Legal Review: Type of Will in Cambodian Law
Issue: No. 022P/21 -17 May 2021
The disposition of the deceased person’s property is called succession. Succession is governed by the Civil Code and defined as the transmission of rights and obligations of the decedent to their successors. According to the Civil Code, succession is classified into two types: statutory succession and testamentary succession. Statutory succession is applied in case there is an absence of the will while testamentary succession is known as the free disposition of property in accordance with the wishes of the decedent trough a will without the infringement of legally secured portion. However, a will must follow the formalities prescribed in the Civil Code. Will that does not conform with one of the forms prescribed in the Code shall be null and void. There are seven (07) forms of wills set out in the Civil Code. Three (03) forms of wills are known as ordinary wills and the rest are the wills in special circumstance. However, only 3 ordinary wills are relevant for the purpose of this articles. Those wills are as following:
- Will by notarial document
This form of will is made by the oral declaration of the exact meaning of the will by the testator to the notary in the presence of two or more witnesses. The notary then writes down the contents of the testator’s will and reads it aloud to the testator and the witnesses. After acknowledging the contents of the writing, the testator and the witness shall write down their name, age, address and affix signature on it. Finally, the notary shall date and sign the document.
The authenticity and legitimacy of the will by notarial document are guaranteed because the will is prepared and drafted by the notary. Moreover, contrary to other form of will, will by notarial document is not subjected to the procedure of probate before the court.
- Will by privately produced document
Will by privately produced document is a will that the testator writes the whole texts of the will by himself (holograph), puts the date and affixes his signature to it. It is to note that the will by privately produced document that is written by another person or using a typewriter or other machine shall be null and void.
Even though, will by privately produced document is more convenient to make because it does not require the intervention of notary or witness, the issue of validity of this form of will is likely to arise. Furthermore, it must be presented to the court the procedure of probate.
- Will by secret document
Will by secret document is a will that the testator can write down the text of the will by himself or seek for the help from lawyer to draft the will for him. After having signed the will, the testator shall put the will inside the envelop. The envelop is then signed or initialed on the placed of closing in order to make sure whether the closure has been opened. After that, the testator produces the sealed envelop before a notary and at least two witnesses and declare that it is his/her testamentary document. In case that it is written by a person other than the testator, the testator shall declare the name and address of such other person. The notary shall write the date of the production of the documents and the declaration of the testator on the envelop. Finally, the notary, the testator and the witnesses shall affix their signature on that envelop.
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