Commentary on Precedent No.06/2016/AL on Inheritance Disputes

Inheritance disputes involve parties – although they are common people – playing the parts of plaintiff and defendant, with relevant rights and obligations. In some cases, it is not possible to determine the identity of individuals involved in such disputes with relevant rights and obligations pertaining to an inheritance. Acknowledging and resolving this dilemma becomes a question that needs to be challenged.

Precedent 06/2016/AL revolves around an inheritance dispute – a rather complicated type of dispute involving many branches of law and governed by legal documents that have been in effect in many different periods. The following article is part of a series of topics on Precedents, undertaken by lawyers of CNC to provide readers with essential information about Precedent No.06/2016/AL and its application in practice.

See more: Precedent No.02/2016/AL on property recovery disputes

Overview of Precedent No.06/2016/AL on an Inheritance Dispute case

Legal Issues under Precedent No.06/2016/AL

According to Art.168.1 of the Civil Procedure Code 2004 (equivalent to Art.192.1 of Civil Procedure Code 2015), the Court returns the lawsuit petition in cases of “insufficient conditions to initiate a lawsuit”. Art.8.2 of Resolution 05/2012/NQ-HDTP further explains this case as follows: “Insufficient conditions to initiate lawsuits are cases in which the involved parties have an agreement or the law provides for the conditions for initiating a lawsuit (including regulations on the form and content of the petition), but either of the parties has filed a lawsuit when one of those conditions was still lacking.”

For example: “In the lawsuit petition, the plaintiff does not correctly write the address of the defendant,…” According to Art.164.2 of the Civil Procedure Code 2004, The lawsuit petition shall contain the “name and address of the person with related rights and obligations (if any)”. There are two problems that need to be addressed:

If the person with related interests, obligations is abroad, does the petitioner need to write the exact address of these people?
In an inheritance dispute, if the court has performed judicial entrustment and collected evidence per the law, and yet, the address of coheirs abroad remains unclear, how will the court solve it?

Precedent No.06/2016/AL was promulgated to solve the aforementioned issues.

Summary of Precedent No.06/2016/AL

In an inheritance dispute involving heirs abroad, if the Court has performed judicial entrustment and collected evidence in accordance with the provisions of law, but the physical location of the heirs remains be found, the Court shall proceed with the plaintiff’s claim. The inheritance portion of the absentees, whose address is yet to be determined, shall be temporarily transferred to those residing in the country for management. The absent heirs retain their rights to the temporarily managed portion.

Summary of the case

Legal provisions related to Case No.06/2016/AL

Art.93 and Art.168.1.đ of the Civil Procedure Code 2004; Art.676 and Art.685 of the Civil Code 2005.

The solution provided by Precedent No.06/2016/AL comment 062016AL

Basically, according to Precedent No.06/2016/AL on the Inheritance Dispute, the Court shall proceed to resolve disputes over the division of inheritance even when the address of the heir in a foreign country cannot be determined, the inheritance portion of missing heirs and provisions of the names and ages of such heirs shall be addressed accordingly. To be specific:

In the petition, the petitioner does not need to provide the exact names and addresses of the co-heirs aboard. Courts must perform judicial entrustment procedures as prescribed to collect evidence.
If no evidence is collected, the Court notwithstanding must resolve the plaintiff’s claim. The inheritance portion of the co-heirs abroad, whose address has yet to be determined, will be temporarily assigned to the co-heirs residing in the country to manage for later handover to the co-heirs abroad.

Practical application of Precedent No.06/2016/AL on Inheritance Dispute Cases

Commentary on Precedent No. 06/2016/AL

In general, the resolution in Precedent No.06/2016/AL on Inheritance Disputes has the following persuasive points:

Persuasive points in Precedent No.06/2016/AL

First, protect the legitimate rights and interests of the petitioner.

There are instances of inheritance disputes in which there are co-heirs abroad, and the co-heirs in the country (domestically) are unable to determine the exact physical location of the people abroad (due to geographical distance, long-term non-contact, etc.). Given domestic co-heirs’ limited time and resources, it is challenging to pinpoint the exact addresses of those abroad. Therefore, it is the duty of the Court to determine the physical location of the co-heirs abroad. The court may perform certain measures, such as offshore judicial entrustment, to determine the necessary information. This will ensure the right of co-heirs to sue in the country.

