19 September, 2012

 

 

1 Is a Will a public document in your jurisdiction?
 
A Will in Thailand is not considered to be a public document. 
 
In Thailand, there are five forms of a Will: General Will (written), Holographic Will, Public Will, Secret Will, and Oral Will. Although the third, fourth, and fifth forms of Will (Public Will, Secret Will, and Oral Will) are created by having the testator make declarations to a competent District Official (“Kromakarn Amphoe”), such a Will is never divulged publicly during the lifetime of the testator. Thai law does not specifically address who has access to the Will upon the death of the testator. However, in practice only interested persons such as the executor, beneficiaries and statutory heirs have access to it.
 
2 What are the principal formal requirements for a valid Will or other testamentary disposition in your jurisdiction? Please include in your answer any special requirements relating to execution.
 
The principal formal requirements for a valid Will in Thailand are as follows:
 
(i) It must be made by a person of at least 15 years old;
(ii) The author of the Will or his/her spouse (where the author is not the testator), and a witness or his/her spouse, cannot be a beneficiary under the Will;
(iii) It cannot appoint a beneficiary on the condition that the beneficiary shall make the testator, or a third party, the beneficiary of his own Will;
(iv) It must be possible to ascertain the identity of any beneficiary;
(v) It must be possible to ascertain the identity of the property bequeathed;
(vi) It must not include gifts to be made prior to the death of the testator; and
(vii) It must be made in accordance with the requirements below prescribed in Chapter 2 of Title 3 in Book 6 of the Civil and Commercial Code (“CCC”).
 
The following types of Will are recognised under Thai law:
 
(i) A General Will: whereby the Will must be made in writing, dated at the time of the making of the Will, signed by the testator before at least two witnesses present at the same time, and signed by the witnesses to certify the signature of the testator.
(ii) A Holographic Will: whereby the whole text of the document must be written by the testator’s own hand and the document must be dated and signed by the testator. This form of Will does not need to be witnessed.
(iii) A Public Will: whereby the testator must declare to the Kromakarn Amphoe, before at least two witnesses, what dispositions s/he wishes to make. The Kromakarn Amphoe must write down the dispositions and read them to the testator and witnesses. The document must be signed by all the parties and the Kromakarn Amphoe must certify under seal and in writing that the Will has been properly made. 
(iv) A Secret Will: whereby the testator must sign the document, seal it and sign his/her name across the place of closure. The testator must declare before the Kromakarn Amphoe and at least two witnesses that the sealed document contains his/her testamentary dispositions. If the testator has not written the document with his/her own hand s/he must state the name and domicile of the author of the whole or part of the document. After the Kromakarn Amphoe has recorded the declaration of the testator and the date of production on the cover of the document, s/he must affix his/her seal on the cover of the document and the testator and the witnesses must signtheir names on the same.
(v) An Oral Will: where, under exceptional circumstances such as imminent danger of death or during epidemic or war, a person is prevented from making his/her Will in any of the other prescribed forms, s/he may make an Oral Will by declaring his/her intention regarding his/her dispositions before at least two witnesses present at the same time. The witnesses must, without delay, appear before the Kromakarn Amphoe and state before him/her the dispositions which the testator has declared to them orally, as well as the date, place and the exceptional circumstances under which the Will was made. Ideally the witnesses should go to the Kromakarn Amphoe within a few days of the Will being made, but a determination of reasonable delay is made on a case by case basis. By way of example, the Thai Supreme Court has held that a delay of eight days after the testator’s declaration is unreasonable for a witness who lived near the Kromakarn Amphoe. The Kromakarn Amphoe shall write down the statement of the witnesses and this statement must be signed by the witnesses. The official who records the statement made by the witnesses cannot be a beneficiary of the Will. An Oral Will loses its validity one month after the exceptional circumstances surrounding the testator have ceased.
 
A Public or Secret Will is kept with the Kromakarn Amphoe, who is bound to hand over the same to the testator at hisrequest. Similarly, the written statement relating to the Oral Will is kept by the Kromakarn Amphoe.
 
3 In what circumstances will a court in your jurisdiction regard a Will as duly executed even though it does not fulfil these formal requirements (for example, because it fulfils the requirements for the execution of a Will in another jurisdiction)?
 
If the formal requirements for execution of a Will in Thailand are not satisfied, a Will may still be regarded as duly executed if the Will is made in accordance with the form prescribed by the law of the country of the testator’s nationality or the form prescribed by the law of the country where the Will was made (see Conflict of Laws Act B.E. 2481).
 
