To make a will legal, the testator must meet the conditions stated in Article 630 of the 2015 Civil Code as follows:
- The testator is clear-minded and wise while making the test; not deceived, threatened, or forced.
- The content of the will must not violate the prohibitions of the law, not be contrary to social morality; the form of the will must not be contrary to the provisions of law.
The will of a person aged between ten and eighteen must be made in writing and must be approved by the father, mother or guardian for the will.
The will of a person with physical limitations or an unwritten knowledgeable person must be made in writing by a witness and must be notarized or certified.
Therefore, it can be seen that currently, the law does not prohibit the issuance of wills with mortgaged real estate in banks. If the will is made to meet the above conditions, it will still be considered a legal will and will still have legal value.
Currently, wills are made in two main forms: oral wills and written wills.
When notarizing or certifying the will, according to the 2024 Notary Law, the notary will require the testator to provide the original Land Use Rights Certificate (red book) to consider as one of the documents used for comparison.
If the house and land are being mortgaged at the bank and the Red Book is not available, the testator can ask the mortgaged bank to agree to support the comparison of the original version to notarize or certify.
Accordingly, the owner of a house or land mortgaged to a bank has the right to make a will to determine his/her assets. However, depending on the form of the will chosen, the creator needs to ensure additional specific requirements for the will to be legally valid.
Note: According to Article 658 of the 2015 Civil Code, debts, property obligations and expenses related to inheritance must be prioritized for payment before dividing inherited assets.
Thus, land mortgaged to banks can still be be be be be beated. However, after receiving the inheritance, the heir must continue to fulfill financial obligations, specifically paying debts attached to mortgaged assets to ensure ownership.
