Although it can be difficult and uncomfortable to contemplate, it is prudent to plan ahead as to how your assets will be managed when you pass away to ensure those assets will be properly distributed to your loved ones. A will can be subject to many legal complications, potentially leading to its being invalid. Here are some of the critical things you need to know in order to write a will that is legally enforceable as a matter of Thai law.
The person who makes a will is called a testator. Only a natural person can be a testator since a juristic person or entity cannot naturally pass away (but can be dissolved). For the will to be valid, the testator must not be acting under duress, mistake, or the effects of fraud, or else the will can be later revoked or otherwise held invalid.
Legal Age for Testator
According to Section 25 of the Civil and Commercial Code of Thailand (“CCC”), the testator must be 15 years or older. He/she by himself/herself can make a will without having to seek consent from his/her legal representative (e.g. parents). A will made by a person under the age of 15 will be rendered void. This is different from other juristic acts, for example, a sale and purchase agreement of land, where, if made by a person under the age of 20, will be rendered voidable unless consent from a legal representative is obtained.
According to Section 1704 of the CCC, a person adjudged to be incompetent or of unsound mind cannot make a will. An incompetent person is a person who is incapable of managing his/her affairs. If he/she makes a will, it will be rendered void. However, a quasi-incompetent person (a person who has a physical or mental infirmity, habitual intoxication, or other similar causes that make him/her incapable of managing his own affairs) can make a will without having to seek consent from his/her guardian. However, his/her will is capable of being subsequently challenged if found to be made while he/she was intoxicated or incapable of managing his/her affairs.
Types of Thai Will
There are several types of will permitted under Thai inheritance law: An ordinary (simple) will, a holographic will (a handwritten will), a public document will, a secret document will, and an oral will. Each will is subject to its own particular requirements. For example, a holographic will does not require any witnesses, however, the entire will must be hand-written by the testator. Other than a simple will, a public document will is also common since the testator must register his/her will with a district office (Amphur) with two witnesses present, making it easily verifiable. The most straightforward form of will is the simple will where two witnesses are required to be present when the will is executed.
Witness to a Will
Witnesses play a very important role when it comes to making a will. A witness cannot be a minor (a person under the age of 20), a person of unsound mind, a person adjudged to be quasi-incompetent, or a person who is deaf, dumb, or blind. A witness to a will must affix his/her signature. He/she cannot use his/her fingerprint or affix a seal or make a cross to witness a will being made. The most important thing to bear in mind is that the witness to a will cannot be a beneficiary. If a beneficiary does witness a will, that will is still valid in the event the correct number of witnesses is fulfilled, but the beneficiary will not be able to inherit any part or whole of the estate provided in the will. In addition, the spouse of any witness cannot be a beneficiary. Equally, the person who writes or types the will for the testator, including his or her spouse, cannot be a beneficiary.
Electronic wills are not yet acceptable under Thai succession law. Even though the Electronic Transactions Act B.E.2544 (2001) was enacted in order to support the significant increase in electronic transactions, it is clearly specified that the act does not apply to transactions relating to family and inheritance matters. This means that any signature to a will affixed electronically, even in the presence of sufficient witnesses, renders a will invalid under Thai law.
Thailand Probate Lawyer
Siam Legal is a law firm in Thailand that offers various services that are designed to protect the rights and interests of foreigners in Thailand. Should you have any questions or issues relating to Last Will and Testament, our team of Thai probate and property lawyers invites you to contact us through the link below: