis

In addition to descriptive analysis, the study evaluates whether Vietnam’s current inheritance framework satisfies normative goals of fairness, legal certainty, and social protection. It identifies legal ambiguities in defining heirs, calculating shares, and enforcing rights, and assesses whether these gaps undermine the law’s intended protective function. Lessons from foreign systems inform proposed reforms to strengthen Vietnam’s capacity to protect vulnerable heirs while respecting testamentary intent.

Results and discussions

1. Inheritance Regardless of the Content of the Will under Vietnamese Law

1.1. Categories of heirs entitled to inherit regardless of will content

Article 644 of the 2015 Civil Code establishes the principle that certain heirs—minor children, spouses, parents, and adult children who are incapable of working—are entitled to a portion of the estate, even if omitted from the will or intentionally disinherited. This provision restricts testamentary freedom to protect those with close kinship and low financial self-sufficiency.

Legal adoptive parents and children are treated equivalently to biological ones under the law. However, cohabiting partners without legal marriage registration are excluded. Notably, adult children who became incapacitated after the death of the testator still qualify.

These protected heirs are not guaranteed inheritance in every case. If they voluntarily renounce their share—or are disqualified under Article 621 (e.g., for deceiving or harming the testator)—they lose this right. A persistent issue in practice is the vague legal definition of "incapable of working," which lacks uniform standards. Courts often refer to ancillary legal documents, such as Resolution No. 03/2006/NQ-HĐTP or Circular No. 111/2013/TT-BTC, leading to inconsistency in rulings.

1.2. Determining the scope of the estate

Vietnamese law defines an estate in Article 612 as the deceased’s personal property and their share in jointly owned assets. However, how to determine the distributable portion for protected heirs remains a legal grey area.

Two views exist: one includes all assets and debts, while the prevailing one—aligned with Article 615—requires heirs to settle debts only within the estate’s value. This protects heirs but may harm creditors if debts exceed assets.

The estate may conceptually be divided into four parts: (1) the mandatory share; (2) property for worship; (3) specific bequests; and (4) the remainder. Article 644 ensures protected heirs receive their minimum portion—two-thirds of their statutory share—regardless of will content. If the will gives less, the shortfall is deducted from other heirs’ portions. If the will fully satisfies their share, Article 644 need not apply.

Still, the law lacks clarity on the order of priority in deductions, and how to deal with assets not mentioned in the will. Unified procedural guidance is needed to avoid arbitrary application and disputes.

1.3. The mandatory inheritance share

Protected heirs under Article 644 are entitled to at least two-thirds of their statutory share. This share can be received either through the will or by law. If what they receive falls short, they are entitled to claim the remainder from the shares of other heirs.

The Civil Code does not specify from which parts of the estate the shortfall must be compensated—specific bequests, worship allocations, or others. In practice, this causes difficulties, especially when worship property is involved. Some scholars have proposed exempting ancestral property from reduction, but this remains controversial.

The method of calculating and fulfilling this mandatory share should consider:

The total estate value and number of statutory heirs;

The order of reduction from other estate portions;

Whether the share is received in kind or converted into monetary value.

Without clearer provisions, implementation varies significantly among courts, undermining predictability and fairness.

2. Comparison of Vietnamese, French and English Law on Inheritance Regardless of Will Content

2.1. France

France applies the réserve héréditaire principle, which strictly guarantees inheritance shares for certain heirs—primarily children, and in limited cases, parents. Articles 912–913 of the French Civil Code specify the forced portion: 50% of the estate for one child, 2/3 for two, and 3/4 for three or more. The remaining portion (quotité disponible) is freely disposable by the testator.

In Vietnam, Article 644 protects a broader group of heirs—minor children, incapacitated adult children, spouses, and parents—but with less precise percentages: only a two-thirds minimum of their statutory share is required. Unlike France, Vietnam lacks detailed rules on calculating that share, leading to disputes in practice.

