Precedent No. 34/2020/AL on the right to make a will to dispose of the value of land compensation in cases where land is recovered by the State with compensation

1. What is a precedent?

Precedent refers to arguments and rulings in legally effective judgments and decisions of the Court regarding a specific case, selected by the Council of Justices of the Supreme People’s Court and published by the Chief Justice of the Supreme People’s Court as a precedent for Courts to study and apply in adjudication. (Article 1 of Resolution 04/2019/NQ-HĐTP)

Selected precedents must meet the following criteria:

– Possess value in clarifying provisions of the law that have different interpretations, analyzing and explaining legal issues and events, and pointing out principles, guidelines for handling, and legal norms to be applied in a specific case or demonstrating fairness for issues not yet specifically regulated by law;

– Be exemplary;

– Possess value in guiding the uniform application of law in adjudication.

2. Precedent No. 34/2020/AL on the right to make a will to dispose of the value of land compensation in cases where land is recovered by the State with compensation

2.1. Source of the precedent

Cassation Decision No. 58/2018/DS-GDT dated September 27, 2018, of the High People’s Court in Hanoi regarding the civil case “Dispute requesting declaration of invalidation of notarized documents” in Vinh Phuc province between the plaintiff Mr. Tran Van Y and the defendant Notary Office M; the person with related rights and obligations is Mr. Nguyen Van D1.

Location of the precedent content:

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

2.2. Overview of the precedent content

– Case situation:

Land use rights were legally established by an individual, and while that person was still alive, the State issued a decision to recover the land, and such recovery is subject to compensation.

– Legal solution:

In this case, it must be determined that the value of the recovered land use rights is guaranteed by the compensation value; therefore, the person whose land is recovered has the right to make a will to dispose of that compensation value.

Legal provisions related to the precedent:

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

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

Keywords of the precedent:

“Land recovery”; “Compensation upon land recovery by the State”; “Inheritance”; “Will”.

CASE CONTENT:

According to the lawsuit petition dated June 26, 2013, and statements during the proceedings, the plaintiff Mr. Tran Van Y stated: Land lot No. 38, Map Sheet No. 13 in Area M, N ward, V city, Vinh Phuc province originated from his receipt of a transfer from Mrs. Nguyen Thi C (aka T, T1) since 1987. The transfer of land and crops related to this land lot between him and Mrs. C had a confirmation letter from the Ward People’s Committee agreeing for him to live with Mrs. T1. In 1988, the Ward People’s Committee agreed for him to hold the title to this land lot and exchange it for another land lot because this lot was adjacent to a pond and not convenient for taking care of small children. However, due to being unable to build a house, he did not exchange the land anymore.

In 1998, he and Mrs. C made papers to transfer the above land lot for 140,000,000 VND. Although the payment was not documented with a receipt by the parties, there were 02 witnesses, Mrs. Nguyen Thi B (deceased) and Mrs. Tran Thị K (in D hamlet, D ward), who witnessed his payment to Mrs. C. Upon transfer, he and Mrs. C established a Contract for house sale and land use rights transfer dated February 8, 1998, and submitted it to the Ward People’s Committee. In 2008, his family no longer lived on this land lot due to land clearance. In 2009, a dispute occurred between him and the family of Mr. Nguyen Van D regarding the land lot. In 2013, he learned that Notary Office M had notarized the Will of Mr. Nguyen Van D and notarized the Document announcing the will of Mr. D and Mrs. Nguyen Thi T1 on January 26, 2011. According to these documents, Mr. D had the right of ownership and use of a portion of land lot No. 38, Map Sheet No. 13 in Area M, N ward, V city, Vinh Phuc province; Mr. Nguyen Van D1 was the heir of Mr. D and Mrs. C for land lot No. 38, Map Sheet No. 13 with an area of 299.8 m² in Area M. This notarization was not in accordance with legal regulations and affected his family’s legal rights and interests, so he requested the Court to declare the 02 notarized documents above invalid.

