Wissen & Co Gives Advice on the Last Will

Wissen & Co., a premium member of the Thai-Norwegian Chamber of Commerce, has kindly provided an advice on the Last Will and Testament.

The Definition of a Last Will

A Last Will is the last and final order or desire of a person to indicate the intention regarding assets or any business and matter. The Last Will becomes legally effective after a person has passed away. Under The Civil and Commercial Code of Thailand, assets of a deceased without a Last Will will be distributed to the heirs as stipulated in the law, the socalled “statutory heirs”. A Last Will changes the automatic distribution to the statutory heirs and is the assurance of your intention or desire on how your assets will be managed, and to whom your assets will be given.

Heirs and Inheritance Order

Section 1629 of The Civil and Commercial Code of Thailand indicates six statutory heirs who are entitled to receive the assets of the deceased per the order as follows:

1. Direct descendants, i.e., son and daughter (including an illegitimate child who has been legitimated by his father. Note that a child is always legitimate to its mother) as well as an adopted child who has been registered for adoption by law.
2. Father and Mother
3. Brother and Sisters of the same parents
4. Brothers and Sisters of the same father or the same mother
5. Grandfathers and Grandmothers
6. Uncles and Aunts

As long as there is any heir surviving or representing in a class as specified in Section 1629 as the case may be, the heir of the lower class has no right to the estate of the deceased. However, surviving parents of the deceased are also entitled to the same share of the inheritance as an heir in the degree of children, i.e., direct descendants and parents are entitled to equally receive the assets of the deceased.

For instance, Mr. A and Mrs. A were a married couple. In case of Mrs. A died, the assets of Mrs. A will be shared among Mr. A, children of Mrs. A, and the parents of Mrs. A. Surviving spouse is also a statutory heir who is entitled to the inheritance as follows:

• If the deceased person has children, the spouse is considered as the heir under the same level of children. In case the deceased has two children, the spouse will be entitled to share the inheritance equally with the with children.
• If the deceased person has no children, but still has parents or siblings of the same parents; the spouse will be entitled to only half of the inheritance; the other half will be given to the parents.
• If the deceased person has no children, but still has a sibling of the same father or the same mother, or grandparents, or uncles and aunts, the spouse will be entitled to two-thirds of the inheritance.
• If there is no statutory heirs as per Section 1629 above, the spouse will be entitled to all the inheritance of the deceased. Please further note that if the deceased’s asset is marital property, i.e. assets acquired during the marriage, such shall firstly be divided to the spouse in a half then it will be distributed to statutory heirs in accordance with the inheritance order as mentioned above.

The Thai laws respects and permits the Last Will of a person to state how and to whom the inheritance will be given and it may be different to the order of heirs and conduction as stipulated under The Civil and Commercial Code.

The Benefits of Having a Last Will

The Last Will will provide comfort to the person after his death that his/her assets will be given to the person(s) he/she wants only, and the heirs and children including his/her spouse will be treated in the way he/she feels comfortable. In addition, the benefits of having Last Will can be summarised as follows:

1. Allocation and distribution of the inheritance to anyone different from the law or statutory heirs, such as lifetime partner, etc. Indication of a trusted person to manage the distribution of the inheritance, so-called “Estate Administrator or Executor”.
2. A guardian for the under-aged children (a person under 20 years old) can be selected by the Last Will. If parents of the children pass away leaving children behind, without the Last Will, the Court may appoint anyone who is deemed appropriate by the court to be a guardian for them. Such a person can decide on all matters relating to any transaction that the children cannot do by their own under the law.
3. A “Controller of Property” can be appointed in case the inheritance is given to a child under the age of 20 years, or a person of quasi-incompetent or incompetent as adjudged by the court.
4. Setting up conditions to manage assets/estates for the benefit of the heirs or persons who will receive the inheritance.

Under Thai law, there are five formalities of Last Will which can be made only in any one of the forms as listed below. Last Will made in a different form from the below is deemed void.

Simple Last Will

The Simple Last Will can be made in writing or typing to be specified with the date of making Last Will. It can be signed by the testator in front of at least two witnesses present at the same time who shall then and there sign their names certifying the signature of the testator. The erasure, addition, or other alternation of such Last Will is valid, provided that it is made in the same form as mentioned above.

Last Will by handwriting

The testator must write in his/her own hand the full text of the document which much be signed and dated. A computer (or typewriter) printed document is not accepted or allowed.

