By Joe
Lynch,
Accredited
Australian Family Law Specialist
Lanna
Lawyers, Chiang Mai, Thailand
Phone:
+66849047797
Email: lynchlaw.net.au@gmail.com
Facebook: www.facebook.com/LannaLawyers.
“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.