If a will in France violates the réserve héréditaire, courts may invalidate the offending portion. In Vietnam, protected heirs must actively claim their rights; otherwise, the will prevails.

French courts have also addressed cases involving avoidance of the réserve through inter vivos gifts. In Decision No. 18-14.284 (2019), the Cour de Cassation recognized such attempts and allowed clawback. Vietnam lacks a clear rule to aggregate recent lifetime transfers back into the estate.

France’s clear statutory thresholds enhance predictability and reduce litigation. By contrast, Vietnam’s general provisions offer broader protection but lack legal certainty. A more precise legal framework—defining shares and scope—is needed to avoid arbitrary outcomes and ensure effective protection.

2.2. England

English law does not recognize forced heirship. Testamentary freedom is the guiding principle, but it is moderated by the Inheritance (Provision for Family and Dependants) Act 1975. Under this Act, dependants—such as spouses, cohabitants, children, and financially supported individuals—can petition the court for reasonable provision if omitted from a will.

Unlike Vietnam, which mandates fixed protection for certain heirs, English law grants courts significant discretion. In Ilott v Mitson [2017] UKSC [12], the court awarded a portion of the estate to a disinherited adult daughter based on her financial needs. However, the Act imposes a six-month time limit for applications, which may restrict access to remedies.

English law’s flexibility allows case-specific adjudication but lacks the predictability of statutory shares. Eligibility is limited, and outcomes depend heavily on judicial interpretation. Courts consider the applicant’s needs, estate size, and other moral obligations of the deceased.

This flexibility addresses modern family structures but can increase litigation. Claims under the 1975 Act are costly and time-consuming, often reducing the estate’s value. Furthermore, England’s lack of automatic creditor protection—compared to France—can allow heirs to avoid financial responsibility unless expressly stated.

Vietnam’s model differs significantly. It offers stricter statutory protections but does not empower courts to modify distributions based on fairness. Where English law adapts to context, Vietnamese law mechanically applies the mandatory share rule.

In summary, France ensures inheritance through statutory certainty but restricts autonomy. England prioritizes autonomy, tempered by equitable discretion. Vietnam sits between these extremes, offering baseline protection but lacking clarity and flexibility. Drawing on these models, Vietnam could adopt a hybrid system that ensures minimum protection while enabling courts to adjust distributions in justified cases.

3. Implications for Vietnam and Recommendations for Legal Reform

3.1. Lessons learned from France and England

Lessons on protected heirs: After a comparative study of England and France, several lessons can be drawn:

First, adopt a more flexible mechanism to protect forced heirs. The English inheritance system does not impose rigid rules on protected heirs but instead allows courts to flexibly consider each case [16]. According to the Inheritance (Provision for Family and Dependants) Act 1975, if an heir is omitted from a will but can prove they were financially dependent on the decedent, the court may adjust the distribution to ensure they receive a reasonable provision. Vietnam can learn from this approach by creating a more flexible mechanism wherein courts have the authority to consider the specific circumstances of each heir instead of rigidly applying mandatory share rules. This is particularly important in cases where the decedent has valid reasons to exclude a certain heir, but it must be ensured that the exclusion does not seriously affect the minimum rights of lawful dependants.

Second, clearly define mandatory share proportions based on the number of children. The French legal system explicitly provides fixed percentages for the forced portion of the estate depending on the number of the decedent’s children, following the réserve héréditaire principle in Articles 912–913 of the Civil Code. This mechanism helps ensure fairness and transparency in estate distribution, avoiding disputes among family members over inheritance rights. Vietnam could consider adopting a similar model to determine mandatory portions more clearly, which would help minimize conflicts and create consistency in judicial practice. Benefits of such a system include: reducing disputes among family members due to clearly defined inheritance portions; protecting the legal rights of forced heirs without requiring them to resort to litigation; and creating legal certainty, so that both testators and heirs have clear legal grounds for their rights and obligations.