The defendant, Notary Office M (represented), stated: On January 14, 2011, Mr. Nguyen Van D1 drove Mr. Nguyen Van D to Notary Office M and requested to notarize Mr. D’s will. According to Mr. D’s statement, he and Mrs. T1 married without marriage registration (de facto marriage); Mrs. T1 could not give birth, so Mr. D took another person but did not divorce Mrs. T1. The house and land at lot No. 38, Map Sheet No. 13 in Area M were common property formed during the marriage between Mr. D and Mrs. C.

Regarding documents proving assets accompanying the request for will notarization, Mr. D and Mr. D1 presented:

– Mrs. T1’s will certified by the People’s Committee of S ward, K district, Hung Yen province, according to which Mrs. T1 recognized the above asset (lot 38, Map Sheet 13) as common property with Mr. D, so Mrs. T1 only notarized the will for her portion to Mr. D1. Notary Office M found Mrs. T1’s will to be legal.

– Original sale documents of Mr. D buying from Mr. D (this land sale document was confirmed by the People’s Committee of T commune), then exchanged with Cooperative N for a field in M field, now land lot No. 38, Map Sheet No. 13.

– Official Letter No. 405/UBND-TD of the People’s Committee of Vinh Phuc province regarding the settlement of citizen complaints.

– Official Letter No. 372/UBND-KNTC dated July 7, 2011, of the People’s Committee of V city responding to Mr. Nguyen Van D’s petition.

These two documents confirmed that land lot No. 38, Map Sheet No. 13 was residential land, serving as a basis for compensation for land clearance.

At the time of making the will, although Mr. D was over 90 years old, he was still alert, lucid, and clearly aware of his actions. Among the first line of heirs including wife, children, father, and mother of Mr. D, only Mr. D1 remained; there was no one else who was a minor, weak, or mentally disabled and unable to support themselves according to civil law provisions. Therefore, Mr. D’s will bequeathing all his assets to Mr. D1 was entirely in accordance with civil law regulations on wills. After considering the above issues, Notary Office M found that Mr. D’s making of the will was completely legitimate, and the content of the will was lawful, so the Notary Office executed the will for Mr. D. On January 15, 2011, Mr. D came to the Notary Office to provide a fingerprint on the will. Before fingerprinting, the notary read the entire content of the will back to him, and he completely agreed.

After Mr. D passed away, his will became legally effective. Mr. D1 came to the Notary Office to request the announcement of the will, and the Notary Office proceeded with the announcement according to legal regulations. During the notarization and announcement of Mr. D’s will, the Notary Office was unaware that the above land lot was under dispute. The Notary Office’s position is to request the Court to consider and resolve the case in accordance with the law.

The person with related rights and obligations, Mr. Nguyen Van D1, stated:

His father, Mr. D, and his mother, Mrs. C, married in 1957. In 1959, his parents bought a plot of land from Mr. D in S hamlet, D ward, V town. Since his parents had no common children, around 1969-1970 Mrs. C agreed for Mr. D to marry Mrs. H (his biological mother) living in Area M, N ward. In 1976, Mr. D bought house No. 24 N for a barber shop. Mrs. T lived in house 60 N, and Mr. D and Mrs. H lived in Area M. After he was born, Mrs. H passed away. In 1968, Mrs. C sold house No. 60 N and bought a house on C street. In 1986, Mrs. C sold the house on C street and moved to Hung Yen to live. In 1988, Mrs. C returned to V and built a house on land in lane 3 Tô T. But because this plot had many graves, she moved to live in Area M with Mr. D and the children. Since 2006, Mrs. C returned to Hung Yen; he and Mr. D came to manage the land in Area M, but Mr. Y did not agree. Regarding Mr. Y’s request for the Court to declare the 02 notarized documents invalid, he did not agree.