4 How can a Will be amended or revoked and what is the effect of marriage and divorce in this regard? 
 
Amendment 
 
For a General Will, amendments have to be in writing, dated, and signed by the testator before at least two witnesses, who sign to certify the signature of the testator. For a Holographic Will, the testator has to amend and sign the Will all by hand. Amendments to a Public Will must be signed by the testator, two witnesses and the Kromakarn Amphoe. The law does not stipulate where on the Will the testator, witnesses or the Kromakarn Amphoe must sign. It is common practice for the relevant parties to sign/initial the Will in the margin, next to the amendment. 
 
For a Secret Will, because the testamentary depositions are sealed, the testator must re-do the whole process of execution. Amendments have to be personally signed by the testator, who then must close up the Will and resign his/ her name across the place of closure. Then s/he must resubmit the closed Will to the Kromakarn Amphoe and declare in the presence of two witnesses that the document contains his/her testamentary dispositions. The Kromakarn Amphoe must affix his/her seal to the cover of the document and the testator and witnesses must sign the same.
 
Revocation
 
The testator can revoke the Will in part or in whole by intentional destruction (e.g. by tearing the Will) or by cancellation (e.g. by crossing out words on the Will). In the case of a cancellation, the law only requires the testator to cross out the words with the intention of cancelling them. Once the words are intentionally crossed out the cancellation is complete. The testator does not need to sign or mark the Will again. In the event that the Will was executed with several duplicates, the revocation is effective only after all duplicates are destroyed. Similarly, an amendment to a Will should be made to all duplicates. A subsequent Will shall have the effect of revoking a previous Will if the subsequent Will is made in any form described in section two above. If it appears that a former and latter Will are in conflict, the former is deemed to have been revoked only to the extent that it conflicts with the subsequent Will. Furthermore, as explained in section two, an Oral Will loses its validity one month after the exceptional circumstances have ceased.
   
Effect of marriage and divorce
 
Marriage and divorce will only affect a Will where the Will describes a person generically by reference to the person’s relationship to the testator rather than by name. For example, if the Will describes a person as “my wife”, a divorce would mean the ex-wife is no longer an heir under the Will and any new wife will automatically take the place of the ex-wife.
 
5 Can an overseas Will govern movable and immovable assets in your jurisdiction?
 
Yes. Provided the Will complies with Thai law, it can govern immovable and movable assets in Thailand. Pursuant to Section 37 of the Act on Conflict of Laws, in relation to the succession of immovable property, the law of the place where such property is situated shall govern. Section 38 of the same Act stipulates that, as far as movable property is concerned, succession is governed by the law of the domicile of the deceased at the time of his death.
 
6 Would an executor or administrator appointed under another jurisdiction be recognised in your jurisdiction as having the power to collect in assets?
 
In practice, most government agencies and banks will deny the foreign appointed executor or administrator the right to manage the estate in Thailand without an order issued by a Thai court confirming the status of the executor or administrator.
 
A foreign-appointed executor or administrator needs to submit evidence of his/her status in the other jurisdiction and demonstrate, by virtue of a court order, Will or copy of the relevant provisions of the foreign law, that s/he is lawfully appointed in that foreign territory. 
 
7 Are there forced heirship rules in your jurisdiction?
 
There is no concept of forced heirship in Thai law.
 
8 In what circumstances can an executor, administrator or equivalent be removed?
 
An interested person may apply to the Thai court to seek the discharge of an administrator. The administrator can be removed by the court if s/he neglects his/her duties, or for any other reasonable cause. For example, the administrator can be discharged by the court in the event that s/he has not produced an inventory of the estate in the requisite time and prescribed form due to gross negligence, dishonesty or obvious inability to do so. Other examples of reasonable cause include intentionally failing to perform obligations under a Will, giving special treatment to a beneficiary with whom the administrator has a relationship, and performing obligations in a dishonest manner.
 
9 Other than the failure to observe the formal requirements, how else can a Will be challenged?
 
Any interested person may apply to the court to have a Will cancelled on account of duress. Such an application is not possible if the testator continued to live for more than a year after s/he ceased to be under the influence of the duress.
 
A Will may be cancelled on account of mistake or fraud if the mistake or fraud is such that without it the Will would not have been made. If the testator failed to revoke the Will within one year of discovering the mistake or fraud, it will not be subject to cancellation. 
 
A Will cannot be made by an incompetent person. A person of unsound mind is adjudged by the court to be incompetent upon application of his/her ascendants, descendants, spouse, curator, or person who takes care of him/her, or by a public prosecutor. The applicant needs to demonstrate to the court that the testator, at the time the Will was made, had suffered from illness which meant the testator was unable to manage his/her personal business on a day to day basis. For example, the testator could suffer from unconsciousness, loss of recognition, unsound mannerisms, Alzheimer’s disease, other very serious disease or loss of sensibility and/or have no ability to communicate.
  

If the court had already declared the testator incompetent at the time that the Will was made, the Will is void. If the testator had not been declared incompetent at the time that the Will was created, the Will may still be annulled if it is proven that, at the time the Will was made, the testator was of unsound mind. Once a person is judged incompetent he will be judged to have died intestate.

