CASE LAW NO. 34/2020/AL On Right to Make Wills Disposing of Compensation for Land Subject to Eminent Domain (Please note that this image is not related to the specific case being discussed).

CASE LAW NO. 34/2020/AL

On Right to Make Wills Disposing of Compensation for Land Subject to Eminent Domain

Approved by the Judicial Council of the Supreme People’s Court on February 5^th, 2020, and published under Decision No. 50/QĐ-CA on February 25^th, 2020, by the Chief Justice of the Supreme People’s Court.

Source of the Case Law:

The Cassation Decision No. 58/2018/DS-GDT dated September 27^th, 2018, by the High People’s Court in Hà Nội, regarding the civil case of “Dispute over the request to declare notarized documents null and void” in Vĩnh Phúc Province between the plaintiff, Mr. Trần Văn Y, and the defendant, Notary Office M; the interested party is Mr. Nguyễn Văn D1.

Location of the Case Law’s Content:

Paragraph 5 of the “Court’s Opinion” section.

Summary of the Case Law:

– Case Background:

An individual lawfully acquired the right to use a parcel of land. During their lifetime, the State issued a decision to expropriate the land through the power of eminent domain, providing compensation for the loss of use rights.

– Legal Resolution:

In this scenario, the value of the expropriated land use right is secured by the compensation awarded by the State. Consequently, the individual whose land was reclaimed retains the right to dispose of the compensation value through a testamentary will.

Relevant Legal Provisions:

– Articles 163, 181, 634, 646, 648 of the 2005 Civil Code (corresponding to Clause 1 of Article 105, Articles 115, 612, 624, 626 of the 2015 Civil Code);

– Article 42 of the 2003 Land Law (corresponding to Article 74 of the 2013 Land Law).

Keywords:

“Eminent Domain”; “Eminent Domain Compensation”; “Inheritance”; “Will”.

CASE DETAILS

In his complaint dated June 26^th, 2013, and subsequent statements during the legal proceedings, the plaintiff, Mr. Trần Văn Y, asserted the following:

Plot No. 38, Map Sheet No. 13 in Area M, Ward N, City V, Vĩnh Phúc Province, was acquired by him from Mrs. Nguyễn Thị C (also known as T, T1) in 1987. The transfer of land and crops associated with this plot between him and Mrs. C was acknowledged by the People’s Committee of the ward, who consented to his cohabitation with Mrs. T1.

In 1988, the People’s Committee of the ward agreed to transfer the title of this land to him and to facilitate an exchange for another plot due to the existing plot’s proximity to a water pond, which was deemed inconvenient for raising young children. However, due to insufficient resources to construct a house, he did not proceed with the land exchange.

In 1998, he and Mrs. C finalized the paperwork for the transfer of this plot for a consideration of VND 140,000,000. Although the payment was not documented in writing by the parties, two witnesses, Ms. Nguyễn Thị B (deceased) and Mrs. Trần Thị K (residing in Hamlet D, Ward Đ), attested to having witnessed the payment to Mrs. C. Upon transfer, he and Mrs. C executed a House Purchase and Land Use Right Transfer Contract dated February 8^th, 1998, and submitted it to the ward’s People’s Committee. In 2008, his family ceased residing on this plot due to eminent domain proceedings. In 2009, a dispute arose between him and the family of Mr. Nguyễn Văn D concerning this plot.

In 2013, he discovered that Notary Office M had notarized the will of Mr. Nguyễn Văn D and notarized the announcement of the wills of Mr. D and Mrs. Nguyễn Thị T1 on January 26^th, 2011. These documents purportedly established Mr. D’s ownership and use rights to a portion of Plot No. 38, Map Sheet No. 13 in Area M, Ward N, City V, Vĩnh Phúc Province, and designated Mr. Nguyễn Văn D1 as the heir of Mr. D and Mrs. C for the entirety of Plot No. 38, Map Sheet No. 13, with an area of 299.8 m² in Area M.

Mr. Trần Văn Y contends that this notarization was not in compliance with applicable laws and adversely affected his family’s legitimate rights and interests. Consequently, he requested the court to declare the two notarized documents null and void.

