If you are considering making a Will in Thailand, then before doing so there are several things which you should carefully consider. This article will discuss a range of matters relating to Wills and applicable Thai law so that you can ensure that your legal interests are protected, and your Will meets the legal requirements under Thai law.
Different Types of Wills under Thai Law
The Thai Civil & Commercial Code (the ‘Code’) provides that a Will in Thailand can only be made in one of the five following ways, these different approaches are detailed below:
Type 1 – In writing (the text of the Will could be typed by a lawyer or the testator or their legal representative)
The Code stipulates that a Will can be made in writing provided that:
It is worth noting that no changes can be made to a Will so made unless it is made in the same way as stated above. Where a person other than the testator is the actual writer of the Will then such person must also sign their name on the document and include a statement in the Will confirming that he/she is the writer of the document. It should be noted that under the Code, the writer or a witness to a Will (including their spouse) cannot inherit under the Will of the Testator.
Type 2 – Holographic Will (This is a Will made in the testators own handwriting)
A testator is also entitled to write their own Will in their own handwriting provided that the following requirements are complied with:
In relation to changes to a holographic Will, such changes will not be legally effective unless they are made in the same way as stated above. The writer recommends that if a testator wishes to use this approach then they should be careful to ensure that their hand writing is legible as otherwise it could result in their holographic will being unable to be interpreted and followed by their executor(s). They should also try to use the same pen for the entire document so that the handwriting is consistent.
Type 3 – Will by Public Document
With respect to this type of Will, the testator must declare their testamentary intentions for the disposal of their property before a Nai Amphoe (District Office Chief) before at least two witnesses. In this approach the following steps must be complied with:
Step 1 – The Chief District Officer must note down each testamentary disposition of the testator and then read it back to the testator and the two witnesses (note that the witnesses and their spouses, cannot inherit under the Will). The writer recommends that if the testator is not fluent in Thai it would be sensible to use a certified translator for this step to ensure their wishes are accurately expressed to the officer.
Step 2 – The testator and the two witnesses must sign their names on the written testamentary disposition statement prepared by the Chief District Office after they have verified that the statement corresponds to the verbal instructions of the testator.
Step 3 – Finally the Chief District Office will sign, seal and date the statement and this shall certify that the Will has been made in compliance with the Code.
Step 4 – Once the Will has been signed by the Chief District Office they will make a copy but such copy will not be provided to a third party during the testator’s lifetime. However, if the testator later wishes to take back such copy of the Will, he/she can obtain it from the Chief District Office at any time.
The writer recommends that if the testator is not fluent in Thai and they wish to use this approach to making a Will then it may also be a good idea for the testator to have a draft statement on their testamentary wishes translated into Thai by a suitably qualified and independent translator so it is ready before they go to the District Office. This can help to ensure that the officer can easily understand what the testator wants in their Will.
The Chief District Officer who records the statement made by the testator is deemed to be a writer of the Will and thus in accordance with Thai law they cannot inherit under the testator’s Will.
Type 4 – Oral Will
If the testator faces exceptional circumstances such as imminent danger or death or during an epidemic or war and as a result, such person is prevented from making a Will in any of the other ways as detailed above, then the Code provides that they may make an oral Will. To do this the following conditions must be met:
This type of will has a strict time limit in that it will expire one month after the testator has been placed in a situation where they are able to make a Will on any of the other prescribed ways.
Type 5 – Will by Secret Document
A testator can also make a will by secret document. The requirements for this type of Will are as follows:
Note: Thai law makes several exceptions as to who can act in the stead of a Chief District Officer with respect to making Wills under Type 3, 4 or 5 (above). For example, if Thailand is engaged in an armed conflict/war then in such case, if a person is serving in the Royal Thai Armed Forces and they wish to make a will according to Types 3, 4 or 5 as the case may be, then a military officer or official of commissioned rank has the same powers and duties as those of a Chief District Officer.
Practical Issues to Consider When Making a Will:
When a testator is having a will made, the writer recommends that they should bear in the mind the following points:
Executor/Administrator Considerations: The Will should appoint at least one executor/administrator to manage the administration and distribution of the estate of the testator. It would be sensible to appoint one or more back-up executors/administrators in case the first choice of the testator is unable or unwilling to act. When appointing an executor, the person should be accurately identified (full legal name) and ideally it should mention their contact details such as address and email so that they can be contacted when the testator dies.