Third, adjust the legal framework to fit social conditions. In addition to learning from England and France, Vietnam needs to reform its inheritance law to be more flexible in line with modern social conditions. Some possible adjustments include: allowing the testator to exclude certain individuals from the mandatory heir list if there are legitimate reasons, but with clear conditions to prevent abuse. For example, if an heir has committed acts of domestic violence or failed in their duties toward the decedent, excluding them from the forced heir category could be acceptable. Furthermore, creating a mechanism for courts to evaluate each case—similar to England’s approach—ensures that the estate distribution reflects the actual circumstances of the family and avoids mechanical application of the law that results in injustice. Additionally, expanding the scope of protection to truly dependent individuals, not only limited to children, parents, or spouses, but potentially including those who cohabited long-term and were financially dependent on the decedent, similar to the provisions in England.

Studying and drawing from the inheritance law systems of England and France can help Vietnam adjust its rules on forced heirship toward greater fairness, flexibility, and realism. In particular: England emphasizes the flexibility of the courts in estate distribution, helping to ensure dependants’ rights without being bound by rigid rules; France has a system of clear mandatory share percentages, helping to minimize disputes and create transparency in inheritance. Vietnam can improve its inheritance law by integrating the advantages of both systems—allowing the courts a certain degree of flexibility while still maintaining the principle of guaranteeing a minimum share for forced heirs. These reforms would not only make Vietnam’s legal system more practical but also help ensure fairness in inheritance relations, limit disputes, and enhance transparency in the enforcement of the law.

Lessons on estate scope and mandatory share mechanism: Through comparing the legal systems, the following lessons are drawn:

First, reform the scope of the estate. The scope of the estate is a crucial factor in determining heirs’ property rights and obligations, as well as protecting creditors’ rights. An effective inheritance system must ensure that the estate includes not only the assets of the deceased but also accounts for any unfinished financial obligations, to avoid the estate being used as a tool to evade debts. Learning from France and England can help Vietnam improve its mechanism for determining the estate.

Lesson from France: Broaden the scope of the estate to include financial obligations. Specifically, French law provides that the inheritance estate includes not only the assets of the deceased but also any outstanding financial obligations. This ensures that the deceased’s debts are paid out of the estate, protecting creditors’ rights. In Judicial Precedent No.68/2023/AL in Vietnam, the court held that an overseas Vietnamese heir has the right to receive an estate in kind (a house) if certain conditions are met. This demonstrates a trend toward broadening the scope of the estate to protect the interests of involved parties.

Lesson from England: Allow flexibility in determining the estate. English law takes a flexible approach in defining the estate. The estate mainly includes the assets of the deceased, and personal debts do not automatically pass to the heirs unless specifically provided. In the case Hirachand v. Hirachand [2024] UKSC [11] the court clarified that it can consider the financial circumstances of the heir when distributing the estate, to ensure fairness. This reflects the flexible approach of the English legal system in protecting the rights of vulnerable heirs.

Second, improve the mandatory share extraction mechanism. The mechanism for extracting (or carving out) the mandatory share is important for ensuring the rights of vulnerable heirs. A stricter and more transparent set of rules on mandatory shares can help reduce disputes and ensure fairness in inheritance.

Lesson from France: Implement specific rates for the mandatory share. French law clearly stipulates fixed portions of the estate reserved for children, depending on the number of children. For example, if there is one child, the mandatory share is 50% of the estate; if two children, 2/3 of the estate; three or more children, 3/4 of the estate. These concrete rules help ensure the children’s inheritance rights. Judicial Precedent No.68/2023/AL in Vietnam also emphasized the right of an heir to receive their inheritance, particularly noting that an overseas Vietnamese heir is entitled to receive their share in kind (a house) when certain conditions are met.

Lesson from England: Provide a mechanism for courts to adjust the estate when necessary. Although English law does not have specific mandatory share rules, under the Inheritance Act 1975 the courts have the power to intervene and adjust the distribution if it appears a dependant has not received reasonable provision. In the case Miles v. Shearer [2023] EWHC 3274 (Ch) [18], the court adjusted the estate distribution to ensure that a dependant had sufficient financial resources to live on [19]. This is a flexible mechanism that helps mitigate injustice in the adjudication of inheritance disputes.