The legal representative of the defendant, Notary Office M, presented the following:

On January 14^th, 2011, Mr. Nguyễn Văn D1 accompanied Mr. Nguyễn Văn D to Notary Office M to request the notarization of Mr. D’s will. According to Mr. D’s statement, he and Mrs. T1 were married without official registration (de facto marriage), and Mrs. T1 was unable to bear children. Consequently, Mr. D married another woman without divorcing Mrs. T1. The house and land at Plot No. 38, Map Sheet No. 13 in Area M were jointly acquired during the marriage between Mr. D and Mrs. C.

In support of the request for will notarization, Mr. D and Mr. D1 submitted the following documentation as proof of ownership:

– The will of Mrs. T1, certified by the People’s Committee of Ward S, District K, Hưng Yên Province, which acknowledged that the property (Plot No. 38, Map Sheet No. 13) was jointly acquired with Mr. D. As such, Mrs. T1 notarized only her share for Mr. D1. Notary Office M deemed Mrs. T1’s will to be legally valid.

– The original purchase documents detailing Mr. D’s acquisition of the property from Mr. Đ (farm land sale deed with confirmation from the People’s Committee of Commune T), which was subsequently exchanged with Cooperative N for the field in Area M, now designated as Plot No. 38, Map Sheet No. 13.

– Dispatch No. 405/UBND-TD from the People’s Committee of Vĩnh Phúc Province regarding the resolution of citizens’ complaints.

– Dispatch No. 372/UBND-KNTC dated July 7^th, 2011, from the People’s Committee of City V in response to Mr. Nguyễn Văn D’s petition.

These documents confirmed that Plot No. 38, Map Sheet No. 13 was designated as residential land and served as the basis for eminent domain compensation.

At the time of the will’s execution, although Mr. D was over 90 years old, he remained mentally alert, clear-minded, and fully cognizant of his actions. Among his first-line heirs, including his spouse, children, and parents, only Mr. D1 survived. There were no minors, incapacitated individuals, or intellectually disabled individuals unable to support themselves as defined by civil law. Therefore, Mr. D’s decision to bequeath all his assets to Mr. D1 was fully compliant with the civil law provisions governing wills.

After reviewing the aforementioned matters, Notary Office M determined that the creation of Mr. D’s will was entirely legitimate and its contents lawful. Consequently, the notary proceeded to process the will for Mr. D. On January 15^th, 2011, Mr. D affixed his fingerprint to the will at Notary Office M. Prior to doing so, the notary read the entire contents of the will to Mr. D, who expressed his full agreement.

Following Mr. D’s death, his will became legally effective. Mr. D1 requested Notary Office M to announce the will, which the notary did in accordance with the law. Throughout the notarization and announcement of Mr. D’s will, Notary Office M was not aware of the ongoing dispute over the land. The notary’s position is to request that the court resolve the matter in accordance with the relevant legal provisions.

The interested party, Mr. Nguyễn Văn D1, stated the following:

His father, Mr. D, and his mother, Mrs. C, were married in 1957. In 1959, his parents purchased a parcel of land from Mr. Đ in Hamlet S, Ward Đ, Town V. As his parents did not have any children together, around 1969-1970, Mrs. C consented to Mr. D marrying Mrs. H (Mr. D1’s biological mother) and residing in Area M, Ward N. In 1976, Mr. D purchased house No. 24 N to supplement his income as a barber. Mrs. T lived in house No. 60 N, while Mr. D and Mrs. H resided in Area M.

Following Mr. D1’s birth, Mrs. H passed away. In 1968, Mrs. C sold house No. 60 N and purchased a house on C Street. In 1986, Mrs. C sold the house on C Street and relocated to Hưng Yên. In 1988, Mrs. C returned to V and constructed a house on a plot in Alley 3, Group T. However, due to the presence of numerous graves on the plot, she moved to Area M to live with Mr. D and their children.

Since 2006, Mrs. C has resided in Hưng Yên. Mr. D and Mr. D1 have managed the plot in Area M, but Mr. Y has contested their ownership. Mr. D1 objects to Mr. Y’s request for the court to declare the two notarized documents null and void.

