Scenario: Elderly Mr. T. made a will leaving his house to his youngest child — the one who had cared for him in his final years. After his death, the other siblings objected: “He was already confused when he made the will; it must be void!” They produced his prescriptions and neighbors’ accounts. The youngest child was bewildered: does age-related illness equal “incapacity” to make a will? And who gets to decide?
1. Relatives say “he lacked capacity, so the will is void”: what does the law say?
Under Article 630.1 of the Civil Code 91/2015/QH13, a lawful will must satisfy all of the following:
- The testator was of sound mind and clear judgment while making the will; not deceived, threatened or coerced;
- The will’s contents do not violate prohibitions of law or social ethics;
- The will’s form complies with legal provisions.
The key phrase is “while making the will” — capacity is assessed at the very moment the person expressed their testamentary wishes, not at the opening of succession or when the dispute arises. A will made while the testator was of sound mind remains valid even if they are later declared to have lost civil act capacity. The claim that “an incapacitated person’s every will is void” is therefore wrong — what matters is capacity at the time of making.
Also distinguish: illness is not the same as legal incapacity. An elderly person with dementia or Alzheimer’s, or under psychiatric treatment, has a medical condition. “Loss of civil act capacity” is a legal status established only through the procedure prescribed by law (see section 2).
2. Who may declare incapacity? Only the court
Under Article 22.1 of the Civil Code: where a person, due to mental illness or another disease, cannot perceive or control their acts, then at the request of a person with related rights or interests or of a concerned agency or organization, the court shall issue a decision declaring that person as having lost civil act capacity, on the basis of a forensic psychiatric assessment conclusion.
The boundaries of authority:
- Family members, treating doctors and local authorities have no power to declare a person incapacitated — even with medical certificates;
- Medical certificates, prescriptions and records are merely evidence in the case, not conclusive;
- Only the court, based on a forensic psychiatric assessment, issues the declaration.
Do not confuse this with a different institution: Article 24 of the Civil Code governs persons with restricted civil act capacity — applicable to drug or stimulant addicts who dissipate family property. The two institutions are entirely distinct.
3. What must the challenger prove?
Under Article 91 of the Civil Procedure Code 92/2015/QH13, a party making a claim bears the burden of proving it. Whoever alleges the will is void for incapacity must prove lack of sound mind at the time the will was made — not general health. Typical evidence includes:
- Medical records, prescriptions and examination results around the time the will was made;
- Testimony of witnesses present at the making, of the notary or certifying officer;
- Audio or video recordings of the will-making (if any);
- A request that the court order an assessment — in litigation practice, retrospective capacity assessments exist; whether to order one is for the court to decide case by case, and the law does not require it in every will dispute.
Note: this article makes no claim about “win rates” — outcomes depend on the evidence of each specific case.
4. Shields protecting the will: notarization, witnesses, recordings
To make a will resilient against capacity challenges, the testator should proactively build an “evidentiary shield”:
- Notarized/certified will: the notary must verify the civil act capacity of the person requesting notarization under the Notarization Law 46/2024/QH15 (note: the current law number is 46/2024, not 53/2014). A notarial instrument recording sound mind at the time of making is very strong evidence;
- Witnesses present at the making (for written wills without notarization or certification);
- Audio/video recording of the will-making showing sound mind and voluntariness;
- A general health check (including cognitive assessment) near the time of making, with results kept.
A will is the expression of personal wishes — no one may make a will on another’s behalf (Article 624 of the Civil Code).
5. Persons still protected even if the will is valid: the two-thirds share
Even a fully valid will does not override statutory protection for certain persons: under Article 644.1 of the Civil Code, the following persons are still entitled to a share equal to two-thirds of the share of a statutory heir if the will gives them nothing or less than that:
- Minor children, father, mother, wife, husband;
- Adult children incapable of working.
In addition, Article 625.2 provides that persons aged from 15 to under 18 may make a will if their parents or guardian agree.
6. Action checklists for each side
If you seek to defend the will (a beneficiary under it): gather the notarization/certification instrument immediately, contact the notary and witnesses to prepare testimony, keep medical records showing good health around the time of making, and consider family mediation before the matter reaches court.
If you seek to challenge the will: collect medical evidence tied to the time the will was made (not generic records from years later), find witnesses present at the making, and prepare for the possibility of a court-ordered forensic psychiatric assessment. In both cases, family mediation should come before litigation — prolonged inheritance disputes usually damage family relationships more than the disputed assets are worth.
FAQs
Is a will automatically void if the testator had Alzheimer’s?
No. Alzheimer’s is a medical condition; “loss of civil act capacity” is a legal status declared only by the court on the basis of a forensic psychiatric assessment. Lack of sound mind at the time the will was made must be proven.
Is a hospital psychiatric certificate enough for the court to void the will?
Not enough. Medical documents are only evidence; the decision belongs to the court after reviewing all evidence, including the forensic psychiatric assessment conclusion.
A will made while healthy — then the testator is declared incapacitated. Still valid?
Yes. The assessment point is the time of making (Art. 630.1) — a will made while of sound mind remains valid even if the testator is later declared incapacitated.
Is a handwritten, non-notarized will weaker?
A handwritten will can still be lawful if it meets all Art. 630 conditions. However, a notarized/certified will creates a far stronger evidentiary shield in capacity disputes, because the notary verified capacity at the time of making.
Legal sources
- Civil Code 91/2015/QH13 (effective 01/01/2017; unamended): Art. 22.1 (only the court declares loss of civil act capacity, based on forensic psychiatric assessment); Art. 24 (persons with restricted civil act capacity — distinct from Art. 22); Art. 624 (will as personal expression); Art. 625.2 (persons aged 15 to under 18 making wills); Art. 630.1 (lawful will conditions — sound mind while making); Art. 644.1 (two-thirds share for heirs independent of will contents).
- Civil Procedure Code 92/2015/QH13 (effective 01/7/2016): Art. 91 (burden of proof).
- Notarization Law 46/2024/QH15: notaries verify the civil act capacity of persons requesting notarization (note the current law number 46/2024, not 53/2014).
Is your family disputing a will, or do you want to make a will that stands up legally? Reach us via the Contact page of FLAT Law Firm for advice on will validity, notarization procedures and ways to protect the testator’s wishes.
The legal content of this article was reviewed by FLAT’s AI Legal Council and submitted to the owner for approval; it is not an opinion of a licensed lawyer and does not replace legal advice for specific cases.
For reference only, not legal advice.