Third, reduce disputes over mandatory shares. Having a strict and transparent inheritance system can help reduce conflicts among heirs, while ensuring that the rights of all parties are reasonably protected.

Lesson from France: Control the validity of the will before it is executed. Require that a will’s validity be verified before execution to ensure its content complies with legal provisions, especially mandatory share rules. This check helps prevent disputes arising from an invalid will. Judicial Precedent No.26/2018/AL in Vietnam clearly determined the statute of limitations for requesting division of an estate, which helps reduce disputes among heirs by providing clarity on timing issues [20]. Strengthening such preliminary control and clarity can preempt conflicts.

Lesson from England: Allow disinherited dependants to request judicial review of the will. Dependants who are left out of a will have the right to ask a court to review the estate distribution. This ensures that every dependant has an opportunity for their rights to be fairly considered, thereby reducing disputes and inequities. The case Hirachand v. Hirachand [2024] UKSC [11] clearly illustrated the rights of a person excluded from an estate, where the court decided to adjust the distribution to ensure fairness.

In summary, from the lessons of France and England, it is evident that Vietnam’s inheritance law needs adjustments to ensure fairness and be in line with social realities. Expanding the scope of the estate to include financial obligations can prevent using inheritance as a means to avoid debts. Incorporating flexible court interventions, as seen in English law, can ensure that even in exceptional cases, dependants’ rights are not overlooked. At the same time, maintaining a baseline of protection (as in the French system) ensures that core family obligations are upheld. By learning from these comparative insights, Vietnam can strive for an inheritance law framework that is equitable, transparent, and responsive to contemporary social conditions.

3.2. Proposals for reform of inheritance law regardless of will content in Vietnam

Regarding the category of protected heirs: In the Vietnamese legal system, the institution of inheritance regardless of will content plays an important role in protecting the rights of those closest to the decedent. However, the current provision still has certain shortcomings that need to be addressed to ensure fairness and consistency in application. Below are proposals to improve the law concerning the category of heirs entitled to inherit regardless of will content and the rules on renunciation of inheritance.

First, expand the category of heirs entitled to inherit regardless of will content. In particular:

(1) Include adoptive parents and adoptive children in the category of protected heirs. Currently, Article 644 of the Civil Code (CC) 2015 specifies that protected heirs include the father, mother, wife, husband, minor children, and adult children who are incapable of labor. However, the article does not clarify whether adoptive parents and adoptive children are covered in the same way as biological parents and children. Under Articles 651 and 653 of the Civil Code 2015, adoptive parents and adoptive children are recognized as heirs at law. Therefore, failing to list them among the heirs protected regardless of will content may lead to inequality between biological and adoptive children, as well as between biological and adoptive parents. This omission does not reflect the true nature of adoptive relationships, which are essentially equivalent to blood relations. It is proposed that Article 644 of the Civil Code 2015 be amended to explicitly add adoptive father, adoptive mother, and adoptive children to the category of heirs entitled to inherit regardless of the will’s content. This amendment would not only ensure consistency with the rules on intestate succession but also uphold the principle of protecting those with special dependent relationships with the decedent.

(2) Include unborn children (fetuses conceived before the decedent’s death) in the category of protected heirs. Article 613 of the Civil Code 2015 provides that a child conceived at the time of the commencement of the inheritance (death of the decedent) is entitled to inherit if the child is born alive. However, the law is not clear on whether a fetus is entitled to inherit regardless of the will’s content, even though a minor child is entitled to a mandatory share. The failure to recognize a conceived child as a protected heir could create inequality between children who have been born and those still in utero. To ensure the rights of the unborn child, the law should be amended to recognize a conceived child as an heir entitled to inherit regardless of will content, on the condition that the child is subsequently born alive. This change would better protect the rights of children and would be in line with the humanitarian spirit of inheritance law.