A testator may appoint one or more persons to be an administrator of their estate. However, unless otherwise provided in the Will, if more than one person has been appointed to act as an administrator but some of them are unable or unwilling to act in this role, then if only one person is willing to act then such individual shall be solely entitled to act as administrator/executor. However, if there are several persons appointed and more than one is willing to act then it is presumed that these appointed persons cannot act separately.
If there are several administrators of an estate who must act jointly, the performance of their duties shall be decided by majority vote unless otherwise provided by the Will. In the case of a tie on a vote, on application of any interested person, a decision shall be given by the Court.
A testator should also be mindful that the following types of persons cannot be an executor/administrator:
Witnesses: In relation to the witnesses of a Will, they and their spouses are not able to legally inherit under the witnessed Will. Furthermore, the following types of persons are not legally able to act as a witness to a Will:
Revocation of Earlier Wills: If the testator has an earlier Will which they wish to be replaced by a new Will then they should ensure that the new document contains a statement which provides that they revoke all wills, codicils and other written instructions concerning their estate & property that were executed before the date of execution of this, their final Will and testament.
Capacity and Elderly Testators: Some people when they make their wills are already quite old and this could potentially make their Will subject to a legal claim relating to their mental capacity when they made their Will. In order to help the testator prepare and assist their executor/administrator defend against such a claim, the writer recommends that at the time of executing their Will, the testator should obtain a signed written statement from a qualified medical practitioner which confirms that at the time of making their Will they were of sound mind and had sufficient mental capacity. This signed and dated medical statement should be attached to the Will for ease of reference. Another practical step which a testator can do is to tape record them signing their Will in the presence of witnesses and have them confirm on the recording that the Will accurately reflects their intentions and that they are of sound mind and capacity when they have made it.
Undue Influence and Duress: Best practice states that the testator’s Will should contain a statement that they were not subject to undue influence or duress when they made their Will. A statement to this effect should ideally be made by the testator if they tape record the signing of their Will as this will help to evidence that the executed document accurately reflects their wishes and was not made due to improper pressure from a third party. After the death of the testator, an interested person can submit an application to the relevant Court to have the will cancelled on the grounds of duress; however it should be noted that if the testator continued to live for more than one year after they were no longer under the influence of duress, then such application claiming to challenge the Will due to duress/undue influence being used against the Testator cannot be made to the Court by the interested person.
Distributions to Heirs: Ideally, the Will should make sure to cover all property/assets of the Testator, furthermore the Will should make provision in case a designated heir cannot inherit under the Will (such as if they die before the testator). Hence, the writer recommends that the Will should contain wording to provide that if an heir cannot inherit for whatever reason then another person or party shall inherit. To avoid ambiguity, the Will should accurately identify each heir under the will, including their full legal name, address (at the time of making the will) and other identifying features such as their ID card/passport number.
Conflict of Laws Considerations: The testator of a will should also be mindful of conflict of laws considerations because the Conflict of Laws Act of Thailand (B.E. 2481) contains many important provisions which should be considered. For example:
- section 37 provides that with respect to immovable property, the law of the place where such property is located shall govern it. Hence, if the testator makes a Will in Thailand which provides for the distribution of a block of land (immovable property) in another country then such land shall be subject to the law of that other country where it is situated. If the testator has immovable property in another country outside of Thailand then they may want to consider having another Will (aside from their Will in Thailand) to specifically deal with property in that jurisdiction which is made by a qualified attorney (in that jurisdiction) to ensure that such bequest to the testator’s heirs shall be in compliance with the law of that country.
- Section 38 stipulates that as far as movable property is concerned (such as vehicles, jewelry etc), succession by Will is governed by the law of domicile of the deceased at the time of his/her death. This basically means that with respect to movable property it shall be governed by the law of the jurisdiction/place where the testator was residing when they died.
- Section 39 provides that the capacity of a person to make a will is governed by the law of nationality at the time when the person makes their Will. Hence, if the person holds Thai nationality at the time that they make their Will then Thai law relating to capacity shall apply to determining if the testator had enough capacity when they made their Will.
Dharmniti Law Office Co., Ltd.
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