In the First-instance Civil Judgment No. 10/2014/DS-ST dated April 28^th, 2014, the People’s Court of Vĩnh Yên City, Vĩnh Phúc Province, ruled:

– The notarized document of Mr. Nguyễn Văn D (born 1919)’s will, dated January 15^th, 2011, and the notarized document announcing the wills of Mrs. Nguyễn Thị T1 (also known as T, born 1924), dated December 16^th, 2009, and Mr. Nguyễn Văn D, dated January 15^th, 2011, by Notary Office M, Vĩnh Phúc Province, are null and void.

Additionally, the first-instance court ruled on court fees.

On May 12^th, 2014, Mr. Nguyễn Văn D1 appealed against the first-instance court’s decision.

In the Appellate Civil Judgment No. 23/2015/DS-PT dated April 27^th, 2015, the People’s Court of Vĩnh Phúc Province upheld the First-instance Civil Judgment No. 10/2014/DS-ST dated April 28^th, 2014, of the People’s Court of Vĩnh Yên City.

On April 11^th, 2016, Mr. Nguyễn Văn D1 submitted a request for cassation review of the Appellate Civil Judgment mentioned above.

In Decision No. 08/2018/KN-DS dated April 26^th, 2018, the Chief Justice of the High People’s Court in Hà Nội protested against the Appellate Civil Judgment No. 23/2015/DS-PT dated April 27^th, 2015, of the People’s Court of Vĩnh Phúc Province, proposing the Judicial Committee of the High People’s Court in Hà Nội to vacate the entire Appellate Civil Judgment and the First-instance Civil Judgment No. 10/2014/DS-ST dated April 28^th, 2014, of the People’s Court of Vĩnh Yên City, Vĩnh Phúc Province, and to remand the case file to the People’s Court of Vĩnh Yên City, Vĩnh Phúc Province for first-instance retrial according to legal provisions.

At the cassation hearing, the representative of the High People’s Procuracy in Hà Nội proposed that the Judicial Committee of the High People’s Court in Hà Nội accept the protest of the Chief Justice of the High People’s Court in Hà Nội.

COURT’S OPINION:

[1] Mr. Nguyễn Văn D and Mrs. Nguyễn Thị C (also known as T, T1) began cohabitation in 1957 but did not formally register their marriage. In 1959, Mr. D purchased a plot of land in Area M from Mr. Nguyễn Văn Đ, which he subsequently exchanged with Cooperative N for a field in Area M, now designated as Plot No. 38, Map Sheet No. 13. Around 1969-1970, Mr. D commenced cohabitation with Mrs. H, resulting in the birth of Mr. Nguyễn Văn D1.

[2] On December 16^th, 2009, Mrs. C executed a will bequeathing a portion of her estate, including the real property at Plot No. 38, Map Sheet No. 13, to her son, Mr. Nguyễn Văn D1. On January 15^th, 2011, Mr. D executed a will at Notary Office M, Vĩnh Phúc Province, bequeathing his share of the estate at the aforementioned plot to Mr. D1, with the explicit stipulation that upon any State reclamation of the land and provision of compensation (either through resettlement or monetary payment), as well as compensation for assets on the land, Mr. D1 would be entitled to receive such compensation on his behalf.

Mrs. C passed away on September 7^th, 2010, and Mr. D passed away on January 21^st, 2011. Following their deaths, on January 26^th, 2011, Notary Office M, Vĩnh Phúc Province (hereinafter referred to as “Notary Office M”) publicly announced the wills dated December 16th, 2009 (Mrs. T1’s will) and January 15^th, 2011 (Mr. D’s will) concerning their respective shares of the estate at Plot No. 38, Map Sheet No. 13, Area M, Ward N, City V, Vĩnh Phúc Province.

[3] Mr. Trần Văn Y asserts that Plot No. 38, Map Sheet No. 13, Area M, referenced above, was purchased from Mrs. C in 1987, and that in 1998, they executed a House Sale and Land Use Right Transfer Document and a Land Use Right Transfer Contract. Mr. Trần Văn Y contends that the notarization of Mr. D’s will and the subsequent announcement of the wills by Notary Office M adversely impacted his family’s legitimate rights and interests. Consequently, he initiated legal action, requesting the court to declare these notarized documents null and void.