Second, improve the provisions on renunciation of inheritance:

(1) Specify the ages at which an heir has the right to renounce an inheritance. According to Article 620 of the Civil Code 2015, an heir has the right to renounce their inheritance. However, the law does not have specific provisions on the age of the heir when exercising this right, especially for minors. This omission can cause practical difficulties, as a minor heir could be influenced by others to renounce or accept an estate against their true will. Therefore, a more detailed provision is needed as follows: heirs under 15 years old should not have the right to renounce an inheritance; heirs from 15 to under 18 years old may renounce an inheritance but must have the consent of their legal representative; heirs aged 18 or older have the right to freely renounce an inheritance without needing anyone’s consent. This addition will provide better legal protection for minors, preventing situations where they might be coerced into renouncing or accepting an inheritance against their interests.

(2) Refine the provision on the time limit for renouncing an inheritance. The 2005 Civil Code provided a 6-month time limit from the opening of the inheritance for an heir to renounce their share. The 2015 Civil Code revised this rule to allow an heir to renounce the inheritance at any time before the estate is distributed. The new rule increases flexibility but also creates uncertainty in practice, as an heir might deliberately delay renunciation to affect the distribution process. To address this issue, the law should reintroduce a clearer time limit for renunciation as follows: retain the 6-month period from the opening of the inheritance as provided in the 2005 Civil Code; in special cases, the court may extend the time for renunciation if there are legitimate reasons. This approach helps increase transparency and stability in the estate distribution process, while also protecting the rights of other heirs by preventing undue delay in resolving the estate.

Including adoptive parents, adoptive children, and conceived children in the category of heirs entitled to inherit regardless of will content, along with refining the rules on renunciation of inheritance, are necessary steps to ensure fairness, transparency, and practicability in the application of inheritance law. These amendments would not only reduce disputes but also clearly demonstrate the spirit of protecting those who have special dependent relationships with the decedent.

Regarding the scope of the estate and the method of extracting the mandatory share: Inheritance regardless of will content is an important institution in inheritance law aimed at protecting the rights of the decedent’s closest relatives. However, the current legal system in Vietnam still has certain shortcomings related to the scope of the estate to be included in the mandatory share calculation and the method of extracting that share. The current provisions do not fully reflect the principles of fairness and transparency, leading to many disputes and difficulties in practice. To overcome these limitations, legal improvements are needed to clarify the estate scope and establish a reasonable method for extracting the mandatory share, in order to ensure the rights of heirs protected regardless of the will’s content while also respecting the testator’s intentions.

First, improvements on the scope of the estate in inheritance regardless of will content:

(1) Clearly define the scope of the estate used to calculate the mandatory inheritance share. At present, the Civil Code does not clearly define the scope of the estate to be used for determining the mandatory inheritance share. This lack of clarity leads to inconsistency in application, especially regarding assets designated for worship, specific bequests (legacies), or assets that were given away before the opening of the inheritance. To protect the rights of those heirs regardless of the will’s content, it should be clarified that the total estate for inheritance purposes must include assets disposed of as legacies and assets set aside for worship, except in cases of ancestral immovable properties (hương hỏa), i.e. family heritage assets that are not part of the decedent’s private estate.

(2) Extend the rule to assets gifted inter vivos (before death). In practice, a person may gift away all of their assets before death to avoid distribution according to inheritance laws. This can result in close relatives—especially elderly parents, a spouse, or minor children—being left with no inheritance rights. To protect their interests, a provision should be added that any assets gifted within a certain period before death (for example, within 3–5 years) must be aggregated back into the estate for the purpose of calculating the mandatory share. If such gifting violated the rights of a forced heir, that gifted portion should be subject to clawback in order to secure the heir’s minimum entitlement.