In the First-Instance Civil Judgment No. 10/2014/DS-ST dated April 28, 2014, the People’s Court of Vinh Yen city, Vinh Phuc province decided:

– To declare the Notarized Document of the Will of Notary Office M, Vinh Phuc province dated January 15, 2011, regarding the Will of Mr. Nguyen Van D, born in 1919, and the Notarized Document of the Will Announcement of Notary Office M, Vinh Phuc province dated January 26, 2011, announcing the Will dated December 16, 2009, of Mrs. Nguyen Thi T1 (T), born in 1924, and the Will dated January 15, 2011, of Mr. Nguyen Van D, born in 1919, as invalid.

Additionally, the first-instance court also decided on court fees.

On May 12, 2014, Mr. Nguyen Van D1 appealed, disagreeing with the decision of the first-instance judgment.

In the Appellate Civil Judgment No. 23/2015/DS-PT dated April 27, 2015, the People’s Court of Vinh Phuc province decided: To uphold the First-Instance Civil Judgment No. 10/2014/DS-ST dated April 28, 2014, of the People’s Court of Vinh Yen city.

On April 11, 2016, Mr. Nguyen Van D1 submitted a petition for cassation review of the aforementioned appellate civil judgment.

In Decision No. 08/2018/KN-DS dated April 26, 2018, the Chief Justice of the High People’s Court in Hanoi protested against the Appellate Civil Judgment No. 23/2015/DS-PT dated April 27, 2015, of the People’s Court of Vinh Phuc province; requesting the Committee of Justices of the High People’s Court in Hanoi to annul the entire aforementioned appellate civil judgment and the First-Instance Civil Judgment No. 10/2014/DS-ST dated April 28, 2014, of the People’s Court of Vinh Yen city, Vinh Phuc province; and transfer the case file to the People’s Court of Vinh Yen city, Vinh Phuc province for a first-instance retrial in accordance with the law.

At the cassation hearing, the representative of the High People’s Procuracy in Hanoi requested the Committee of Justices of the High People’s Court in Hanoi to accept the protest of the Chief Justice of the High People’s Court in Hanoi.

COURT’S ASSESSMENT:

[1] Mr. Nguyen Van D and Mrs. Nguyen Thi C (aka T, T1) lived together since 1957 but did not register their marriage. In 1959, Mr. D bought the land in M locality from Mr. Nguyen Van D, then exchanged it with Cooperative N for a field in M field, now land lot No. 38, map sheet No. 13. Around 1969-1970, Mr. D lived with Mrs. H and gave birth to Mr. Nguyen Van D1.

[2] On December 16, 2009, Mrs. C made a will with the content of leaving a portion of the real estate asset at land lot No. 38, map sheet No. 13 mentioned above to my son (Mr. Nguyen Van D1). On January 15, 2011, Mr. D made a will at Notary Office M, Vinh Phuc province with the content of leaving his portion of the asset at the aforementioned land lot to Mr. D1. When the State recovers the land and compensates by resettlement (or cash) and compensates for assets on the land, Mr. D1 shall be titled and receive the money. On September 7, 2010, Mrs. C died. On January 21, 2011, Mr. D died. After Mr. D and Mrs. C died, on January 26, 2011, Notary Office M of Vinh Phuc province (hereinafter referred to as Notary Office M) issued a Document announcing Mrs. T1’s Will dated December 16, 2009, and Mr. D’s Will dated January 15, 2011, regarding their estate which is lot No. 38, Map Sheet No. 13 in Area M, N ward, V city, Vinh Phuc province.

[3] Mr. Tran Van Y claimed that he had bought land lot No. 38, Map Sheet No. 13 in Area M above from Mrs. C since 1987, and by 1998 the two parties established a House Sale and Residential Land Use Rights Transfer Paper and a Land Use Rights Transfer Contract. He argued that Notary Office M’s notarization of Mr. D’s will and the Document announcing the wills of the two deceased individuals affected his family’s legal rights and interests, so he sued to request the Court to declare the notarized documents invalid.