Second, ensure the speedy resolution of inheritance disputes

If the Court relies on being unable to collect evidence related to the co-heirs abroad as the pretext to suspend the settlement of the case, the dispute settlement will be prolonged with no end in sight. Therefore, the option proposed by Precedent No. 06/2016/AL is reasonable: The inheritance portion of the co-heirs in a foreign country whose physical location cannot be determined will be temporarily assigned to the co-heirs living in the country (domestically) to be managed for later hand over to the co-heirs abroad. This will help ensure a speedy resolution of inheritance disputes.

Similar cases where Precedent No.06/2016/AL could be applied

The precedent’s content merely mentions “Unidentified address” without specifying a cause. This is considered a broad concept, which allows it to be applied to similar situations, because, the reasons for not being able to determine an heir’s physical location (address) will be very diverse. It may be because the person who is obliged to provide the address, even though he has provided the address, provided it incorrectly, leading to undetermined; or because the obligor has provided the address but the related person changes location or moves without leaving any information… In the precedent, the person whose address is unknown is assessed as being abroad/potentially living in a foreign country. In fact, there are a plethora of cases in which people living in Vietnam, are unable to be located. Therefore the aforementioned circumstances could be considered similar instances and an analogy of law could be applied.

In addition, the precedent states only that the portion of the absentee is assigned to “people living in the country for management” and does not specify any particular entity. Resolution No. 04/2017 of the Judicial Council favors temporary handover to absentees’ relatives or other heirs to manage[1]. However, it may happen that the “relatives” of the unidentified person cannot be identified and no heir desires to manage the inheritance. In this instance, the provisions of the Civil Code should be applied to determine “the property manager of absentees from the place of residence”[2]. As for the inheritance portion itself, the precedent uses the term “inheritance portion” or “asset for inheritance”, but does not indicate whether the inheritance is in material form or in value. Depending on the circumstances, the inheritance portion might be in material form or in value, however, the principle is that inheritance in material form is prioritized.

In addition, regarding the rights and obligations of the person assigned to manage the portion of the person whose physical location cannot be determined, especially with regard to cost and the effort of management, the precedent does not provide any solution. In essence, it is the management of the private property of heirs. Therefore, we should apply the same provisions in the Civil Code on “The property manager of absentees from the place of residence” and the management efforts should be compensated as per Precedent No. 05/2016/AL.[3]

Takeaways of Precedent No.06/2016/AL

From the content of Precedent No.06/2016/AL, plaintiffs in inheritance dispute cases could likely infer that:

If there are co-heirs abroad, the plaintiff DOES NOT need to provide the exact names and addresses of these co-heirs in the petition. Plaintiffs may request competent courts to perform judicial entrustment procedures to gather evidence regarding the above information.

Upon performing judicial entrustment, if the Court is unsuccessful in collecting evidence, the Court continues to have an obligation to resolve the plaintiff’s claim. The inheritance portion of the co-heirs abroad whose location cannot be determined will be temporarily assigned to the co-heirs in the country to manage for later delivery to the co-heirs abroad.

Conclusion

In a timely and reasonable approach, Precedent No.06/2016/AL pertaining to Inheritance disputes has resolved the complex issues related to the settlement of inheritance disputes.

Criticisms and contributions of readers, researchers, and practitioners will help more precedents for the above-mentioned type of disputes to be developed, however, even more encompassing and exemplary than Precedent No.06/2016/AL, thereby reaching a comprehensive solution and ensuring applicable consistency in.

Contact

In forthcoming articles, CNC will analyze the important content of published precedents, as well as potential precedents.

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Disclaimer:

This article was prepared or used for the purpose of introducing or updating clients on information pertaining to the development of legal perspectives in Vietnam. The information contained within this article DOES NOT constitute advice of any kind and may be subject to change without prior notice.

[1] Article 6.3 Resolution No. 04/2017/NQ-HDTP

[2] Article 65 Civil Code 2015

[3] Precedent No. 05/2016/AL opine that Courts must assess the contribution of parties to the management, creation of the inheritance, even if there is no request to assess such contribution.