[4] Pursuant to Article 45 of the Notarization Law, individuals entitled to request the court to declare a notarized document null and void include: “Notary public, the person requesting notarization, witnesses, interested parties, and competent state agencies.” To substantiate his status as an interested party in the notarized document and his standing to sue, Mr. Y submitted a payment order dated May 20^th, 2005, for VND 100,000,000, a Power of Attorney dated July 23^rd, 2009, from Mrs. C to him, the House Sale and Residential Land Transfer Document dated February 8^th, 1998, and the Land Use Right Transfer Contract dated February 8^th, 1998, between Mrs. C and him, along with the complaint.

However, the land in Area M was jointly owned by Mrs. C and Mr. D, but the documents provided by Mr. Y only indicate Mrs. C transferring the property to him without Mr. D’s consent. In situations where Mrs. C unilaterally disposed of their joint property without Mr. D’s agreement, the legality of the transfer contract between Mrs. C and Mr. Y must be scrutinized.

During the proceedings, neither the first-instance court nor the appellate court considered or evaluated the documents and evidence provided by Mr. Y, nor did they assess the transfer contract between Mr. Y and Mrs. C to determine if Mr. Y had rights or interests in the estate, specifically Plot No. 38, Map Sheet No. 13, and whether he had standing to request the notarized documents be declared null and void. Instead, they solely examined the content, form, and procedure of the notarized documents and declared them null and void without sufficient legal basis, thereby potentially infringing upon Mr. Nguyễn Văn D1’s legitimate rights and interests.

[5] Furthermore, the estate bequeathed by Mr. D and Mrs. C, specifically the land use rights to Plot No. 38, Map Sheet No. 13, had been subject to eminent domain proceedings under Decision No. 1208/QĐ-UBND dated July 21^st, 2010, by the People’s Committee of City V. However, the value of the land use rights for the reclaimed land remains protected by law under the Land Law, affording the two individuals the right to bequeath the property to Mr. D1 through their wills.

The first-instance court and the appellate court erroneously based their decision on Appellate Civil Judgment No. 45/2009/DS-PT dated May 22^nd, 2009, of the People’s Court of Vĩnh Phúc Province (wherein the Trial Panel solely vacated the First-Instance Judgment and dismissed the case) to conclude that at the time Mr. D made the will, the estate, being part of the property (real estate at Plot No. 38, Map Sheet No. 13), no longer existed.

Therefore, upon retrial, it is imperative to concurrently assess the legal validity of the house and land sale contract between Mr. Trần Văn Y and Mrs. Nguyễn Thị C, as well as the legality of the wills made by Mr. D and Mrs. C and the notarized will announcement document, to comprehensively resolve the case and safeguard the rights and interests of all parties involved.

In light of the foregoing,

IT IS DECIDED:

Pursuant to point a, Clause 1, Article 337; Clause 3, Article 343, and Article 345 of the 2015 Civil Procedure Code;

1. To vacate the Appellate Civil Judgment No. 23/2015/DS-PT dated April 27^th, 2015, of the People’s Court of Vĩnh Phúc Province, and the First-instance Civil Judgment No. 10/2014/DS-ST dated April 28^th, 2014, of the People’s Court of Vĩnh Yên City, Vĩnh Phúc Province, regarding the case “Dispute overthe request to declare notarized documents null and void” between the plaintiff Mr. Trần Văn Y and the defendant Notary Office M, Vĩnh Phúc Province; with the interested party being Mr. Nguyễn Văn D1.
2. To remand the case file to the People’s Court of Vĩnh Yên City, Vĩnh Phúc Province, for first-instance retrial in accordance with legal provisions.

CONTENT OF THE CASE LAW:

“[5] … the estate bequeathed by Mr. D and Mrs. C, specifically the land use rights to Plot No. 38, Map Sheet No. 13, had been subject to eminent domain proceedings under Decision No. 1208/QĐ-UBND dated July 21st, 2010, by the People’s Committee of City V. However, the value of the land use rights for the reclaimed land remains protected by law under the Land Law, affording the two individuals the right to bequeath the property to Mr. D1 through their wills…”

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