[4] According to the provisions of Article 45 of the Law on Notarization, persons entitled to request the Court to declare a notarized document invalid include: “Notaries, requestors for notarization, witnesses, persons with related rights and interests, and competent state agencies.” To prove his related rights and interests in the notarized documents and his right to sue, Mr. Y presented: a payment order dated May 20, 2005, for 100,000,000 VND; an Authorization Contract dated July 23, 2009, from Mrs. C to him; a House Sale and Residential Land Use Rights Transfer Paper dated February 8, 1998; a Land Use Rights Transfer Contract dated February 8, 1998, between Mrs. C and him… accompanied by the lawsuit petition. However, the land lot at M locality was the common property of Mrs. C and Mr. D, but the documents presented by Mr. Y showed only Mrs. C transferred to Mr. Y without Mr. D’s opinion. In the event that Mrs. C unilaterally disposed of the common property of the two without Mr. D’s consent, it is necessary to consider the legality of the transfer contract between Mrs. C and Mr. Y. During the resolution of the case, the first-instance court and appellate court did not consider or evaluate the documents and evidence provided by Mr. Y or evaluate the transfer contract between Mr. Y and Mrs. C to determine whether Mr. Y had rights and interests in the estate which is lot No. 38, Map Sheet No. 18 and had the right to request the declaration of invalidity of the notarized documents. Instead, they only considered the content, form, and procedures of the notarized documents and declared them invalid, which is insufficient and affects the legal rights and interests of Mr. Nguyen Van D1.

[5] Furthermore, the estate left by Mr. D and Mrs. C was the land use rights at lot No. 38, Map Sheet No. 13, which had been recovered under Decision No. 1208/QD-UBND dated July 21, 2010, of the People’s Committee of V city, but the value of land use rights of the person whose land is recovered is still guaranteed by law according to the provisions of the Land Law; therefore, the two deceased had the right to make a will to dispose of the aforementioned assets to Mr. D1. The first-instance and appellate courts relied on Judgment No. 45/2009/DS-PT dated May 22, 2009, of the People’s Court of Vinh Phuc province (whereas in this appellate judgment, the Trial Panel only declared to annul the first-instance judgment and terminate the resolution of the case) to determine that at the time Mr. D made the will, the estate which was a portion of the asset (real estate at lot No. 38, Map Sheet No. 13) no longer existed, which is inaccurate. Therefore, when re-resolving the case, it is necessary to simultaneously consider the legal validity of the house and land sale contract between Mr. Tran Van Y and Mrs. Nguyen Thi C and the legality of the will made by Mr. D and Mrs. C, as well as the Document announcing the will, to thoroughly resolve the case and ensure the rights and interests of the litigants.

For these reasons,

DECISION:

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

1. Annul the Appellate Civil Judgment No. 23/2015/DS-PT dated April 27, 2015, of the People’s Court of Vinh Phuc province and the First-Instance Civil Judgment No. 10/2014/DS-ST dated April 28, 2014, of the People’s Court of Vinh Yen city, Vinh Phuc province regarding the case “Dispute requesting declaration of invalidation of notarized documents” between the plaintiff Mr. Tran Van Y and the defendant Notary Office M of Vinh Phuc province; the person with related rights and obligations is Mr. Nguyen Van D1.

2. Transfer the case file to the People’s Court of Vinh Yen city, Vinh Phuc province for a first-instance retrial in accordance with the law.

CONTENT OF THE PRECEDENT

“[5]… the estate left by Mr. D and Mrs. C was the land use rights at lot No. 38, Map Sheet No. 13, which had been recovered under Decision No. 1208/QD-UBND dated July 21, 2010, of the People’s Committee of V city, but the value of land use rights of the person whose land is recovered is still guaranteed by law according to the provisions of the Land Law; therefore, the two deceased had the right to make a will to dispose of the aforementioned assets to Mr. D1…”