(3) Impose a limit on the portion of the estate allocated for worship purposes. Current law allows a person to set aside part of their estate for worship, but does not specify a limit, which could lead to a situation where the entire or majority of the estate is dedicated to worship, seriously affecting the rights of the forced heirs. Therefore, it should be expressly provided that the portion of the estate for worship may not exceed 20% of the total estate, to ensure reasonableness and prevent harm to the interests of those heirs who rely on the estate for support.

Second, improvements on the method of extracting the mandatory inheritance share:

(1) Establish a priority order for reducing certain estate portions to ensure the mandatory share. One contentious issue in practice arises when the estate is insufficient to fully satisfy the mandatory shares—specifically, deciding from which parts of the estate the reduction should occur first. Currently, three different perspectives exist: (a) reduce only from the portion of the estate that would pass by intestacy (thus absolutely protecting the testator’s freedom in disposing of the portion covered by the will); (b) reduce only from the portion distributed by the will, leaving any intestate portion intact; or (c) proportionally reduce from all parts of the estate, including specific bequests and the portion set aside for worship. To resolve this issue in a reasonable manner, the law should stipulate a sequence of reduction based on the following principle:

Step 1: Reduce from the portion of the estate designated as specific bequests (legacies) first.

Step 2: If the legacies are insufficient to cover the mandatory share shortfall, continue to reduce from the portion of the estate distributed by the will.

Step 3: If there is still a deficiency, the portion of the estate set aside for worship will also be reduced proportionally, but not exceeding the maximum limit allowed by law (as proposed, 20% of the total estate).

(2) Provide a method for receiving the inheritance share regardless of the will: in kind or in equivalent value. Currently, the law does not clearly specify whether an heir protected regardless of the will’s content will receive their share in kind (specific property) or in an equivalent monetary value, leading to many disputes. A new provision should clarify that: if the estate can be divided in kind without diminishing the value of the assets, priority is given to division in kind; if division in kind is not feasible (for example, a house or land that cannot be physically divided, or an indivisible asset), the heir will receive an equivalent value instead. If the parties have an agreement on the mode of division, that agreement should be respected.

(3) Clarify which individuals are counted as “persons to be included in the share calculation” (nhân suất) when determining the statutory share. To avoid varying interpretations, the law should clearly identify which persons are counted as notional shares when calculating the statutory share for intestacy: an individual who is disinherited by the will is still counted as a person in the share calculation (because they are excluded only from receiving the estate, but still belong to the class of heirs); an individual who renounces their inheritance is also counted as a share, but their share will be redistributed to the other heirs; an heir who died before or at the same time as the decedent — if they have substitute heirs (children, grandchildren), they are still considered in the share count; if there are no substitute heirs, they are not counted as a share.

Improving the rules on the scope of the estate and the method of extracting the mandatory inheritance share is an urgent requirement to ensure fairness, transparency, and efficiency in practice. The above proposals will not only help limit inheritance disputes but also better protect the rights of forced heirs, while still respecting the testator’s intentions. By learning from advanced legal systems such as those of France and England, Vietnam can develop a modern, rational inheritance law framework that fits contemporary socio-economic conditions.

Conclusion

This study has clarified the differences in inheritance law between Vietnam, France, and England, particularly regarding the institution of inheritance regardless of the content of the will. While French law strictly protects the rights of forced heirs by imposing fixed estate portions, this significantly restricts the freedom of asset disposition. In contrast, English law maximizes the freedom to make a will but allows the courts to intervene to protect dependants if they are not reasonably provided for. Vietnam’s current law does provide mechanisms to protect certain heirs, but there remain many limitations in identifying the categories of heirs, the scope of the estate, and enforcement mechanisms.

To improve inheritance law, the study proposes adopting a hybrid model, maintaining mandatory inheritance shares to protect vulnerable individuals but also granting courts flexibility in dispute resolution. In particular, it is necessary to broaden the category of mandatory heirs, clarify the method of calculating the compulsory share, and enhance the effectiveness of enforcement mechanisms. Learning from the legal experiences of France and England will assist Vietnam in building an inheritance law system that is fair and transparent, one that both ensures the rights of heirs and respects the will of the decedent.

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