  

10 If someone dies intestate, how are the assets administered and distributed?
 
Where a person dies without having a Will, or the Will has no effect, the estate shall be distributed amongst his statutory heirs in accordance with Sections 1620 and 1699 of the CCC. The statutory heirs are classified into the following six classes and each class is entitled to inherit differently:
 
(i) Descendants;
(ii) Parents;
(iii) Brothers and sisters of full blood;
(iv) Brothers and sisters of half blood;
(v) Grandfathers and grandmothers; and
(vi) Uncles and aunts.
 
The intestacy rules in Thailand are complex. Subject to some exceptions, where the testator dies leaving no spouse, the statutory heirs inherit in the order above. For example, if the deceased, A, has 3 children, B, C and D and A dies intestate, his three children are entitled to A’s estate by dividing it into three equal amounts. However, if C dies before A, C’s child, E, is entitled to C’s share by way of representation. Neither B’s nor D’s children would be entitled to A’s estate
because the nearest descendants, B and D, are still alive. The statutory heirs of the same class in any of the classes are entitled to equal shares. If there is only one statutory heir in such class, s/he is entitled to the entire portion. An heir of a higher class excludes all heirs in lower classes.
 
 The surviving spouse is also a statutory heir and his/her share is determined as follows:
 
a) If there is a direct descendant or representatives of such heirs, the spouse is entitled to the same share as the children (for example, if there are three children and a spouse, the estate would be divided equally between the three children and the spouse);
b) If there is a surviving parent, the spouse is entitled to one-half of the estate and the parent(s) is/are entitled to one-half of the estate (in equal shares if more than one parent is alive);
c) If there is a sibling of whole blood, the spouse is entitled to one-half and the siblings are entitled to one-half (in equal shares);
d) If there is an heir in class (iv), (v) or (vi) (an heir in a higher class excluding any heirs in the lower classes), the spouse is entitled to two-thirds of the inheritance and the statutory heirs in the other class are entitled to one-third of the
estate in equal shares; or
e) If there is no heir as specified in classes (i)-(vi), the spouse is entitled to the whole inheritance. 
 
Subject to the rights of any creditor of the estate, if, at the date of death of the testator there are no statutory heirs andthe testator dies intestate, the estate shall pass to the State in accordance with Section 1753 of the CCC.
 
11 If a Will is valid, can someone who feels they have been inadequately provided for bring a claim?
 
No. Moreover, it is not possible to bring a claim for maintenance where a person has been supported by the deceased prior to his/her death. The legal duty to provide maintenance to certain persons is purely personal to the deceased and will not devolve on the heirs. As such, a claim for maintenance is not supported by law.
 
12 Is there inheritance tax (or any equivalent such as stamp duty) in your jurisdiction?
 
Currently, inheritance tax is not levied in Thailand, but after inheriting the assets, the heir is subject to income tax if the heir sells any immovable inherited property.
 
The current income tax rate in Thailand is a progressive rate based on net income, as follows: income of Baht 1-150,000 is exempt; Baht 150,001-500,000 is taxed at 10%; Baht 500,001-1,000,000 is taxed at 20%; Baht 1,000,001-4,000,000 is taxed at 30%; and Baht 4,000,001 onwards is taxed at 37%. For inherited immovable property, the seller shall be liable for withholding tax calculated on the basis of income tax specified above from the whole value of the property on the registration of land transfer, which is calculated by deducting expenses at 50% of the sale price, divided by the number of years the seller held such property (if more than 10 years, divide by 10 (with fractions of days counted as 1 year)), then multiplying by the income tax rate and the number of years that the seller held such property. Please note that the income tax rate for Baht 1-150,000 after
deduction of expenses is calculated at 5%. For example:
 
• Mr. A sold inherited immovable property = 3,000,000
• Subtract expenses deduction of 50% (from 3,000,000) = 1,500,000
• Divide by the number of years that the seller held the property [Property held for 5 years, so it is 1,500,000/5] = 300,000
• Multiply by income tax [5% of 150,000= 7,500] + [10% of 150,000= 15,000] = 22,500
• Multiply by the number of years the property was held (22,500*5) = 112,500
 
The withholding tax as explained above is compulsory for every sale of immovable property. However, for annual income tax purposes, the seller has two options:
(i) Separate income from the sale of immovable property and pay only the withholding tax which is already withheld on the date of sale. Using this option, the calculated tax shall not exceed 20% of the sale price (if the calculated tax
exceeds 20%, tax shall be assessed at 20% according to the Royal Ordinance); or 
(ii) Merge the income from the sale of immovable property with other income per annum and calculate the total together. This option is used in rare cases where a tax credit from the sale of immovable property helps reduce the overall net income tax per annum of the seller and results in a lower tax burden for that year.
 
