Friday 19 February 2016

Making a Will in Thailand. Why it is important.




By Joe Lynch,
Accredited Australian Family Law Specialist
Lanna Lawyers, Chiang Mai, Thailand
Phone: +66849047797



“Where there’s a Will there’s a way”
The law concerning making of wills in Thailand is contained in the Thai Civil and Commercial Code in sections 1646 through to 1672.
If you have assets in Thailand, even bank accounts or personal property, it is important that you make a Will setting out who is to receive your assets in the event of your death.  In the case of foreigners is usually desirable to have a separate Will dealing with assets in the kingdom of Thailand only and another Will dealing with assets in the testator's home country.  Care should be taken to ensure that neither Will revokes the other.  If in doubt seek legal advice.
The failure to have a valid Will or Wills in place is likely to result in your estate being distributed in accordance with the laws of intestacy in either or both Thailand and your home country.  Under Thai law the relevant provisions as to statutory heirs are somewhat arbitrary and, in most cases, in the absence of a will, your lawful wife is unlikely to receive all of your estate.  In the absence of a will your de facto wife will receive none of your estate.  For details as to the identity of statutory heirs refer to our article Intestacy in Thailand

Caution: if you have property, typically real estate, in the name of your Thai wife or partner and there is no adequate asset protection strategy in place that you may not be entitled to that asset in the event of her death.  You should ensure that she makes a will reflecting any agreement between you and her as to what is to happen in the event of her death or have an appropriate asset protection strategy in place or, preferably, both.


Validity of Wills in Thailand

Generally speaking, three types of Wills are permitted in Thailand.  These are as follows:
1.     A holograph Will (see section 1657 of the Thai Civil and Commercial Code)
2.     A Will made in the presence of witnesses (see section 1656)
3.     A Will made before a public official (see section 1658)
Two additional types of Wills are permitted but are rarely used.  These are the “secret Will” section 1660 and the”oral Will” section 1663.
A Holograph Will is one made by a holograph document, that is to say, the testator writes it with his/her own hand the whole text of the document, the date and signature. No erasure, addition or other alteration in such a Will is valid unless made in the testator’s own hand and signed by him.

A Will in the presence of witnesses may be made in writing, dated at the time of making of will and signed by the testator before at least two witnesses present at the same time who then sign their names as witnesses of the signature of the testator. No erasure, addition or other alternation to such will is valid unless made in the same form as prescribed by this section 1656.
A Will made before a public official, must comply with the following:
(1)  The testator must declare to the Kromakarn Amphur (According to Section 40 of the Act on the Administrative Organization of the State, B.E. 2495, all powers and duties relating to the official service are determined by law to belong to Kromakarn Amphur are vested in Nai Amphur) before at least two other persons as witness present at the same time what dispositions he wishes to be included in this will;
(2)  The Kromakarn Amphur must note down such declaration of the testator and read it to the latter and to the witnesses;
(3)  The testator and the witnesses must sign their names after having ascertained that the statement noted down by the Kromakarn Amphur corresponds with the declaration made by the testator;
(4)  The statement noted down by the Kromakarn Amphur shall be dated and signed by such official who shall certify under his hand and seal that the will has been made in compliance with the foregoing Sub-Sections 1 to 3.
No erasure, addition or other alternation in such will is valid unless signed by the testator, the witness and the Kromakarn Amphur.
In order to make a will in Thailand the testator must be over the age of 15 years (see section 1703).

Other Requirements

There are a number of other important provisions contained in the Thai Civil and Commercial Code relating to Wills which should be borne in mind.
Section 1667 provides that “In the event of a Thai subject making his will in a foreign territory, such will may be made either according to the form prescribed by the law of the country where it is made or according to the form prescribed by Thai law.
When the will is made according to the form prescribed by Thai law, the powers and duties of the Kromakarn Amphur under Section 1658, Section 1660, Section 1661, Section 1662 and Section 1663 shall be exercised by:
(1) The Thai Diplomatic or Consular Officer acting within the scope of his authority, or
(2) Any authority competent under foreign law for making authentic record of a statement.
Section 1668 provides that “Unless otherwise provided by law, the testator need not disclose to the witness the contents of his will.”
Section 1653 provides that “the writer of the will or a witness thereof cannot be a legatee under such will. The forgoing paragraph shall also apply to the spouse of such writer of witness. The competent official recording the statement made by witnesses under Section 1663 is deemed to be a writer within the meaning of this Section.”
Section 1671 provides that “Where a person other than the testator is the writer of a will, such persons must sign his name thereon and add the statement that he is the writer. If such person is also a witness, a statement that he is a witness must be written down after his signature in the same manner as is done by any other witness.”
Whilst trusts are not permitted under Thai law whether created by Will or otherwise the Thai Civil and Commercial Code permits the appointment of a “controller of property” who is permitted to hold property on behalf of a minor until the minor reaches majority at the age of 20 years (see sections 1686 and following).
Generally speaking a Will made in Thailand should be made in the Thai language.  There is no formal requirement that the Will be made in the Thai language however the administrator may experience some problems if it is made in English only.  Most professional law firms are able to prepare bilingual Wills in both the Thai and English languages generally they contain a provision that if there is any conflict between the two the English version shall prevail.  Translation expenses usually amount to about 300 to 500 baht per page but may be more expensive where other of languages are involved.

Generally speaking, foreigners are not permitted to own land in Thailand.  An exception to this is contained in sections 93 to 96 of the Land Code pursuant to which foreigners are permitted to inherit land provided that the land is transferred to a Thai national within one year.

                                              

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