Last Will as a public document

A Last Will can be made as a public document through the following steps:

• The testator must declare to the District Officer in front of at least two other persons as witnesses present at the same time to understand what dispositions he/she wishes to be included in this will.
• The District Officer must note down such declaration of the testator and read it to the latter and to the witnesses.
• The testator and the witnesses must sign their names after having ascertained that the statement noted down by the District Officer corresponds with the declaration made by the testator.
• The statement noted down by the District Officer shall be dated and signed by such an official who shall certify under his hand and seal that the will has been made in compliance with the foregoing steps. No erasure, addition, or other alternation in such will is valid unless signed by the testator, the witness, and the District Officer.

Last Will as a secret document

A secret Last Will can be made through the following steps:

• The testator must sign his/her name on the document.
• He/She must close up the documents and sign his name on the document.
• He/She must produce the closed document before the District Officer and at least two other persons as witnesses and declare to all of them that it contains his testamentary dispositions; if the testator has not written the whole text of the document with his own hand, he must state the name and domicile of the writer.
• After the District Officer has noted down upon the cover of the document the declaration of the testator and the date of the production and has affixed his seal thereupon, the District Officer, the testator, and the witness must sign their names thereon. No erasure, addition, or other alternation in such will is valid unless signed by the testator.

Oral Last Will

When under exceptional circumstances, such as the imminent danger of death, or during an epidemic or war, a person is prevented from making his will in any other of the prescribed forms, he may make an oral Last Will by declaring his intention regarding the dispositions of the will before at least two witnesses present at the same time. Then, such witnesses must without delay appear for the District Officer and state before him the dispositions which the testator has declared to them orally, as well as the date, place, and exceptional circumstances under which the will was made. In any case, the writer or witness of Last Will cannot be a beneficiary of the Last Will, which includes the spouse of the beneficiary as well. For example, if Mr. A indicates in his Last Will that all inheritance will be given to Mr. B, his business partner, Mr. B and his wife cannot be a writer of the Last Will, nor a witness to that Last Will, otherwise, such Last Will regarding that intention is void.

Voiding the Last Will

The Last Will is an important legal document dealing with the estate, property, or assets after the death of the owner of the estate. The Civil and Commercial Code indicates clearly how this legal document can be made and which form and formality, as mentioned above, will have to be taken. Thus, there has been the number of cases in court to challenge the validity of the Last Will. Here are some examples of how a Last Will is deemed void and not enforceable.

• The Last Will is made by a person under the age of 15
• The Last Will is written by other persons, not the deceased is made without 2 witnesses who must be sue Juris (over 20 years old) and not a beneficiary to the Last Will or made without the date of making the Last Will.
• The Last Will indicates a condition that the beneficiary to the Last Will shall dispose of his own property for the benefit of the Last Will testator or third party.
• The Last Will indicates a beneficiary whose identity cannot be ascertained.
• The Last Will indicates ownership of property that cannot be ascertained.
• The Last Will indicates the requirement to of the beneficiary to dispose of the inheritance assets for the benefit of others.
• The Last Will is made under duress, e.g., threats to life or freedom, etc.
• The Last Will is made by mistake or by fraud.
• The Last Will is not made per the formality specified by the law as mentioned above.

Furthermore, a Last Will will be a disposition of property or other matters which shall take effect according to the law after death only. In this regard, if such Ganancial Property (during marriage) or common property between the deceased and third party and such property is disposed in favour of other persons exceeding his own portion, the said terms shall have no effect but it does not prejudice to other terms, which refers to the Supreme Court judgement No. 2874/2559 held in 2016. That means if the Last Will indicates assets or properties which belong to the spouse as well, such assets or properties will not be valid but the Last Will is still valid only for the other terms stated in the Last Will.

In conclusion, Thai law respects the intention of the owner of assets after his/her decease on how the owner of the assets want his/her assets to be distributed regardless of the entitlement of inheritance by the heirs as stipulated in the Thai Civil and Commercial Code.

About Wissen and Co Limited

Wissen & Co Limited is a Thai legal services were formed by a group of lawyers having extensive experience in both domestic and international business environment for a great number of years. The firm is broad-based commercial and business practice acting primarily for multinational corporations conducting operations in Thailand. The firm also advises shareholders, management, executives, and personnel in their analysis and decision-making in Thailand. Wissen & Co is also a corporate member of Norwegian Chamber of Commerce. In Areas of Practice, the firm provides legal services in general commercial practice, also specialises and renders advice in a wide area of legal matters, including all aspects of business-related matters, mergers and acquisition, contracts, labour law, dispute resolution, and litigation, etc. The services also extended to company secretarial service, work permits, immigration matters, and translation of legal-related documents. To learn more about Wissen & Co Limited’s services, please visit: www.wissenandco.com or contact Mr. Wichien Harnpraween, Managing Partner, Wissen & Co Limited at [email protected]

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