Source of the case: Cassation Decision No. 06/2017/DS-GDT dated March 27, 2017 of the Judicial Council of The Supreme Court regarding the case on “Dispute on inheritance and division of common property” in Hanoi, between the plaintiffs: Mr. Can Xuan V, Ms. Can Thi N1, Ms. Can Thi T1, Ms. Can Thi H, Mr. Can Xuan T, Ms. Can Thi N2, Ms. Can Thi M1 with representative, Ms. Can Thi N2, versus the defendants: Ms. Nguyen Thi L, Mr. Can Anh C with representative, Ms. Le Hong L. Persons, with related rights and obligations consisting of 7 people.

Overview of the case: Ms. Hoang Thi T (mother of the plaintiffs) passed away in 1972, before the publication of Ordinance on Inheritance, dated August 30, 1990 (“Ordinance 1990”). According to the Judicial Council of The Supreme Court, at the time of reviewing the case as cassation procedure, the statute of limitations for requesting the division of the estate is still valid due to The Civil Code 2015 (“BLDS 2015”) is in effect.

Material Facts: In this case, the commencement of the statute of limitations requesting the division of the estate must be considered as the publication date of Ordinance 1990, i.e. September 10, 1990. The determination of the statute of limitation for requesting for division of the estate is subject to BLDS 2015’s regulations.

Applicable Laws:

– Article 623 Clause 1 of BLDS 2015;

– Article 36 Clause 4 of Ordinance 1990.

Judges’ Reasoning & Legal Application:

1. The starting time of the limit period for requesting for division of the estate. Under Article 3, Clause 1 of Ordinance 1990, the time for opening an inheritance division shall be after the death of a property-owner or the moment he/she is determined to be deceased by the Court. Ms. Hoang Thi T passed away in 1972, thus the opening time of the inheritance in this case was in 1972. According to Article 36, Clause 4 of Ordinance 1990, for an inheritance opened before the publication of Ordinance 1990, the period shall start from September 10, 1990 (which is Ordinance 1990’s publication date) by Order No. 44-LCT/HDNN8 of the State Council. Therefore, the Judicial Council of the Supreme Court determined that the inheritance was to be calculated from September 10, 1990.

2. The statute of limitations for requesting division of an inheritance. Under Article 36, Clause 1 of Ordinance 1990, an heir shall only have the right to initiate legal action requesting the division of the estate within a period of ten (10) years, starting from the time of opening the inheritance. Thus, the statute of limitations requesting the division of Ms. Hoang Thi T’s estate was 10 years from September 10, 1990. Accordingly, by November 2, 2010 (the date of filing the lawsuit), the statute of limitations had run out. However, this dispute was reviewed as a cassation procedure on March 27, 2017 (when BLDS 2015 was already in effect). Due to Article 688, Clause 1, point d of BLDS 2015, with respect to civil transactions established before the effective date of BLDS 2015, the limitation period shall comply with relevant regulations. In addition, according to Article 623, Clause 1 of BLDS 2015, the limitation period for a claim of an heir for distribution of an estate shall be thirty (30) years regarding immovable property, or ten (10) years regarding movable property from the time of commencement of the inheritance. The Judicial Council of the Supreme Court determined that, in this case, the statute of limitations for initiating lawsuits to divide Ms. Hoang Thi T’s estate was still not over.

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