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THE SUPPORT OBLIGATION AND HEIRS NOTWITHSTANDING CONTENTS OF WILLS

THE SUPPORT OBLIGATION AND HEIRS NOTWITHSTANDING CONTENTS OF WILLS

Situation: I divorced Mr. B in February 2015 and had a common child (M – 8 years old). The Court appointed M for me to raise and Mr. B shall the support obligation for M 2.000.000 dong every month. But now, Mr. B has not performed the support obligation yet. In the early of 2016, Mr. B got married to C and they did not have any common children. In February 2017, Mr. B died of severe illness. Before his death, he made the will leaving the entire legacy for Mrs. C. So I want to ask:

  1. May C support M instead of B?
  2. How are outstanding support payments?
  3. May Minherit an estate left?

THE LEGAL CONSULTING LETTER

First of all, FDVN Law Firm would like to give our formal greeting and grateful thanks to you. For all the things you care about, we would like to state via the following content:

  1. May C support M instead of B?

The support obligation can be neither replaced by another obligation nor transferred to other people (Pursuant to Clause 1 of Article 107 Law on Marriage and Family 2014). B’s death is one of cases to terminate the support obligation specified at Clause 4 of Article 118 Law on Marriage and Family 2014.

Therefore, the support obligation of B for M is terminated and C shall not support M instead of B.

  1. Outstanding support payments

Outstanding support payments of B is one of the obligations after his death. Accordingly:

Article 615. Performance of property obligations left by deceased

  1. A person entitled to an inheritance has the responsibility to perform the property obligations within the scope of the estate left by the deceased, unless otherwise agreed.

…”

And order of priority of payment is specified at Article 658 Civil Code 2015:

“Article 658. Order of priority of payment

Property obligations and expenses related to an inheritance shall be paid in the following order of priority:

  1. Reasonable funeral expenses in accordance with customary practice;
  2. Outstanding support payments;

…..”

As mentioned regulations above, people entitled to an inheritance of B has the responsibility to perform the property obligations within the scope of the estate left by the deceased under the order of priority of payment above. It means after making payment for reasonable funeral expenses in accordance with customary practice, B’ heirs shall make outstanding support payments specified from the time of arising from the support obligation (February 2015) to the time of termination of the support obligation (February 2017).

  1. May Minherit an estate left

In case B’s will is lawful, an estate shall be distributed in accordance with will. However, M is still a minor at the time of B’s death, M has the right to inherit estate notwithstanding contents of wills.

Pursuant to Point a Clause 1 of Article 644 Civil Code 2015:

Article 644. Heirs notwithstanding contents of wills

  1. Where a testator does not grant any of the following persons an inheritance, or grants any such person an inheritance which is less than two-thirds of the share that person would have received if the estate had been distributed according to law, such person shall be entitled to a share of the estate equivalent to two-thirds of the share that he or she would have received if the estate had been distributed in accordance with law:

a) Children who are minors, father, mother, wife or husband of the testator;

…”

M who is daughter of B, is a minor and she does not refuse to inherit the inheritance. She is still entitled to inherit an estate which is less than two-thirds of the share M would have received if the estate had been distributed according to law.

We ensure to provide you with accurate and explicit consultancy. Please feel free to contact us if you have any questions.

Best Regards,

Traslation into English: Legal Officer Bui Anh Vinh (Mr)

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