13 Does your jurisdiction recognise trusts or other separation of legal and beneficial ownership?
 
No, in general Thai law does not recognise trusts. The only valid and recognised trust under Thai law is a trust established under the Trust for Transactions in Capital Market Act B.E. 2550 (2007), which allows a trust to be created for the benefit of transactions in the capital markets by any of the following legal persons: 
 
(i) A company issuing securities under the Securities and Exchange Act;
(ii) An originator under the Royal Enactment on Special Purpose Juristic Persons for Securitisation; or
(iii) A legal person having the requisite qualifications specified in the notification of the Securities and Exchange Commission.
 
14 Does a professional executor or trustee (or equivalent) in your jurisdiction require a licence?
 
Professional executor
 
There is no concept of professional administrator/executor in Thailand.
 
Trustee
 
Thai law does not generally recognise trusts. However, as explained in section thirteen above, the exception to this rule is a trust established under the Trust for Transactions in Capital Market Act. A trustee for such a trust requires a licence pursuant to the same Act, issued by the Office of the Securities and Exchange Commission.
 
15 Is your jurisdiction a party to the Hague Convention on the Law Applicable to Trusts and on their Recognition?
 
No.
 
16 What are the duties of a trustee (or equivalent) in your jurisdiction?
 
Thai law does not recognise trusts.
 
17 In what circumstances can a trustee (or equivalent) be removed?
 
Thai law does not recognise trusts.
 
18 To what extent can a trustee limit its liability in a trust deed?
 
Thai law does not recognise trusts.
 
19 How can a trustee protect itself if it needs to bring or defend proceedings?
 
Thai law does not recognise trusts.
 
20 What regime is there in your jurisdiction if someone loses capacity e.g. Guardianship Board?
 
A person of unsound mind may be adjudged incompetent by the court on the application of any spouse, ancestor, descendant, guardian or curator, person taking care of that person, or public prosecutor. A person adjudged incompetent must be placed under guardianship.
 
 The factors the court considers in relation to incompetency are explained in section nine above. An act done by a person adjudged incompetent is voidable (except in relation to execution of a Will, in which case the Will made by the adjudged incompetent person will be void – see section nine above).
 
A person, who has a physical or mental infirmity, is habitually wasteful or intoxicated, is incapable of managing his/her own affairs, or whose management is likely to cause detriment to his/her own property or family, can be adjudged as quasi-incompetent by the court. A person adjudged quasi-incompetent will be placed under curatorship. A quasi-incompetent person must first obtain the consent of his/her curator before doing the following acts:
 
(i) Investing his/her property;
(ii) Accepting a return of an invested property, principal or other capital;
(iii) Contracting to enter into a loan, lending money, borrowing money or leasing movable assets;
(iv) Giving security by any means whatsoever that requires him/her to make a forced payment;
(v) Renting or leasing property for longer than six months if the property is movable or for longer than three years if the property is immovable;

 (vi) Making a gift, except if the gift made is suitable for the situation in his/her life or for philanthropic, social status, or moral obligations;

(vii) Accepting a gift that has an encumbrance, or refusing a gift;
(viii) Doing any act with the objective of acquiring, or parting with, a right in an immovable or movable property;
(ix) Constructing or modifying, building, or making extensive repairs;
(x) Entering an action in court or conducting any legal proceedings, except for an application made under Section 35 of the CCC and an application for removal of his/her curator; and
(xi) Entering into a compromise or submitting a dispute to arbitration.
For acts other than those mentioned above, if the conduct of the quasi-incompetent person is to the detriment of his/her property or family, the court may issue an order instructing the quasi-incompetent person to obtain the consent of the curator prior to conducting such acts. 
 
The appointment of a guardian or curator must be made by the court. If a minor (i.e. a person of less than 20 years) has been adjudged incompetent or quasi-incompetent, the parents must be appointed by the court to be the guardian or curator. A minor who has no parents, or whose parents are deprived of their parental power, may be provided with a guardian by order of the court.
 
If a person who is of age is adjudged incompetent or quasi-incompetent, that person’s spouse shall become their guardian or curator. If the person does not have a spouse, the parents of that person shall become the guardian or curator unless the court orders otherwise. The guardian or curator must be a natural person and is typically a relative of such incompetent or quasi-incompetent person. In the event that the incompetent or quasi-incompetent person has no relatives, the public prosecutor shall file an application to appoint a competent government official to be his/her guardian or curator.

 

 
For further information, please contact:
 
Alastair Henderson, Partner, Hebert Smith
alastair.henderson@herbertsmith.com
 
Surapol Srangsomwong, Herbert Smith
surapol.srangsomwong@herbertsmith.com
 

 

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